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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission File Number 1-14087
U S WEST, Inc.
(Exact name of registrant as specified in its charter)
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<S> <C>
A Delaware Corporation 84-0953188
(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
of organization)
</TABLE>
1801 California Street, Denver, Colorado 80202
Telephone Number (303) 672-2700
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No __
At July 23, 1999, 504,646,139 shares of common stock were outstanding.
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<PAGE>
U S WEST, Inc.
Form 10-Q
TABLE OF CONTENTS
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Item Page
PART I - FINANCIAL INFORMATION
1. Financial Statements
Consolidated Statements of Income -
Three months and six months ended June 30, 1999 and 1998............... 3
Consolidated Balance Sheets -
June 30, 1999 and December 31, 1998................................... 4
Consolidated Statements of Cash Flows -
Six months ended June 30, 1999 and 1998................................ 5
Notes to Consolidated Financial Statements...................................... 6
2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.............................................. 15
3. Quantitative and Qualitative Disclosures
About Market Risk................................................................ 24
PART II - OTHER INFORMATION
1. Legal Proceedings....................................................................... 31
2. Changes in Securities and Use of Proceeds............................................... 31
4. Submission of Matters to a Vote of Security Holders..................................... 32
5. Recent Developments..................................................................... 33
6. Exhibits and Reports on Form 8-K........................................................ 33
</TABLE>
<PAGE>
U S WEST, INC.
CONSOLIDATED STATEMENTS OF INCOME
(dollars in millions, except per share amounts)
(unaudited)
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Three Months Ended Six Months Ended
June 30, June 30,
1999 1998 1999 1998
---- ---- ---- ----
Operating revenues:
Local services....................................... $1,933 $1,756 $3,800 $3,486
Access services...................................... 688 671 1,369 1,336
Long-distance services............................... 156 200 330 404
Directory services................................... 333 310 659 616
Other services....................................... 148 116 282 220
------------- ------------ ------------- ------------
Total operating revenues.......................... 3,258 3,053 6,440 6,062
Operating expenses:
Employee-related expenses............................ 1,153 1,069 2,278 2,075
Other operating expenses............................. 677 765 1,339 1,421
Depreciation and amortization........................ 573 535 1,175 1,067
------------- ------------ ------------- ------------
Total operating expenses.......................... 2,403 2,369 4,792 4,563
------------- ------------ ------------- ------------
Operating income........................................... 855 684 1,648 1,499
Other expense:
Interest expense..................................... 163 109 316 206
Other expense-net.................................... 13 33 14 58
------------- ------------ ------------- ------------
Total other expense-net........................... 176 142 330 264
------------- ------------ ------------- ------------
Income before income taxes................................. 679 542 1,318 1,235
Provision for income taxes................................. 258 215 500 474
------------- ------------ ------------- ------------
Net income................................................. $421 $327 $818 $761
============= ============ ============= ============
Basic earnings per share.................................. $0.84 $0.67 $1.62 $1.56
============= =========== ============== ============
Basic average shares outstanding (in 000's)............... 503,934 487,869 503,622 486,424
============= =========== ============== ============
Diluted earnings per share................................ $0.83 $0.67 $1.61 $1.55
============= =========== ============== ============
Diluted average shares outstanding (in 000's)............. 508,200 491,944 508,255 490,521
============= =========== ============== ============
Dividends per share....................................... $0.75 $0.535 $1.285 $1.07
============= =========== ============== ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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U S WEST, INC.
CONSOLIDATED BALANCE SHEETS
(dollars in millions, except share amounts)
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June 30, December 31,
1999 1998
(unaudited)
ASSETS
Current assets:
Cash and cash equivalents............................................................... $122 $49
Accounts receivable, less allowance for uncollectibles of
$77 and $69, respectively............................................................. 1,730 1,743
Inventories and supplies................................................................ 264 197
Deferred directory costs................................................................ 272 274
Deferred tax assets..................................................................... 153 151
Prepaid and other.............................................................. 129 78
-------------- -------------
Total current assets....................................................................... 2,670 2,492
Property, plant and equipment-net.......................................................... 15,480 14,908
Other assets-net........................................................................... 3,741 1,007
-------------- -------------
Total assets............................................................................... $21,891 $18,407
============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt......................................................................... $4,218 $1,277
Accounts payable........................................................................ 1,352 1,347
Accrued expenses........................................................................ 1,951 1,702
Advance billings and customer deposits.................................................. 381 370
-------------- -------------
Total current liabilities.................................................................. 7,902 4,696
Long-term debt............................................................................. 8,458 8,642
Postretirement and other postemployment benefit obligations................................ 2,634 2,643
Deferred income taxes...................................................................... 910 786
Unamortized investment tax credits......................................................... 159 159
Deferred credits and other................................................................. 762 726
Commitments and Contingencies
Stockholders' equity:
Preferred stock - $1.00 par value, 190,000,000 shares authorized, none issued and
outstanding.......................................................................... - -
Series A junior preferred stock-$1.00 par value, 10,000,000 shares authorized, none
issued and outstanding............................................................... - -
Common stock-$0.01 par value, 2,000,000,000 shares authorized, 504,652,058 and
503,207,058 issued, 504,348,055 and 502,903,055 outstanding......................... 589 532
Retained earnings....................................................................... 394 223
Accumulated other comprehensive income.................................................. 83 -
-------------- -------------
Total stockholders' equity................................................................. 1,066 755
-------------- -------------
Total liabilities and stockholders' equity................................................. $21,891 $18,407
============== =============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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U S WEST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in millions)
(unaudited)
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Six Months Ended
June 30,
1999 1998
---- ----
OPERATING ACTIVITIES
Net income................................................................................ $818 $761
Adjustments to net income:
Depreciation and amortization....................................................... 1,175 1,067
Deferred income taxes and amortization of investment tax credits.................... 74 89
Changes in operating assets and liabilities:
Accounts receivable................................................................. 13 11
Inventories, supplies and other current assets...................................... (120) (88)
Accounts payable, accrued expenses and advance billings............................. 159 (76)
Other............................................................................... (50) 55
-------------- --------------
Cash provided by operating activities............................................... 2,069 1,819
-------------- --------------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment......................................... (1,681) (1,283)
Proceeds from (payments on) disposals of property, plant and equipment................. (18) 34
Investment in Global Crossing Ltd. common stock........................................ (2,464) -
Other.................................................................................. (14) (52)
-------------- --------------
Cash used for investing activities..................................................... (4,177) (1,301)
-------------- --------------
FINANCING ACTIVITIES
Net proceeds from short-term debt...................................................... 2,940 2,060
Proceeds from issuance of long-term debt............................................... 17 3,066
Repayments of long-term debt........................................................... (280) (83)
Repayments of Old U S WEST debt in connection with the Dex Alignment................... - (3,829)
Net repayments of Old U S WEST debt.................................................... - (198)
Proceeds from issuance of common stock................................................. 42 44
Dividends paid on common stock......................................................... (538) (519)
Dividends paid to Old U S WEST......................................................... - (183)
Payment to Old U S WEST for debt refinancing costs..................................... - (140)
Return of capital from Old U S WEST.................................................... - 13
Purchases of treasury stock............................................................ - (46)
-------------- --------------
Cash provided by financing activities.................................................. 2,181 185
-------------- --------------
CASH AND CASH EQUIVALENTS
Increase............................................................................... 73 703
Beginning balance...................................................................... 49 27
-------------- --------------
Ending balance......................................................................... $122 $730
============== ==============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the six months ended June 30, 1999
(dollars in millions, except per share amounts)
(unaudited)
NOTE 1: U S WEST SEPARATION
On June 12, 1998, our former parent company, herein referred to as "Old
U S WEST," separated into two independent companies (the "Separation"). Old U S
WEST had conducted its businesses through two groups: (i) the U S WEST
Communications Group (the "Communications Group"), which included the
communications businesses of Old U S WEST, and (ii) the U S WEST Media Group
(the "Media Group"), which included the multimedia and directories businesses of
Old U S WEST. As part of the Separation, Old U S WEST contributed to us the
businesses of the Communications Group and the domestic directories business of
the Media Group known as U S WEST Dex, Inc. ("Dex"). The alignment of Dex with
our Company is referred to in this document as the "Dex Alignment." Old U S WEST
has continued as an independent public company comprised of the businesses of
Media Group other than Dex and has been renamed MediaOne Group, Inc.
In connection with the Dex Alignment, (i) Old U S WEST distributed to
holders of Media Group common stock, approximately 16,341,000 shares of our
common stock (net of the redemption of approximately 305,000 fractional shares)
with an aggregate of $850 in value (the "Dex Dividend") and (ii) we refinanced
$3,900 of Old U S WEST debt (the "Dex Indebtedness"), formerly allocated to
Media Group.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation. The consolidated financial statements include
the consolidated results of operations, financial position and cash flows of the
businesses that comprise the Communications Group and Dex, as if such businesses
operated as a separate entity for all periods and as of all dates presented.
However, certain financial effects of the Separation and the Dex Alignment,
including interest expense associated with refinancing the Dex Indebtedness and
the dilutive effect of the Dex Dividend, are not reflected in the accompanying
consolidated statements of income prior to the Separation.
For periods prior to the Separation, the consolidated financial
statements include an allocation of certain costs, expenses, assets and
liabilities from Old U S WEST. We believe the allocations were reasonable;
however the amount of costs allocated to us were not necessarily indicative of
the costs that would have been incurred if we had operated as a stand-alone
company. The consolidated financial statements may not necessarily reflect the
financial position, results of operations or cash flows in the future or what
they would have been had we been a separate, stand-alone company during such
periods.
The consolidated interim financial statements are unaudited. The
financial statements have been prepared in accordance with the instructions for
Form 10-Q and, therefore, do not necessarily include all information and
footnotes required by generally accepted accounting principles. In our opinion,
all adjustments (consisting only of normal recurring adjustments) necessary to
present fairly our consolidated financial position, results of operations and
cash flows as of June 30, 1999 and for all periods presented have been made. The
statements are subject to year-end audit adjustment. A description of our
accounting policies and other financial information are included in the audited
consolidated financial statements filed with the Securities and Exchange
Commission in our Form 10-K/A for the year ended December 31, 1998. The
consolidated results of operations for the three and six months ended June 30,
1999 are not necessarily indicative of the results expected for the full year.
Certain reclassifications of prior period revenue amounts have been
made to conform to the current year presentation. For a description of the
reclassifications, see the Form 8-K filed April 21, 1999.
On January 1, 1999, we adopted the accounting provisions required by
the American Institute of Certified Public Accountants' Statement of Position
("SOP") 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use." SOP 98-1, among other things, requires that certain
costs of internal use software, whether purchased or developed internally, be
capitalized and amortized over the estimated useful life of the software.
Adoption of the SOP resulted in an increase in net income for the three months
ended June 30, 1999 of $61, or $0.12 per diluted share, and $99, or $0.20 per
diluted share for the six months ended June 30, 1999. We expect that the impact
for all of fiscal year 1999 will be to increase net income by approximately $150
to $180 or $0.30 to $0.35 per diluted share.
NOTE 3: EARNINGS PER SHARE
The following presents a reconciliation of basic weighted average
shares to diluted weighted average shares:
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Three Months Six Months
Ended June 30, Ended June 30,
------------------------------- ------------------------------
1999 1998 1999 1998
---- ---- ---- ----
Basic weighted average shares outstanding....... 503,934 487,869 503,622 486,424
Dilutive effect of stock options................ 4,266 4,075 4,633 4,097
-------------- ----------- ------------- -----------
Diluted weighted average shares outstanding..... 508,200 491,944 508,255 490,521
============== =========== ============= ===========
</TABLE>
Certain of the financial effects of the Separation and the Dex
Alignment, including interest expense associated with the refinancing of the Dex
Indebtedness and the dilutive effects of the Dex Dividend, are not reflected in
the consolidated statements of income prior to the Separation. The following
presents earnings per share for the quarter and six months ended June 30, 1998
on a pro forma basis. The pro forma earnings per share amounts give effect to
the Dex Indebtedness and issuance of approximately 16,341,000 shares (net of the
redemption of 305,000 fractional shares) of common stock in connection with the
Dex Alignment as if such transactions had been consummated as of January 1, 1998
(shares in thousands).
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Quarter Six Months
Ended Ended
June 30, 1998
Basic Earnings Per Share
Net income............................................................ $327 $761
Pro forma adjustment(1)............................................... (31) (72)
-------------- --------------
Pro forma net income.................................................. $296 $689
============== ==============
Basic weighted average shares(2)...................................... 487,869 486,424
Pro forma adjustment(3)............................................... 13,647 14,987
-------------- --------------
Pro forma basic weighted average shares............................... 501,516 501,411
============== ==============
Pro forma basic earnings per share.................................... $0.59 $1.37
============== ==============
Diluted Earnings Per Share
Net income............................................................ $327 $761
Pro forma adjustment(1)............................................... (31) (72)
-------------- --------------
Pro forma net income.................................................. $296 $689
============== ==============
Diluted weighted average shares(2).................................... 491,944 490,521
Pro forma adjustment(3)............................................... 13,647 14,987
-------------- --------------
Pro forma diluted weighted average shares............................. 505,591 505,508
============== ==============
Pro forma diluted earnings per share.................................. $0.59 $1.36
============== ==============
<FN>
<F1>
(1) Reflects incremental (after-tax) interest expense associated with the Dex
Indebtedness.
<F2>
(2) Historical average shares assume a one-for-one conversion of historical
Communications Group common stock outstanding into shares of U S WEST
as of the Separation.
<F3>
(3) Reflects the issuance of approximately 16,341,000 shares of common
stock (net of the redemption of approximately 305,000 fractional
shares) issued in connection with the Dex Alignment as if the shares
had been issued at the beginning of the period.
</FN>
</TABLE>
NOTE 4: SEGMENT INFORMATION
We operate in four segments: retail services, wholesale services,
network services and directory services. The retail services segment provides
local telephone services, including wireless, data and long-distance services.
The wholesale services segment provides access services that connect customers
to the facilities of interexchange carriers and interconnection to our
telecommunications network to competitive local exchange carriers. Our network
services segment provides access to our telecommunications network, including
our information technologies, primarily to our retail services and wholesale
services segments. The directory services segment publishes White and Yellow
Pages telephone directories and provides electronic directory and other
information services. We provide our services to more than 25 million
residential and business customers in Arizona, Colorado, Idaho, Iowa, Minnesota,
Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah,
Washington and Wyoming.
Following is a breakout of our segments. Because significant expenses
of operating the retail services and wholesale services segments are not
allocated to the segments for decision-making purposes, management does not
believe the segment margins are representative of the actual operating results
of the segments. The margin for the retail services and wholesale services
segments excludes network and corporate expenses. The margin for the network
services segment and directory services segment excludes corporate expense. The
"other" category includes our corporate expenses and intersegment eliminations.
The total communications and related services column represents a total of the
retail services, wholesale services and network services segments.
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Total
Communica-
tions
and
Retail Wholesale Network Related Directory Reconciling Consolidated
Services Services Services Services Services Other Items Total
-------- -------- -------- -------- -------- ----- ----- -----
Three Months Ended
June 30, 1999
Operating
revenues......... $2,222 $719 $65 $3,006 $336 $- $(84)(1) $3,258
Margin........... 1,543 526 (699) 1,370 170 (3) (858) 679(2)
Assets........... -(3) -(3) -(3) -(3) 514 -(3) 21,377(3) 21,891
Capital
expenditures..... 93(4) 9 831 933 10 38 - 981
1998
Operating
revenues......... $2,113 $638 $53 $2,804 $313 $- $(64)(1) $3,053
Margin........... 1,544 449 (629) 1,364 155 (81) (896) 542(2)
Assets........... -(3) -(3) -(3) -(3) 504 -(3) 18,093(3) 18,597
Capital
expenditures..... 119(4) - 641 760 15 34 - 809
- -----------------------
<FN>
<F1>
(1) Represents primarily intersegment charges.
<F2>
(2) Represents income before income taxes. Adjustments that are made to the
total of the segments' margin to arrive at income before income taxes
include the following:
</FN>
</TABLE>
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Three Months Ended June 30,
------------------------------------------
1999 1998
------------------- -------------------
Costs and adjustments excluded from segment data but included
in the consolidated total:
Restructuring costs............................................. $- $129
Taxes other than income taxes................................... 109 90
Depreciation and amortization................................... 573 535
Interest expense................................................ 163 109
Other expense-net............................................... 13 33
------------------- -------------------
$858 $896
=================== ===================
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<F1>
(3) A breakout of assets for all segments is not provided to our chief
operating decision-maker. The reconciling items column represents the
amount to reconcile to the consolidated total.
<F2>
(4) Capital expenditures reported for the retail services segment include
only expenditures for wireless services and certain data services.
Additional capital expenditures relating to those services are included
in network services capital expenditures.
</FN>
</TABLE>
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Total
Communi-
cations
and
Retail Wholesale Network Related Directory Reconciling Consolidated
Services Services Services Services Services Other Items Total
-------- -------- -------- -------- -------- ----- ----- -----
Six Months Ended June 30,
1999
Operating
revenues......... $4,390 $1,409 $115 $5,914 $664 $- $(138)(1) $6,440
Margin........... 3,047 1,055 (1,384) 2,718 340 (36) (1,704) 1,318(2)
Assets........... -(3) -(3) -(3) -(3) 514 -(3) 21,377(3) 21,891
Capital
expenditures..... 204(4) 40 1,469 1,713 17 38 - 1,768
1998
Operating
revenues......... $4,180 $1,273 $99 $5,552 $620 $- $(110)(1) $6,062
Margin........... 3,108 959 (1,305) 2,762 312 (188) (1,651) 1,235(2)
Assets........... -(3) -(3) -(3) -(3) 504 -(3) 18,093(3) 18,597
Capital
expenditures..... 237(4) - 1,032 1,269 21 41 - 1,331
- -----------------------
<FN>
<F1>
(1) Represents primarily intersegment charges.
<F2>
(2) Represents income before income taxes. Adjustments that are made to the
total of the segments' margin to arrive at income before income taxes
include the following:
</FN>
</TABLE>
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Six Months Ended June 30,
------------------------------------------
1999 1998
------------------- -------------------
Costs and adjustments excluded from segment data but included
in the consolidated total:
Restructuring costs............................................. $- $129
Taxes other than income taxes................................... 199 191
Depreciation and amortization................................... 1,175 1,067
Interest expense................................................ 316 206
Other expense-net............................................... 14 58
=================== ===================
$1,704 $1,651
=================== ===================
<FN>
<F1>
(3) A breakout of assets for all segments is not provided to our chief
operating decision-maker. The reconciling items column represents the
amount to reconcile to the consolidated total.
<F2>
(4) Capital expenditures reported for the retail services segment include
only expenditures for wireless services and certain data services.
Additional capital expenditures relating to those services are included
in network services capital expenditures.
</FN>
</TABLE>
In addition to the operating revenues disclosed above, intersegment
operating revenues of the retail services segment, network services and
directory services segments were:
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Three Months Ended June 30, Six Months Ended June 30,
------------------------------- ------------------------------
1999 1998 1999 1998
---- ---- ---- ----
Retail services................................. $8 $7 $14 $13
Network services................................ 17 16 31 33
Directory services.............................. 3 3 5 4
</TABLE>
NOTE 5: COMPREHENSIVE INCOME
Other comprehensive income at June 30, 1999 consists of $83 of
unrealized gains on available for sale marketable securities, which are net of
deferred taxes of $49.
Total comprehensive income for the three and six months ended June 30,
1999 is as follows:
<TABLE>
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<S> <C> <C>
June 30, 1999
Three months ended Six months ended
Net income..................................................... $421 $818
Other comprehensive income-
Unrealized gains on available for sale marketable
securities............................................ 68 83
------------------------ --------------------
Comprehensive income........................................... $489 $901
======================== ====================
</TABLE>
NOTE 6: COMMITMENTS AND CONTINGENCIES
Commitments
We have entered into an agreement with Olympic Properties of the United
States to sponsor the 2002 Salt Lake City Winter Olympics and the U.S. Olympic
Teams through 2004. As of June 30, 1999, we have a remaining commitment of $49
to be paid in a combination of cash and services through 2004.
Contingencies
U S WEST Communications, Inc. ("USWC"), our wholly owned subsidiary,
has the following pending regulatory action in Oregon.
On May 1, 1996, the Oregon Public Utilities Commission ("OPUC")
approved a stipulation terminating prematurely USWC's alternative form of
regulation ("AFOR") plan and it then undertook a review of USWC's earnings. In
May 1997, the OPUC ordered USWC to reduce its annual revenues by $97, effective
May 1, 1997, and to issue a one-time refund, including interest, of
approximately $102 to reflect the revenue reduction for the period May 1, 1996
through April 30, 1997. This one-time refund for interim rates became subject to
refund when USWC's AFOR plan was terminated on May 1, 1996.
USWC filed an appeal of the order and asked for an immediate stay of
the refund with the Oregon Circuit Court which granted USWC's request for a
stay, pending a full review of the OPUC's order. On February 19, 1998, the
Oregon Circuit Court entered a judgment in USWC's favor on most of the appealed
issues. The OPUC appealed to the Oregon Court of Appeals on March 19, 1998, and
the appeal remains pending. USWC continues to charge interim rates, subject to
refund, during the pendency of that appeal. The potential exposure, including
interest, at June 30, 1999, is not expected to exceed $386. Management does not
believe there will be a material adverse impact to the financial statements as a
result of this matter.
Other Contingencies. In December 1998, we were informed of the
possibility of a claim by a purported class challenging the transfer of
approximately $54 from the U S WEST pension trust to the U S WEST health care
trust to pay retiree medical expenses pursuant to Section 420 of the Internal
Revenue Code of 1986, as amended. We believe that this transfer complied with
the applicable law and the associated plan documents. We plan to vigorously
defend any such claim if and when it is asserted.
Twelve complaints have been filed against U S WEST and the directors of
U S WEST in the following jurisdictions: California Superior Court, Los Angeles
County (1); New York Supreme Court, New York County (1); Colorado District
Court, City and County of Denver (2); Delaware Court of Chancery (8). These
actions are purported class actions brought on behalf of all persons, other than
the defendants, who own the common stock of U S WEST against U S WEST and the
directors of U S WEST. Each of the complaints makes substantially similar
allegations that the defendants breached their fiduciary duties to the class
members by refusing to seek all bona fide offers for the Company and refusing to
consider the Qwest Communications International Inc. ("Qwest") proposal,
resulting in the stockholders being prevented from maximizing the value of the
common stock. The complaints seek various injunctive and monetary relief,
including orders: a) requiring defendants to act in accordance with the
fiduciary duties by considering any bona fide proposal which would maximize
stockholder value; b) requiring the directors to undertake an evaluation of U S
WEST as a merger/acquisition candidate and take steps to enhance that value and
create an active auction for U S WEST; c) preventing defendants from using a
stockholder rights plan to impede any bona fide offer for U S WEST; d) enjoining
the consummation of the proposed Global Crossing Ltd. ("Global Crossing")-U S
WEST merger until all alternatives are explored; e) requiring defendants to
account for all damages suffered by plaintiffs as a result of defendants'
actions with respect to the tender offer for the shares of Global Crossing
common stock by U S WEST and the proposed Global Crossing-U S WEST merger; and
f) requiring defendants to pay damages to plaintiffs. The Company intends to
vigorously defend these actions.
We are subject to other legal proceedings and claims that arise in the
ordinary course of business. Although there can be no assurance of the ultimate
disposition of these matters, it is management's opinion, based upon the
information available at this time, that the expected outcome, individually or
in the aggregate, will not have a material adverse effect on our consolidated
results of operations or financial position.
NOTE 7: MERGER AGREEMENTS
In May 1999, we entered into an agreement to merge with Global
Crossing. In connection with the Global Crossing merger agreement, in June 1999,
we completed a cash tender offer for approximately 39 million shares of Global
Crossing common stock at a price of $62.75 per share. The transaction was
financed through the issuance of $1,000 of debt securities maturing June 2000,
with interest based on LIBOR and we issued commercial paper for approximately
$1,500. We entered into a line of credit for $1,500 as a backup facility in
issuing the commercial paper. The line of credit expires June 2000. Commitment
fees on the unused portion of the line of credit are .125%. As of June 30, 1999,
there was no outstanding balance on the line of credit.
In July 1999, we entered into an agreement to merge with Qwest. Under the
terms of the merger agreement, Qwest will issue shares of its common stock
having a value of $69.00 for each share of our common stock, subject to a
"collar" on Qwest's Average Price (as defined below) between $28.26 and $39.90
per share. The exchange ratio, and accordingly, the number of Qwest shares to be
issued for each U S WEST share will be determined by dividing $69.00 by the
average of the volume weighted averages of the trading prices of Qwest common
stock for the 15 trading days randomly selected by lot by the Company and Qwest
together from the 30 consecutive trading days ending on the third trading day
preceeding the closing of the transaction (the "Average Price"). If Qwest's
Average Price is less than $28.26, the exchange ratio will be 2.44161. If
Qwest's Average Price is greater than $39.90, the exchange ratio will be
1.72932.
The obligation, if necessary, under the "collar" may be satisfied in whole
or in part with cash if Qwest's Average Price is below $38.70 per share. In
determining the cash amount for the "collar", Qwest and U S WEST will consider
Qwest's desire to reduce dilution to its stockholders, U S WEST's desire to
provide a cash element to its stockholders and both companies' desire to
maintain the merged company's strong financial condition. U S WEST may terminate
the merger agreement if the closing price of Qwest's shares is below $22.00 for
20 consecutive trading days before the closing, or if the Average Price of Qwest
shares during the measurement period is less than $22.00. The Boards of
Directors of both Qwest and U S WEST have unanimously approved the proposed
merger. The merger is subject to approval by the stockholders of both companies,
federal and state regulatory approvals and other customary closing conditions.
Mr. Anschutz, who beneficially owns approximately 39% of the outstanding shares
of Qwest, has agreed to vote his shares in favor of the merger. Closing of the
merger is expected by mid-2000.
In connection with the merger, U S WEST and Global Crossing agreed to
terminate their merger agreement. In consideration for terminating the Global
Crossing/U S WEST merger agreement, U S WEST paid Global Crossing $140 in cash
and 2,231,076 shares of Global Crossing common stock. Qwest provided us a $140
loan to pay for the cash portion of the termination fee. The loan bears an
interest rate of LIBOR plus .15% and is due December 31, 2001. If we change our
recommendation for the merger, we will be obligated to repay $70 in cash to
Qwest and we will receive only 1,115,538 shares of Global Crossing common stock
or the market value in cash at the time of the termination. Otherwise, Qwest
will not receive reimbursement for its $140 loan and will have to deliver to us
the same number of shares of Global Crossing common stock delivered to Global
Crossing by us or pay us the market value in cash at the time of the
termination.
NOTE 8: SALE OF EXCHANGES
In June 1999, the Company entered into a series of definitive
agreements to sell local-exchange telephone properties serving approximately
530,000 access lines in nine states for approximately $1,650 in cash, subject to
adjustment. Approval of the sale is subject to review by federal and state
regulatory agencies. The transfer of ownership, which will occur on a
state-by-state basis, is expected to be completed in 2000.
<PAGE>
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (dollars in millions)
Special Note Regarding Forward-Looking Statements
Some of the information presented in this Form 10-Q constitutes
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995 (the "Reform Act"). Although U S WEST, Inc. (the
"Company," which may also be referred to as "we," "us" or "our") believes that
its expectations are based on reasonable assumptions within the bounds of its
knowledge of its businesses and operations, there can be no assurance that
actual results will not differ materially from our expectations. Factors that
could cause actual results to differ from expectations include:
o greater than anticipated competition from new entrants into the local
exchange, intraLATA (local access transport area) toll, wireless, data and
directories markets, causing loss of customers and increased price
competition;
o changes in demand for our products and services, including optional custom
calling features;
o higher than anticipated employee levels, capital expenditures and operating
expenses (such as costs associated with interconnection and Year 2000
remediation);
o the loss of significant customers;
o pending and future state and federal regulatory changes affecting the
telecommunications industry, including changes that could have an impact on
the competitive environment in the local exchange market;
o a change in economic conditions in the various markets served by our
operations;
o higher than anticipated start-up costs associated with new business
opportunities;
o delays in our ability to begin offering interLATA long-distance services;
o consumer acceptance of broadband services, including telephony, data, video
and wireless services;
o delays in the development of anticipated technologies, or the failure of
such technologies to perform according to expectations; and
o the timing and completion of the recently announced merger with Qwest
Communications International Inc. ("Qwest") and the subsequent integration
of the businesses of the two companies.
These cautionary statements should not be construed as an exhaustive
list or as any admission by us regarding the adequacy of the disclosures. We
cannot always predict or determine after the fact what factors would cause
actual results to differ materially from those indicated by our forward-looking
statements or other statements. In addition, consider statements that include
the terms "believes," "belief," "expects," "plans," "objectives," "anticipates,"
"intends," or the like to be uncertain and forward-looking. All cautionary
statements should be read as being applicable to all forward-looking statements
wherever they appear.
We do not undertake any obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed herein might not occur.
General
On June 12, 1998, our former parent company, herein referred to as "Old
U S WEST," separated into two independent companies (the "Separation"). Old U S
WEST had conducted its businesses through two groups: (i) the U S WEST
Communications Group (the "Communications Group"), which included the
communications businesses of Old U S WEST, and (ii) the U S WEST Media Group
(the "Media Group"), which included the multimedia and directories businesses of
Old U S WEST. As part of the Separation, Old U S WEST contributed to us the
businesses of the Communications Group and the domestic directories business of
the Media Group known as U S WEST Dex, Inc. ("Dex"). The alignment of Dex with
our Company is referred to in this document as the "Dex Alignment." Old U S WEST
has continued as an independent public company comprised of the businesses of
Media Group other than Dex and has been renamed MediaOne Group, Inc.
In connection with the Dex Alignment, (i) Old U S WEST distributed to
holders of Media Group common stock, approximately 16,341,000 shares of our
common stock (net of the redemption of approximately 305,000 fractional shares)
with an aggregate of $850 in value (the "Dex Dividend") and (ii) we refinanced
$3,900 of Old U S WEST debt (the "Dex Indebtedness"), formerly allocated to
Media Group.
The consolidated financial statements include the consolidated results
of operations, financial position and cash flows of the businesses that comprise
the Communications Group and Dex, as if such businesses operated as a separate
entity for all periods and as of all dates presented. However, certain financial
effects of the Separation and the Dex Alignment, including interest expense
associated with the refinancing of the Dex Indebtedness and the dilutive effect
of the Dex Dividend, are not reflected in the consolidated statements of income
prior to the Separation.
Results of Operations
Three and Six Months Ended June 30, 1999 Compared with 1998
Net income for the quarter ended June 30, 1999, increased by $94, or
28.7% to $421, compared to net income of $327 for the quarter ended June 30,
1998. Net income for the six months ended June 30, 1999, increased $57, or 7.5%
to $818, compared to net income of $761 for the six months ended June 30, 1998.
We experienced a 6.7% and 6.2% increase in revenues for the three and six months
ended June 30, 1999, respectively, over the comparable 1998 periods. These
increases were partially offset by increases in expenses to support our growth
initiatives, enhanced customer service and greater network and interconnection
costs.
The following sections provide a more detailed discussion of the
changes in revenues and expenses.
Operating Revenues
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Local services revenues......... $1,933 $1,756 $177 10.1% $3,800 $3,486 $314 9.0%
</TABLE>
Local services revenues. Local services revenues include basic monthly service
fees, fees for calling services such as voice messaging and caller
identification, wireless revenues, subscriber access line charges, MegaBit(TM)
data services, public phone revenues, and installation and connection charges.
State public service commissions regulate most local service rates.
Local services revenues increased primarily due to increased sales of
wireless and calling services. Wireless services accounted for $41 and $72 of
the revenue increases for the three and six months ended June 30, 1999,
respectively. Increased revenues from calling services contributed $36 for the
quarter ended June 30, 1999 and $67 for the six months ended June 30, 1999, over
comparable 1998 periods. Additionally, revenues from access line growth
contributed to the rise in revenues. Second line additions by residential and
small business customers contributed to access line growth due to continuing
demand for Internet access and data transport capabilities. As of the end of the
second quarter of 1999, we had added 510,000 access lines, an increase of 3.1%
over the second quarter of 1998. Of this increase, second line installations
accounted for 242,000 lines, an increase of 16.5% compared with the second
quarter of 1998. Also contributing to the revenue growth were increases in the
subscriber base of our Megabit(TM) data services and greater revenue from inside
wire maintenance plans. Partially offsetting these increases were net regulatory
rate adjustments and refunds of $4 for the three months ended June 30, 1999 and
$19 for the six months ended June 30, 1999, over the comparable 1998 periods.
While local services revenues increased in 1999, the growth rate has
declined from 1998. The decline in the growth rate was primarily attributable to
increased competition as well as our customer retention strategy of offering
bundles of services to customers at lower prices in return for entering into
longer-term contracts. Additionally, some business customers have opted to
migrate from multiple single lines to high capacity lines, which decreases local
services revenues but increases access services revenues. We believe we may
continue to experience declining growth rates as the level of customer demand
slows and competition increases. In June 1999, we entered into a series of
definitive agreements to sell 530,000 access lines in nine states for $1,650 in
cash, subject to adjustment. The access lines accounted for 3.8% of fiscal 1998
local services revenues. While the sale is expected to provide us with a
one-time gain in 2000, it will negatively impact future local services revenue
growth.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Access services revenues........ $688 $671 $17 2.5% $1,369 $1,336 $33 2.5%
</TABLE>
Access services revenues. Access services revenues are derived primarily from
charging interexchange carriers, such as AT&T and MCI WorldCom, for use of our
local network to connect customers to their long-distance networks. These
revenues are generated from both interstate and intrastate services.
Access services revenues increased due to greater demand for both
interstate and intrastate access services. The volume of interstate and
intrastate access minutes billed both increased 5% for the three months ended
June 30, 1999, over the comparable periods in 1998. Interstate and intrastate
access minutes billed increased 6% and 5%, respectively, for the six months
ended June 30, 1999 over the comparable 1998 periods. Rate reductions of $17 and
$14 for interstate and intrastate access services, respectively, for the three
months ended June 30, 1999, and $31 and $30 for the six months ended June 30,
1999, offset increases in demand. The net impact of increased demand, offset by
rate reductions for the three months ended June 30, 1999, was to increase
interstate access services revenues by $42, or 9% and to decrease intrastate
access services revenues by $4, or 3% over the comparable 1998 periods. The net
impact of increased demand, offset by rate reductions for the six months ended
June 30, 1999, was to increase interstate access services revenues by $93, or
10% and to decrease intrastate access services revenues by $19, or 3% over the
comparable 1998 periods. While we anticipate increased demand for total access
services will continue, the effect of rate reductions is anticipated to continue
to cause a decline in intrastate access services revenues. Additionally,
revenues for the quarter and six months ended June 30, 1998 were favorably
impacted by regulatory rate adjustments of $20 and $40, respectively.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Decrease 1999 1998 Decrease
Long-distance services revenues.
$156 $200 ($44) (22.0%) $330 $404 ($74) (18.3%)
</TABLE>
Long-distance services revenues. Long-distance services revenues are derived
from customer calls to locations outside of their local calling area but within
the same LATA. The decrease in long-distance services revenues for the three and
six months ended June 30, 1999 was primarily attributable to greater
competition, resulting in revenue declines of $31 and $51, respectively. Rate
reductions of $7 and $17 for the three and six months ended June 30, 1999,
respectively, also contributed to the revenue losses. As of June 30, 1999,
customers in 11 of the 14 states in which we operate were able to choose an
alternative provider for intraLATA calls without dialing a special access code
when placing the call.
We believe we will continue to experience further declines in
long-distance services revenues as regulatory actions provide for increased
levels of competition. We are responding to competition through competitive
pricing of intraLATA long-distance services and increased promotional efforts to
retain customers. See "Special Note Regarding Forward-Looking Statements" on
page 15.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Directory services revenues.....
$333 $310 $23 7.4% $659 $616 $43 7.0%
</TABLE>
Directory services. Directory services revenues are primarily derived from
selling advertising in our published directories. The increases in directory
services revenues were primarily attributable to price increases and increased
sales of premium advertisements.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Other services revenues......... $148 $116 $32 27.6% $282 $220 $62 28.2%
</TABLE>
Other services revenues. Other services revenues include billings and
collections for interexchange carriers, customer equipment sales and sales of
other unregulated products, such as U S WEST.net(R), our Internet service. Other
services revenues increased primarily as a result of increased sales of other
unregulated products, primarily customer equipment sales and increased
subscribers for U S WEST.net(R).
Operating Expenses
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Employee-related expenses.......
$1,153 $1,069 $84 7.9% $2,278 $2,075 $203 9.8%
</TABLE>
Employee-related expenses. Employee-related expenses include salaries and wages,
benefits, payroll taxes and contract labor.
Employee-related expenses increased during the three and six month
periods ended June 30, 1999, because of increased commitments towards improving
customer service, including meeting requests for installation, repair services
and customer services, resulting in higher labor costs. Additionally, growth in
several sectors of the business, primarily wireless and data communications,
resulted in increased employee levels. Across-the-board wage increases also
contributed to the increase in employee-related expenses. Additionally, included
in employee-related expenses are the salary and benefit costs for employees who
were transferred from Old U S WEST as part of the Separation. Prior to the
Separation, these costs were allocated to us and included in other operating
expenses. Partially offsetting the higher expenses were net reductions in the
costs of employee benefits, including pension expense, of $16 for the three
months ended June 30,1999 and $30 for the six months ended June 30, 1999, over
the comparable 1998 periods. In addition, $24 for the quarter ended June 30,
1999 and $38 for the six months ended June 30, 1999, of employee-related
expenses associated with developing internal use software were capitalized in
1999 due to the adoption of Statement of Position ("SOP") 98-1, "Accounting for
the Costs of Computer Software Developed or Obtained for Internal Use,"
effective January 1, 1999.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Decrease 1999 1998 Decrease
Other operating expenses........ $677 $765 ($88) (11.5%) $1,339 $1,421 ($82) (5.8%)
</TABLE>
Other operating expenses. Other operating expenses include access charges paid
to independent local exchange carriers ("LECs") for the routing of local and
long-distance traffic through their facilities, paper, printing, delivery and
distribution costs associated with publishing activities and other selling,
general and administrative costs. Included in the quarter and six months ended
June 30, 1998 were $129 of Separation costs and asset impairment charges.
Excluding these charges, other operating expenses increased $41, or 6.4%, for
the quarter ended June 30, 1999 and increased $47, or 3.6%, for the six months
ended June 30, 1999. These increases in other operating expenses for the quarter
and six months ended June 30, 1999, were primarily attributable to the
following:
o higher access charge expenses resulting from regulatory rulings that
require us to pay reciprocal compensation to other LECs for calls that
originate on our network and terminate on other LECs' networks,
o increased costs of product sales associated with growth initiatives,
including wireless handset costs and costs applicable to our data
communications services, and
o higher interconnection and Year 2000 remediation costs.
In addition, the increase in other operating expenses for the six
months ended June 30, 1999, was also due to the following:
o higher marketing and advertising costs for wireless, data communications
services and calling services, such as caller identification, and
o higher rent expense related to increased computer hardware leasing and
increases in leasing costs associated with telephone poles.
Offsetting the increases in other operating expenses were the effects
of capitalizing $85 for the quarter ended June 30, 1999 and $146 for the six
months ended June 30, 1999 of costs associated with developing internal use
software in accordance with SOP 98-1. Additionally, the transfer of employees
from Old U S WEST as part of the Separation has resulted in the reclassification
of this cost to employee-related expenses.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Depreciation and amortization
expense...................... $573 $535 $38 7.1% $1,175 $1,067 $108 10.1%
</TABLE>
Depreciation and amortization expense. Depreciation and amortization expense
increased primarily due to higher overall property, plant and equipment balances
resulting from continued investment in our network. Additionally, the useful
lives of certain assets were reduced, reflecting changes in technology, causing
greater depreciation expense. Partially offsetting the second quarter increase
was the cessation of depreciation primarily associated with the 530,000 access
lines that are under definitive sales agreements entered into in the second
quarter of 1999.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Other expense-net............... $176 $142 $34 23.9% $330 $264 $66 25.0%
</TABLE>
Other expense-net. Interest expense was $163 for the second quarter of 1999
compared to $109 for the second quarter of 1998. Interest expense was $316 for
the six months ended June 30, 1999, compared to $206 for the comparable prior
period. The increase in interest expense was primarily attributable to the
$3,900 of debt assumed in the Separation as part of the Dex Alignment.
Also included in other expense-net were other expenses of $13 for the
quarter ended June 30, 1999, compared to $33 for the quarter ended June 30, 1998
and $14 for the six months ended June 30, 1999, compared to $58 for the prior
comparable period. The decreases were due to a reduction in regulatory interest
expense from the prior year. Additionally, for the six months ended June 30,
1999, there was a reduction in interest expense attributable to an anticipated
settlement of federal income tax liabilities for tax years still under audit.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Increase Ended June 30, Increase
1999 1998 (Decrease) 1999 1998 (Decrease)
Segment margin results:
Retail segment.................. $1,543 $1,544 $(1) (0.1)% $3,047 $3,108 $(61) (2.0)%
Wholesale segment............... 526 449 77 17.1 1,055 959 96 10.0
Network segment................. (699) (629) (70) (11.1) (1,384) (1,305) (79) (6.1)
Directory segment............... 170 155 15 9.7 340 312 28 9.0
</TABLE>
Segment results. For segment reporting purposes, segment margins exclude certain
costs and expenses, including depreciation and amortization, corporate expenses
and taxes other than income. See Note 4 to the consolidated financial
statements.
Margin from the retail services segment decreased for the six months
ended June 30, 1999 over the comparable prior period due to operating expenses
increasing at a greater rate than revenue growth. Revenue from the retail
services segment increased 5.0% for the six months ended June 30, 1999 over the
comparable 1998 period, primarily due to growth in local services revenue. The
revenue increase was more than offset by the higher operating expenses driven by
growth initiatives and increased customer service costs. For the quarter ended
June 30, 1999, the margin was flat compared to the prior comparable quarter.
This improvement, compared to the margin decline for the six months ended June
30, 1999, resulted from a reduction in advertising costs. Margins from the
wholesale services segment increased as a result of greater demand for access
services, partially offset by price reductions as mandated by both federal and
state regulatory authorities and higher operating costs relating to
interconnection costs and additional access charge expenses. Margins from the
network services segment decreased as a result of expenditures to support growth
in both the retail and wholesale services segments. Margins from the directory
services segment increased due to growth in directory services revenue partially
offset by increased printing, paper and sales support costs. Additionally, the
implementation of SOP 98-1 in 1999 contributed favorably to each segment's
margin results.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Six Months
June 30, Ended June 30,
1999 1998 Increase 1999 1998 Increase
Provision for income
taxes......................... $258 $215 $43 20.0% $500 $474 $26 5.5%
</TABLE>
Provision for income taxes. The effective tax rate for the three months ended
June 30, 1999 was 38.0% compared to 39.7% for the comparable quarter of 1998.
The effective tax rate was 37.9% for the six months ended June 30, 1999 compared
to 38.4% for the six months ended June 30, 1998. The reductions in the 1999
effective tax rates were due to lower permanent differences in the current year.
Liquidity and Capital Resources
Operating Activities. Cash provided by operations was $2,069 for the six months
ended June 30, 1999 compared to $1,819 for the prior comparable period. The
increase in operating cash flow in 1999 resulted from both an increase in net
income and less cash used for working capital needs.
Investing Activities. Total capital expenditures, on a cash basis, were $1,681
in 1999 and $1,283 in 1998. Capital expenditures have primarily been, and
continue to be, focused on expanding access line growth, modernization of the
telecommunications network and meeting the requirements of the
Telecommunications Act of 1996 ("the Act"), including interconnection and local
number portability ("LNP"). We are also continuing to expand our investment to
compete in the wireless, data communications and video markets.
For 1999, we anticipate total capital expenditures will approximate
$4,000, which includes software capitalization, the acceleration of the next
generation of the network, launch of personal communication services in
additional markets, expansion of the Internet data business and greater emphasis
on our e-commerce efforts. Additionally, we will continue our expenditures on
interconnection and LNP to enable competition in compliance with federal
regulations. See "Special Note Regarding Forward-Looking Statements"on page 15.
In connection with our proposed merger agreement with Global Crossing,
we invested $2,464 to purchase approximately 39 million shares of Global
Crossing common stock in a tender offer during the second quarter of 1999. As a
result of our subsequent merger agreement with Qwest in July 1999, we entered
into a termination agreement with Global Crossing under which we were required
to pay Global Crossing $140 and 2,231,076 shares of Global Crossing common stock
for which we paid $140. We obtained a $140 loan from Qwest to satisfy the cash
portion of the termination fee. As of July 30, 1999, the remaining Global
Crossing shares we held had a market value of $1,537. We are restricted from
disposing of these shares until the consummation or termination of Global
Crossing's merger with Frontier Corporation.
Financing Activities. Cash provided by financing activities was $2,181 in 1999
and $185 in 1998. In 1999, net proceeds from short-term debt were $2,940, of
which $2,464 was used to finance the Global Crossing tender offer. We paid
dividends on our common shares totaling $538 in 1999 and $519 in 1998.
Additionally, prior to the Separation, Dex paid dividends to Old U S WEST equal
to its net income, adjusted for the amortization of intangibles, totaling $183
in 1998.
We maintain commercial paper programs to finance short-term cash flow
requirements, as well as to maintain a presence in the short-term debt market.
As of June 30, 1999, we had lines of credit with a total borrowing capacity of
$4,050.
Future cash needs could increase with the pursuit of new business
opportunities and continued implementation of the requirements of the Act.
Interconnection, LNP, universal service and access charge reform will negatively
impact cash flows to the extent recovery mechanisms provided for by the Federal
Communications Commission ("FCC") and state commissions are inadequate. From
time to time, we may consider the acquisition or disposition of assets or
businesses that may be material to our financial condition, and therefore, our
cash needs. We expect that such cash needs will be funded through operations
and, when necessary, the issuance of debt securities.
Risk Management
Over time, we are exposed to market risks arising from changes in
interest rates. The objective of our interest rate risk management program is to
manage the level and volatility of our interest expense. We may employ
derivative financial instruments to manage our interest rate risk exposure. We
have also employed financial derivatives to hedge interest rate and foreign
currency exposures associated with particular debt issues to synthetically
obtain below market interest rates. We do not use derivative financial
instruments for trading purposes.
As of June 30, 1999 and December 31, 1998, approximately $3,924 and
$957, respectively, of floating-rate debt was exposed to changes in interest
rates. This exposure is primarily linked to commercial paper rates and changes
in 3-month LIBOR. A hypothetical increase of 1% in commercial paper rates and
3-month LIBOR would increase annual pre-tax interest expenses by $39. As of June
30, 1999 and December 31, 1998, we also had $222 and $228, respectively, of
long-term fixed rate debt obligations maturing in the following 12 months. Any
new debt obtained to refinance this debt would be exposed to changes in interest
rates. A hypothetical 10% change in the interest rates on this debt would not
have had a material effect on our earnings.
As of June 30, 1999, all outstanding interest rate swaps and the
associated debt instrument have matured. As of December 31, 1998, we had
interest rate swaps with notional amounts of $155. The swaps synthetically
transformed certain of the Company's floating rate issues into fixed rate
obligations. The swaps and associated debt issues were indexed to two and
10-year constant maturity U.S. Treasury rates. Any gains (losses) on the swaps
were offset by losses (gains) on the associated debt instruments.
As of June 30, 1999 and December 31, 1998, we had also entered into
cross-currency swaps with notional amounts of $133 and $204, respectively. The
cross-currency swaps synthetically transform $97 and $182 of Swiss Franc
borrowings at June 30, 1999 and December 31, 1998, respectively, into U.S.
dollar obligations. Any gains (losses) on the cross-currency swaps would be
offset by losses (gains) on the Swiss Franc debt obligations.
Other assets at June 30, 1999 included marketable equity securities
recorded at a fair value of $154 including unrealized gains of $132. Those
securities have exposure to price risk. The estimated potential loss in fair
value resulting from a hypothetical 10% decrease in prices quoted by stock
exchanges would not have had a material effect on our earnings.
Recent Regulatory Developments
Interconnection. The FCC issued an order (the "Order") in 1996 relating to the
Act that established interconnection costing and pricing rules which, from our
perspective, significantly impeded negotiations with new entrants to the local
exchange market, state regulatory commission interconnection rulemakings and
interconnection arbitration proceedings.
On January 25, 1999, the U.S. Supreme Court ("Supreme Court") issued a
ruling on our appeal of the Order. Although the decision stated that the Act was
ambiguous and self-contradictory, the Supreme Court ruled that:
o the FCC has authority to set pricing methodology;
o unbundled network elements ("UNEs") must be provided in cases where
necessary or the lack of availability would impair competition;
o Incumbent local exchange companies ("ILECs") must sell on a bundled
basis, at the competitive local exchange carriers' ("CLECs") request,
network elements the ILEC uses itself on a bundled basis; and
o CLECs may pick and choose pricing or other terms and conditions from
multiple contracts within certain bounds.
The impact of the Supreme Court ruling is unclear since state
regulatory commissions generally follow the FCC's pricing and unbundling
requirements in setting UNE prices. On April 16, 1999, the FCC issued a Further
Notice of Proposal Rulemaking ("FNPRM") to address how it should interpret the
"necessary and impair" standard and which specific network elements the FCC
should require ILECs to unbundle. We expect further review of the legality of
the FCC's pricing rules will occur at the Eighth Circuit Court of Appeals.
InterLATA Long-Distance Entry. Several regional Bell operating companies have
filed for entry into the interLATA long-distance business. Although many of
these applications have been approved by state regulatory commissions, the FCC
has rejected all applications to date.
We view entry into this business as important to our strategy of
providing an integrated bundle of services to our customers. In 1999, we
withdrew our applications to enter the interLATA long-distance business in
Wyoming and Montana but we filed an application in Arizona. In April 1999, the
Nebraska Public Service Commission indicated it needed additional information
before making a recommendation to the FCC. We expect our application to be
forwarded to the FCC for its review in late 1999 or early 2000. See "Special
Note Regarding Forward-Looking Statements " on page 15.
Access Reform. In its access reform order, the FCC mandated a substantial
restructuring of interstate access pricing. A significant portion of the
services that were charged using minutes-of-use pricing are now being charged
using a combination of minutes-of-use rates, flat-rate presubscribed
interexchange carrier charges ("PICCs") and subscriber line charges ("SLCs").
Although an increase in the SLC to multi-line business users occurred on July 1,
1997, the bulk of the mandated pricing changes occurred on January 1, 1998.
Additional mandated pricing changes occurred on January 1, 1999 and July 1, 1999
and more will be implemented on January 1, 2000 and 2001. The net effect of
these changes will be to decrease minutes-of-use charges and increase flat-rate
charges (i.e., PICCs and SLCs).
The access reform order also continued in place the current rules under
which ILECs may not assess interstate access charges on information service
providers and purchasers of UNEs.
In February 1999, the FCC issued an order declaring that Internet
traffic is interstate and opened a proceeding to determine the appropriate
regulatory structure. The FCC allowed no change in the current agreements for
reciprocal compensation with CLECs until it rules on this matter. A ruling is
expected in the summer of 1999.
Advanced Telecommunications Services. On March 31, 1999, the FCC issued an
order establishing expanded collocation requirements for both conventional voice
and advanced services. The FCC also issued a FNPRM on "line sharing." Line
sharing allows a CLEC to provide advanced services over the same loop that the
ILEC uses to provide analog voice service.
Long-Term Number Portability Tariffs. In July 1999, the FCC issued an order on
our LNP tariff that was originally effective in February 1999. The FCC's order
reduced our tariff from $0.54 per access line to $0.43 per access line. The FCC
also required that the difference between $0.54 and $0.43 be refunded to
customers. The Company does not expect the refund to have a material impact on
its financial statements.
Court Remand of 6.5% Productivity Factor. On May 21, 1999, the District of
Columbia U.S. Court of Appeals issued a ruling reversing and remanding back to
the FCC its order requiring ILECs to retroactively increase the productivity
offset to price caps to 6.5% in their annual price cap filings. The Court found
that the FCC's order did not justify the increase. The FCC must revise and
reissue its order by April 2000.
Shared Transport. In June 1999, the Supreme Court vacated and remanded to the
Eight Circuit Court of Appeals its decision on the FCC's shared transport rules.
Until the FCC issues new rules, there is no federal requirement to make shared
transport available as a UNE. The FCC has combined this issue with its FNPRM on
UNE pricing.
Contingencies
We have pending regulatory actions in local regulatory jurisdictions.
See Note 6 to the consolidated financial statements.
Other Items
From time to time, we engage in discussions regarding restructurings,
dispositions, acquisitions and other similar transactions. Any such transaction
could include, among other things, the transfer, sale or acquisition of
significant assets, businesses or interests, including joint ventures, or the
incurrence, assumption or refinancing of indebtedness, and could be material to
our financial condition and results of operations. There is no assurance that
any such discussions will result in the consummation of any such transaction.
Year 2000 Costs
Background. We have conducted a comprehensive review of our computer-based
systems and related software and are taking measures to ensure that such systems
will properly recognize the year 2000 and continue to process beyond December
31, 1999. The systems we evaluated include systems within (i) the Public
Switched Telephone Network (the "Network"), (ii) Information Technologies
("IT"), and (iii) individual Business Units (the "Business Units").
The Network, which processes voice and data information relating to our
core communications business, relies on remote switches, central office
equipment, interoffice equipment and loop transport equipment that is
predominantly provided to us by telecommunications network vendors. IT is
comprised of our internal business systems that employ hardware and software on
an enterprise-wide basis, including operational, financial and administrative
functions. The Business Units, which include internal organizations such as
finance, procurement, directory services, operator services, wireless, data
networks, real estate, etc., employ systems that support desktop and
departmental applications, as well as embedded computer chip technologies, which
relate specifically to each of our Business Unit's functions and generally are
not part of the Network or IT.
We have approached year 2000 remediation activities through five
general phases: (i) inventory/assessment, (ii) planning, (iii) conversion, (iv)
testing/certification and (v) implementation. Additionally, we are continuously
monitoring and improving our year 2000 related activities and progress,
communicating with our customers and vendors, participating in cooperative
testing with others and taking steps to assure that we have contingency plans in
place prior to the end of 1999. These activities will continue throughout 1999.
Network update. With regard to the Network, we are working with our
telecommunications network vendors to obtain and convert to compliant releases
of hardware and software. We also are testing, at our own initiative, in
cooperation with certain of our customers, vendors and other major wireline
telecommunications companies, network equipment over multiple configurations
involving a broad spectrum of services. Toward this end, we participate in the
Telco Year 2000 Forum (the "Forum"), an organization that addresses the year
2000 readiness of network elements and network interoperability. The Forum has
contracted with Telcordia (formerly known as Bellcore), a former affiliate
engaged in telecommunications industry research, development and maintenance
activities, to engage in inter-region interoperability testing. No significant
issues have been found to date. We also participate in (i) the FCC's Network
Reliability and Interoperability Council IV working group, which is tasked to
evaluate the year 2000 readiness of the public telecommunications network, and
(ii) the Alliance for Telecommunications Industry Solutions ("ATIS"), which is
testing inter-network interoperability, and which, in conjunction with the
Cellular Telecommunications Industry Association ("CTIA"), is testing network
interoperability with wireless networks. Our inventory/assessment, planning and
conversion phases for the Network are complete. The network
testing/certification phase was approximately 100% complete as of June 30, 1999.
Cooperative testing with certain customers, vendors and other telecommunications
companies is expected to continue during 1999. As of June 30, 1999,
approximately 99.6% of our Network remediation implementation was complete, with
the remainder anticipated to be finished by August 1999. Substantial progress
has been made with Network contingency planning activities. We anticipate that
the remainder of the Network contingency planning activities will be complete by
the end of the third quarter, 1999.
IT update. Within IT, we have identified approximately 570 applications that
support our critical business processes, such as billing and collections,
network monitoring, repair and ordering. The inventory/assessment and planning
phases for such IT applications are complete. As of June 30, 1999, approximately
99% of IT conversion activities, 96.8% of IT testing activities and 97% of IT
implementation had been completed. We anticipate that each of these phases for
IT will be complete by September 1999. Substantial progress has been made with
IT contingency planning activities. We anticipate that the remainder of the IT
contingency planning activities will be complete by the end of the third
quarter, 1999.
Business Units update. Within our Business Units, it is estimated that as of
June 30, 1999, approximately 100% of the inventory/assessment activity, 99.5% of
the planning activity, 99.5% of the conversion activity and 99% of the testing
and remediation implementation activities were complete. We anticipate that each
of these phases will be complete in the Business Units for major conversions and
upgrades by the end of the third quarter of 1999. We have recently initiated
Business Unit contingency planning activities and we anticipate those will be
complete by the end of the third quarter, 1999.
Costs relating to year 2000. We have spent approximately $200 from the
beginning of 1997 through the end of the second quarter of 1999 on year 2000
projects and activities. We estimate that additional costs for year 2000 related
projects and activities will be approximately $75. Virtually all year 2000
related expenditures are being funded through operations. Though year 2000 costs
will directly impact the reported level of future net income, we intend to
control our total cost structure, including deferral of non-critical projects to
future years, in an effort to mitigate the impact of year 2000 costs on our
historical rate of earnings growth. The estimates stated above are subject to
change. The timing of our expenses may vary and is not necessarily indicative of
readiness efforts or progress to date.
Contingency plan. We cannot provide assurance that the results of our year 2000
compliance efforts or the costs of such efforts will not differ materially from
estimates. Accordingly, we are developing year 2000 specific business continuity
and contingency plans to address high risk areas as they are identified. Our
year 2000 contingency planning activities will include training of crisis
managers on year 2000 issues and potential business impacts to their particular
process areas, reviewing and modifying existing business continuity plans to
address year 2000 issues and establishing rapid response teams and
communications procedures for each of the major critical operations and
facilities to handle potential post-implementation year 2000 failures. These
year 2000 specific contingency planning activities are to be in place by the
third quarter of 1999. In addition, we have in place our standard overall
business continuity, contingency and disaster recovery plans (such as diesel
generator back-up power supply sources for our Network, Network rerouting
capabilities, computer data and records safe-keeping and back-up and recovery
procedures) which will be verified, and as appropriate, augmented for specific
year 2000 contingencies.
Dependencies. Within Network, we are highly dependent upon our
telecommunications network vendors to provide year 2000 compliant hardware and
software in a timely manner, and on third parties that are assisting us in the
focused testing and implementation phases regarding the Network. Because of
these dependencies, we have developed and implemented a vendor compliance
process whereby we have obtained written assurances of timely year 2000
compliance from most of our critical vendors (not only for Network, but also for
IT and the Business Units). In addition, we monitor and actively participate in
coordinated Network testing activities, as discussed above, with respect to the
Forum, ATIS and Telcordia. Within IT, we depend on the development of software
by experts, both internal and external, and the availability of critical
resources with the requisite skill sets. Because of this dependency, we have
developed detailed timetables, resource plans and standardized year 2000 testing
requirements for identified critical applications (irrespective of whether these
applications are used primarily by IT, the Network or the Business Units).
Within the Business Units, we are dependent on vendor supplied goods and
services and operability of the Network and critical IT and Business Unit
specific applications. Because of these dependencies, we are implementing the
same type of vendor compliance processes and application planning and testing
processes at the Business Units, as discussed above with respect to the Network
and IT. Overall, we have sought compliance assurances from approximately 7,765
vendors concerning approximately 25,769 products and have received assurances
for 99.6% of those products as of June 30, 1999. During 1999, we will continue
to pursue assurances of timely year 2000 compliance for the remaining critical
vendors.
As with any large-scale computer-related project such as year 2000
remediation, the testing phase may require resources in excess of other project
phases and the other project phases may be affected by and dependent upon the
results of the testing phase.
Summary. In management's view, the most reasonably likely worse case scenario
for year 2000 failure prospects we face is that a limited number of important IT
and/or Business Unit specific applications may unexpectedly fail. In addition,
there may be unexpected problems with the Network relating to the year 2000. Our
failure or the failure by certain of our vendors to remediate year 2000
compliance issues in advance of the year 2000 and to execute appropriate
contingency plans in the event that a critical failure is experienced, could
result in disruption of our operations, possibly impacting the Network and
impairing our ability to bill or collect revenues. However, while no assurance
can be given, management believes that our efforts at remediation and testing,
year 2000 specific contingency planning, and overall business continuity,
contingency and disaster recovery planning will likely be successful, and that
the aforementioned "worse case scenario" is unlikely to develop or significantly
disrupt our financial operations.
The above discussion regarding year 2000 contains many statements that
are "forward-looking" within the meaning of the Reform Act. Although we believe
that our estimates are based on reasonable assumptions, we cannot assure that
actual results will not differ materially from these expectations or estimates.
See "Special Note Regarding Forward-Looking Statements" on page 15.
New Accounting Standards
On June 15, 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards ("FAS") No. 133, "Accounting for
Derivative Instruments and Hedging Activities." This statement establishes
accounting and reporting standards for derivative instruments and for hedging
activities. FAS No. 133 requires, among other things, that all derivative
instruments be recognized at fair value as assets or liabilities on the balance
sheet and that changes in fair value generally be recognized currently in
earnings unless specific criteria are met. The standard is effective for fiscal
years beginning after June 15, 2000, though earlier adoption is permitted.
Financial statement impacts of adopting the new standard depend upon the amount
and nature of the future use of derivative instruments and their relative
changes in valuation over time. Had we adopted FAS No. 133 in 1999, its impact
on the consolidated financial statements would not have been material.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Our Company and its subsidiaries are subject to claims and proceedings
arising in the ordinary course of business. For a discussion of these actions,
see "Note 6: Commitments and Contingencies" - to the consolidated financial
statements.
Item 2. Changes in Securities and Use of Proceeds
Recent Sales of Unregistered Securities
The following describes securities issued by the Company within the
past fiscal quarter which were privately placed and not registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Company believes
that the following issuances of securities were exempt from the registration
requirements of the Securities Act, pursuant to the exemption set forth in
Section 4(2), Rule 144A, and Regulation S thereof.
(a) On June 3, 1999, and in reliance on Rule 144A and Regulation S of
the Securities Act, U S WEST Capital Funding, Inc. ("Capital Funding"), a wholly
owned subsidiary of the Company, issued Floating Rate Notes (the "Notes") in the
aggregate principal amount of $1,000,000,000. Payment of principal and interest
on the Notes is unconditionally guaranteed by the Company. The Notes will mature
and the principal amount, together with interest accrued and unpaid thereon,
will be payable on June 15, 2000. The Notes will bear interest from June 10,
1999. The per annum rate of interest is based on three-month LIBOR, reset
quarterly, plus 45 basis points (.45%). Interest will be computed on the basis
of a 360-day year and the actual number of days in the applicable interest
period. Capital Funding may, at its option, redeem the Notes on any interest
payment date, in whole but not in part, at 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the redemption date upon not less
than 15 nor more than 60 calendar days notice, subject to the rights of holders
of record on the relevant record date to receive interest due on the relevant
interest payment date. J.P. Morgan Securities, Inc., Banc of America Securities
LLC, Chase Securities Inc. and Salomon Smith Barney Inc. (collectively, the
"Initial Purchasers") purchased the Notes for resale to "qualified institutional
buyers" as defined under Rule 144A at 99.90% of their principal amount
($999,000,000 aggregate proceeds to Capital Funding before deducting expenses
payable by Capital Funding). Accordingly, the Initial Purchasers received a
commission in the amount of $1 million.
(b) From June 21, 1999 through June 25, 1999, and in reliance on Rule
144A of the Securities Act, the Company issued $1.5 billion in commercial paper.
The Company used the proceeds from the sale of the Notes and commercial
paper to finance the purchase of Global Crossing shares pursuant to the Tender
Offer (as defined hereinafter). See Item 5 of this Part II for further
information on the Tender Offer.
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders
The Company held its annual meeting of stockholders (the "Annual
Meeting") on May 11, 1999. The number of common votes present at the Annual
Meeting voting and withholding authority to vote in the election of Directors
was 447,363,630 which represented 88.862% of the common votes outstanding, which
were 503,433,705 votes, on March 15, 1999, the record date for said Annual
Meeting. At the meeting, the following items relating to the Company were
submitted to a vote of stockholders of the Company:
(a) Election of Directors in Class I:
Votes For Votes Withheld
--------- --------------
Hank Brown 430,483,507 16,880,123
George J. Harad 430,820,266 16,543,364
Marilyn Carlson Nelson 430,373,971 16,989,659
(b) Ratification of appointment of Arthur Andersen LLP, Independent
Public Accountants, as independent auditors to audit the financial statements of
the Company for the calendar year 1999:
Votes For Votes Against Votes Abstained
--------- ------------- ---------------
438,745,633 5,113,426 3,504,571
(c) A stockholder proposal recommending that the Board of Directors discontinue
the classified board:
Votes For Votes Against Votes Abstained Votes Delivered Not Voted
--------- ------------- --------------- -------------------------
196,476,249 192,163,951 8,304,450 50,418,980
(d) A stockholder proposal recommending that the stockholders amend the
bylaws of the Company to discontinue the Shareholder Rights Plan:
Votes For Votes Against
--------- -------------
208,906,459 238,457,171*
* Votes Against include abstentions (8,780,407) and votes delivered but
not voted (50,400,719).
(e) A stockholder proposal limiting future change of control
compensation:
Votes For Votes Against Votes Abstained Votes Delivered Not Voted
--------- ------------- --------------- -------------------------
148,036,814 235,328,187 13,592,516 50,406,113
(f) A stockholder proposal requiring the Public Policy/Nominating
Committee to nominate two candidates for each directorship to be filled by the
voting of stockholders at annual meetings:
Votes For Votes Against Votes Abstained Votes Delivered Not Voted
--------- ------------- --------------- -------------------------
31,891,636 355,802,297 9,264,986 50,504,711
Item 5. Recent Developments
Global Crossing Merger
On May 17, 1999, the Board of Directors of U S WEST announced that it
had entered into a definitive agreement to merge (the "Global Merger Agreement")
U S WEST and Global Crossing. As part of the merger, U S WEST commenced and
closed a cash tender offer for approximately 39 million shares of common stock
of Global Crossing or approximately 9.5% of Global Crossing's outstanding shares
at a price of $62.75 per share (the "Tender Offer"). The Tender Offer commenced
on May 21, 1999, expired on June 18, 1999 and settled on June 28, 1999. U S WEST
financed the purchase of Global Crossing shares pursuant to the Tender Offer
with proceeds from the sale the Notes and commercial paper. See Item 2 of Part
II of this form 10-Q.
Qwest Merger
On July 18, 1999, the Board of Directors of U S WEST announced that it
had entered into a definitive agreement to merge U S WEST with and into Qwest
Communications International Inc. ("Qwest"). See Note 7 to the consolidated
financial statements. The merger is subject to, among other things, the approval
of stockholders of both companies, the expiration of applicable waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act, the approval by the
Federal Communications Commission, and other regulatory reviews.
For current information regarding the Qwest merger, you are encouraged
to review the publicly filed reports of the respective companies.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits filed for the Company through the filing of this Form 10-Q.
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(2-A) Separation Agreement between U S WEST, Inc. (renamed "MediaOne Group,
Inc.") and U S WEST, Inc. (formerly USW-C, Inc.), dated June 5, 1998
(Exhibit 99.1 to Form 8-K/A dated June 26, 1998, File No. 1-14087).
(2-A.1) Amendment to the Separation Agreement between MediaOne Group, Inc.
(formerly U S WEST, Inc.) and U S WEST, Inc. (formerly USW-C, Inc.),
dated June 12, 1998 (Exhibit 10(p) to Form 10-K/A for the year ended
December 31, 1998, File No.
1-14087).
(2-A.2) Offer to Purchase; Letter of Transmittal relating to the Common
Stock; Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees to Clients; Letter from Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees to Clients;
Notices of Guaranteed Delivery relating to the Common Stock; Press
Release issued by the Offeror and the Company on May 17, 1999; and
Guidelines for Certificate of Taxpayer Identification Number on
Substitute Form W-9 each dated May 21, 1999 (Exhibits (a)(1) through
(a)(5) to Schedule 14D-1 and Schedule 13D, dated May 21, 1999, as
amended).
(2-A.3) Agreement and Plan of Merger, dated as of May 16, 1999, between
Global Grossing Ltd. and U S WEST, Inc. (Exhibit 2 to Form 8-K, dated
May 21, 1999, File No, 1-14087).
(2-A.4) Tender Offer and Purchase Agreement, dated as of May 16, 1999,
between Global Crossing Ltd. and U S WEST, Inc. (Exhibit (c)(2) to
Schedule 14D-1 and Schedule 13D, dated May 21, 1999, as amended).
(2-A.5) Voting Agreement, dated as of May 16, 1999, between Global Crossing
Ltd. and U S WEST, Inc. (Exhibit (c)(3) to Schedule 14D-1 and
Schedule 13D, dated May 21, 1999, as amended).
(2-A.6) Standstill Agreement, dated as of May 16, 1999, between Global
Crossing Ltd. and U S WEST, Inc. (Exhibit (c)(4) to Schedule 14D-1
and Schedule 13D, dated May 21, 1999, as amended).
(2-A.7) Tender and Voting Agreement, dated as of May 16, 1999, between U S
WEST, Inc. and each of the parties listed on the signature page
thereto (Exhibit (c)(5) to Schedule 14D-1 and Schedule 13D, dated May
21, 1999, as amended).
(2-A.8) Agreement, dated as of May 16, 1999, between U S WEST, Inc., Global
Crossing Ltd. and each person whose name appears on the signature
page thereto (Exhibit (c)(6) to Schedule 14D-1 and Schedule 13D,
dated May 21, 1999, as amended).
(2-A.9) Letter Agreement, dated as of May 16, 1999, between U S WEST,
Inc. and Global Crossing Ltd. (Exhibit 99 to Form 8-K, dated May
21, 1999, File No. 1-14087).
(2-A.10) Transfer Agreement, dated as of May 16, 1999, between Global Crossing
Ltd. and each person whose name appears on the signature page thereto
(Exhibit (c)(8) to Schedule 14D-1 and Schedule 13D, dated May 21,
1999, as amended).
(2-A.11) Agreement and Plan of Merger between U S WEST, Inc. and Qwest
Communications International Inc., dated as of July 18, 1999,
(Exhibit 2 to Form 8-K dated July 20, 1999, File No. 1-14087).
(2-A.12) Voting Agreement among each of the stockholders listed on the
signature page thereto and U S WEST, Inc., dated as of July 18, 1999
(Exhibit 10.1 to Form 8-K, dated July 20, 1999, File No. 1-14087).
(2-A.13) Termination Agreement between U S WEST, Inc. and Global Crossing
Ltd., dated as of July 18, 1999 (Exhibit 10.2 to Form 8-K, dated July
20, 1999, File No. 1-14087).
2-A.14 Amendment No. 1 to Tender Offer and Purchase Agreement, dated as of
July 18, 1999.
(3-A) Restated Certificate of Incorporation of U S WEST, Inc. (Exhibit 3A)
to Form S-4 Registration Statement No. 333-45765, filed February 6,
1998, as amended).
(3-B) Bylaws of U S WEST, Inc. (formerly "USW-C, Inc."), effective as
of June 12, 1998 (Exhibit 3(ii) to Form 8-K/A dated June 26, 1998,
File No. 1-14087).
(4-A) Form of Rights Agreement between U S WEST, Inc. (formerly "USW-C,
Inc.") and State Street Bank and Trust Company, as Rights Agent,
dated as of June 1, 1998 (Exhibit 4-A to the Form S-4 Registration
Statement No. 333-45765, filed February 6, 1998, as amended).
(4-A.1) Amendment No. 1 to Rights Agreement between U S WEST, Inc. and State
Street Bank and Trust Company, dated as of May 16, 1999 (Exhibit 4
to Form 8-K, dated May 21, 1999, File No. 1-14087).
4-A.2 Amendment No. 2 to Rights Agreement between U S WEST, Inc. and State
Street Bank and Trust Company, dated as of July 18, 1999.
(4-B) Indenture among U S WEST Capital Funding, Inc., USW-C (renamed "U S
WEST, Inc.") and First National Bank of Chicago, as Trustee, dated
June 29, 1998 (Exhibit 4(a) to Form 8-K, filed November 18, 1998,
File No. 1-14087).
(10-A) Employee Matters Agreement between U S WEST, Inc. (renamed "MediaOne
Group, Inc.") and USW-C, Inc. (renamed "U S WEST, Inc."), dated
June 5, 1998 (Exhibit 99.2 to Form 8-K/A dated June 26, 1998, File
No. 1-14087).
(10-B) Tax Sharing Agreement between U S WEST, Inc. (renamed "MediaOne
Group, Inc.") and USW-C, Inc. (renamed "U S WEST, Inc."), dated
June 5, 1998 (Exhibit 99.3 to Form 8-K/A dated June 26, 1998, File
No. 1-14087).
(10-C) 364-Day Credit Agreement, dated May 8, 1998, with Morgan Guaranty
Trust Company of New York, as Administrative Agent (Exhibit 10A to
Form 10-Q for the quarter ended March 31, 1998, File No. 1-14087).
(10-D) Five-Year Credit Agreement, dated May 8, 1998, with Morgan Guaranty
Trust Company of New York, as Administrative Agent (Exhibit 10B to
Form 10-Q for the quarter ended March 31, 1998, File No. 1-14087).
(10-D.1) Amendment No. 1 to Credit Agreements dated as of June 30, 1998 to the
364-Day Credit Agreement and the Five-Year Credit Agreement, each
dated as of May 8, 1998, among U S WEST Capital Funding, Inc., U S
WEST, Inc., the banks listed on the signature pages thereto and
Morgan Guaranty Trust Company of New York (Exhibit 10(e)(1) to Form
10-Q for the quarter ended September 30, 1998, File No. 1-14087).
(10-D.2) Amended and Restated Credit Agreement, dated as of May 7, 1999, among
U S WEST Capital Funding, Inc., U S WEST, Inc. and the banks listed
on the signature pages thereof (Exhibit (b)(4) to Schedule 14D-1 and
Schedule 13D, dated May 21, 1999, as amended).
10-D.3 Amendment to Credit Agreements, dated as of June 11, 1999, which
further amends (i) the 364-Day Credit Agreement dated as of May 8,
1999, as amended and (ii) the Five-Year Credit Agreement dated as of
May 8, 1998, as amended, among U S WEST Capital Funding, Inc., U S
WEST, Inc., the banks listed on the signature pages thereto, and
Morgan Guaranty Trust Company of New York.
(10-D.4) 364-Day $1.5 billion Credit Agreement dated as of June 11, 1999,
among U S WEST Capital Funding, Inc., and U S WEST, Inc., the banks
listed therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent (Exhibit (b)(6) to Amendment No. 3 to Schedule
14D-1 and Schedule 13D, dated June 11, 1999, filed on behalf of
Global Crossing Ltd. and U S WEST, Inc.).
10-D.5 Assignment and Assumption Agreement among each institution listed on
Schedule 1 thereto, U S WEST, Inc. and Morgan Guaranty Trust Company
of New York, dated as of July 6, 1999.
10-E 364-Day Million Credit Agreement, among the banks listed therein, U S
WEST Communications, Inc., and Morgan Guaranty Trust Company of New
York, as Administrative Agent, dated as of May 19, 1999.
10-F Amendment No. 1 to Credit Agreement to the 364-Day $800 Million
Credit Agreement, dated as of May 19, 1998, among U S WEST
Communications, Inc., U S WEST, Inc., the banks listed on the
signature pages thereto and Morgan Guaranty Trust Company of New
York, as Administrative Agent, dated as of June 11, 1999.
(10-G) Change of Control Agreement for the President and Chief Executive
Officer (Exhibit 10(f) to Form 10-Q for the quarter ended June 30,
1998, File No. 1-14087).
(10-H) Form of Change of Control Agreement for Tier II Executive (Exhibit
10(g) to Form 10-Q for the quarter ended June 30, 1998, File No.
1-14087).
(10-I) Form of Executive Severance Agreement (Exhibit 10(h) to Form 10-Q for
the quarter ended June 30, 1998, File No. 1-14087).
(10-J) 1998 U S WEST Stock Plan (Exhibit 10-A to the Form S-4 Registration
Statement No. 333-45765, filed February 6, 1998, as amended).
(10-K) U S WEST Long-Term Incentive Plan (Exhibit 10-D to the Form
S-4 Registration Statement No. 333-45765, filed February 6, 1998, as
amended).
(10-L) U S WEST Executive Short-Term Incentive Plan (Exhibit 10-E to
the Form S-4 Registration Statement No. 333-45765, filed February 6,
1998, as amended).
(10-M) U S WEST 1998 Broad Based Stock Option Plan dated June 12, 1998
(Exhibit 10(l) to Form 10-Q for the quarter ended September 30, 1998,
File No. 1-14087).
(10-N) U S WEST Deferred Compensation Plan, amended and restated effective
as of June 12, 1998 (Exhibit 10(m) to Form 10-Q for the quarter ended
September 30, 1998, File No. 1-14087).
(10-O) U S WEST 1998 Stock Plan, as amended June 22, 1998 (Exhibit 10(n) to
Form 10-Q for the quarter ended September 30, 1998, File No.
1-14087).
(10-P) Stockholder Investment Plan dated June 12, 1998 (Form S-3
Registration Statement No. 333-52781, filed May 15, 1998).
(10-Q) Form of Non-Qualified Stock Option Agreement (Exhibit 10-Q to Form
10-Q for the quarter ended March 31, 1999, File No. 1-14087).
(10-R) Form of Agreement for Purchase and Sale of Telephone Exchanges, dated
as of June 16, 1999, between Citizens Utilities Company and U S WEST
Communications, Inc. (Exhibit 99 to Form 8-K, dated June 17, 1999,
File No. 1-14087).
(13) U S WEST 1998 Summary Annual Report to Stockholders (Exhibit 13
to Form 8-K dated February 24, 1999, File No. 1-14087).
27 Financial Data Schedule
(99) Annual Report on Form 11-K for the U S WEST Savings Plan/ESOP for
the year ended December 31, 1998, (Exhibit 99 to Form 10-K/A filed
by amendment on Form SE, File No. 1-14087), Paper Copy (P).
- -------------------
<FN>
<F1>
( ) Previously filed.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
(b) Reports on Form 8-K filed during the Second Quarter of 1999 and through
the filing of this Form 10-Q:
(i) Form 8-K dated April 6, 1999 providing notification of a press release
announcing the election of Manny Fernandez to the U S WEST Board of
Directors.
(ii) Form 8-K dated April 21, 1999 providing notification of the release of
first quarter earnings of U S WEST, Inc.
(iii) Form 8-K dated May 12, 1999 providing notification of (i) a press
release announcing Solomon Trujillo's election as the Company's
Chairman and Richard McCormick's retirement from the Board of Directors
and (ii) a press release announcing the voting results from the
Company's annual stockholders' meeting.
(iv) Form 8-K dated May 18, 1999, (i) providing notification of a press
release announcing the proposed merger of U S WEST, Inc. and Global
Crossing Ltd.; and (ii) filing the joint analyst presentation of Global
Crossing Ltd. and U S WEST, Inc., dated May 17, 1999.
(v) Form 8-K dated May 21, 1999 filing (i) the Agreement and Plan of Merger
between Global Crossing Ltd. and U S WEST, Inc., dated as of May 16,
1999; (ii) Amendment No. 1 to Rights Agreement between U S WEST, Inc.
and State Street Bank and Trust Company, dated as of May 16, 1999; and
(iii) the Letter Agreement between U S WEST, Inc. and Global Crossing
Ltd., dated as of May 16, 1999.
(vi) Form 8-K dated May 26, 1999, filing the Q&A presentation, dated May 25,
1999, relating to the transactions contemplated by the proposed merger
of U S WEST, Inc. and Global Crossing Ltd.
(vii) Form 8-K dated June 17, 1999 providing notification of a press release
announcing the definitive agreement reached between Citizens Utilities
Company and U S WEST Communications, Inc. and filing the Form of
Agreement for Purchase and Sale of Telephone Exchanges, dated as of
June 16, 1999.
(viii) Form 8-K dated June 22, 1999 providing notification of a press release
announcing that the Company's Board of Directors met and reviewed the
unsolicited proposal made by Qwest Communications International, Inc.
on June 13, 1999.
(ix) Form 8-K dated July 7, 1999 providing notification of a press release
announcing that the Company's Board of Directors had authorized the
Company's management and advisors to discuss with Qwest Communications
International Inc. issues relating to its June 23, 1999 revised merger
proposal.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
(x) Form 8-K dated July 20, 1999 providing notification of a press release
announcing that the Company had entered into an Agreement and Plan of
Merger, dated as of July 18, 1999, with Qwest Communications
International Inc., and filing (i) the Voting Agreement among each of
the stockholders listed on the signature page thereto and U S WEST,
Inc.; (ii) the Termination Agreement; and (iii) the joint analyst
presentation of Qwest and U S WEST, dated as of July 19, 1999.
(xi) Form 8-K dated July 23, 1999 providing notification of the release of
second quarter earnings of U S WEST, Inc.
(xii) Form 8-K/A dated July 26, 1999 amending the July 23, 1999 Form 8-K,
providing notification of the release of second quarter earnings of U S
WEST, Inc.
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
U S WEST, Inc.
/s/ ALLAN R. SPIES
By:___________________________________
Allan R. Spies
Executive Vice President and
Chief Financial Officer
August 9, 1999
EXHIBIT 2-A.14
CONFORMED COPY
AMENDMENT NO. 1 TO TENDER OFFER
AND PURCHASE AGREEMENT
AMENDMENT NO. 1 (this "Amendment") dated as of July 18, 1999 to TENDER
OFFER AND PURCHASE AGREEMENT (as amended, the "TOP Agreement") dated as of May
16, 1999 between GLOBAL CROSSING LTD., a company formed under the laws of
Bermuda ("Global"), and U S WEST, Inc., a Delaware corporation ("USW").
W I T N E S S E T H
The parties hereto agree that the TOP Agreement is amended as follows:
SECTION 1. Amendment. (a) Section 4.1 of the TOP Agreement is hereby
amended by a new clause (g) to read as follows:
"(g) Global shall not enter into any agreement granting any
person (an "Other Security Holder") demand or piggyback registration
rights with respect to such Other Security Holder's securities of
Global in any registration on a basis more favorable to such Other
Security Holder than is provided to USW pursuant to this Agreement."
(b) Section 4.4 of the TOP Agreement is hereby amended by deleting it
in its entirety.
SECTION 2. Effectiveness. This Amendment shall be deemed effective as
of the date first set forth above. Except as amended hereby, the TOP Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
SECTION 3. Governing Law. This Amendment shall be deemed to be a
contract made under the internal laws of the State of New York.
SECTION 4. Counterparts. This Amendment may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, USW and Global have caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
GLOBAL CROSSING LTD.
By: /s/ Robert Annunziata
Name: Robert Annunziata
Title: Chief Executive Officer
U S WEST, INC.
By: /s/ Solomon D. Trujillo
Name: Solomon D. Trujillo
Title: Chairman, President and Chief
Executive Officer
2
EXHIBIT 4-A.2
CONFORMED COPY
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2 (the "Amendment"), dated as of July 18, 1999,
to the Rights Agreement, dated as of June 1, 1998, by and between U S WEST,
Inc., a Delaware corporation (the "Company"), and State Street Bank and Trust
Company, as Rights Agent (the "Rights Agent"), as amended by Amendment No. 1,
dated as of May 16, 1999 (the "Rights Agreement").
WITNESSETH
WHEREAS, concurrently with the execution hereof, the Company
has entered into an Agreement and Plan of Merger by and between the Company and
Qwest Communications International Inc., a Delaware corporation (the "Qwest
Merger Agreement"); and
WHEREAS, concurrently with the execution hereof, the Company
and Global Crossing, Ltd., a Bermuda company ("Global") entered into a
Termination Agreement (the "Termination Agreement") terminating the Agreement
and Plan of Merger, dated as of May 16, 1999 between the Company and Global (the
"Global Merger Agreement"); and
WHEREAS, the Board of Directors of the Company has approved,
authorized and adopted the Qwest Merger Agreement and the transactions
contemplated thereby and, subject to certain conditions, is bound to recommend
to the stockholders of the Company the approval and adoption of the Qwest Merger
Agreement; and
WHEREAS, the Board of Directors of the Company has determined
that in connection with the Qwest Merger Agreement and the transactions
contemplated thereby, including the termination of the Global Merger Agreement,
it is desirable and in the best interests of the shareholders of the Company to
amend the Rights Agreement as set forth herein; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent desire to amend the Rights Agreement as set forth
herein;
NOW, THEREFORE, the Rights Agreement is amended as follows:
SECTION 1. Acquiring Person. The following definition hereby replaces,
in its entirety, subsection (a) of Section 1 of the Rights Agreement:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as
such term is hereinafter defined) and Associates (as such term is
hereinafter defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the Voting Stock of
the Company then outstanding; provided, however, that an Acquiring
Person shall not include (i) an Exempt Person (as such term is
hereinafter defined) or (ii) any Person, together with all Affiliates
and Associates of such Person, who or which would be an Acquiring
Person solely by reason of (A) being the Beneficial Owner of shares of
Voting Stock of the Company, the Beneficial Ownership of which was
acquired by such Person (or his or its predecessor) pursuant to any
action or transaction or series of related actions or transactions
approved by the Board of Directors before such Person otherwise became
an Acquiring Person or (B) a reduction in the number of issued and
outstanding shares of Voting Stock of the Company pursuant to a
transaction or a series of related transactions approved by the Board
of Directors of the Company; provided, further, that in the event such
Person described in this clause (ii) does not become an Acquiring
Person by reason of subclause (A) or (B) of this clause (ii), such
Person nonetheless shall become an Acquiring Person in the event such
Person thereafter acquires Beneficial Ownership of an additional 1% or
more of the Voting Stock of the Company, unless the acquisition of such
additional Voting Stock would not result in such Person becoming an
Acquiring Person by reason of subclause (A) or (B) of this clause (ii);
or (iii) Qwest Communications International, Inc. or any of its
Affiliates or Associates who become the Beneficial Owner of 15% or more
of the Voting Stock of the Company by reason of (A) the approval,
execution, delivery or performance of the Agreement and Plan of Merger,
dated as of July 18, 1999 between the Company and Qwest Communications
International, Inc. (the "Qwest Merger Agreement"), (B) the approval of
the Qwest Merger Agreement by any of the stockholders of the parties
thereto or (C) the consummation of a transaction or the transactions
contemplated by the Qwest Merger Agreement; provided, however, that in
the event that Qwest Communications International Inc. or its
Affiliates or Associates collectively become the Beneficial Owner of
15% or more of the Voting Stock then outstanding in any manner other
than as contemplated in the Merger Agreement, the provisions of this
subclause (iii) (other than this proviso) shall terminate immediately.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith (but only if at the time of such determination
by the Board of Directors there are then in office not less than two
Continuing Directors and such action is approved by a majority of the
Continuing Directors then in office) that a Person, who would otherwise
be an "Acquiring Person" as defined pursuant to the foregoing
provisions of subsection (a) of this Section 1, has become such
inadvertently, and such Person, as promptly as practicable (as
determined in good faith by the Board of Directors), divests himself or
itself of a sufficient number of shares of Common Stock so that such
Person would no longer be an "Acquiring Person" as defined pursuant to
the foregoing provisions of this subsection (a), then such Person shall
not be deemed an "Acquiring Person" for any purposes of this Rights
Agreement.
SECTION 2. Effectiveness. This Amendment shall be deemed effective as of
the date first set forth above. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
SECTION 3. Miscellaneous. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
U S WEST, INC.
/S/ MARK ROELLIG
By: _____________________________________
Name: Mark Roellig
Title: Secretary
STATE STREET BANK AND TRUST COMPANY
/S/ STEPHEN CESSO
By: _____________________________________
Name: Stephen Cesso
Title: Vice President and Associate
Counsel
EXHIBIT 10-D.3
CONFORMED COPY
AMENDMENT TO CREDIT AGREEMENTS
AMENDMENT dated as of June 11, 1999 to (i) the Amended and Restated
364-Day Credit Agreement dated as of May 7, 1999 (amending and restating the
364-Day Credit Agreement dated as of May 8, 1998, as amended by Amendment No. 1
dated as of June 30, 1998) and (ii) the Five-Year Credit Agreement dated as of
May 8, 1998, as amended by Amendment No. 1 dated as of June 30, 1998 (each
individually, a "Credit Agreement" and together, the "Credit Agreements") among
U S WEST CAPITAL FUNDING, INC. (the "Borrower"), U S WEST, INC., the BANKS
listed on the signature pages thereto (the "Banks") and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreements to
change the termination date, modify certain covenants, amend or add related
definitions, increase pricing and make other changes to conform to other credit
facilities;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in a Credit Agreement has
the meaning assigned to such term in such Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in a Credit Agreement shall, after this Amendment becomes effective,
refer to such Credit Agreement as amended hereby.
SECTION 2. Amendment of Section 1.01. (a) The definition of "Debt" in
Section 1.01 of each of the Credit Agreements is amended to delete the word
"international" from clause (x) in the second sentence thereof.
(b) The definition of "Termination Date" in Section 1.01 of each of
the Credit Agreements is amended to insert:
(1) before the date contained therein, the phrase "the earlier of
(i)", and
<PAGE>
(2) after the expression "Section 2.01(b)", the clause "or
(ii) the date which is the thirtieth day after the date on which the
Merger is consummated,".
(c) Section 1.01 of each of the Credit Agreements is amended by adding
the following definitions in the appropriate alphabetical order:
"Merger" means any of the transactions constituting one of the
"Mergers" (as defined in the Merger Agreement as in effect on June 11,
1999) 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 June 11, 1999.
"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.
"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.
2
<PAGE>
SECTION 3. Amendment of Section 2.02. Section 2.02 of each of the
Credit Agreements is amended to add the following proviso before the word "and"
at the end of clause (iii) thereof:
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,
SECTION 4. Amendment of Section 2.10. Section 2.10(a) of each of the
Credit Agreements is amended to replace the period at the end of clause (ii)
thereof with a semi-colon and to add after clauses (i) and (ii) the following
proviso, which applies to both clauses:
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.
SECTION 5. Amendment of Section 4.04. Section 4.04(b) of each of the
Credit Agreements is amended to replace the parenthetical statement contained
therein with the following:
(it being understood that none of the consummation of the
Separation, the execution of the Merger Agreement or the
consummation of the Tender Offer shall be considered such a
change)
SECTION 6. Amendment of Section 4.07. Section 4.07(c) of each of the
Credit Agreements is amended and restated in its entirety to read as follows:
(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.
3
<PAGE>
SECTION 7. Amendment of Sections 5.06 and 5.07. Sections 5.06 and 5.07
of each of the Credit Agreements are amended and restated in their entirety to
read as follows:
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 8. Amendment of Section 5.09. The last sentence of Section 5.09
of each of the Credit Agreements is amended and restated in its entirety to read
as follows:
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 9. Amendment of Section 6.01. Clause (j) of Section 6.01 of
each of the Credit Agreements is amended by adding the following parenthetical
statement before the semi-colon at the end thereof:
(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)
4
<PAGE>
SECTION 10. Amendment of Section 10.03. Clause (i) of Section 10.03(a)
of each of the Credit Agreements is amended by adding the word "reasonable"
before the word "out-of-pocket" and before the word "fees".
SECTION 11. Amendment of Pricing Schedule. The Pricing Schedule for
each Credit Agreement is amended and restated in its entirety to read as set
forth in the attached Pricing Schedule for such Credit Agreement.
SECTION 12. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of each Credit Agreement will be true on and as of the Amendment
Effective Date (as defined below) and (ii) no Default will have occurred and be
continuing on such date.
SECTION 13. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts. This Amendment 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.
SECTION 15. Effectiveness. This Amendment shall become effective with
respect to each Credit Agreement as of the date hereof on the date (the
"Amendment Effective Date") when the Agent shall have received from each of the
Company, the Borrower and the Required Banks (as defined in such Credit
Agreement) a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Agent) that such party has
signed a counterpart hereof.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
U S WEST CAPITAL FUNDING, INC.
By /s/ SEAN P. FOLEY
Name: Sean P. Foley
Title: Treasurer
U S WEST, INC.
By /s/ SEAN P. FOLEY
Name: Sean P. Foley
Title: Treasurer
6
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ROBERT BOTTAMEDI
Name: Robert Bottamedi
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By /s/ DOUGLAS T. MECKELNBURG
Name: Douglas T. Meckelnburg
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ EDMOND DEFOREST
Name: Edmond DeForest
Title: Vice President
MELLON BANK, N.A.
By /s/ HENRY S. BEUKEMA
Name: Henry S. Beukema
Title: Assistant Vice President
7
<PAGE>
ABN AMRO BANK N.V.
By /s/ JOANNA RIOPELLE
Name: Joanna Riopelle
Title: Senior Vice President
By /s/ SANG W. LEE
Name: Sang W. Lee
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ JAMES WHITAKER
Name: James Whitaker
Title: Vice President
BANK ONE, COLORADO, N.A.
By
Name:
Title:
CITIBANK, N.A.
By /s/ MAUREEN MARONEY
Name: Maureen Maroney
Title: Vice President
8
<PAGE>
KEYBANK NATIONAL ASSOCIATION
By /s/ MARY K. YOUNG
Name: Mary K. Young
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By /s/ DAVID J. MITCHELL
Name: David J. Mitchell
Title: Vice President
COMMERZBANK AG LOS ANGELES
AND GRAND CAYMAN BRANCHES
By /s/ CHRISTIAN JAGENBERG
Name: Christian Jagenberg
Title: Senior Vice President and
Manager
By /s/ STEVEN F. LARSEN
Name: Steven F. Larsen
Title: Vice President
FLEET NATIONAL BANK
By /s/ SUE ANDERSON
Name: Sue Anderson
Title: Vice President
9
<PAGE>
CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ LAURA HOM
Name: Laura Hom
Title: Executive Director
CIBC World Markets Corp.
As Agent
BANKERS TRUST COMPANY
By /s/ GREGORY SHEFRIN
Name: Gregory Shefrin
Title: Principal
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ LORI J. THOMAS
Name: Lori J. Thomas
Title: Vice President
KBC BANK N.V.
By /s/ ROBERT SNAUFFER
Name: Robert Snauffer
Title: First Vice President
By /s/ RAYMOND F. MURRAY
Name: Raymond F. Murray
Title: First Vice President
10
<PAGE>
THE ROYAL BANK OF SCOTLAND PLC
By /s/ K. C. BARCLAY
Name: K. C. Barclay
Title: Head of Media and
Telecommunications
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By /s/ DONALD A. HARTMANN
Name: Donald A. Hartmann
Title: Senior Vice President
By /s/ CATHERINE M. WALLACE
Name: Catherine M. Wallace
Title: Vice President
BANK OF HAWAII
By /s/ ERIC N. PELLETIER
Name: Eric N. Pelletier
Title: Vice Prsident
BARCLAYS BANK PLC
By
Name:
Title:
11
<PAGE>
BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH
By /s/ PETER OBERMANN
Name: Peter Obermann
Title: Senior Vice President
By /s/ JAMES. H. BOYLE
Name: James H. Boyle
Title: Vice President
BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK
BRANCH
By
Name:
Title:
By
Name:
Title:
LEHMAN COMMERCIAL PAPER INC.
By /s/ MICHELE SWANSON
Name: Michele Swanson
Title: Authorized Signatory
12
<PAGE>
MERRILL LYNCH CAPITAL
CORPORATION
By /s/ CAROL FEELEY
Name: Carol Feeley
Title: Vice President
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By
Name:
Title:
THE TOKAI BANK, LIMITED
By
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By /s/ SCOTT E. PAGE
Name: Scott E. Page
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ CLIVE BETTLES
Name: Clive Bettles
Title: Senior Vice President & Manager
By /s/ MITCHELL M. OZAWA
Name: Mitchell M. Ozawa
Title: Vice President
13
<PAGE>
ROYAL BANK OF CANADA
By /s/ STEPHANIE BABICH
Name: Stephanie Babich
Title: Senior Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO ISTITUTO MOBILIARE
ITALIANO SPA
By
Name:
Title:
By
Name:
Title:
THE PROVIDENT BANK
By
Name:
Title:
14
<PAGE>
U S WEST Capital Funding, Inc.
PRICING SCHEDULE
for Amended and Restated 364-Day Credit Agreement
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:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
Level Level Level Level
Status I II Level III IV V Level VI Level VII
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
Euro-Dollar Margin .365% .430% .545% .650% .750% 1.100% 1.550%
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
- ------------------- ----------- ---------- ---------- ---------- ========== =========== ==========
Facility Fee Rate .060% .070% .080% .100% .125% .150% .200%
- ------------------- ----------- ---------- ---------- ---------- ========== =========== ==========
</TABLE>
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 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.
<PAGE>
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, 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.
2
<PAGE>
"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.
3
<PAGE>
U S WEST Capital Funding, Inc.
PRICING SCHEDULE
for Five-Year Credit Agreement
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:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------- ----------- ----------- ----------- ----------- ------------ ----------- ===========
Level Level Level Level Level
Status I II III IV V Level VI Level VII
- ---------------------- ----------- ----------- ----------- ----------- ------------ ----------- ===========
- ---------------------- ----------- ----------- ----------- ----------- ------------ =========== ===========
Euro-Dollar Margin .345% .410% .525% .625% .725% 1.075% 1.500%
Facility Fee Rate .080% .090% .100% .125% .150% .175% .250%
- ---------------------- ----------- ----------- ----------- ----------- ============ =========== ===========
</TABLE>
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 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.
<PAGE>
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, 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.
2
<PAGE>
"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.
3
EXHIBIT 10-D.5
[CONFORMED COPY]
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of July 6, 1999 among each institution listed on
Schedule 1 hereto under the heading "Assignor" (each, an "Assignor"), each
institution listed on Schedule 1 hereto under the heading "Assignee" (each, an
"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 Assignors, as Banks, and the Agent (the
"Credit Agreement");
WHEREAS, as provided under the Credit Agreement, each Assignor has a
Commitment to make Loans to the Borrower;
WHEREAS, there are no Loans outstanding under the Credit Agreement at
the date hereof; and
WHEREAS, each Assignor proposes to assign to each Assignee a ratable
portion all of the rights of the Assignor under the Credit Agreement in respect
of a portion of its Commitment thereunder (the "Assigned Amount") such that,
after giving effect to such assignments, the Commitment of each Assignor shall
be the amount set forth on Schedule 1 hereto opposite such Assignor's name under
the heading "Commitment", and each Assignee proposes to accept such assignment
from each Assignor and assume the corresponding obligations of such 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.
<PAGE>
SECTION 2. Assignment. Each Assignor hereby assigns and sells to each
Assignee a ratable portion of such Assignor's Assigned Amount (and all of the
rights of such Assignor under the Credit Agreement with respect thereto and to
the extent thereof), and each Assignee hereby accepts such assignment from each
Assignor and assumes all of the obligations of each Assignor under the Credit
Agreement to the extent of the portion of such Assignor's Assigned Amount so
assigned to such Assignee. Upon the execution and delivery hereof by each
Assignor, each Assignee, the Company and the Agent, (i) each 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 amount set forth on Schedule 1 hereto opposite such Assignee's name
under the heading "Commitment", and (ii) each Assignor shall, as of the date
hereof, have a Commitment in an amount equal to the amount set forth on Schedule
1 hereto opposite such Assignor's name under the heading "Commitment". The
assignments provided for herein shall be without recourse to any Assignor.
SECTION 3. Fees. Facility fees accrued to the date hereof with respect
to the Assigned Amount of each Assignor are for the account of such Assignor and
such fees accruing from and including the date hereof with respect to the
portion of the Assigned Amount of each Assignor assigned to each Assignee in
accordance with Section 2 are for the account of such Assignee. Each Assignor
and Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of another 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.
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 each Assignee to evidence the assignment and assumption provided
for herein.
SECTION 5. Non-Reliance on Assignors. No Assignor makes any
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. Each
Assignee acknowledges that it has, independently and without reliance on any
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.
<PAGE>
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.
ASSIGNORS
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Robert Bottamedi
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By /s/ Douglas T. Meckelnburg
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ Edmond DeForest
Title: Vice President
CITIBANK, N.A.
By /s/ Maureen Maroney
Title: Vice President
<PAGE>
ABN AMRO BANK N.V.
By /s/ Joanna Riopelle
Title: Senior Vice President
By /s/ Sang W. Lee
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ James Whitaker
Title: Vice President
COMMERZBANK AG LOS ANGELES
AND GRAND CAYMAN BRANCHES
By /s/ Christian Jagenberg
Title: Senior Vice President
and Manager
By /s/ Steven F. Larsen
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Lori J. Thomas
Title: Vice President
MELLON BANK, N.A.
By /s/ Henry S. Beukema
Title: Assistant Vice President
<PAGE>
ASSIGNEES
BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN
ISLANDS BRANCH
By /s/ Peter Obermann
Title: Senior Vice President
By /s/ James H. Boyle
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ Clive Bettles
Title: Senior Vice President
& Manager
By /s/ Mitchell M. Ozawa
Title: Vice President
FLEET NATIONAL BANK
By /s/ Sue Anderson
Title: Vice President
HSBC BANK USA
By /s/ Steve Trepiccione
Title: Vice President
Officer # 9435
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LTD.
By /s/ Mike Oakes
Title: Senior Vice President,
Houston Office
KBC BANK N.V.
By /s/ Robert Snauffer
Title: First Vice President
By /s/ Michael V. Curran
Title: Vice President
ROYAL BANK OF CANADA
By /s/ Stephanie Babich
Title: Senior Manager
THE ROYAL BANK OF SCOTLAND PLC
By /s/ K. C. Barclay
Title: Head of Media and
Telecommunications
THE SANWA BANK, LIMITED
By /s/ Kenneth C. Eichwald
Title: First Vice President
and Assistant General Manager
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By /s/ Anne C. Favoriti
Title: Vice President
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By /s/ Donald A. Hartmann
Title: Senior Vice President
By /s/ Catherine M. Wallace
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Lisa Walker
Title: Vice President
By /s/ Barry Wadler
Title: Associate
ARAB BANK PLC
By /s/ Nofal S. Barbar
Title: EVP & Regional Manager
<PAGE>
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By /s/ Hidekazu Kojima
Title: Vice President
BW CAPITAL MARKETS, INC.
By /s/ Thomas A. Lowe
Title: Vice President
By /s/ Robert B. Herber
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION
By /s/ Mary K. Young
Title: Assistant Vice President
BANK HAPOALIM B.M.
By /s/ Shaun Breidbart
Title: Vice President
By /s/ Conrad Wagner
Title: First Vice President
ARAB BANKING CORPORATION B.S.C.
By /s/ Richard B. Whelan
Title: Chief Representative
<PAGE>
CARIPLO-CASSA DI RISPARMIO
DELLE PROVINCIE LOMBARDE S.P.A.
By /s/ Maria Elena Greene
Title: Assistant Vice President
By /s/ Giancarlo Baiocchi
Title: Assistant Vice President
FIRST NATIONAL BANK OF OMAHA
By /s/ James P. Bonham
Title: Vice President
<PAGE>
U S WEST, INC.
By /s/ Sean P. Foley
Title: Vice President - Treasurer
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ Robert Bottamedi
Title: Vice President
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
<S> <C>
Assignors: Commitment
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Morgan Guaranty Trust Company of New York $65,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Bank of America National Trust and Savings $65,000,000
Association
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Chase Manhattan Bank $65,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Citibank, N.A. $65,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
ABN AMRO Bank N.V. $57,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Bank of New York $57,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Commerzbank AG Los Angeles and Grand Cayman $57,000,000
Branches
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The First National Bank of Chicago $57,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Mellon Bank, N.A. $57,000,000
- -------------------------------------------------- -----------------------------------------------
Assignees: Commitment
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Bayerische Landesbank Girozentrale Cayman $55,000,000
Islands Branch
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Banque Nationale De Paris $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Fleet National Bank $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
HSBC Bank USA $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Industrial Bank of Japan, Ltd. $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
KBC Bank N.V. $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Royal Bank of Canada $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Royal Bank of Scotland PLC $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Sanwa Bank, Limited $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Toronto Dominion (Texas), Inc. $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Wells Fargo Bank, National Association $55,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Westdeutsche Landesbank Girozentrale, New York $55,000,000
Branch
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Arab Bank Plc $45,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
The Bank of Tokyo-Mitsubishi Trust Company $45,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
BW Capital Markets, Inc. $45,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
KeyBank National Association $45,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Bank Hapoalim B.M. $40,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Arab Banking Corporation B.S.C. $25,000,000
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
Cariplo-Cassa di Risparmio Delle Provincie $25,000,000
Lombarde S.p.A.
- -------------------------------------------------- -----------------------------------------------
- -------------------------------------------------- -----------------------------------------------
First National Bank of Omaha $25,000,000
- -------------------------------------------------- -----------------------------------------------
</TABLE>
EXHIBIT 10-E
CONFORMED COPY
$800,000,000
364-DAY
CREDIT AGREEMENT
dated as of
May 19, 1999
among
U S WEST Communications, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
J.P. Morgan Securities Inc.
Lead Arranger
Chase Securities Inc.
Syndication Agent
The First National Bank of Chicago
Documentation Agent
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
PAGE
ARTICLE 1. DEFINITIONS
SECTION 1.01. The Definitions...................................................................1
SECTION 1.02. Accounting Terms and Determinations..............................................12
SECTION 1.03. Types of Borrowings..............................................................12
ARTICLE 2. THE CREDITS
SECTION 2.01. Commitments to Lend..............................................................13
SECTION 2.02. Notice of Committed Borrowing....................................................15
SECTION 2.03. Money Market Borrowings..........................................................15
SECTION 2.04. Notice to Banks; Funding of Loans................................................19
SECTION 2.05. Notes............................................................................20
SECTION 2.06. Maturity of Loans................................................................21
SECTION 2.07. Interest Rates...................................................................21
SECTION 2.08. Facility Fees....................................................................23
SECTION 2.09. Termination or Reduction of Commitments..........................................24
SECTION 2.10. Method of Electing Interest Rates................................................24
SECTION 2.11. Prepayments......................................................................25
SECTION 2.12. General Provisions as to Payments................................................26
SECTION 2.13. Funding Losses...................................................................26
SECTION 2.14. Computation of Interest and Fees.................................................27
SECTION 2.15. Change of Control................................................................27
ARTICLE 3. CONDITIONS
SECTION 3.01. Closing..........................................................................28
SECTION 3.02. All Borrowings...................................................................29
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power....................................................29
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.......................29
SECTION 4.03. Binding Effect...................................................................30
SECTION 4.04. Financial Information............................................................30
SECTION 4.05. Litigation.......................................................................30
SECTION 4.06. Compliance with ERISA............................................................31
SECTION 4.07. Environmental Matters............................................................31
SECTION 4.08. Taxes............................................................................32
SECTION 4.09. Subsidiaries.....................................................................32
SECTION 4.10. Not an Investment Company........................................................32
SECTION 4.11. Full Disclosure..................................................................32
ARTICLE 5. COVENANTS
SECTION 5.01. Information......................................................................32
SECTION 5.02. Maintenance of Property; Insurance...............................................34
SECTION 5.03. Maintenance of Existence.........................................................35
SECTION 5.04. Compliance with Laws.............................................................35
SECTION 5.05. Inspection of Property, Books and Records........................................35
SECTION 5.06. Debt Coverage....................................................................35
SECTION 5.07. Negative Pledge..................................................................36
SECTION 5.08. Consolidations, Mergers and Sales of Assets......................................37
SECTION 5.09. Use of Proceeds..................................................................37
SECTION 5.10. Year 2000 Compatibility..........................................................37
ARTICLE 6. DEFAULTS
SECTION 6.01. Events of Default................................................................37
SECTION 6.02. Notice of Default................................................................40
ARTICLE 7. THE AGENT
SECTION 7.01. Appointment and Authorization....................................................40
SECTION 7.02. Agent and Affiliates.............................................................40
SECTION 7.03. Action by Agent..................................................................40
SECTION 7.04. Consultation with Experts........................................................40
SECTION 7.05. Liability of Agent...............................................................40
SECTION 7.06. Indemnification..................................................................41
SECTION 7.07. Credit Decision..................................................................41
SECTION 7.08. Successor Agent..................................................................41
SECTION 7.09. Agent's Fee......................................................................42
ARTICLE 8. CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.........................42
SECTION 8.02. Illegality.......................................................................42
SECTION 8.03. Increased Cost and Reduced Return................................................43
SECTION 8.04. Taxes............................................................................44
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar Loans........................46
SECTION 8.06. Substitution of Bank.............................................................47
ARTICLE 9. MISCELLANEOUS
SECTION 9.01. Notices..........................................................................47
SECTION 9.02. No Waivers.......................................................................47
SECTION 9.03. Expenses; Indemnification........................................................48
SECTION 9.04. Sharing of Set-offs..............................................................49
SECTION 9.05. Amendments and Waivers...........................................................49
SECTION 9.06. Successors and Assigns...........................................................49
SECTION 9.07. Termination of Existing Credit Agreements........................................51
SECTION 9.08. Governing Law; Submission to Jurisdiction........................................52
SECTION 9.09. Counterparts; Integration; Effectiveness.........................................52
SECTION 9.10. WAIVER OF JURY TRIAL.............................................................52
SECTION 9.11. Confidentiality..................................................................52
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
Pricing Schedule
Schedule 4.07 - Environmental Matters
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
</TABLE>
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 19, 1999 among U S WEST COMMUNICATIONS, 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 1.1. The Definitions.
The following terms, as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07.
"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, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"Assignee" has the meaning set forth in Section 9.06(c).
<PAGE>
"Bank" means each lender listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(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 1/2of 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.
"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 Sections 2.09 and 2.11.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01(a); provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Committed 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.
"Company" means U S WEST Communications, Inc., a Colorado corporation,
and its successors.
"Company's 1998 Form 10-K/A" means U S WEST Communications, Inc.'s
annual report on Form 10-K/A for 1998, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
<PAGE>
"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 Net Worth" means at any date the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"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 Section 5.06 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 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 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.
<PAGE>
"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 Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed 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 9.09.
"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.
<PAGE>
"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 Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed 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 2.07.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07 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
2.07.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means the $250,000,000 Line of Credit
Agreement dated April 19, 1999 between the Company and Bank of America NT & SA;
the $75,000,000 Line of Credit Agreement dated July 24, 1998 between the Company
and Bank of America NT & SA, d/b/a SeaFirst Bank; the $100,000,000 Line of
Credit Agreement dated April 19, 1999 between the Company and Citibank, N.A.;
the $75,000,000 Line of Credit Agreement dated July 24, 1998 between the Company
and The First National Bank of Chicago; the $35,000,000 Line of Credit Agreement
dated October 30, 1998 between the Company and First Security Bank, N.A.; the
$125,000,000 Line of Credit Agreement dated July 24, 1998 between the Company
and Norwest Bank Colorado, National Association; and the $50,000,000 Line of
Credit Agreement dated July 24, 1998 between the Company and U.S. Bank National
Association.
<PAGE>
"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.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Domestic Loans at such time or (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time;
provided that, if a Committed 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 9.03(b).
<PAGE>
"Interest Period" means: (1) 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 Company 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 beginning prior to a Termination Date
which would otherwise end after a Termination Date shall end on such
Termination Date, and any Interest Period beginning on or after a
Termination Date which would otherwise end after the first anniversary
of such Termination Date shall end on the first anniversary of such
Termination Date.
(2) with respect to each Money Market LIBOR Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing and
ending such whole number of months thereafter as the Company may elect in
accordance with Section 2.03; 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
<PAGE>
(c) any Interest Period beginning prior to a Termination Date
which would otherwise end after a Termination Date shall end on such
Termination Date.
(3) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the Company may elect in accordance with Section 2.03; 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; and
(b) any Interest Period beginning prior to a Termination Date
which would otherwise end after a Termination Date shall end on such
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"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 Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07.
"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.
<PAGE>
"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.
"Minor Subsidiary" means, for purposes of the last sentence of the
definition of Debt and of Section 5.07(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.
"Money Market Absolute Rate" has the meaning set forth in Section 2.03
(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
<PAGE>
"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 Company, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Company to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(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.
<PAGE>
"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.
"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.
"Termination Date" means, with respect to each Bank, May 17, 2000, or
such later date to which the Termination Date for such Bank shall have been
extended pursuant to Section 2.01(b), 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.
<PAGE>
"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 1.2. 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 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Company 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 either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01(a) in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are determined on the basis of their bids in
accordance therewith).
<PAGE>
ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend.
(a) The Commitments. During the Revolving Credit Period each Bank
severally agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Company pursuant to this subsection (a) from time to time in
amounts such that the aggregate principal amount of Committed Loans by such Bank
at any one time outstanding to the Company 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 Company may borrow
under this subsection (a), repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time during the Revolving Credit Period under
this subsection (a). The Commitments shall terminate at the close of business on
the Termination Date.
<PAGE>
(b) Extension of Commitments. The Commitments may be extended in the
manner and amount set forth in this subsection (b), for a period of 364 days
measured from the Termination Date then in effect. If the Company wishes to
request an extension of each Bank's Commitment, it shall give notice to that
effect to the Agent not less than 45 days and not more than 60 days prior to the
Termination Date then in effect, whereupon the Agent shall promptly notify each
of the Banks of such request. Each Bank will use its best efforts to respond to
such request, whether affirmatively or negatively, as it may elect in its
discretion, within 30 days of such notice to the Agent. If any Bank shall not
have responded affirmatively within such 30-day period, such Bank shall be
deemed to have rejected the Company's proposal to extend its Commitment, and
only the Commitments of those Banks which have responded affirmatively shall be
extended, subject to receipt by the Agent of counterparts of an Extension
Agreement in substantially the form of Exhibit H hereto duly completed and
signed by the Company, the Agent and all of the Banks which have responded
affirmatively. The Agent shall provide to the Company, no later than 10 days
prior to the Termination Date then in effect, a list of the Banks which have
responded affirmatively. The Extension Agreement shall be executed and delivered
no later than five days prior to the Termination Date then in effect, and no
extension of the Commitments pursuant to this subsection (b) shall be legally
binding on any party hereto unless and until such Extension Agreement is so
executed and delivered. The Company may decline to execute and deliver such
Extension Agreement if any Bank has rejected the Company's proposal to extend
its Commitment or has failed to execute and deliver such Extension Agreement,
and will promptly notify the Agent and the Banks if it so declines.
(c) Additional Commitments. At any time during the Revolving Credit
Period, if no Default shall have occurred and be continuing at such time, the
Company may, if it so elects, increase the aggregate amount of the Commitments,
either by designating a Person not theretofore a Bank and acceptable to the
Agent to become a Bank or by agreeing with an existing Bank that such Bank's
Commitment shall be increased. Upon execution and delivery by the Company and
such Bank or other Person of an instrument of assumption in form and amount
satisfactory to the Administrative Agent, such existing Bank shall have a
Commitment as therein set forth or such other Person shall become a Bank with a
Commitment as therein set forth and all the rights and obligations of a Bank
with such a Commitment hereunder; provided that (i) the Company shall provide
prompt notice of such increase to the Agent, which shall promptly notify the
other Banks, (ii) the aggregate amount of each such increase which is effective
on any day shall be at least $50,000,000 and (iii) the aggregate amount of the
Commitments shall at no time exceed $1,000,000,000. Upon any increase in the
aggregate amount of the Commitments pursuant to this subsection (c), within five
Domestic Business Days in the case of each Group of Domestic Loans outstanding,
and at the end of the then current Interest Period with respect thereto in the
case of each Group of Euro-Dollar Loans then outstanding, the Company shall
prepay such Group in its entirety, and, to the extent the Company elects to do
so and subject to the conditions specified in Article 3, the Company shall
reborrow Committed Loans from the Banks in proportion to their respective
Commitments after giving effect to such increase, until such time as all
outstanding Committed Loans are held by the Banks in such proportion.
(d) Term Loans. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make a loan to the Company on the
Termination Date in amounts such that the aggregate principal amount of such
Bank's outstanding Loans to the Company at the close of business on the
Termination Date shall not exceed its Commitment. Each Borrowing under this
subsection (d) shall be made from the several Banks ratably in proportion to
their respective Commitments. Amounts prepaid pursuant to Section 2.11 shall not
be reborrowed. If less than all the Banks shall have agreed to extend the
Termination Date pursuant to subsection (b) above, but the Termination Date for
those Banks which have not so agreed has not yet occurred (the "Earlier Date"),
and the Company has requested a Borrowing pursuant to this subsection (d), then
such Borrowing shall be made on the Earlier Date.
<PAGE>
SECTION 2.2. Notice of Committed Borrowing. The Company shall give the
Agent notice (a "Notice of Committed Borrowing") 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, 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 2.3. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 2.01(a), the Company may,
as set forth in this Section, request the Banks during the Revolving Credit
Period to make offers to make Money Market Loans to the Company. The Banks may,
but shall have no obligation to, make such offers and the Company may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the Company wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
9:00 A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day prior to the date of Borrowing proposed therein, in
the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
<PAGE>
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $5,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth
a Money Market Margin or a Money Market Absolute Rate.
The Company may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Company to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
<PAGE>
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 10:30 A.M. (New York
City time) on the third Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Company and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
affiliate notifies the Company of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles 3 and
6, any Money Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Company.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested, and (z) may be
subject to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above
or below the applicable London Interbank Offered Rate (the
"Money Market Margin") offered for each such Money Market
Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such base
rate,
(D) in the case of an Absolute Rate Auction, the rate
of interest per annum (specified to the nearest 1/10,000th of
1%) (the "Money Market Absolute Rate") offered for each such
Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
<PAGE>
(C) proposes terms other than or in addition to those
set forth in the applicable Invitation for Money Market
Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Company. The Agent shall promptly (and in any event no
later than 11:00 A.M. (New York time) on (i) the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (ii)
the proposed date of Borrowing, in the case of an Absolute Rate Auction) notify
the Company of the terms (x) of any Money Market Quote submitted by a Bank that
is in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Company shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Company. Not later than 11:15 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Company and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Company shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Company may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request,
<PAGE>
(ii) the principal amount of each Money Market Borrowing must
be $25,000,000 or a larger multiple of $5,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Company may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks with
the same Money Market Margins or Money Market Absolute Rates, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.4. 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 (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Company.
(b) Not later than 1:00 P.M. (New York City time) on the date of each
Borrowing, each Bank participating therein 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 9.01. 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 Company at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to the Company on a day on
which the Company 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 Company 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 Company to the Agent as provided in Section 2.12, as the case
may be.
<PAGE>
(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 2.04
and the Agent may, in reliance upon such assumption, make available to the
Company 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
Company 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 Company until the date such amount is
repaid to the Agent, at (i) in the case of the Company, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 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 Company shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Company for any
loss on account thereof incurred by the Company.
SECTION 2.5. Notes. (a) The Loans of each Bank to the Company shall be
evidenced by a single Note of the Company 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 Company.
(b) Each Bank may, by notice to the Company and the Agent, request
that its Loans of a particular type to the Company be evidenced by a separate
Note of the Company 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.
<PAGE>
(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 Company 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
Company, endorse on the schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such Loan to the Company
then outstanding; provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations of the Company
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Company 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 2.6. Maturity of Loans. Each Loan by a Bank included in any
Borrowing made pursuant to Section 2.01(a) shall mature, and the principal
amount thereof shall be due and payable, together with accrued interest thereon,
on the Termination Date for such Bank. Each Loan included in any Borrowing made
pursuant to Section 2.01(d) shall mature, and the principal amount thereof shall
be due and payable, together with accrued interest thereon, on the first
anniversary of the Termination Date on which such Borrowing is made. Each Loan
included in any Borrowing made pursuant to Section 2.03 shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the last day of the Interest Period applicable thereto.
SECTION 2.7. 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.
<PAGE>
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.
<PAGE>
(d Subject to Section 8.01, each Money Market LIBOR 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 London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07 as if the related Money Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.03. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.03. 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. Any overdue principal of
or interest on any Money Market 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 Base
Rate for such day.
(e The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Company and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(f 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 2.8. 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).
<PAGE>
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
SECTION 2.9. 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 2.10. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the Company in the applicable Notice of Committed Borrowing.
Thereafter, the Company 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 Company 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 Company 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.
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;
<PAGE>
(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
Company 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 Company. If the Company 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 2.11. Prepayments.
(a Subject in the case of any Euro-Dollar Loans to Section 2.13, the
Company may, upon at least one Domestic Business Day's notice to the Agent,
prepay the Group of Domestic Loans (or any Money Market Borrowing bearing
interest at the Base Rate pursuant to Section 8.01(a)), 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 Except as provided in subsection (a) above, the Company may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
<PAGE>
(c 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 Company. Each such prepayment shall be applied to
prepay ratably the Loans of the several Banks included in the relevant Group or
Borrowing.
SECTION 2.12. General Provisions as to Payments. (a) The Company 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 9.01. 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. Whenever any payment of
principal of, or interest on, the Money Market 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. 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 Company prior
to the date on which any payment is due from the Company to the Banks hereunder
that the Company will not make such payment in full, the Agent may assume that
the Company 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 Company 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.
<PAGE>
SECTION 2.13. Funding Losses. If the Company makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate 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 2.07(c), or if the
Company fails to borrow, convert, continue or prepay any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.04(a), 2.10(c) or
2.11(c), 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 2.14. 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 2.15. 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 (if any), 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
Company, in each case effective on the Optional Termination Date.
A "Change of Control" shall occur if (i) U S WEST, Inc. shall cease to
own at least 80% of each class of outstanding shares of stock of the Company;
(ii) 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 U S WEST, Inc.; or (iii) during any period of twelve consecutive
calendar months, individuals who were directors of U S WEST, Inc. on the first
day of such period shall cease to constitute a majority of the board of
directors of U S WEST, Inc.
<PAGE>
ARTICLE 3
CONDITIONS
SECTION 3.1. 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 Company for the account of each Bank
dated on or before the Closing Date complying with the provisions of Section
2.05;
(b an opinion of Thomas O. McGimpsey, Esq., counsel for the Company,
substantially in the form of Exhibit E 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 F 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 that the commitments under the
Existing Credit Agreements have been terminated and that the principal and
interest on all loans and accrued fees outstanding thereunder have been paid in
full;
(e 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 Company hereunder; and
(f all documents the Agent may reasonably request relating to the
existence of the Company, 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.
<PAGE>
SECTION 3.2. 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 May 28, 1999;
(b receipt by the Agent of a Notice of Borrowing as required
by Section 2.02 or 2.03, as the case may be;
(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 Company 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 Company 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
The Company represents and warrants that:
SECTION 4.1. Corporate Existence and Power. The Company 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.
<PAGE>
SECTION 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company'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 the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any Significant Subsidiary or result in the creation
or imposition of any Lien on any material asset of the Company or any
Significant Subsidiary. There are no other credit agreements supporting
commercial paper indebtedness of the Company.
SECTION 4.3. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company, and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company, 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 4.4. 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, 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.
SECTION 4.5. Litigation. Except as disclosed in the Company's 1998 Form
10-K/A and Form 10-Q for the quarter ended March 31, 1999, 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.
<PAGE>
SECTION 4.6. 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 4.7. 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.
<PAGE>
(c Except as specifically identified in Schedule 4.07, (i) none of
the Company, any of its Subsidiaries or any of their present property or
operations are subject to any outstanding written order from or settlement or
consent agreement with any governmental authority or other Person, nor is any of
the foregoing subject to any judicial or docketed administrative proceedings,
respecting any Environmental Laws or Hazardous Substances with a potential
liability in excess of $1,000,000 and (ii) there are no other conditions or
circumstances known to the Company which may give rise to any claims respecting
any Environmental Laws arising from the operations of the Company or its
Subsidiaries (including, without limitation, off-site liabilities), or any
additional costs of compliance with Environmental Laws, that would reasonably be
expected to have a material adverse effect on the financial position or results
of operations of the Company and its Subsidiaries, considered as a whole.
SECTION 4.8. 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 4.9. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries 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. The Company is not 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 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 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 5.1. Information. The Company will deliver to each of the
Banks:
<PAGE>
(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 5.07, 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 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 setting forth the details thereof and the action which the Company
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;
<PAGE>
(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 as the Agent,
at the request of any Bank, may reasonably request.
SECTION 5.2. 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.
<PAGE>
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Company 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 5.3. 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 5.4. 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 5.5. 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 5.6. 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 400% of Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on such date.
<PAGE>
SECTION 5.7. Negative Pledge. The Company will not, and 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 $50,000,000;
(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) do 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
(i) 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.
<PAGE>
SECTION 5.8. Consolidations, Mergers and Sales of Assets. The Company
will not consolidate with or merge with or into any other Person ; provided that
the Company may merge with another Person if (i) the Company is the corporation
surviving such merger and (ii) after giving effect to such merger, no Default
shall have occurred and be continuing. The Company and its Subsidiaries will not
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.
SECTION 5.9. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Company 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 will include any use
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock.
SECTION 5.10. 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 6.1. 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 shall fail to observe or perform any covenant
contained in Sections 5.06 to 5.09, inclusive;
<PAGE>
(c) the Company 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 5.10,
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 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 $100,000,000, 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;
<PAGE>
(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; or
(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);
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; provided that in the
case of any of the Events of Default specified in clause (g) or (h) above with
respect to the Company, without any notice to the Company 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.
<PAGE>
SECTION 6.2. 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 7.1. 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 7.2. 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 or any Subsidiary or affiliate of the Company as if it
were not the Agent hereunder.
SECTION 7.3. 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 7.4. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company), 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.
<PAGE>
SECTION 7.5. 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; (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 7.6. 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) 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 7.7. 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 7.8. 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.
<PAGE>
SECTION 7.9. 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 8.1. 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
or Money Market LIBOR 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) in the case of Euro-Dollar Loans, 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 Company notifies the Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
(i) if such Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall
instead be made as a Domestic Borrowing and (ii) if such Fixed Rate Borrowing is
a Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
<PAGE>
SECTION 8.2. 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 Company 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 Company, 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.
<PAGE>
SECTION 8.3. Increased Cost and Reduced Return. (a) If on or after (x)
the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, 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 Fixed Rate Loans, its Note or its obligation to make Fixed Rate
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 Fixed Rate
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.
<PAGE>
SECTION 8.4. Taxes. (a) Any and all payments by the Company 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 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 9.01, 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.
<PAGE>
(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 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 8.5. Domestic Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make Euro-Dollar Loans to the Company 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 Company 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 Company 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 Company 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.
<PAGE>
If such Bank notifies the Company 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 8.6. 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
MISCELLANEOUS
SECTION 9.1. 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, 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 9.01 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 9.2. 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.
<PAGE>
SECTION 9.3. Expenses; Indemnification. (a) The Company shall pay (i)
all out-of-pocket expenses of the Agent, including 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).
<PAGE>
(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 9.4. 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 Company other than its
indebtedness hereunder. The Company 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 Company in the amount of such participation.
SECTION 9.5. 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 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
or (iv) 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.
<PAGE>
SECTION 9.6. 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 the Company may not
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
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 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 9.05 without the consent of
the Participant. The Company 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).
<PAGE>
(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 G 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; (ii) such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; and (iii) any assignment shall not be less than
$15,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations under this Agreement and the Notes except for any rights
retained in accordance with clause (ii) of this proviso. 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 Company
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 9.7. Termination of Existing Credit Agreements. The Company and
each of the Banks that is also a "Bank" or "Lender" party to an Existing Credit
Agreement agrees that the "Commitment" as defined in such Existing Credit
Agreement shall be terminated in its entirety on the Effective Date. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
the Existing Credit Agreements and (b) any claim to any commitment fees or other
fees under the Existing Credit Agreements for any day on or after the Effective
Date. The Company (i) represents and warrants that (x) after giving effect to
the preceding sentences of this Section 9.07, the commitments under the Existing
Credit Agreements will be terminated effective not later than the Effective Date
and (y) no loans are, as of the date hereof, or will be, as of the Effective
Date, outstanding under the Existing Credit Agreements, and (ii) covenants that
all accrued and unpaid commitment fees and any other amounts due and payable
under the Existing Credit Agreements shall have been paid on or prior to the
Effective Date.
<PAGE>
SECTION 9.8. 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. The Company 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 9.9. 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 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 9.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, 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.
<PAGE>
SECTION 9.11. 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 to it which is clearly stated by the
Company 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 COMMUNICATIONS, INC.
By /s/ Sean Foley
Title: Assistant Treasurer
1801 California
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean Foley
<PAGE>
Commitments
$ 54,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ SoVonna Day
Title: Vice President
$ 54,000,000 THE CHASE MANHATTAN BANK
By /s/ Edmond DeForest
Title: Vice President
$ 54,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ David L. Ericson
Title: Vice President
$ 54,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Douglas T. Meckelnburg
Title: Vice President
<PAGE>
$ 54,000,000 CITIBANK, N.A.
By /s/ Harriette A. Brown
Title: Managing Director
$ 50,000,000 ABN AMRO BANK N.V.
By /s/ Thomas M. Toerpe
Title: Vice President
By /s/ Sang W. Lee
Title: Assistant Vice President
$ 50,000,000 ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO SpA
By /s/ Carlo Persico
Title: Deputy Manager
By /s/ Robert Wurster
Title: First Vice President
<PAGE>
$ 50,000,000 MELLON BANK, N.A.
By /s/ Alexander Gordon
Title: Officer
$ 50,000,000 WELLS FARGO BANK, N.A.
By /s/ Catherine M. Wallace
Title: Vice President
By /s/ Donald A. Hartmann
Title: Senior Vice President
$ 40,000,000 THE BANK OF NEW YORK
By /s/ James W. Whitaker
Title: Vice President
$ 40,000,000 U.S. BANK NATIONAL ASSOCIATION
By /s/ Scott E. Page
Title: Vice President
<PAGE>
$ 35,000,000 FIRST SECURITY BANK, N.A.
By /s/ Troy S. Akagi
Title: Vice President
$ 30,000,000 COMMERZBANK AG LOS ANGELES BRANCH
By /s/ Christian Jagenberg
Title: Senior Vice President and Manager
By /s/ Steven F. Larsen
Title: Vice President
$ 30,000,000 FLEET NATIONAL BANK
By /s/ R.E. Anderson
Title: Senior Vice President
<PAGE>
$ 30,000,000 KEYBANK NATIONAL ASSOCIATION
By /s/ Mary K. Young
Title: Assistant Vice President
$ 25,000,000 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By /s/ James H. Boyle
Title: Second Vice President
By /s/ Peter Obermann
Title: Senior Vice President
$ 25,000,000 NORTHERN TRUST COMPANY
By /s/ Karen T. Arenz
Title: Second Vice President
$ 25,000,000 THE ROYAL BANK OF SCOTLAND PLC
By /s/ Kenneth C. Barclay
Title: Head of Media and
Telecommunications
<PAGE>
$ 20,000,000 BANKERS TRUST COMPANY
By /s/ Gregory Shefrin
Title: Principal
$ 15,000,000 BANQUE NATIONALE DE PARIS
By /s/ Mitchell M. Ozawa
Title: Vice President
By /s/ Marc T. Schaefer
Title: Assistant Vice President
$ 15,000,000 UBS AG, STAMFORD BRANCH
By /s/ Robert H. Riley III
Title: Executive Director
By /s/ Leo L. Baltz
Title: Director
Total Commitments:
$800,000,000
==========
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ SoVonna Day
Title: Vice President
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:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
- ----------------------------------- ----------- ------------ ------------ ----------- ============
Level Level Level Level Level
Status I II III IV V
- ----------------------------------- ----------- ------------ ------------ ----------- ============
- ----------------------------------- ----------- ------------ ------------ ----------- ============
Euro-Dollar Margin:
Usage less than 25% .245% .265% .305% .420% .525%
Usage -> 25% .345% .365% .430% .545% .650%
Facility Fee Rate .055% .060% .070% .080% .100%
- ----------------------------------- ----------- ------------ ------------ ----------- ============
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the Company's
outstanding senior unsecured long-term debt securities are rated A+ or higher by
S&P and A1 or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A or
higher by S&P or A2 or higher by Moody's and (ii) neither Level I Status nor
Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A- or
higher by S&P or A3 or higher by Moody's and (ii) none of Level I Status, Level
II Status or Level III Status exists.
"Level V Status" exists if, at such date, none of Level I Status, Level
II Status, Level III Status, or Level IV Status exists.
<PAGE>
"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, or Level V Status exists at any
date.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 25%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company, and
any rating assigned to any other debt security of the Company shall be
disregarded. The rating in effect at any date is that in effect at the close of
business on such date.
2
<PAGE>
SCHEDULE 4.07
Environmental Matters
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
[May 19, 1999]
For value received, U S WEST COMMUNICATIONS, INC., a Colorado
corporation (the "Company"), 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 Company pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Company 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 Company
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of May 19, 1999 among U S WEST Communications, 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 COMMUNICATIONS, INC.
By
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
- ----------------------------- ------------------ ------------------ --------------------- ---------------------- ------------------
Amount of Principal
Date Amount of Loan Type of Loan Repaid Maturity Date Notation Made By
- ----------------------------- ------------------ ------------------ --------------------- ---------------------- ------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: U S WEST Communications, Inc.
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of May 19,
1999 among U S WEST Communications, Inc., the Banks listed on the
signature pages thereof, the other agents named therein and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
<PAGE>
U S WEST COMMUNICATIONS, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to U S WEST Communications, Inc.
(the "Company")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
May 19, 1999 among U S WEST Communications, Inc., the Banks parties thereto, the
other agents named therein and the undersigned, as Administrative Agent, we are
pleased on behalf of the Company to invite you to submit Money Market Quotes to
the Company for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Please
respond to this invitation by no later than [10:30 A.M.] [9:15 A.M.] (New York
City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Administrative Agent (the "Agent")
Re: Money Market Quote to
U S WEST Communications, Inc. (the "Company")
In response to your invitation on behalf of the Company dated ________,
__, ____, we hereby make the following Money Market Quote on the following
terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
<FN>
- ----------
* As specified in the related Invitation.
</FN>
</TABLE>
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of May 19, 1999 among U S WEST Communications, Inc., the
Banks listed on the signature pages thereof, the other agents named therein and
yourselves, as Agent, irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000. *** Not less than one month or not less than
7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period. **** Margin over or under the London
Interbank Offered Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS". ***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY
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 Communications, Inc., in
connection with the 364-Day Credit Agreement (the "Credit Agreement") dated as
of May 19, 1999, among the Company, the banks 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, 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 validly existing and in good standing
under the laws of the State of Colorado, 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.
<PAGE>
2. The execution, delivery and performance by the Company of the Credit
Agreement and the Notes are within the Company'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 of the Credit
Agreement and 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 the Company or any material law or regulation or any material order,
judgment, agreement or instrument to which the Company is a party or by which
the Company is bound, or (ii) result in the creation or imposition of any Lien
on any asset of the Company.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Notes constitute valid and binding obligations of the
Company, 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/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. The Company's corporate Significant Subsidiaries are corporations
validly existing and in good standing under the laws of their jurisdictions of
incorporation, and have 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.
<PAGE>
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.
This opinion is furnished by me as counsel for the Company 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, (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 F
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 May 19, 1999 among U S WEST Communications,
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 of the Credit
Agreement and the Notes are within the Company'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 Notes
constitute valid and binding obligations of the Company.
<PAGE>
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 G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST Communications, 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 May 19, 1999 among the
Company, 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, Committed 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 Committed 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.
<PAGE>
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 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
Committed 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.3 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.
[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
9.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Company agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.]
<PAGE>
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 validity and enforceability of the obligations of the Company 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.
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 COMMUNICATIONS, INC.
By
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:]
<PAGE>
EXHIBIT H
EXTENSION AGREEMENT
US WEST Communications, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Morgan Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period
under the 364-Day Credit Agreement dated as of May 19, 1999 among US WEST
Communications, Inc., the Banks listed therein, the other agents named therein
and Morgan Guaranty Trust Company of New York, as Administrative Agent (the
"Credit Agreement") for 364 days to ____________ __, ____. Terms defined in the
Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. It 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.
[NAME OF BANK]1
By
Title:
<PAGE>
[NAME OF BANK]1
By
Title:
[NAME OF BANK]1
By
Title:
[NAME OF BANK]1
By
Title:
[NAME OF BANK]1
By
Title:
[NAME OF BANK]1
By
Title:
- ------------------------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
Agreed and accepted:
US WEST COMMUNICATIONS, INC.
By
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Title
EXHIBIT 10-F
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of June 11, 1999 to the 364-Day Credit Agreement
dated as of May 19, 1999 (the "Credit Agreement") among U S WEST COMMUNICATIONS,
INC. (the "Company"), the BANKS listed on the signature pages thereto (the
"Banks") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
(the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to
increase pricing;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. Amendment of Section 1.01.
(a) The definition of "Termination Date" in Section 1.01 of the Credit
Agreement is amended to insert:
(1) before the date contained therein, the phrase "the
earlier of (i)", and
(2) after the expression "Section 2.01(b)", the clause "or
(ii) the date which is the thirtieth day after the date on which the
Merger is consummated,".
(b) Section 1.01 the Credit Agreement is amended by adding the
following definitions in the appropriate alphabetical order:
<PAGE>
"Merger" means any of the transactions constituting one of the
"Mergers" (as defined in the Merger Agreement as in effect on June 11,
1999) or any similar transaction pursuant to which U S WEST, Inc.
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 U S WEST, Inc. and Global Crossing
Ltd., as amended prior to June 11, 1999.
SECTION 3. Amendment of Section 2.02. Section 2.02 of the Credit
Agreement is amended to add the following proviso before the word "and" at the
end of clause (iii) thereof:
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,
SECTION 4. Amendment of Section 2.10. Section 2.10(a) of the Credit
Agreement is amended to replace the period at the end of clause (ii) thereof
with a semi-colon and to add after clauses (i) and (ii) the following proviso,
which applies to both clauses:
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.
SECTION 5. Amendment of Section 4.07. Section 4.07(c) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(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 6. Amendment of Section 9.03. Clause (i) of Section 9.03(a) of
Credit Agreement is amended by adding the word "reasonable" before the word
"out-of-pocket" and before the word "fees".
<PAGE>
SECTION 7. Amendment of Pricing Schedule. The Pricing Schedule is
amended and restated in its entirety to read as set forth in the attached
Pricing Schedule.
SECTION 8. Representations of Company. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 4 of the Credit Agreement will be true on and as of the Amendment
Effective Date (as defined below) and (ii) no Default will have occurred and be
continuing on such date.
SECTION 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 10. Counterparts. This Amendment 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.
SECTION 11. Effectiveness. This Amendment shall become effective as of
the date hereof on the date (the "Amendment Effective Date") when the Agent
shall have received from each of the Company and the Required Banks a
counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Agent) that such party has signed a
counterpart hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
U S WEST COMMUNICATIONS, INC.
By /s/ Sean P. Foley
Title: Treasurer
<PAGE>
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By /s/ Robert Bottamedi
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ Edmond DeForest
Title: Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Lori J. Thomas
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Douglas T. Meckelnburg
Title: Vice President
CITIBANK, N.A.
By /s/ Maureen Maroney
Title: Vice President
<PAGE>
ABN AMRO BANK N.V.
By /s/ Joanna Riopelle
Title: Senior Vice President
By /s/ Sang W. Lee
Title: Assistant Vice President
ISTITUTO BANCARIO SAN PAOLO
DI TORINO ISTITUTO MOBILIARE
ITALIANO SPA
By
Title:
By
Title:
MELLON BANK, N.A.
By /s/ Henry S. Beukema
Title: Assistant Vice President
<PAGE>
WELLS FARGO BANK, N.A.
By /s/ Donald A. Hartmann
Title: Senior Vice President
By /s/ Catherine M. Wallace
Title: Vice President
THE BANK OF NEW YORK
By /s/ James Whitaker
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By /s/ Scott E. Page
Title: Vice President
FIRST SECURITY BANK, N.A.
By /s/ Troy S. Akagi
Title: Vice President
<PAGE>
COMMERZBANK AG LOS ANGELES
AND GRAND CAYMAN BRANCHES
By /s/ Christian Jagenberg
Title: Senior Vice President and Manager
By /s/ Steven F. Larsen
Title: Vice President
FLEET NATIONAL BANK
By /s/ Sue Anderson
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Mary K. Young
Title: Assistant Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN
ISLANDS BRANCH
By /s/ Peter Obermann
Title: Senior Vice President
By /s/ James H. Boyle
Title: Vice President
<PAGE>
NORTHERN TRUST COMPANY
By /s/ David J. Mitchell
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ K. C. Barclay
Title: Head of Media and
Telecommunications
BANKERS TRUST COMPANY
By /s/ Gregory Shefrin
Title: Principal
BANQUE NATIONALE DE PARIS
By /s/ Clive Bettles
Title: Senior Vice President & Manager
By /s/ Mitchell M. Ozawa
Title: Vice President
<PAGE>
UBS AG, STAMFORD BRANCH
By /s/ Robert H. Riley III
Title: Executive Director
By /s/ Paul R. Morrison
Title: Executive Director
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------- --------- --------- --------- --------- --------- -------- ---------- =========
Level Level Level Level Level Level Level Level
Status I II III IV V VI VII VIII
- --------------------------- --------- --------- --------- --------- --------- -------- ---------- =========
- --------------------------- --------- --------- --------- --------- --------- ======== ========== =========
Euro-Dollar Margin:
Usage less than 25% .245% .265% .305% .420% .525% .625% .725% 1.175%
Usage => 25% .345% .365% .430% .545% .650% .750% 1.100% 1.550%
Facility Fee Rate .055% .060% .070% .080% .100% .125% .150% .200%
- --------------------------- --------- --------- --------- --------- ========= ======== ========== =========
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the Company's
outstanding senior unsecured long-term debt securities are rated A+ or higher by
S&P and A1 or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A or
higher by S&P or A2 or higher by Moody's and (ii) neither Level I Status nor
Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated A- or
higher by S&P or A3 or higher by Moody's and (ii) none of Level I Status, Level
II Status or Level III Status exists.
<PAGE>
"Level V Status" exists at any date if, at such date, (i) the Company's
outstanding senior unsecured long-term debt securities are rated BBB+ or higher
by S&P or Baa1 or higher by Moody's and (ii) none of Level I Status, Level II
Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Company's outstanding senior unsecured long-term debt securities are rated BBB
or higher by S&P and Baa2 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, (i) the
Company's outstanding senior unsecured long-term debt securities 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, Level V Status or Level VI
Status exists.
"Level VIII Status" exists if, at such date, none of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status, Level VI
Status or Level VII Status exists.
"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,
Level VII Status or Level VIII Status exists at any date.
<PAGE>
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 25%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company, and
any rating assigned to any other debt security of the Company shall be
disregarded. The rating in effect at any date is that in effect at the close of
business on such date.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001054522
<NAME> U S WEST, Inc.
<MULTIPLIER> 1,000,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999
<PERIOD-START> APR-01-1999 JAN-01-1999
<PERIOD-END> JUN-30-1999 JUN-30-1999
<CASH> 122 122
<SECURITIES> 0 0
<RECEIVABLES> 1,730 1,730
<ALLOWANCES> 0 0
<INVENTORY> 264 264
<CURRENT-ASSETS> 2,670 2,670
<PP&E> 36,718 36,718
<DEPRECIATION> 21,238 21,238
<TOTAL-ASSETS> 21,891 21,891
<CURRENT-LIABILITIES> 7,902 7,902
<BONDS> 8,458 8,458
0 0
0 0
<COMMON> 0 0
<OTHER-SE> 1,066 1,066
<TOTAL-LIABILITY-AND-EQUITY> 21,891 21,891
<SALES> 3,258 6,440
<TOTAL-REVENUES> 3,258 6,440
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 2,403 4,792
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 163 316
<INCOME-PRETAX> 679 1,318
<INCOME-TAX> 258 500
<INCOME-CONTINUING> 421 818
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 421 818
<EPS-BASIC> .84 1.62
<EPS-DILUTED> .83 1.61
</TABLE>
