UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Amendment No. 3
to
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
----------------
Global Crossing Ltd.
(Name of Subject Company)
U S WEST, Inc.
(Bidder)
Common Stock, $.01 Par Value
(Titles of Class of Securities)
CUSIP: G3921A100
(CUSIP Number of Class of Securities) (Common Stock)
U S WEST, Inc.
1801 California Street
Denver, CO 80202
(303) 672-2700
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of bidder)
Copies to:
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6000
Thomas O. McGimpsey, Esq.
U S WEST, Inc.
1801 California Street
Suite 5100
Denver, CO 80202
(303) 672-2712
<PAGE>
U S WEST, Inc. hereby amends and supplements its Schedule 14D-1 and 13D
originally filed on May 21, 1999 (the "Original Filing"), as amended by its
Schedule 14D-1 and 13D, Amendment No. 1, filed on May 24, 1999 and Amendment No.
2, filed on June 8, 1999 (together with the Original Filing, the "Statement")
with respect to the Offer by U S WEST, Inc. to purchase 39,259,305 shares of
Common Stock of Global Crossing Ltd., as set forth in the Statement. Capitalized
terms used herein and not otherwise defined shall have the meaning assigned such
terms in the Statement.
Item 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
The paragraph which begins on page 15 of the Offer to Purchase and carries over
to page 16 of the Offer to Purchase is amended and restated in its entirety as
follows:
"IT IS THE UNDERSTANDING OF THE OFFEROR THAT THE PROJECTIONS INCLUDED
IN THIS OFFER TO PURCHASE WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
PROJECTIONS OR FORECASTS AND ARE INCLUDED HEREIN ONLY BECAUSE SUCH INFORMATION
WAS PROVIDED TO THE OFFEROR. THESE PROJECTIONS ARE SUBJECT TO CERTAIN RISKS AND
UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE
PROJECTIONS. THE COMPANY HAS ADVISED THE OFFEROR THAT ITS INTERNAL FINANCIAL
FORECASTS (UPON WHICH THE PROJECTIONS PROVIDED WERE BASED IN PART) ARE, IN
GENERAL, PREPARED SOLELY FOR INTERNAL USE AND CAPITAL BUDGETING AND OTHER
MANAGEMENT DECISIONS, AND ARE SUBJECTIVE IN MANY RESPECTS AND THUS SUSCEPTIBLE
TO INTERPRETATIONS AND PERIODIC REVISIONS BASED ON ACTUAL EXPERIENCE AND
BUSINESS DEVELOPMENTS. THE PROJECTIONS ALSO REFLECT NUMEROUS ASSUMPTIONS (NOT
ALL OF WHICH WERE PROVIDED TO THE OFFEROR), ALL MADE BY MANAGEMENT OF THE
COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC,
MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS, INCLUDING EFFECTIVE TAX RATES
CONSISTENT WITH HISTORICAL LEVELS FOR THE COMPANY, ALL OF WHICH ARE DIFFICULT TO
PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF WHICH WERE
SUBJECT TO APPROVAL BY THE OFFEROR. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT
THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL PROVE ACCURATE, AND
ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE
PROJECTIONS. THE INCLUSION OF THE PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS
AN INDICATION THAT THE OFFEROR, THE COMPANY OR THEIR RESPECTIVE AFFILIATES OR
REPRESENTATIVES CONSIDERED OR CONSIDER THE PROJECTIONS TO BE A RELIABLE
PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS SHOULD NOT BE RELIED UPON AS
SUCH. NONE OF THE OFFEROR OR ITS AFFILIATES ASSUMES ANY RESPONSIBILITY FOR THE
VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE PROJECTIONS. NONE OF
THE OFFEROR, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES OR
REPRESENTATIVES INTENDS TO UPDATE OR OTHERWISE REVISE THE PROJECTIONS TO REFLECT
CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT THE OCCURRENCE OF
FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING
THE PROJECTIONS ARE SHOWN TO BE IN ERROR. (THE "SAFE HARBOR" PROVISIONS OF THE
PRIVATE SECURITIES LITIGATION ACT OF 1995 RELATING TO "FORWARD LOOKING
STATEMENTS" (SECTION 21E (C) OF THE EXCHANGE ACT) DOES NOT APPLY TO STATEMENTS
MADE IN THIS OFFER TO PURCHASE.)"
Item 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
In connection with obtaining funds to finance the purchase of the
Shares, the Offeror has obtained up to $1,000,000,000 of the necessary financing
from the proceeds of a private placement of debt securities by a subsidiary of
the Offeror, U S WEST Capital Funding, Inc. under Rule 144A of the Securities
Act, (the "Debt Securities"). The Debt Securities are in the aggregate amount of
$1,000,000,000 and are issued as a separate series of debt securities under an
Indenture dated as of June 29, 1998, as supplemented and amended from time to
time, among U S WEST Capital Funding, Inc. (the "Issuer" or the "Borrower"), the
Offeror and The First National Bank of Chicago
-2-
<PAGE>
(the "Indenture"). The Offeror unconditionally guarantees the obligations of the
Issuer under the Indenture. The Debt Securities mature on June 15, 2000.
The Debt Securities bear interest at a rate per annum, reset quarterly,
equal to three-month LIBOR plus 45 basis points. Interest is payable quarterly
in arrears on September 15, 1999, December 15, 1999, March 15, 2000 and June 15,
2000 (each an "Interest Payment Date"). The Debt Securities are redeemable at
the option of the Issuer, in whole but not in part, on any Interest Payment Date
at 100% of the principal amount thereof plus accrued and unpaid interest. The
Indenture (pursuant to which $3.5 billion of debt securities of the Issuer, in
addition to the Debt Securities, is outstanding on the date hereof) includes
other customary provisions including provisions relating to events of default
and certain covenants. The foregoing summary of the terms of the Debt Securities
and the Indenture is qualified in its entirety by reference to the Indenture, a
copy of which is filed as an Exhibit to the Schedule 14D-1 filed by the Offeror
with the Commission with respect to the Offer.
The Offeror and the Issuer currently intend to finance the repayment of
the Debt Securities by issuing commercial paper and/or public or private,
long-term debt. No agreements currently exist with respect to any such
refinancing.
In addition, the Offeror currently intends to cause the Issuer to issue
commercial paper in the amount of $1.5 billion to be utilized by the Offeror to
finance the offer. The commercial paper will be unconditionally guaranteed by
the Offeror. Such commercial paper issued by the Issuer and guaranteed by the
Offeror will represent unsecured obligations of both entities. The commercial
paper will carry a maturity of up to 360 days and will be issued at market
commerical paper rates. The commercial paper will be back-stopped by a $1.5
billion credit facility to be provided by a group of banks, for which Morgan
Guaranty Trust Company of New York will act as agent, which borrowings will be
unconditionally guaranteed by the Offeror (the "Credit Facility"). The Credit
Facility will be provided pursuant to a Credit Agreement dated as of, and
entered into on, June 11, 1999, between the Borrower, the Offerer, the banks
party thereto and Morgan Guaranty Trust Company of New York (the "Credit
Agreement") The Maturity Date for amounts outstanding under the Credit Facility
is the earlier to occur of (i) June 9, 2000 and (ii) the Effective Time of the
Mergers. The Credit Facility provides for Adjusted Libor borrowings and Base
Rate borrowings. Base Rate borrowings bear interest at the Base Rate (which is
defined as the higher of (i) the agent's prime rate and (ii) the Federal funds
rate plus 0.50%). Adjusted Libor borrowings bear interest at the Adjusted London
Interbank Offered Rate (as defined in the Credit Agreement) plus the Euro-Dollar
Margin (as described below). In addition, a facility fee is due and payable with
respect to the Credit Facility at the rate per annum described below.
The "Euro-Dollar Margin" and Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
- --------------------------------------------------------------------------------
Level Level Level Level Level Level Level
Status I II III IV V VI VII
- --------------------------------------------------------------------------------
Euro-Dollar Margin .365% .430% .545% .650% .750% 1.100% 1.550%
- --------------------------------------------------------------------------------
Facility Fee Rate .060% .070% .080% .100% .125% .150% .200%
- --------------------------------------------------------------------------------
For purposes of the foregoing table, the following terms have the
following meanings:
"Creditwatch Expiration Date" is the first date on which the Offeror's
ratings have been removed from creditwatch (or the equivalent) by S&P and
Moody's.
"Level I Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Offeror are rated A+ or
higher by S&P (as defined below) or A1 or higher by Moody's (as defined below)
and (ii) Minimum Short-Term Credit Ratings are in effect.
"Level II Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Offeror are rated A or
higher by S&P or A2 or higher by Moody's and (y) Minimum Short-Term Credit
-3-
<PAGE>
Ratings (as defined below) are in effect and (ii) Level I Status does not exist.
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Offeror are rated A- or
higher by S&P or A3 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) neither Level I Status nor Level II Status
exists.
"Level IV Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Offeror are rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) none of Level I Status, Level II Status or Level
III Status exists.
"Level V Status" exists at any date if, at such date, (i)(x) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Offeror are rated BBB or higher by S&P and Baa2 or higher by Moody's and (y)
Minimum Short-Term Credit Ratings are in effect and (ii) none of Level I Status,
Level II Status, Level III or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Offeror are rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Level VII Status" exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status, Level IV Status, Level V Status or
Level VI Status exists.
"Minimum Short-Term Credit Ratings" are in effect on any day on which
the Borrower's short-term debt is rated A-2 or higher by S&P and P-2 or higher
by Moody's.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status, Level VI Status or
Level VII Status exists at any date.
For purposes of the foregoing, the credit ratings to be utilized for senior
unsecured long-term debt securities are those assigned to the senior unsecured
long-term debt securities of the Borrower guaranteed by the Offeror, the credit
ratings to be utilized for short-term debt are those assigned to the commercial
paper of the Borrower, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
Other customary terms and conditions are applicable to the Credit
Facility.
A copy of the Credit Agreement is filed as an Exhibit to the Schedule
14D-1 filed by the Offeror with the Commission with respect to the Offer and the
foregoing description of the terms of the Credit
-4-
<PAGE>
Facility is qualified in its entirety by reference to the Credit Agreement.
The Offeror and the Borrower currently intend to refinance the
commercial paper and/or amounts borrowed under the Credit Facility by issuing
commercial paper and/or, public or private, long-term debt. No agreements
currently exist with respect to any such refinancing.
Item 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by the addition of the following exhibits:
(b) (5) Indenture dated June 29, 1998, among U S WEST Capital
Funding, Inc., U S WEST, Inc., and The First National Bank of
Chicago.
(b) (6) Credit Agreement dated as June 11, 1999, among U S WEST
Capital Funding, Inc., U S WEST, Inc., the banks listed
therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent.
-5-
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: June 11, 1999
U S WEST, INC.
/S/ THOMAS O. MCGIMPSEY
By: _________________________________
Name: Thomas O. McGimpsey
Title: Assistant Secretary and
Senior Attorney
-6-
<PAGE>
EXHIBIT INDEX
(b) (5) Indenture dated as of June 29, 1998, among U S WEST
Capital Funding, Inc., U S WEST Inc. and The First National
Bank of Chicago.
(b) (6) Credit Agreement dated as of June 11, 1999 among U S WEST
Capital Funding, Inc., U S WEST Inc., the banks listed
therein and Morgan Guaranty Trust Company of New York, as
administrative agent.
-7-
Exhibit (b)(5)
================================================================================
U S WEST CAPITAL FUNDING, Inc.,
Issuer,
U S WEST, Inc.,
Guarantor
and
The First National Bank of Chicago,
Trustee
INDENTURE
Dated as of June 29, 1998
Providing for the Issuance of Debt
Securities in Series
of Guaranteed Debt
<PAGE>
TIE-SHEET
Reconciliation and tie between Indenture dated as of June 29, 1998 and the
Trust Indenture Act of 1939. This reconciliation section does not constitute
part of the Indenture.
TRUST INDENTURE ACT INDENTURE
OF 1939 SECTION SECTION
------------------- ---------
301(a)(1)..........................................................7.10
(a)(2)..........................................................7.10
(a)(3)..........................................................Inapplicable
(a).............................................................Inapplicable
(b).............................................................7.08, 7.10
(c).............................................................Inapplicable
311(a).............................................................7.11
(b).............................................................7.11
(c).............................................................Inapplicable
312(a).............................................................2.07
(b).............................................................10.03
(c).............................................................10.03
313(a).............................................................7.06
(b)(1)..........................................................Inapplicable
(b)(2)..........................................................7.06
(c).............................................................4.02, 11.02
(d).............................................................7.06
314(a).............................................................4.02, 11.02
(b).............................................................Inapplicable
(c)(1)..........................................................11.04
(c)(2)..........................................................11.04
(c)(3)..........................................................Inapplicable
(d).............................................................Inapplicable
(e).............................................................11.05
(f).............................................................Inapplicable
315(a).............................................................7.01(b)
(b).............................................................7.05, 11.02
(c).............................................................7.01(a)
(d).............................................................6.05, 7.01(c)
(e).............................................................6.07, 6.11
316(a) (last sentence).............................................2.11
(a)(1)(A).......................................................6.05
(a)(1)(B).......................................................6.04
(a)(2)..........................................................Inapplicable
(b).............................................................6.07
317(a)(1)..........................................................6.01, 6.08
(a)(2)..........................................................6.09
(b).............................................................2.06
318(a).............................................................11.01
<PAGE>
TABLE OF CONTENTS*
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions
Section 1.02 Other Definitions
Section 1.03 Incorporation by Reference of Trust Indenture Act
Section 1.04 Rules of Construction
ARTICLE 2.
THE SECURITIES
Section 2.01 Issuable in Series
Section 2.02 Establishment of Terms and Form of Series of Securities
and Guarantees
Section 2.03 Execution, Authentication, and Delivery
Section 2.04 Registrar and Paying Agent
Section 2.05 Payment on Securities
Section 2.06 Paying Agent to Hold Money in Trust
Section 2.07 Securityholder Lists; Ownership of Securities
Section 2.08 Transfer and Exchange
Section 2.09 Replacement Securities
Section 2.10 Outstanding Securities
Section 2.11 Treasury Securities
Section 2.12 Temporary Securities
Section 2.13 Cancellation
Section 2.14 Defaulted Interest
Section 2.15 Global Securities
Section 2.16 Unconditional Guarantee
Section 2.17 Execution of Guarantees
Section 2.18 Assumption by Guarantor
ARTICLE 3.
REDEMPTION
Section 3.01 Notice to the Trustee
Section 3.02 Selection of Securities to be Redeemed
Section 3.03 Notice of Redemption
Section 3.04 Effect of Notice of Redemption
Section 3.05 Deposit of Redemption Price
Section 3.06 Securities Redeemed in Part
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Securities
Section 4.02 Reports by the Guarantor
Section 4.03 Lien on Assets
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 When the Company May Merge, etc.
Section 5.02 When the Guarantor May Merge, etc.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default
Section 6.02 Acceleration
Section 6.03 Other Remedies Available to Trustee
Section 6.04 Waiver of Existing Defaults
Section 6.05 Control by Majority
Section 6.06 Limitation on Suits by Securityholders
Section 6.07 Rights of Holders to Receive Payment
Section 6.08 Collection Suits by Trustee
Section 6.09 Trustee May File Proofs of Claim
Section 6.10 Priorities
Section 6.11 Undertaking for Costs
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee
Section 7.02 Rights of Trustee
Section 7.03 Individual Rights of Trustee
Section 7.04 Trustee's Disclaimer
Section 7.05 Notice of Defaults
Section 7.06 Reports by Trustee to Holders
Section 7.07 Compensation and Indemnity
Section 7.08 Replacement of Trustee
Section 7.09 Successor Trustee, Agents by Merger, etc.
Section 7.10 Eligibility; Disqualification
Section 7.11 Preferential Collection of Claims Against the Company
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's and the Guarantor's
Obligations
Section 8.02 Application of Trust Money
Section 8.03 Repayment to the Company or the Guarantor
Section 8.04 Indemnity for Government Obligations
ARTICLE 9.
AMENDMENTS AND WAIVERS
Section 9.01 Without Consent of Holders
Section 9.02 With Consent of Holders
Section 9.03 Compliance with Trust Indenture Act
Section 9.04 Revocation and Effect of Consents
Section 9.05 Notation on or Exchange of Securities
Section 9.06 Trustee Protected
ARTICLE 10.
SINKING FUNDS
Section 10.01 Applicability of Article
Section 10.02 Satisfaction of Sinking Fund Payments with Securities
Section 10.03 Redemption of Securities for Sinking Fund
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls
Section 11.02 Notices
Section 11.03 Communication by Holders with Other Holders
Section 11.04 Certificate and Opinion as to Conditions Precedent
Section 11.05 Statements Required in Certificate or Opinion
Section 11.06 Rules by Trustee and Agents
Section 11.07 Legal Holidays
Section 11.08 Governing Law
Section 11.09 No Adverse Interpretation of Other Agreements
Section 11.10 No Recourse Against Others
Section 11.11 Execution in Counterparts
Section 11.12 Currencies
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01 Applicability of Article
____________________
*This Table of Contents does not constitute part of this Indenture.
<PAGE>
INDENTURE dated as of June 29, 1998 among U S WEST CAPITAL FUNDING, Inc., a
Colorado corporation (the "Company"), U S WEST, Inc., a Delaware corporation
(the "Guarantor"), and The First National Bank of Chicago, a national banking
association (the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes, or other evidences of indebtedness
("Securities") as herein provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantees of
the Securities on the terms herein provided (the "Guarantees").
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company, or
the Guarantor, as the case may be.
"Agent" means any Paying Agent, Registrar or transfer agent as may be
appointed by the Company from time to time.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder, they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" mean the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case may be, to have been adopted by the Board of Directors
and to be in full force and effect on the date of the certificate.
"Company" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers of the Company.
"Depositary" means, with respect to Securities of any Series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.15.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Guarantee" means the agreement of the Guarantor in the form, set forth in
Section 2.16 hereof, to be endorsed on the Securities authenticated and
delivered hereunder.
"Guarantor" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Global Security" means, with respect to any Series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered Security
is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after maturity, means interest payable
after maturity.
"Officer" means the President, any Executive Vice-President, Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Comptroller or any Assistant Comptroller of the Company or the
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers of the
Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Company, the Guarantor and the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Registered Security" means any Security issued hereunder and registered as
to principal and interest by the Registrar.
"Responsible Officer" when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any executive vice-president, any senior
vice-president, any vice-president, any assistant vice-president, the treasurer,
the secretary, any trust officer, any second or assistant vice-president, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or Series of Securities" means a series of Securities.
"Securities" means the debentures, notes, or other obligations of the
Company issued, authenticated, and delivered under this Indenture.
"Subsidiary" means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company and/or by one or
more other Subsidiaries. For purposes of such definition, "voting stock" means
stock ordinarily having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
777aaa-777bbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and if, at any time, there is
more than one Trustee, "Trustee" as used with respect to the Securities of any
Series shall mean the Trustee with respect to that Series.
"U.S. Person" means a citizen, national, or resident of the United States,
a corporation, partnership, or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust which is subject to United States federal income taxation regardless of
its source of income.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or, if applicable, at the most
recent determination of interest on such Series in accordance with accepted
financial practice.
Section 1.02 OTHER DEFINITIONS.
INDENTURE
TERM SECTION
---- ---------
"Bankruptcy Law"............................................. 6.01
"Custodian".................................................. 6.01
"Event of Default"........................................... 6.01
"Legal Holiday".............................................. 11.07
"Paying Agent"............................................... 2.04
"Registrar".................................................. 2.04
"U.S. Government Obligations"................................ 8.01
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the Guarantor,
if and as long as the Guarantor is liable with respect to any payment of
principal of, premium, if any, and interest on any Security as a result of
the Company's default in the timely payment of any amount due with respect
to any Security.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute, or defined by SEC rule under the TIA have
the meanings assigned to them therein.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2.
THE SECURITIES
Section 2.01 ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more Series. There may be Registered Securities and Unregistered Securities
within a Series and the Unregistered Securities may be subject to such
restrictions, and contain such legends, as may be required by United States laws
and regulations. All Series of Securities shall be equally and ratably entitled
to the benefits of this Indenture.
Section 2.02 ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES AND
GUARANTEES.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established by a Company Board Resolution, by one or more Officers of
the Company pursuant to a Company Board Resolution, or by an indenture
supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.09, 2.12, 3.06 or
9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable;
(4) the rate or rates at which the Securities of the Series shall bear
interest, if any, or the manner of determining such rate or rates of
interest, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable, and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or delivery
of Unregistered Securities and whether, and the terms upon which,
Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who is
not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) the form or forms of the Securities (or forms thereof if
Unregistered and Registered Securities shall be issuable in such Series),
including such legends as may be required by United States laws or
regulations, the form of any coupons or temporary global Security which may
be issued and the forms of any certificates, opinions or other documents
which may be required hereunder or under United States laws or regulations
in connection with the offering, sale, delivery or exchange of Unregistered
Securities;
(13) whether the Securities of the Series are issuable as a Global
Security and, in such case, the identity of the Depositary for such Series;
(14) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currency, in which
payment of the principal of and premium, if any, or interest on the
Securities of the Series shall be payable;
(15) if the principal of or interest on the Securities of the Series
are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to be
payable, the coin or currency, including composite currency, in which
payment of the principal of and premium, if any, or interest on Securities
of such Series as to which such election is made shall be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(16) if the amount of payments of principal of or interest on the
Securities of the Series may be determined with reference to an index based
on coin or currency other than that in which the Securities are stated to
be payable, the manner in which such amounts shall be determined; and
(17) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture), including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that Series.
(b) All Securities of any one Series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and
maturity and currency and, except as may otherwise be provided in or pursuant to
a Company Board Resolution or a certificate delivered pursuant to Section
2.02(c) or in an indenture supplemental hereto. All Securities of any one Series
need not be issued at the same time, and, unless otherwise provided, a Series
may be reopened for issuances of additional Securities of such Series.
(c) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Company Board Resolution, the Company shall
deliver a copy of such Board Resolution to the Trustee at or prior to the
issuance of such Series with (1) the form or forms of the Securities which have
been approved attached thereto; or (2) if such Board Resolution authorizes a
specific Officer or Officers to establish the terms and form or forms of the
Securities, a certificate of such Officer or Officers establishing or providing
for the establishment of the terms and form or forms of the Securities, with
such form or forms of the Securities attached to the certificate establishing
such form or forms.
(d) Unregistered Securities and their coupons must have the following
statement on their face: "Any United States person who holds this obligation
will be subject to limitations under the United States income tax laws,
including the limitations provided in Section 165(j) and 1287 of the Internal
Revenue Code of 1986, as amended."
(e) At or prior to the issuance of any of the Guarantees, the exact form
and terms of such Guarantees, which shall comply with the terms of Section 2.16
hereof, shall be established by an Officers' Certificate of the Guarantor.
Section 2.03 EXECUTION, AUTHENTICATION, AND DELIVERY.
(a) The Securities shall be executed on behalf of the Company by, and the
Guarantees endorsed thereon shall be executed on behalf of the Guarantor by, its
President, an Executive Vice President or a Vice President, and by its Treasurer
or an Assistant Treasurer, or its Secretary or an Assistant Secretary.
Signatures shall be manual or facsimile. The Company's seal shall be reproduced
on the Securities and may, but need not, be attested. The Guarantor's seal shall
be reproduced on the Guarantees and may, but need not, be attested. The coupons
of Unregistered Securities shall bear the facsimile signature of the Treasurer
or an Assistant Treasurer of the Company.
(b) If an Officer whose signature is on a Security, a Guarantee or coupon
no longer holds that office at the time the Security or the Guarantee is
authenticated, the Security, Guarantee or coupon shall be valid nevertheless.
(c) A Security or Guarantee thereon shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent, and no coupon
shall be valid until the Security to which it appertains has been so
authenticated. Such signature shall be conclusive evidence that the Security has
been authenticated under this Indenture. Each Unregistered Security shall be
dated the date of its authentication.
(d) The Trustee (or an authenticating agent appointed pursuant to Section
2.03(f)) shall at any time, and from time to time, authenticate and deliver
Securities of any Series executed and delivered by the Company with Guarantees
endorsed thereon for original issue in an unlimited aggregate principal amount,
upon receipt by the Trustee (or an authentication agent) of (i) a Company Order
or directions pursuant to such a Company Order for the authentication and
delivery of such Securities; (ii) if the terms and form or forms of the
Securities of such Series have been established by or pursuant to a Board
Resolution as permitted pursuant to Section 2.02, a copy of such Board
Resolution and any certificate that may be required pursuant to Section 2.02(c);
(iii) an Officers' Certificate of the Guarantor establishing the terms of the
Guarantees; and (iv) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.02, that such form has been
established in conformity with provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
terms have been established, or provision has been made for their
establishment, in conformity with the provisions of this indenture; and
(3) that such Securities and Guarantees, when authenticated and
delivered by the Trustee (or an authenticating agent) and issued by the
Company or the Guarantor, as applicable, in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company or the Guarantor, as applicable,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will materially and adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, until the Company has notified the Trustee
and the Registrar that, as a result of the action described, the Company would
not suffer adverse consequences under the provisions of United States law or
regulations in effect at the time of the delivery of Unregistered Securities,
(i) delivery of Unregistered Securities will be made only outside the United
States and its possessions, and (ii) Unregistered Securities will be released in
definitive form to the person entitled to physical delivery thereof only upon
presentation of a certificate in the form prescribed by the Company.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02 or in any
additional Board Resolution or supplemental indenture which shall reopen a
Series of Securities pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.04 REGISTRAR AND PAYING AGENT.
The Company shall maintain for each Series of Securities an office or
agency where Registered Securities may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where (subject to Sections
2.05 and 2.08) Securities may be presented for payment ("Paying Agent"). With
respect to any Series of Securities issued in whole or in part as Unregistered
Securities, the Company shall maintain one or more Paying Agents located outside
the United States and its possessions and shall maintain such Paying Agents for
a period of two years after the principal of such Unregistered Securities has
become due and payable. During any period thereafter for which it is necessary
in order to conform to United States tax law or regulations, the Company will
maintain a Paying Agent outside the United States and its possessions to which
the Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent upon
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and as
to their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional Paying Agents for each Series of
Securities and the Company may terminate the appointment of any co-Registrar.
The term "Paying Agent" includes any additional Paying Agent. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
Section 2.05 PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay to the
Trustee or the Paying Agent the amounts, in such coin or currency as is at the
time legal tender for the payment of public or private debt, at the times and
for the purposes set forth herein and in the text of the Securities Series, and
the Company hereby authorizes and directs the Trustee or the Paying Agent, from
funds so paid to it, to make or cause to be made payment of the principal of,
interest, and premium if any, on the Securities and coupons of each Series as
set forth herein and in the text of such Securities and coupons. The Trustee
will arrange directly with any Paying Agent for the payment, or the Trustee will
make payment, from funds furnished by the Company, of the principal of,
interest, and premium if any, on the Securities and coupons of each Series by
check drawn upon a bank specified by the Company and acceptable to the Trustee.
(b) Interest, if any, on Registered Securities of a Series shall be paid on
each interest payment date for such Series to the Holder thereof at the close of
business on the relevant record dates specified in the Securities of such
Series. The Company may pay such interest by check mailed to such Holder's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities shall be payable only against presentation and
surrender thereof at the office of the Paying Agent in The City of New York,
unless the Company shall have otherwise instructed the Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i) interest, if
any, on Unregistered Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced thereby
as they mature; and (ii) original issue discount (as defined in Section 1273 of
the Internal Revenue Code of 1986, as amended), if any, on Unregistered
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside of
the United States and its possessions, unless the Company shall have otherwise
instructed the Trustee in writing. Principal of Unregistered Securities shall be
paid only against presentation and surrender thereof as provided in the
Securities of a Series. If at the time a payment of principal of or interest, if
any, or original issue discount, if any, on an Unregistered Security or coupon
shall become due, the payment of the full amount so payable at the office or
offices of all the Paying Agents outside the United States and its possessions
is illegal or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount in United
States currency, then the Company will instruct the Trustee in writing as to how
and when such payment will be made and may instruct the Trustee to make such
payments at the office of a Paying Agent located in the United States, provided
that the Company has determined that provision for such payment in the United
States would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States law and regulations.
Unless otherwise instructed in writing by the Company, no payments of interest,
original issue discounts, or principal with respect to Unregistered Securities
shall be made by a Paying Agent (i) by transfer of funds into an account
maintained by the payee in the United States, (ii) mailed to an address in the
United States, or (iii) paid to a United States address by electronic funds
transfer.
Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any or all Series of Securities, or the Trustee, all money
held by the Paying Agent for the payment of principal or interest on such Series
of Securities, and that the Paying Agent will notify the Trustee of any default
by the Company (or any other obligor on the Securities) in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it for the payment of
principal or interest on any Series of Securities and hold such money as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon so doing, the Paying Agent shall have
no further liability for the money so paid. The Trustee or the Paying Agent may
allow and credit to the Company (or any other obligor on the Securities)
interest on any monies received by it hereunder at such rate as may be agreed
upon with the Company (or any other obligor on the Securities) from time to time
and as may be permitted by law.
Section 2.07 SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the last day of
June and December in each year, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Company, the Guarantor, or any of the Paying Agents other
than the Trustee as to the names and addresses of Holders of each such Series of
Securities.
(b) Ownership of Registered Security of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities, or
by a certificate or affidavit executed by the person holding such Unregistered
Securities, or by a depository with whom such Unregistered Securities were
deposited if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee, the Guarantor, and any agent of the Company may treat the
bearer or any Unregistered Security or coupon and the person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
Section 2.08 TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Securities of the same Series containing
identical terms and provisions and date of maturity of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities containing identical terms and provisions of the same
Series and date of maturity in any authorized denominations upon delivery to the
Registrar (or a Paying Agent, if the exchange is for Unregistered Securities) of
the Unregistered Security with all unmatured coupons and all matured coupons in
default appertaining thereto and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met, and (ii)
Registered Securities may be exchanged for an equal principal amount of
Unregistered Securities of the same Series and date of maturity in any
authorized denominations (except that any coupons appertaining to such
Unregistered Securities which have matured and have been paid shall be detached)
upon delivery to the Registrar of the Registered Securities and if all other
requirements of the Registrar (or such Paying Agent) and such Securities for
such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
neither the Company nor the Guarantor would suffer adverse consequences under
the provisions of United States law or regulations.
(c) To permit registrations of transfers and exchanges the Trustee (or an
authenticating agent) shall authenticate Securities upon instructions of the
Registrar or, if applicable, a Paying Agent upon surrender of Securities for
registration of transfer or for exchange as provided in this Section. The
Company will not make any charge for any registration of transfer or exchange
but may require the payment by the party requesting such registration of
transfer or exchange of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, or (ii) to register the transfer of or exchange Securities of any
Series selected, called, or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called, or being called
for redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
Section 2.09 REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee (or an authenticating agent),
the Company shall issue (with the Guarantee thereon executed by the Guarantor)
and the Trustee (or an authenticating agent) shall authenticate a replacement
Registered Security, if such surrendered security was a Registered Security, or
a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security was an
Unregistered Security of the same Series and containing identical terms and
provisions, if the Trustee's (or authenticating agent's) requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed, or wrongfully taken, the Company
shall issue (with the Guarantee thereon executed by the Guarantor) and the
Trustee (or an authenticating agent), shall authenticate a replacement
Registered Security, if such Holder's claim pertains to a Registered Security,
or a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed, or wrongfully taken Unregistered Security
or the Unregistered Security to which such lost, destroyed, or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series and containing identical terms and provisions, if the
Trustee's requirements are met; provided, however, that the Trustee (or an
authenticating agent), the Guarantor, or the Company may require any such Holder
to provide to the Trustee and the Company security or indemnity sufficient in
the judgment of the Guarantor or the Company and the Trustee (or an
authenticating agent) to protect the, the Guarantor, Company, the Trustee (or an
authenticating agent) and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company and the Trustee (or an authenticating
agent) may charge the party requesting a replacement Security for its expenses
in replacing a Security.
(c) Every replacement Security is an additional obligation of the Company.
Every replacement Guarantee is an additional obligation of the Guarantor.
(d) Notwithstanding anything to the contrary contained herein, replacement
Securities need not be issued in any of the circumstances described in Section
2.09 if the Company, the Guarantor, or the Trustee (or an authenticating agent)
have notice that the mutilated, lost, destroyed, or wrongfully taken Security
has been acquired by a bona fide purchaser.
Section 2.10 OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities authenticated by
the Trustee (or an authenticating agent), except for those canceled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee (or an authenticating agent), receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date money
or U.S. Government Obligations sufficient to pay all amounts due on Securities
of any Series on that date, then on and after that date, all Securities of such
Series cease to be outstanding and interest on them ceases to accrue.
(d) A Security does not cease to be outstanding because the Company, the
Guarantor, or an Affiliate of either of them holds the Security.
(e) In determining whether the Holders of the requisite principal amount of
outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02;
and (ii) the principal amount of any security denominated in a currency other
than United States dollars that shall be deemed to be outstanding for such
purposes shall be that amount of United States dollars that could be obtained
for such amount on such reasonable basis of exchange and as of the record date
for such determination or action (or, if there shall be no applicable record
date, such other date reasonably proximate to the date of such determination or
action), in each case, as the Company shall specify in a written notice to the
Trustee.
Section 2.11 TREASURY SECURITIES.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver, or consent,
Securities of such Series owned by the Company, the Guarantor, or an Affiliate
of either of them shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver, or consent, only Securities of such Series which the Trustee
knows are so owned shall be so disregarded.
Section 2.12 TEMPORARY SECURITIES.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Registered Securities of such Series having duly executed Guarantees
endorsed thereon. Temporary Registered Securities of any Series shall be
substantially in the form of definitive Registered Securities of such Series but
may have variations that the Company and the Guarantor considers appropriate for
temporary Securities. Every temporary Registered Security shall be executed by
the Company, authenticated by the Trustee, and registered by the Registrar, upon
the same conditions, and with like effect, as a definitive Registered Security.
Without unreasonable delay, the Company and the Guarantor shall prepare and the
Trustee shall authenticate definitive Registered Securities of the same Series
and containing identical terms and provisions in exchange for temporary
Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
one or more temporary Unregistered Securities, which may have coupons attached
or which may be in the form of a single temporary global Unregistered Security
of that Series. The temporary Unregistered Security or Securities of any Series
shall be substantially in the form approved by or pursuant to a Board Resolution
and shall be delivered to one of the Paying Agents located outside the United
States and its possessions or to such other person or persons as the Company
shall direct against such certification as the Company may from time to time
prescribe by or pursuant to a Board Resolution. The temporary Unregistered
Security or Securities of a Series shall be executed by the Company and the
Guarantor and authenticated by the Trustee, upon the same conditions, and with
like effect, as a definitive Unregistered Security of such Series, except as
provided herein or therein. A temporary Unregistered Security or Securities
shall be exchangeable for definitive Unregistered Securities containing
identical terms and provisions at the time and on the conditions, if any,
specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
Section 2.13 CANCELLATION.
The Company or the Guarantor at any time may deliver Securities and coupons
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities and coupons surrendered to them for
registration of transfer, or for exchange, or for payment. Except as otherwise
required by this Indenture, the Trustee shall cancel all Securities and coupons
surrendered for registration of transfer, or for exchange, payment, or
cancellation and will dispose of canceled Securities and coupons as the Company
directs; provided, however, that any Unregistered Securities of a Series
delivered to the Trustee for exchange prior to maturity shall be retained by the
Trustee for reissue as provided herein or in the Securities of such Series. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
Section 2.14 DEFAULTED INTEREST.
If the Company or the Guarantor defaults on a payment of interest on a
Series of Securities, either of them shall pay the defaulted interest as
provided in such Securities or in any lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed.
Section 2.15 GLOBAL SECURITIES.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular Series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.03, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the outstanding Securities of such Series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.15 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.08, the Global Security of
a Series may be transferred, in whole but not in part and in the manner provided
in Section 2.08, only to another nominee of the Depositary for such Series, or
to a successor Depositary for such Series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a Series of the Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
Series or if at any time the Depositary for such Series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such Series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.15 shall
no longer be applicable to the Securities of such Series and the Company will
execute, and subject to Section 2.08, the Trustee will authenticate and deliver
the Securities of such Series, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
Series in exchange for such Global Security. In addition, the Company may at any
time determine that the Securities of any Series shall no longer be represented
by a Global Security and that the provisions of this Section 2.15 shall no
longer apply to the Securities of such Series. In such event the Company will
execute and subject to Section 2.08, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such Series, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such Series in exchange for such Global Security. Upon the exchange of the
Global Security for such Securities in authorized denominations, the Global
Security shall be canceled by the Trustee. Such Securities issued in exchange
for the Global Security pursuant to this Section 2.15(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
Section 2.16 UNCONDITIONAL GUARANTEE.
(Form of Guarantee)
FOR VALUE RECEIVED, the Guarantor, hereby unconditionally guarantees to the
Holder of the Security upon which this Guarantee is endorsed the due and
punctual payment of the principal of, sinking funds payment, if any, premium, if
any, or interest on said Security, when and as the same shall be become due and
payable, whether at maturity, upon redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon redemption,
or otherwise, and as if such payment were made by the Company....
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect to any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the Securities
then outstanding, be entitled to enforce or to receive any payments arising out
of or based upon such right of subrogation until the principal of and premium,
if any, and interest on all Securities shall have been paid in full or payment
thereof shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the Holders
of the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such Holder to such trustee in bankruptcy, then and
to the extent of such repayment the obligations of the Guarantor hereunder shall
remain in full force and effect.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security until a certificate of authentication on such Security
shall have been signed by the Trustee (or the authenticating agent).
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, U S WEST, Inc. has caused this Guarantee to be signed
in its corporate name by the facsimile signature of two of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to be
affixed hereto or imprinted or otherwise reproduced hereon.
Section 2.17 EXECUTION OF GUARANTEES.
To evidence the Guarantee to the Securityholders specified in Section 2.16,
the Guarantor hereby agrees to execute the Guarantees, in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee (or the authentication agent). Each such Guarantee shall be signed
on behalf of the Guarantor as set forth in Section 2.03 prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee (or the authenticating agent), after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantor.
Section 2.18 ASSUMPTION BY GUARANTOR.
(a) The Guarantor may, without the consent of the Securityholders, assume
all of the rights and obligations of the Company hereunder with respect to a
Series of Securities and under the Securities of such Series if, after giving
effect to such assumption, no Default or Event of Default shall have occurred
and be continuing. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such Series.
(b) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a Series of Securities and under the
Securities of such Series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 2.16
with respect to such Series of Securities. Such assumption shall result in the
Securities of such Series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the Holders of the Securities of any
Series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such Series.
ARTICLE 3.
REDEMPTION
Section 3.01 NOTICE TO THE TRUSTEE.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any part thereof, before
maturity at such time and on such terms as provided for in such Securities. The
election of the Company to redeem any Securities shall be evidenced by a Company
Order. In case of any redemption at the election of the Company of all or less
than all of the Securities of any Series with the same issue date, interest
rate, and stated maturity, the Company shall, at least 60 days prior to the
redemption date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such redemption date and of
the principal amount and redemption price of Securities of such Series to be
redeemed.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series with the same issue date,
interest rate, and stated maturity are to be redeemed, the particular Securities
to be redeemed shall be selected, not more than 60 days prior to the redemption
date, by the Trustee from the outstanding Securities of such Series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such Series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security of such Series not redeemed to less than the
minimum denomination for a Security of that Series established pursuant to
Section 2.02. The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption by it and, in the case of any Securities
selected for partial redemption, the amount thereof to be redeemed.
Section 3.03 NOTICE OF REDEMPTION.
(a) At least 30 days, but not more than 90 days before a redemption date,
unless a shorter period is specified in the Securities to be redeemed, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in each of The City of New York,
London, and, if such Securities to be redeemed are listed on the Luxembourg
Stock Exchange, Luxembourg once in each of four successive calendar weeks, the
first publication to be not less than 30 nor more than 90 days before the
redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date. At the Company's
request, the Trustee shall give the notice of redemption in the Company's
name and at its expense.
If the Company gives the notice of redemption, the Company shall promptly
provide the Trustee with evidence satisfactory to the Trustee of its compliance
with the notice requirements of this section.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date and from and
after such date (unless the Company shall default in the payment of the
redemption price) such Securities shall cease to bear interest. Upon surrender
to the Paying Agent of such Securities together with all unmatured coupons, if
any, appertaining thereto, such Securities shall be paid at the redemption price
plus accrued interest to the redemption date, but installments of interest due
on or prior to the redemption date will be payable, in the case of Unregistered
Securities, to the bearers of the coupons for such interest upon surrender
thereof, and, in the case of Registered Securities, to the Holders of such
Securities of record at the close of business on the relevant record dates.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Trustee or the Paying Agent money sufficient to pay the redemption price of and
(unless the redemption date shall be an interest payment date) interest accrued
to the redemption date on all Securities to be redeemed on that date.
Section 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee or the authenticating agent shall authenticate for the
Holder of that Security a new Security or Securities of the same Series, the
same form, and the same maturity in authorized denominations equal in aggregate
principal amount to the unredeemed portion of the Security surrendered and
having endorsed thereon a duly executed Guarantee.
ARTICLE 4.
COVENANTS
Section 4.01 PAYMENT OF SECURITIES.
(a) The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided herein and in the Securities. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
(b) The Company shall pay interest on overdue principal of a Security of
any Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by such Security of that Series; to the extent
lawful, it shall pay interest on overdue installments of interest at the same
rate.
Section 4.02 REPORTS BY THE GUARANTOR.
The Guarantor covenants:
(a) To file with the Trustee, within 15 days after the Guarantor is
required to file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Guarantor may be required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
or, if the Guarantor is not required to file information, documents or reports
pursuant to either of such sections, to file with the Trustee and the SEC, in
accordance with rules and regulations prescribed from time to time by the SEC,
such of the supplementary and periodic information, documents, and reports which
may be required pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the SEC, in accordance with the TIA or the
rules and regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Guarantor
with the conditions and covenants provided for in this Indenture as may be
required from time to time by the TIA or such rules and regulations; and
(c) to transmit by mail to all Holders of Registered Securities, as the
names and addresses of such Holders appear on the register for each Series of
Securities, and to such Holders of Unregistered Securities as have, within the
two years preceding such transmission, filed their names and addresses with the
Trustee for that purpose, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Guarantor pursuant to subsections (a) and (b) of this Section 4.02
as may be required by rules and regulations prescribed from time to time by the
SEC.
Section 4.03 LIEN ON ASSETS.
If at any time the Company mortgages, pledges or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereafter
acquired by it, except as hereinafter provided in this Section 4.03, the Company
will secure the outstanding Securities, and any other obligations of the Company
which may then be outstanding and entitled to the benefit of a covenant similar
in effect to this covenant, equally and ratably with the indebtedness or
obligations secured by such mortgage, pledge, or lien, for as long as any such
indebtedness or obligation is so secured. The foregoing covenant does not apply
(i) to the creation, extension, renewal or refunding of (a) mortgages or liens
created or existing at the time property is acquired, (b) mortgages or liens
created within 180 days thereafter, or (c) mortgages or liens for the purpose of
securing the cost of construction or improvement of property; or (ii) to the
making of any deposit or pledge to secure public or statutory obligations or
with any governmental agency at any time required by law in order to qualify the
Company to conduct its business or any part thereof in order to entitle it to
maintain self-insurance or to obtain the benefits of any law relating to
workmen's compensation, unemployment insurance, old age pensions or other social
security, or with any court, board, commission, or governmental agency as
security incident to the proper conduct of any proceeding before it. Nothing
contained in this Indenture prevents any entity other than the Company from
mortgaging, pledging, or subjecting to any lien any of its property or assets,
whether or not acquired from the Company or the Guarantor.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to, any
person provided (i) that the person is a corporation which assumes by
supplemental indenture all the obligations of the Company under the Securities
and any coupons appertaining thereto and under this Indenture; and (ii) that
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing. Thereafter, all such obligations of the Company shall
terminate.
Section 5.02 WHEN THE GUARANTOR MAY MERGE, ETC.
The Guarantor may consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to, any
person provided (i) that the person is a corporation which assumes by
supplemental indenture all the obligations of the Guarantor under the Guarantees
and under this Indenture; and (ii) that after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing. Thereafter, all such
obligations of the Guarantor shall terminate.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to the Securities of any Series
if:
(1) the Company or the Guarantor default in the payment of interest on any
Security of that Series when the same becomes due and payable and the Default
continues for a period of 90 days;
(2) the Company or the Guarantor default in the payment of the principal of
any Security of that Series when the same becomes due and payable at maturity,
upon redemption, or otherwise;
(3) the Company or the Guarantor fail to comply with any of its other
agreements in the Securities of that Series, in this Indenture, or in any
supplemental indenture under which the Securities of that Series may have been
issued, and the Default continues for the period and after the notice specified
below;
(4) the Company or the Guarantor, pursuant to or within the meaning of any
Bankruptcy Law:
(a) commence a voluntary case,
(b) consent to the entry of an order for relief against it in an
involuntary case,
(c) consent to the appointment of a Custodian of it or for all or
substantially all of its property, or
(d) make a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any Bankruptcy
Law that:
(a) is for relief against the Company or the Guarantor in an
involuntary case,
(b) appoints a Custodian of the Company or the Guarantor, or for all
or substantially all of its property, or orders the liquidation of the
Company or the Guarantor,
(c) and the order or decree remains unstayed and in effect for 90
days.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company or the Guarantor (and the Trustee
in the case of notification by such Holders) of the Default and the Company or
the Guarantor, as the case may be, does not cure the Default within 90 days
after receipt of the notice. The notice must specify the Default, demand that it
be remedied, and state that the notice is a "Notice of Default."
Section 6.02 ACCELERATION.
If an Event of Default occurs with respect to the Securities of any Series
and is continuing, the Trustee, by notice to the Company and the Guarantor, or
the Holders of at least 25% in principal amount of all of the outstanding
Securities of that Series, by notice to the Company, the Guarantor, and the
Trustee, may declare the principal (or, if the Securities of that Series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that Series) of all the Securities of that Series
to be due and payable. Upon such declaration, such principal (or, in the case of
Original Issue Discount Securities, such specified amount) shall be due and
payable immediately. The Holders of a majority in principal amount of all of the
Securities of that Series, by notice to the Trustee, may rescind such a
declaration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
Section 6.03 OTHER REMEDIES AVAILABLE TO TRUSTEE.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on the
Securities of the Series that is in default or to enforce the performance of any
provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 WAIVER OF EXISTING DEFAULTS.
The Holders of a majority in principal amount of any Series of Securities
by notice to the Trustee may waive an existing Default with respect to that
Series and its consequences, except a Default in the payment of the principal of
or interest on any Security.
Section 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture or
that would involve the Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS BY SECURITYHOLDERS.
A Securityholder may pursue a remedy with respect to this Indenture or the
Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(2) the Holders of at least 25% in principal amount of the Securities of
that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability, or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in principal
amount of the Securities of that Series do not give the Trustee a direction
inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to obtain
a preference or priority over another Securityholder of that Series or any other
Series.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment or principal of and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the enforcement of any such
payment, on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08 COLLECTION SUITS BY TRUSTEE.
If a Default specified in Section 6.01(1) or (2) occurs and continues for
the period specified therein, if any, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or the Guarantor
for the whole amount of such principal and interest then in default.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relating to the Company, the
Guarantor or their creditors or property.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the benefit of
which such money has been collected for amounts due and unpaid on such
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
THIRD: to the person or persons lawfully entitled thereto, or as a court of
competent jurisdiction may direct.
The Trustee may fix a record date (with respect to Registered Securities)
and payment date for any such payment to Holders of Securities.
Any such record date shall not be less than 10 days nor more than 60 days
prior to the applicable payment date.
Section 6.11 UNDERTAKING FOR COSTS.
If any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable attorneys' fees against any party litigant in
this suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders
of more than 10% in principal amount of the Securities of any Series.
ARTICLE 7.
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights, duties and powers under this Indenture and use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon notices, certificates, opinions or
other documents furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the notices,
certificates, opinions or other documents to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.04 and 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b), and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability, or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company or the Guarantor. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel
acceptable to the Company, the Guarantor, and the Trustee, a certificate of an
Officer or Officers delivered pursuant to Section 2.02(c), an Officers'
Certificate, or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) Except as otherwise provided in Section 7.01, the Trustee shall not be
liable for any action or omission of any Agent which is not the Trustee.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company, or one of its
Affiliates with the same rights it would have if it were not Trustee, subject to
Sections 7.10 and 7.11. Any Agent may do the same with like rights.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or the Guarantees. It shall not be accountable for
the Company's use of the proceeds from the Securities or for monies paid over to
the Company or by the Company to any Holders or to any Paying Agent pursuant to
the Indenture, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the Securities of any
Series and if it is known to the Trustee, the Trustee shall mail to each Holder
of a Security of that Series entitled to receive reports pursuant to Section
4.02(c) (and, if Unregistered Securities of that Series are outstanding, shall
cause to be published at least once in an Authorized Newspaper in each of The
City of New York, London, and, if Securities of that Series are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment on the Securities of
any Series, the Trustee may withhold the notice if and so long as its Corporate
Trust Committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Securityholders
of that Series.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each anniversary date of the first issue of a
Series of Securities, the Trustee shall mail to each Securityholder of that
Series entitled to receive reports pursuant to Section 4.02(c) a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company and the Guarantor shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company and the Guarantor shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it in connection with the
performance of its duties under this Indenture. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantor shall indemnify the Trustee against any
loss or liability incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder. The Trustee shall
notify the Company and the Guarantor promptly of any claim for which it may seek
indemnity. The Company and the Guarantor shall defend the claim, and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company and the Guarantor shall pay the reasonable fees and expenses of such
counsel. Neither the Company nor the Guarantor need pay for any settlement made
without its consent.
(c) Neither the Company nor the Guarantor need reimburse any expense or
indemnify against any loss of liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company and the Guarantor
pursuant to this Section, the Trustee shall have a lien prior to the Securities
of any Series on all money or property held or collected by the Trustee, except
that held in trust to pay principal and interest on particular Securities of a
Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company and the Guarantor. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee, the Company, and the
Guarantor and may appoint a successor Trustee for such Series with the Company's
and the consent of the Guarantor.
(c) The Company and the Guarantor may remove the Trustee with respect to
Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
In addition, the Company and the Guarantor may remove the Trustee with
respect to Securities of any Series without cause if the Company and the
Guarantor give written notice to the Trustee of such proposed removal at least
six months in advance of the proposed effective date of such removal; provided,
however, that such removal shall not become effective if a Default exists on the
date of the giving of such notice or occurs prior to the date such removal is
scheduled to become effective.
(d) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company and the Guarantor shall promptly appoint a successor Trustee for such
Series.
(e) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, the Guarantor, or the Holders of a
majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee and
the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Guarantor, and the Company. Thereupon,
the resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers, and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in each of The
City of New York, London, and, if Securities of that Series are listed on The
Luxembourg Stock Exchange, Luxembourg, and by mailing written notice of such
event by first-class mail to the Holders of Securities of such Series entitled
to receive reports pursuant to Section 4.02(c).
(h) All provisions of this Section 7.08 except subparagraphs (c)(1) and (d)
and the words "subject to the lien provided for in Section 7.07" in subparagraph
(g) shall apply also to any Paying Agent located outside the U.S. and its
possessions and required by Section 2.04.
(i) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
Guarantor, the retiring Trustee, and such successor Trustee shall execute and
deliver a supplemental indenture wherein such successor Trustee shall accept
such appointment, and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts, and duties of the retiring
Trustee with respect to the Securities of that or those Series to which the
appointment of such successor Trustee relates; (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those Series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee; and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
Section 7.09 SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee with respect to each Series of
Securities who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall always have a combined capital and surplus of at least $10,000,000 as set
forth in its most recent published annual report of condition. The Trustee is
subject to TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9), except that there shall be excluded
from the operation of TIA Section 310(b)(1) each Series of Securities and all
indentures of the Company, the Guarantor, or any of their Affiliates now or
hereafter existing which may be excluded under the proviso of TIA Section
310(b)(1).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF THE COMPANY'S AND THE GUARANTOR'S OBLIGATIONS.
(a) The Company and the Guarantor reserve the right to terminate all of
their obligations under the Securities and this Indenture with respect to the
Securities of any Series or any installment of principal and premium, if any, or
interest on that Series if the Company and the Guarantor irrevocably deposits in
trust with the Trustee money or U.S. Government Obligations sufficient to pay,
when due, principal, premium, if any, and interest on the Securities of that
Series to maturity or redemption or such installment of principal and premium,
if any, or interest, as the case may be, and if all other conditions set forth
in the Securities of that Series are met. The Company or the Guarantor shall
designate the installment or installments of principal or interest to be so
satisfied.
(b) However, the Company's and the Guarantor's obligations in Sections
2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03 and 8.04 shall
survive until the Securities are no longer outstanding. Thereafter, the
Company's obligations in Sections 7.07, 8.03 and 8.04 shall survive.
(c) Before or after a deposit, the Company or the Guarantor may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
(d) After a deposit by the Company or the Guarantor in accordance with this
Section in respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and the Guarantor's
obligations under the Securities of the Series in respect of which the deposit
has been made and under this Indenture with respect to the Securities of that
Series except for those surviving obligations specified above.
(e) In order to have money available on a payment date to pay principal of
and premium, if any, or interest on the Securities of any Series, the U.S.
Government Obligations shall be payable as to principal of or interest on or
before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations shall not be callable at the issuer's option.
(f) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged; or
(ii) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
Section 8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold money or U.S. Government Obligations deposited with
it pursuant to Section 8.01. It shall apply the deposited money and the money
from U.S. Governmental Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the
Securities of each Series in respect of which the deposit shall have been made.
Section 8.03 REPAYMENT TO THE COMPANY OR THE GUARANTOR.
(a) Subject to the provisions of Section 7.07(d), the Trustee and the
Paying Agent shall promptly pay to the Company or the Guarantor, as the case may
be, upon request, any money or securities held by them at any time in excess of
that required for the payment of principal, premium, if any, or interest on the
Securities.
(b) The Trustee and the Paying Agent shall promptly pay to the Company or
the Guarantor, as the case may be, upon request, any money held by them for the
payment of principal or interest that remains unclaimed for two years. After
that, Securityholders entitled to the money must look to the Company and the
Guarantor for payment as general creditors unless an abandoned property law
designates another person. Upon payment to the Company, or the Guarantor, the
Trustee and Paying Agent are released of any further obligation or liability
with respect to the utilization of such moneys.
Section 8.04 INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company and the Guarantor shall pay and shall indemnify the Trustee and
each Securityholder of each Series in respect of which the deposit shall have
been made against any tax, fee, or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9.
AMENDMENTS AND WAIVERS
Section 9.01 WITHOUT CONSENT OF HOLDERS.
The Company, the Guarantor, and the Trustee may enter into one or more
supplemental indentures without consent of any Securityholder for any of the
following purposes:
(1) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any Series or in the Guarantees;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to add to the covenants of the Company and the Guarantor for the
benefit of the Holders of all or any Series of Securities (and if such covenants
are to be for the benefit of less than all Series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
Series) or to surrender any right or power herein conferred upon the Company;
(5) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(6) to secure the Securities pursuant to Section 4.03.
(7) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(8) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series and the Guarantees as provided in Section
2.02, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any Series of Securities, or to add
to the rights of the Holders of any Series of Securities.
Section 9.02 WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company, the
Guarantor, and the Trustee may enter into a supplemental indenture to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any supplemental indenture or to modify, in each case in any manner not covered
by Section 9.01, the rights of the Securityholders of each such Series. The
Holders of a majority in principal amount of the outstanding Securities of each
Series affected by such waiver (with each Series voting as a class), by notice
to the Trustee, may waive compliance by the Company or the Guarantor with any
provision of this Indenture, any supplemental indenture, or the Securities of
any such Series, except a Default in the payment of the principal of or interest
on any Security. However, without the consent of each Securityholder affected,
an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04, 6.07, or 9.02(a) (third
sentence).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor, and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
are entitled to receive reports pursuant to Section 4.02(c). Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security even if a notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security if the Trustee receives a
written notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or wavier.
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee shall place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company, in
exchange for Securities of that Series may issue and the Trustee shall
authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that adversely affects
its rights or obligations.
ARTICLE 10.
SINKING FUNDS
Section 10.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any Series is herein referred to as "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such Series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any Series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.02. Each sinking fund payment shall be applied to the redemption
of Securities of any Series as provided for by the terms of Securities of such
Series.
Section 10.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such Series to be made pursuant to the
terms of such Securities as provided for by the terms of such Series (1) deliver
outstanding Securities of such Series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), and (2) apply as a credit
Securities of such Series which have been redeemed either at the election of the
Company pursuant to the terms of such Series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, provided that such Series of Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities of any Series in lieu of cash payments pursuant to this
Section 10.02, the principal amount of Securities of such Series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $500,000, the
Trustee shall not call Securities of such Series for redemption, except upon
Company Order, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that Series purchased by the Company having an
unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 10.03 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuring mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash, and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 10.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.03. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.04, 3.05 and 3.06.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with a
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
Section 11.02 NOTICES.
(a) Any notice or communication by the Company, the Guarantor, or the
Trustee is duly given if in writing and delivered in person or mailed by
certified mail:
if to the Company to:
U S WEST Capital Funding, Inc.
1801 California Street
Denver, Colorado 80202
Attention: Treasurer and Corporate Counsel
if to the Guarantor to:
U S WEST, Inc.
1801 California Street
Denver, Colorado 80202
Attention: Treasurer and Corporate Counsel
if to the Trustee to:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(b) The Company, the Guarantor, or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice of communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(e) If the Company or the Guarantor mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee, the
Guarantor, or the Company to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Section 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or of all Series with respect
to their rights under this Indenture or under the Securities of that Series or
of all Series. The Company, the Guarantor, the Trustee, the Registrar, and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantor to the
Trustee to take any action under this Indenture, the Company or the Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 11.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable requirements for its functions.
Section 11.07 LEGAL HOLIDAYS.
Except as may otherwise be provided in the form of Securities of any
particular Series pursuant to the provisions of this Indenture, a "Legal
Holiday" is a Saturday, Sunday, or a day on which banking institutions are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.08 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture, the
Securities, and any coupons appertaining thereto.
Section 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan, or
debt agreement of the Company or an Affiliate. No such indenture, loan, or debt
agreement may be used to interpret this Indenture.
Section 11.10 NO RECOURSE AGAINST OTHERS.
No director, officer, employee, or stockholder, as such, of the Company or
the Guarantor shall have any liability for any obligations of the Company or the
Guarantor under the Securities or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
Section 11.11 EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
Section 11.12 CURRENCIES.
Except as may otherwise be provided in the form of Securities of any
particular Series pursuant to the provisions of this Indenture, all references
in this Indenture or in the Securities to "dollars," "$," or any similar
reference shall be to the currency of the United States of America.
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01 APPLICABILITY OF ARTICLE.
Securities of any Series which are repayable at the option of the Holders
thereof before their stated maturity shall be repaid in accordance with the
terms of the Securities of such Series.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
U S WEST CAPITAL FUNDING, INC.
/S/ ALLAN R. SPIES
By: ____________________________________
Name: Allan R. Spies
Title: President
(SEAL)
/S/ THOMAS O. MCGIMPSEY
Attest: _________________________
Name: Thomas O. McGimpsey
Title: Assistant Secretary
U S WEST, INC.
/S/ ALLAN R. SPIES
By: ____________________________________
Name: Allan R. Spies
Title: President
(SEAL)
/S/ THOMAS O. MCGIMPSEY
Attest: _________________________
Name: Thomas O. McGimpsey
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
/S/ R. TARNAS
By: ____________________________________
Name: R. Tarnas
Title: Vice President
(SEAL)
/S/ BARBARA G. GROOSE
Attest: _________________________
Name: Barbara G. Groose
Title: Vice President and Assistant Secretary
Exhibit (b)(6)
- --------------------------------------------------------------------------------
$1,500,000,000
364-DAY
CREDIT AGREEMENT
dated as of
June 11, 1999
among
U S WEST Capital Funding, Inc.
U S WEST, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
- --------------------------------------------------------------------------------
J.P. Morgan Securities Inc.
Lead Arranger
and Bookrunner
Bank of America National Trust and Savings Association,
The Chase Manhattan Bank and
Citibank, N.A.,
Co-Syndication Agents
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. The Definitions...........................................
SECTION 1.02. Accounting Terms and Determinations.......................
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.......................................
SECTION 2.02. Notice of Borrowing.......................................
SECTION 2.03. Notice to Banks; Funding of Loans.........................
SECTION 2.04. Notes.....................................................
SECTION 2.05. Maturity of Loans.........................................
SECTION 2.06. Interest Rates............................................
SECTION 2.07. Facility Fees.............................................
SECTION 2.08. Termination or Reduction of Commitments...................
SECTION 2.09. Method of Electing Interest Rates.........................
SECTION 2.10. Prepayments...............................................
SECTION 2.11. General Provisions as to Payments.........................
SECTION 2.12. Funding Losses............................................
SECTION 2.13. Computation of Interest and Fees..........................
SECTION 2.14. Change of Control.........................................
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing...................................................
SECTION 3.02. All Borrowings............................................
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.............................
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.............................................
SECTION 4.03. Binding Effect............................................
SECTION 4.04. Financial Information.....................................
SECTION 4.05. Litigation................................................
SECTION 4.06. Compliance with ERISA.....................................
SECTION 4.07. Environmental Matters.....................................
SECTION 4.08. Taxes.....................................................
SECTION 4.09. Subsidiaries..............................................
SECTION 4.10. Not an Investment Company.................................
SECTION 4.11. Full Disclosure...........................................
ARTICLE 5
COVENANTS
SECTION 5.01. Information...............................................
SECTION 5.02. Maintenance of Property; Insurance........................
SECTION 5.03. Maintenance of Existence..................................
SECTION 5.04. Compliance with Laws......................................
SECTION 5.05. Inspection of Property, Books and Records.................
SECTION 5.06. Subsidiary Debt...........................................
SECTION 5.07. Debt Coverage.............................................
SECTION 5.08. Negative Pledge...........................................
SECTION 5.09. Consolidations, Mergers and Sales of Assets...............
SECTION 5.10. Use of Proceeds...........................................
SECTION 5.11. Year 2000 Compatibility...................................
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default.........................................
SECTION 6.02. Notice of Default.........................................
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization.............................
SECTION 7.02. Agent and Affiliates......................................
SECTION 7.03. Action by Agent...........................................
SECTION 7.04. Consultation with Experts.................................
SECTION 7.05. Liability of Agent........................................
SECTION 7.06. Indemnification...........................................
SECTION 7.07. Credit Decision...........................................
SECTION 7.08. Successor Agent...........................................
SECTION 7.09. Agent's Fee...............................................
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair....................................................
SECTION 8.02. Illegality................................................
SECTION 8.03. Increased Cost and Reduced Return.........................
SECTION 8.04. Taxes.....................................................
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans.....................................................
SECTION 8.06. Substitution of Bank......................................
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty..............................................
SECTION 9.02. Guaranty Unconditional....................................
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances.....................................
SECTION 9.04. Waiver by the Company.....................................
SECTION 9.05. Subrogation...............................................
SECTION 9.06. Stay of Acceleration......................................
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices...................................................
SECTION 10.02. No Waivers................................................
SECTION 10.03. Expenses; Indemnification.................................
SECTION 10.04. Sharing of Set-offs.......................................
SECTION 10.05. Amendments and Waivers....................................
SECTION 10.06. Successors and Assigns....................................
SECTION 10.07. No Reliance on Margin Stock...............................
SECTION 10.08. Governing Law; Submission to Jurisdiction.................
SECTION 10.09. Counterparts; Integration; Effectiveness..................
SECTION 10.10. WAIVER OF JURY TRIAL......................................
SECTION 10.11. Confidentiality...........................................
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CREDIT AGREEMENT
AGREEMENT dated as of June 11, 1999 among U S WEST Capital Funding,
Inc., U S WEST, Inc., the BANKS listed on the signature pages hereof and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. THE DEFINITIONS.
The following terms, as used herein, have the following meanings:
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning set forth
in Section 2.06.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"AGENT" means Morgan Guaranty Trust Company of New York in its
capacity as administrative agent for the Banks hereunder, and its successors in
such capacity.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"ASSIGNEE" has the meaning set forth in Section 10.06(c).
"BANK" means each lender listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BORROWER" means U S WEST Capital Funding, Inc., a Colorado
corporation, and its successors.
"BORROWING" has the meaning set forth in Section 1.03.
"CLOSING DATE" means the date on or after the Effective Date on
which the Agent shall have received the documents specified in or pursuant to
Section 3.01.
"COMMITMENT" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.08.
"COMPANY" means U S WEST, Inc., a Delaware corporation, and its
successors.
"COMPANY'S 1998 FORM 10-K" means U S WEST, Inc.'s annual report on
Form 10-K for 1998, as amended by Form 10-K/A filed March 24, 1999, in each case
as filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"CONSOLIDATED EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis for
such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(x) Debt of Persons which are not Consolidated Subsidiaries
("Joint Ventures") (i) which is secured by a Lien on the assets or
capital stock of a Minor Subsidiary or the equity interests in such
Joint Ventures or is Guaranteed by a Minor Subsidiary, which Lien or
Guaranty is incurred in connection with the operations of the
Company and its Subsidiaries, and (ii) for the payment of which no
other recourse may be had to the Company or any of its Subsidiaries;
and
(y) Debt of the Company or the Borrower issued in connection
with the issuance of Trust Originated Preferred Securities or
substantially similar securities, so long as such Debt is
subordinated and junior in right of payment to substantially all
liabilities of the Company or the Borrower, as the case may be,
including, without limitation, the Loans.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"DOMESTIC LOAN" means (i) a Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Article 8 or (ii) an overdue amount which was a
Domestic Loan immediately before it became overdue.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 10.09.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"EURO-DOLLAR LOAN" means (i) a Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a Euro-Dollar Loan
before it became overdue.
"EURO-DOLLAR MARGIN" has the meaning set forth in Section 2.06.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.06 on the basis of an Adjusted London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE BANKs" means the principal London offices of
Bank of America National Trust and Savings Association, Mellon Bank, N.A., and
Morgan Guaranty Trust Company of New York, and "Euro-Dollar Reference Bank"
means any one of the foregoing.
"EURO-DOLLAR RESERVE PERCENTAGE" has the meaning set forth in
Section 2.06.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"GROUP OF LOANS" means at any time a group of Loans consisting of
(i) all Loans which are Domestic Loans at such time or (ii) all Loans which are
Euro-Dollar Loans having the same Interest Period at such time; provided that,
if a Loan of any particular Bank is converted to or made as a Domestic Loan
pursuant to Section 8.02 or 8.05, such Loan shall be included in the same Group
or Groups of Loans from time to time as it would have been in if it had not been
so converted or made.
"GUARANTY" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guaranty shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 10.03(b).
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, a
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LOAN" means a loan to be made by a Bank pursuant to Section 2.01;
provided that if any such loan or loans are combined or subdivided pursuant to a
Notice of Interest Rate Election, the term "Loan" shall refer to the combined
principal amount resulting from such combination or to each of the separate
principal amounts resulting from such subdivision, as the case may be.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.06.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"MATERIAL DEBT" means Debt (other than the Notes) of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding $100,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"MERGER" means any of the transactions constituting one of the
"Mergers" (as defined in the Merger Agreement as in effect on the date hereof)
or any similar transaction pursuant to which the Company merges with or into, or
controls is controlled by or is under common control with, Global Crossing Ltd.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as
of May 16, 1999 between the Company and Global Crossing Ltd., as amended prior
to the date of this Agreement.
"MINOR SUBSIDIARY" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) U S
WEST Wireless LLC and (ii) any other Subsidiary which, at the time of the
issuance of a Guaranty or grant of a Lien referred to in the Relevant
Provisions, had assets which, when taken together with all assets of
Subsidiaries at any earlier time when such Subsidiaries were deemed to be Minor
Subsidiaries pursuant to this clause (ii), did not exceed $250,000,000.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NOTES" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"PARENT" means, with respect to any Bank, any Person controlling
such Bank.
"PARTICIPANT" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Schedule attached hereto and identified
as such.
"PRIME RATE" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"REQUIRED BANKS" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"RESET DATE" means the first date on which (i) the Borrower's
ratings are not on creditwatch (or the equivalent) by any of S&P, Moody's and
Duff & Phelps and (ii) the Borrower's senior unsecured long-term debt securities
guaranteed by the Company are rated at least (x) A- by S&P, A- by Duff & Phelps
and Baa1 by Moody's, (y) A- by S&P, BBB+ by Duff & Phelps and A3 by Moody's, or
(z) BBB+ by S&P, A- by Duff & Phelps and A3 by Moody's. For purposes of this
definition, "S&P" and "Moody's" have the meanings set forth in the Pricing
Schedule, and "Duff & Phelps" means Duff & Phelps Credit Rating Co., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Duff & Phelps" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Required Banks, with the
approval of the Company, by notice to the Agent and the Company.
"REVOLVING CREDIT PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which would meet the
definition of "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"SUBSIDIARY" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"SUPER-MAJORITY BANKS" means at any time Banks having at least 85%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 85% of the aggregate unpaid
principal amount of the Loans.
"TENDER OFFER" means the offer to purchase for cash 39,259,305 of
the outstanding shares of common stock of Global Crossing Ltd. (approximately
9.5% of the shares of common stock outstanding on the date of the offer) at
$62.75 per share, without interest, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated May 21, 1999 and the related Letter of
Transmittal, as filed on May 21, 1999 with the Securities and Exchange
Commission as exhibits to Schedule 14D-1 and Schedule 13D.
"TERMINATION DATE" means the earlier of (i) June 9, 2000 or (ii) the
date on which the Merger is consummated, or, if such day is not a Euro-Dollar
Business Day, the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATEs" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Domestic Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement by reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
ARTICLE 2
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Borrower pursuant to this Section from time to
time in amounts such that the aggregate principal amount of Loans by such Bank
at any one time outstanding to the Borrower shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this Section, repay, or to the extent permitted by Section 2.10, prepay
Loans and reborrow at any time during the Revolving Credit Period under this
Section. The Commitments shall terminate at the close of business on the
Termination Date.
SECTION 2.02. NOTICE OF BORROWING. The Borrower shall give the Agent
notice (a "Notice of Borrowing"), which may be substantially in the form of
Exhibit E hereto, not later than 10:30 A.M. (New York City time) on (x) the date
of each Domestic Borrowing, and (y) the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing bear interest
initially at the Base Rate or at a Euro-Dollar Rate, provided that if the
date of such Borrowing occurs during the period from and including
December 15, 1999 to and including January 17, 2000, such Loans shall bear
interest at the Base Rate unless and until they are converted to
Euro-Dollar Loans on or after January 18, 2000, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. NOTICE TO BANKS; FUNDING OF LOANS. (a) Upon receipt of
a Notice of Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share of such Borrowing and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of
each Borrowing, each Bank shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Agent at its address referred to
in Section 10.01. Unless any applicable condition specified in Article 3 has not
been satisfied, as determined by the Agent in accordance with Article 3, the
Agent will make the funds so received from the Banks immediately available to
the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to the Borrower on a day
on which the Borrower is to repay all or any part of an outstanding Loan from
such Bank, such Bank shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed by the Borrower and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (b) of this
Section, or remitted by the Borrower to the Agent as provided in Section 2.11,
as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing (or, in the case of a Base Rate Borrowing, prior to
Noon (New York City time) on the date of such Borrowing) that such Bank will not
make available to the Agent such Bank's share of such Borrowing, the Agent may
assume that such Bank has made such share available to the Agent on the date of
such Borrowing in accordance with subsections (b) and (c) of this Section 2.03
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.06 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. If the Borrower shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Borrower for
any loss on account thereof incurred by the Borrower.
SECTION 2.04. NOTES. (a) The Loans of each Bank to the Borrower
shall be evidenced by a single Note of the Borrower payable to the order of such
Bank for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS. Each Loan shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the Termination Date.
SECTION 2.06. INTEREST RATES. (a) Each Domestic Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on the
last day of each calendar quarter and, with respect to the principal amount of
any Domestic Loan converted to a Euro-Dollar Loan, on each date a Domestic Loan
is so converted. Any overdue principal of or interest on any Domestic Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Domestic Loans for
such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Euro-Dollar Margin plus the applicable
Adjusted London Interbank Offered Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Domestic Loans for such day) and (ii) the sum of the Euro-Dollar
Margin plus the Adjusted London Interbank Offered Rate applicable to such Loan
at the date such payment was due.
(d) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) Each Euro-Dollar Reference Bank agrees to use its best efforts
to furnish quotations to the Agent as contemplated hereby. If any Euro-Dollar
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations furnished
by the remaining Euro-Dollar Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 8.01 shall
apply.
SECTION 2.07. FACILITY FEES. The Company shall pay to the Agent for
the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the Commitments in their
entirety), on the daily average aggregate amount of the Commitments (whether
used or unused) and (ii) from and including the Termination Date (or earlier
date of termination of the Commitments in their entirety) to but excluding the
date the Loans shall be repaid in their entirety, on the daily average aggregate
outstanding principal amount of the Loans. Accrued facility fees shall be
payable quarterly in arrears on the last day of each calendar quarter and upon
the date of termination of the Commitments in their entirety (and, if later, the
date the Loans shall be repaid in their entirety).
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
SECTION 2.08. TERMINATION OR REDUCTION OF COMMITMENTS. During the
Revolving Credit Period, the Company may, upon at least three Domestic Business
Days' notice to the Agent, (i) terminate the Commitments at any time, if no
Loans are outstanding at such time or (ii) ratably reduce from time to time by
an aggregate amount of $25,000,000 or any larger multiple of $5,000,000, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
SECTION 2.09. METHOD OF ELECTING INTEREST RATES. (a) The Loans
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable
to such Loans;
provided that if such conversion or continuation occurs during the period from
and including December 15, 1999 to and including January 17, 2000, such Loans
shall be converted into or continued as Domestic Loans unless and until they are
converted to Euro-Dollar Loans on or after January 18, 2000.
Each such election shall be made by delivering a notice (a "Notice
of Interest Rate Election") to the Agent at least three Euro-Dollar Business
Days before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $25,000,000 or any larger multiple
of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.10. PREPAYMENTS.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.12,
the Borrower may, upon at least one Domestic Business Day's notice to the Agent,
prepay the Group of Domestic Loans, or, upon three Euro-Dollar Business Days'
notice to the Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$25,000,000 or any larger multiple of $5,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower. Each such prepayment shall be applied
to prepay ratably the Loans of the several Banks included in the relevant Group
or Borrowing.
SECTION 2.11. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
and other amounts payable hereunder, not later than 12:00 Noon (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, without off set or counterclaim, to the Agent at its address
referred to in Section 10.01. The Agent will promptly distribute to each Bank
its ratable share of each such payment received by the Agent for the account of
the Banks. Whenever any payment of principal of, or interest on, the Domestic
Loans or of fees or other amounts payable hereunder shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due from the Borrower to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.12. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Domestic Loan (pursuant to Article 2, 6 or 8 or otherwise) on any
day other than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.06(c), or if the
Borrower fails to borrow, convert, continue or prepay any Euro-Dollar Loans
after notice has been given to any Bank in accordance with Section 2.03(a),
2.09(c) or 2.10(b), the Company shall reimburse each Bank within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
conversion or failure to borrow or prepay, provided that such Bank shall have
delivered to the Company a certificate as to the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest error.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees hereunder shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.14. CHANGE OF CONTROL. If a Change of Control shall occur,
the Company will, within ten days after the occurrence thereof, give each Bank
notice thereof, which notice shall describe in reasonable details the facts and
circumstances giving rise thereto and shall specify an Optional Termination Date
for purposes of this Section (the "Optional Termination Date") which date shall
not be less than 30 nor more than 60 days after the date of such notice. Each
Bank may, by notice to the Company and the Agent given not less than three
Domestic Business Days prior to the Optional Termination Date, terminate its
Commitment, which shall thereupon be terminated, and declare the Note held by it
(together with accrued interest thereon) and any other amounts payable hereunder
for its account to be, and such Note and such other amounts shall thereupon
become, due and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Company and the Borrower, in
each case effective on the Optional Termination Date.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a
majority of the board of directors of the Company.
ARTICLE 3
CONDITIONS
SECTION 3.01. CLOSING. The closing hereunder shall occur upon
receipt by the Agent of the following (in the case of any document, dated the
Closing Date unless otherwise indicated):
(a) a duly executed Note of the Borrower for the account of each
Bank dated on or before the Closing Date complying with the provisions of
Section 2.04;
(b) an opinion of Thomas O. McGimpsey, Esq., counsel for the Company
and the Borrower, substantially in the form of Exhibit B hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(c) an opinion of Davis Polk & Wardwell, special counsel for the
Agent, substantially in the form of Exhibit C hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) evidence satisfactory to the Agent of the payment of all fees
and other amounts payable to the Agent for the account of the Banks or the Agent
on or prior to the Closing Date, including, to the extent invoiced,
reimbursement of all out-of-pocket expenses (including, without limitation,
legal fees and expenses) required to be reimbursed or paid by the Borrower or
the Company hereunder;
(e) the aggregate amount of cash consideration payable pursuant to
the Tender Offer shall not have increased materially, in the reasonable judgment
of the Agent after consultation with the Company, above the amount offered on
the date hereof, and all conditions to the consummation of the Tender Offer
(other than the expiration or termination of the applicable waiting period under
the Hart Scott Rodino Antitrust Improvements Act) shall have been satisfied; and
(f) all documents the Agent may reasonably request relating to the
existence of the Company and the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. ALL BORROWINGS. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or prior
to July 30, 1999 and all conditions to the consummation of the Tender Offer
shall have been satisfied;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02;
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in
this Agreement shall be true on and as of the date of such Borrowing (except, in
the case of the representations and warranties contained in Section 4.04(b), as
disclosed by the Borrower to the Banks in writing in the Notice of Borrowing
relating to such Borrowing).
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Company and the
Borrower of this Agreement and by the Borrower of the Notes are within such
Person's corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Person or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Person or any
Significant Subsidiary or result in the creation or imposition of any Lien on
any material asset of such Person or any Significant Subsidiary.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1998 and the related consolidated
statements of income and cash flows for the fiscal year then ended, reported on
by Arthur Andersen L.L.P. and set forth in the Company's 1998 Form 10-K, a copy
of which has been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such fiscal year.
(b) Since December 31, 1998 there has been no material adverse
change in the financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole (it being understood that
neither the execution of the Merger Agreement nor the consummation of the Tender
Offer shall constitute such a change).
SECTION 4.05. LITIGATION. Except as disclosed in the Company's 1998
Form 10-K and the Company's Form 10-Q for the quarter ended March 31, 1999, as
filed with the Securities and Exchange Commission, there is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which would materially adversely
affect the consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole, or
which in any manner draws into question the validity of this Agreement or the
Notes.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
SECTION 4.07. ENVIRONMENTAL MATTERS. (a) The operations of the
Company and each of its Subsidiaries comply in all respects with all
Environmental Laws except such non-compliance which would not (if enforced in
accordance with applicable law) reasonably be expected to result, individually
or in the aggregate, in a material adverse effect on the financial position or
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
(b) Except as specifically identified in Schedule 4.07, the Company
and each of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Laws
("Environmental Permits") necessary for their respective operations, and all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically identified in Schedule 4.07, there are
neither any conditions or circumstances known to the Company which may give rise
to any claims or liabilities respecting any Environmental Laws or Hazardous
Substances arising from the operations of the Company or its Subsidiaries
(including, without limitation, off-site liabilities), nor any additional costs
of compliance with Environmental Laws, which collectively have an aggregate
potential liability in excess of $50,000,000.
SECTION 4.08. TAXES. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1987. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except for taxes the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.09. SUBSIDIARIES. Each of the Company's corporate
Significant Subsidiaries (including, but not limited to, the Borrower) is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted.
SECTION 4.10. NOT AN INVESTMENT COMPANY. Neither the Company nor the
Borrower is an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
SECTION 4.11. FULL DISCLOSURE. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the Securities
and Exchange Commission by Arthur Andersen L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the
end of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. (a) The Company
will keep, and will cause each Significant Subsidiary to keep, all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name), with financially sound and responsible
insurance companies, insurance on all their respective properties in at least
such amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Banks,
upon request from the Agent, information presented in reasonable detail as to
the insurance so carried; provided that, in lieu of any such insurance, the
Company and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
SECTION 5.03. MAINTENANCE OF EXISTENCE. The Company will, and will
cause each Significant Subsidiary to, preserve, renew and keep in full force and
effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business.
SECTION 5.04. COMPLIANCE WITH LAWS. The Company will comply, and
will cause each Significant Subsidiary to comply, in all material respects with
all applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
for which adequate reserves in conformity with generally accepted accounting
principles have been established.
SECTION 5.05. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Company
will keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. SUBSIDIARY DEBT. Total Debt of all Consolidated
Subsidiaries (excluding Debt of (i) the Borrower which is Guaranteed by the
Company and (ii) a Consolidated Subsidiary to the Company or to a Wholly-Owned
Consolidated Subsidiary) as of the last day of any fiscal quarter of the Company
will not exceed 150% of Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ending on such date. For purposes of this Section, any
preferred stock of a Consolidated Subsidiary other than the Borrower which is
held by a Person other than the Company or a Wholly-Owned Consolidated
Subsidiary shall be included, at the higher of its voluntary or involuntary
liquidation value, in the Debt of such Consolidated Subsidiary.
SECTION 5.07. DEBT COVERAGE. Consolidated Debt of the Company and
its Consolidated Subsidiaries as of the last day of any fiscal quarter of the
Company will not exceed (i) prior to the Reset Date, 350%, and (ii) on and after
the Reset Date, 400%, of Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ending on such date.
SECTION 5.08. NEGATIVE PLEDGE. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien on assets or capital stock of Minor Subsidiaries which
secures Debt of Persons which are not Consolidated Subsidiaries in which the
Company or any of its Subsidiaries has made investments ("Joint Ventures"), but
for the payment of which Debt no other recourse may be had to the Company or any
Subsidiaries ("Limited Recourse Debt"), or any Lien on equity interests in a
Joint Venture securing Limited Recourse Debt of such Joint Venture;
(g) any Lien arising out of the refinancing, replacement, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased and
is not secured by any additional assets;
(h) Liens arising in the ordinary course of business which (i) do
not secure Debt, (ii) o not secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its
business; and (vi) Liens not otherwise permitted by and in addition to the
foregoing clauses of this Section securing Debt in an aggregate principal amount
at any time outstanding not to exceed $750,000,000.
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Company will not (i) consolidate with or merge into any other Person or (ii)
sell, lease or otherwise transfer, directly or indirectly, all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, to any
other Person. The Company will retain ownership, directly or indirectly, of at
least 80% of the capital stock, and at least 80% of the voting power, of U S
WEST Communications, Inc.
SECTION 5.10. USE OF PROCEEDS. The proceeds of the Loans made under
this Agreement will be used by the Borrower for financing the Tender Offer or
for general corporate purposes. None of such proceeds will be used, directly or
indirectly, in violation of any applicable law or regulation, and no use of such
proceeds for general corporate purposes will include any use for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any Margin
Stock.
SECTION 5.11. YEAR 2000 COMPATIBILITY. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be paid
within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 10 days (or, in the case of Section 5.11, 30 days)
after written notice thereof has been given to the Company by the Agent at the
request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment or
payments, in the aggregate in excess of $50,000,000, in respect of any Material
Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize or otherwise
acquiesce in any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Company
or any Significant Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $100,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $100,000,000;
(j) a judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 10
days (it being understood that in any event an administrative order of a public
utility commission shall not constitute an "order" for purposes of this clause
(j) so long as (x) no one is seeking to enforce such order in an action, suit or
proceeding before a court and (y) reserves in the full amount of the cost of
such order are maintained on the books of the Company and its Subsidiaries); or
(k) the Company shall repudiate in writing any of its obligations
under Article 9 or any such obligation shall be unenforceable against the
Company in accordance with its terms, or the Company shall so assert in writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, the Borrower or any Subsidiary or affiliate of the
Company or the Borrower as if it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Company or the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, 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 any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. AGENT'S FEE. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan:
(a) the Agent is advised by the Euro-Dollar Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to the
Euro-Dollar Reference Banks in the market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the
Euro-Dollar Loans advise the Agent that the Adjusted London Interbank Offered
Rate as determined by the Agent will not adequately and fairly reflect the cost
to such Banks of funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans or to convert outstanding Loans into Euro-Dollar Loans
shall be suspended and (ii) each outstanding Euro-Dollar Loan shall be converted
into a Domestic Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Agent at least two Domestic
Business Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Domestic Borrowing.
SECTION 8.02. ILLEGALITY. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans to the Borrower and such Bank shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Banks and the Company,
whereupon until such Bank notifies the Company and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans to the Borrower, or to convert outstanding
Loans into Euro-Dollar Loans, shall be suspended. Before giving any notice to
the Agent pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each Euro-Dollar Loan of
such Bank then outstanding shall be converted to a Domestic Loan either (a) on
the last day of the then current Interest Period applicable to such Euro-Dollar
Loan if such Bank may lawfully continue to maintain and fund such Loan to such
day or (b) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after
the date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System with respect to
any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Euro-Dollar Loans, its Note or its obligation to make Euro-Dollar
Loans and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Euro-Dollar
Loan, or to reduce the amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. TAXES. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form required
hereunder, the Company shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
SECTION 8.05. DOMESTIC LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
SECTION 8.06. SUBSTITUTION OF BANK. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii)
any Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
ARTICLE 9
GUARANTY
SECTION 9.01. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.02. GUARANTY UNCONDITIONAL. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this Agreement
or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under this
Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of the Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower or its assets or any resulting
release or discharge of any obligation of the Borrower contained in this
Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against the Borrower, the Agent, any Bank or
any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Borrower of the principal of or interest on any Note or any other amount
payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
SECTION 9.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION 9.04. WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 9.05. SUBROGATION. The Company irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
SECTION 9.06. STAY OF ACCELERATION. In the event that acceleration
of the time for payment of any amount payable by the Borrower under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of the Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the Company hereunder
forthwith on demand by the Agent made at the request of the Required Banks.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Company, the Borrower or the Agent, at its address
or facsimile number set forth on the signature pages hereof, (y) in the case of
any Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.01 and telephonic
confirmation of receipt thereof is received, or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 10.02. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. EXPENSES; INDEMNIFICATION. (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that (i) no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction and (ii)
the Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice
after it receives any notice of the commencement of any action, suit or
proceeding for which such Indemnitee may wish to claim indemnification pursuant
to subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of notice
from such Indemnitee of such commencement, to assume, at the Company's expense,
the defense of any such action, suit or proceeding; provided, that such
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Indemnitee's expense unless
(1) the Company shall have agreed to pay such fees and expenses; (2) the Company
shall have failed to assume the defense of such action, suit or proceeding or
shall have failed to employ counsel reasonably satisfactory to such Indemnitee
in any such action, suit or proceeding; or (3) such Indemnitee shall have been
advised by independent counsel in writing (with a copy to the Company) that
there may be one or more defenses available to such Indemnitee which are in
conflict with those available to the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall be obligated to assume the expense, it
being understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
SECTION 10.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness hereunder. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
SECTION 10.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company, the Borrower and the
Required Banks (and, if the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) amend or waive the provisions of Article
9 or (v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Agreement.
SECTION 10.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company and the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii) of Section 10.05
without the consent of the Participant. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below but which is consented to in accordance with this subsection
(b) shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit D hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; and (ii) any
assignment shall not be less than $5,000,000, or, if less, shall constitute an
assignment of all of such Bank's rights and obligations under this Agreement and
the Notes. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Company and the Agent certification
as to exemption from deduction or withholding of any United States federal
income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 10.07. NO RELIANCE ON MARGIN STOCK. Each Lender represents
to the Agent and each of the other Lenders that it in good faith is not relying
upon any Margin Stock as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION 10.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each of the Company and the Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 10.09. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Agent of
counterparts hereof signed by each of the Company, the Borrower, the Banks and
the Agent (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party).
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE
BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. CONFIDENTIALITY. Each of the Agent and the Banks
agrees to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided that
nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii) upon
the order of any court or administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having jurisdiction over such party, (v)
which has been publicly disclosed, (vi) which has been obtained from any Person
other than the Company and its Subsidiaries, provided that such Person is not
(x) known to it to be bound by a confidentiality agreement with the Company or
its Subsidiaries or (y) known to it to be otherwise prohibited from transmitting
the information to it by a contractual, legal or fiduciary obligation, (vii) in
connection with the exercise of any remedy hereunder or under the Notes or
(viii) to any actual or proposed participant or assignee of all or any of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By: ____________________________________
Name: Sean P. Foley
Title: Assistant Treasurer
1801 California Street
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean P. Foley
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 303-308-1657
Telephone number: 303-672-2712
Attention: Thomas O. McGimpsey
U S WEST, INC.
By: ____________________________________
Name: Sean P. Foley
Title: Vice President - Treasurer
1801 California Street
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean P. Foley
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 303-308-1657
Telephone number: 303-672-2712
Attention: Thomas O. McGimpsey
<PAGE>
COMMITMENTS
$ 187,500,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: ____________________________________
Name:
Title:
$ 187,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: ____________________________________
Name:
Title:
$ 187,500,000 THE CHASE MANHATTAN BANK
By: ____________________________________
Name:
Title:
$ 187,500,000 CITIBANK, N.A.
By: ____________________________________
Name:
Title:
$ 150,000,000 ABN AMRO BANK N.V
By: ____________________________________
Name:
Title:
$ 150,000,000 THE BANK OF NEW YORK
By: ____________________________________
Name:
Title:
$ 150,000,000 COMMERZBANK AG LOS ANGELES
BRANCH
By: ____________________________________
Name:
Title:
$ 150,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: ____________________________________
Name:
Title:
$ 150,000,000 MELLON BANK, N.A
By: ____________________________________
Name:
Title:
TOTAL COMMITMENTS:
- -----------------
$1,500,000,000
==============
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By: ____________________________________
Name:
Title:
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Connor
Facsimile number: 302-634-1092
Telephone number: 302-634-4218
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
Level Level Level Level Level Level Level
Status I II III IV V VI VII
------ ----- ----- ----- ----- ----- ----- -----
Euro-Dollar .365% .430% .545% .650% .750% 1.100% 1.550%
Margin
Facility Fee .060% .070% .080% .100% .125% .150% .200%
Rate
For purposes of this Schedule, the following terms have the
following meanings:
"Creditwatch Expiration Date" is the first date on which the
Company's ratings have been removed from creditwatch (or the equivalent) by S&P
and Moody's.
"Level I Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Minimum Short-Term Credit
Ratings are in effect.
"Level II Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A or
higher by S&P or A2 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) Level I Status does not exist.
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A- or
higher by S&P or A3 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) neither Level I Status nor Level II Status
exists.
"Level IV Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) none of Level I Status, Level II Status or Level
III Status exists.
"Level V Status" exists at any date if, at such date, (i)(x) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB or higher by S&P and Baa2 or higher by Moody's and (y)
Minimum Short-Term Credit Ratings are in effect and (ii) none of Level I Status,
Level II Status, Level III or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Level VII Status" exists at any date if, at such date, none of
Level I Status, Level II Status, Level III Status, Level IV Status, Level V
Status or Level VI Status exists.
"Minimum Short-Term Credit Ratings" are in effect on any day on
which the Borrower's short-term debt is rated A-2 or higher by S&P and P-2 or
higher by Moody's.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status, Level VI
Status or Level VII Status exists at any date.
For purposes of this Schedule, the credit ratings to be utilized for senior
unsecured long-term debt securities are those assigned to the senior unsecured
long-term debt securities of the Borrower guaranteed by the Company, the credit
ratings to be utilized for short-term debt are those assigned to the commercial
paper of the Borrower, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
<PAGE>
SCHEDULE 4.07
ENVIRONMENTAL MATTERS
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
________, 19__
For value received, U S WEST CAPITAL FUNDING, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the inaccuracy of, or the failure of the Bank to
make, any such recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of June 11, 1999 among U S WEST Capital Funding, Inc., U S
WEST, Inc., the banks listed on the signature pages thereof, the other agents
named therein and Morgan Guaranty Trust Company of New York, as Administrative
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
U S WEST, Inc., has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this Note.
U S WEST CAPITAL FUNDING, INC.
By: ____________________________________
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
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<PAGE>
EXHIBIT B
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc. (the "Company") and U S
WEST Capital Funding, Inc. (the "Borrower") in connection with the 364-Day
Credit Agreement (the "Credit Agreement") dated as of June 11, 1999, among them,
the lenders listed on the signature pages thereof, the other agents named
therein and Morgan Guaranty Trust Company of New York, as Administrative Agent.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the instruction of the client pursuant to
Section 3.01(b) of the Credit Agreement.
I am familiar with the proceedings taken by the Company and the
Borrower in connection with the authorization, execution and delivery of the
Credit Agreement and the Notes, and I have examined such documents,
certificates, and such other matters of fact and questions of law as I have
deemed relevant under the circumstances to express an informed opinion. Upon the
basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and has all
corporate powers and all governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted,
except where the absence of any such license, authorization, qualification,
consent or approval would not have a material adverse effect on the consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
2. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement and by the Borrower of the Notes are within
such Person's corporate powers, have been duly authorized by all necessary
corporate action, and require no action by or in respect of, or filing with, any
governmental body, agency or official.
3. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement and by the Borrower of the Notes will not (i)
result in a breach or violation of, conflict with, or constitute a default
under, the articles of incorporation or bylaws of such Person or any material
law or regulation or any material order, judgment, agreement or instrument to
which such Person is a party or by which such Person is bound, or (ii) result in
the creation or imposition of any Lien on any asset of such Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Borrower and the Notes constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with its
terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
5. To my knowledge, and except as disclosed in the Company's 1998
Form 10-K (as amended by Form 10-K/A) and the Company's Form 10-Q for the
quarter ended March 31, 1999 as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or which in any manner draws
into question the validity of the Credit Agreement or the Notes.
6. Each of the Borrower and the Company's other corporate
Significant Subsidiaries is a corporation validly existing and in good standing
under the laws of their jurisdictions of incorporation, and has all corporate
powers and all governmental licenses, authorizations, qualifications, consents
and approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above,
I have assumed that the laws of the State of New York, which are stated to
govern the Credit Agreement and the Notes, are the same as the laws of the State
of Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement and the Notes will conform to the specimens thereof examined by
me, that the signatures on all documents examined by me were genuine, and the
authenticity of all documents submitted to me as originals or as copies of
originals, assumptions which I have not independently verified. Further, this
opinion is governed by, and shall be interpreted in accordance with, the Legal
Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). This
opinion is subject to a number of qualifications (including the General
Qualification, as defined in the Accord), exceptions, definitions and
limitations on coverage, all as more particularly described in the Accord.
This opinion is furnished by me as counsel for the Company and the
Borrower and is solely for your benefit and the benefit of any Assignee under
the Credit Agreement. Without my prior written consent, this opinion may not be
relied upon by you or any Assignee in any other context or by any other person.
This opinion may not be quoted, in whole or in part, or copies thereof
furnished, to any other person without my prior written consent, except that you
may furnish copies hereof (a) to your auditors and attorneys, (b) to any state
or federal authority having regulatory jurisdiction over you or the Company or
the Borrower, (c) pursuant to order or legal process of any court or
governmental agency, (d) in connection with any legal action to which you are a
party arising out of the transactions contemplated by the Credit Agreement, and
(e) to any Participant or proposed Participant in the Commitment of any Bank.
This opinion is limited to the present laws of the State of Colorado
and the General Corporation Law of the State of Delaware, to present judicial
interpretations thereof, and to the facts as they presently exist, and I assume
no responsibility as to the applicability or effect of the laws of any other
jurisdiction. In rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws of the State of Colorado or the
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision, or otherwise.
Very truly yours,
Thomas O. McGimpsey
<PAGE>
EXHIBIT C
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 364-Day Credit
Agreement(the "Credit Agreement") dated as of June 11, 1999 among U S WEST
Capital Funding, Inc., U S WEST, Inc., the banks listed on the signature pages
thereof (the "Banks"), the other agents named therein and Morgan Guaranty Trust
Company of New York, as Administrative Agent (the "Agent"), and have acted as
special counsel for the Agent for the purpose of rendering this opinion pursuant
to Section 3.01(c) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that,
assuming that the execution, delivery and performance by the Company and the
Borrower of the Credit Agreement and by the Borrower of the Notes are within
such Person's corporate powers and have been duly authorized by all necessary
corporate action, the Credit Agreement constitutes a valid and binding agreement
of the Company and the Borrower and the Notes constitute valid and binding
obligations of the Borrower.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (the "Company") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of June 11, 1999 among the
Company, the Borrower named therein, the Assignor and the other Banks party
thereto, as Banks, the other agents named therein and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Loans made by the Assignor under the Credit Agreement in
the aggregate principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(1) It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
____________________
(1) Amount should combine principal with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as fixed sum.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of the
Company or the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company and
the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By: ____________________________________
Title:
[ASSIGNEE]
By: ____________________________________
Title:
[U S WEST, INC.
By: ____________________________________
Title:
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By: ____________________________________
Title:]
<PAGE>
EXHIBIT E
NOTICE OF BORROWING
[Date]
To: Morgan Guaranty Trust Company of New York, as
Administrative Agent
From: U S WEST Capital Funding, Inc.
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of
June 11, 1999 among U S WEST Capital Funding, Inc., U S West,
Inc., the Banks party thereto and the Agent
We hereby give notice pursuant to Section 2.02 of the Credit
Agreement that we request the following [Domestic][Euro-Dollar] Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT(2) [INTEREST PERIOD](3)
- ---------------- ---------------
$
[You have previously received financial statements and other
information pursuant to Section 5.01 of the Credit Agreement; to the extent, if
any, that such information reflects a material adverse change of the kind
referred to in Section 4.04(b) of the Credit Agreement, we have satisfied the
disclosure requirement set forth in Section 3.02(e) of the Credit Agreement.]
[Without agreeing that a material adverse change of the kind referred to in
Section 4.04(b) of the Credit Agreement has occurred, we disclose that [describe
event].]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
U S WEST CAPITAL FUNDING, INC.
By: ____________________________________
Title:
____________________
(2) Amount must be $25,000,000 or a larger multiple of $5,000,000.
(3) Only for Euro-Dollar Borrowings; one, two, three or six months, at the
Borrower's option.
