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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarterly Period Ended March 31, 2000
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)
<TABLE>
<CAPTION>
<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
(Address of principal executive offices and zip code)
Telephone Number (303) 672-2700
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No __
At April 28, 2000, 507,685,431 shares of common stock were outstanding.
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<PAGE>
U S WEST, Inc.
Form 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Item Page
PART I - FINANCIAL INFORMATION
1. Financial Statements
Consolidated Statements of Income -
Three months ended March 31, 2000 and 1999.................................... 3
Consolidated Balance Sheets -
March 31, 2000 and December 31, 1999........................................... 4
Consolidated Statements of Cash Flows -
Three months ended March 31, 2000 and 1999.................................... 5
Notes to Consolidated Financial Statements...................................... 6
2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.............................................. 13
3. Quantitative and Qualitative Disclosures
About Market Risk................................................................ 21
PART II - OTHER INFORMATION
1. Legal Proceedings....................................................................... 25
5. Recent Developments..................................................................... 25
6. Exhibits and Reports on Form 8-K........................................................ 25
</TABLE>
2
<PAGE>
U S WEST, Inc.
CONSOLIDATED STATEMENTS OF INCOME
(dollars in millions, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------------------
2000 1999
---- ----
Revenues:
<S> <C> <C>
Local services.................................................... $2,040 $1,863
Access services................................................... 709 671
Directory services................................................ 347 326
Long-distance services............................................ 107 174
Other services.................................................... 174 134
-------------- -------------
Total revenues................................................. 3,377 3,168
-------------- -------------
Operating expenses:
Employee-related expenses......................................... 1,167 1,122
Other operating expenses.......................................... 717 656
Depreciation and amortization..................................... 586 602
-------------- -------------
Total operating expenses....................................... 2,470 2,380
-------------- -------------
Operating income........................................................ 907 788
Other expense (income):
Interest expense.................................................. 211 153
Decline in market value of derivative financial
instruments................................................... 129 -
Gain on sales of investments...................................... (79) -
Other (income) expense-net........................................ (1) 1
-------------- -------------
Total other expense-net........................................ 260 154
-------------- -------------
Income before income taxes and cumulative effect of change in accounting
principle............................................................ 647 634
Provision for income taxes.............................................. 243 240
-------------- -------------
Income before cumulative effect of change in accounting
principle....... 404 394
Cumulative effect of change in accounting principle..................... - 240
-------------- -------------
Net Income.............................................................. $404 $634
============== =============
Basic earnings per share................................................ $0.80 $1.26
============== =============
============== =============
Basic average shares outstanding (in 000's)............................. 507,163 503,306
============== =============
Diluted earnings per share.............................................. $0.79 $1.25
============== =============
Diluted average shares outstanding (in 000's)........................... 514,305 508,121
============== =============
Dividends per share..................................................... $0.535 $0.535
============== =============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
3
<PAGE>
U S WEST, Inc.
CONSOLIDATED BALANCE SHEETS
(dollars in millions, except share amounts)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------------- -----------------
(unaudited)
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents....................................................... $82 $78
Accounts receivable, less allowance for uncollectibles of
$85 and $88, respectively..................................................... 2,355 2,455
Receivable from sale of Global Crossing Ltd. common stock....................... - 1,140
Inventories and supplies........................................................ 302 272
Deferred directory costs........................................................ 94 85
Deferred tax assets............................................................. 31 46
Prepaid and other............................................................... 185 116
----------------- -----------------
Total current assets............................................................... 3,049 4,192
Property, plant and equipment(Y)net................................................ 16,932 16,404
Investments........................................................................ 1,085 1,290
Other assets(Y)net................................................................. 1,635 1,386
----------------- -----------------
Total assets....................................................................... $22,701 $23,272
================= =================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt................................................................. $2,353 $2,882
Accounts payable................................................................ 1,503 1,700
Accrued expenses................................................................ 1,698 1,840
Advance billings and customer deposits.......................................... 354 344
----------------- -----------------
Total current liabilities.......................................................... 5,908 6,766
Long-term debt..................................................................... 10,247 10,189
Postretirement and other postemployment benefit obligations........................ 2,838 2,890
Deferred income taxes.............................................................. 1,177 1,191
Unamortized investment tax credits................................................. 159 161
Deferred credits and other......................................................... 1,057 820
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(Y)$1.00 par value, 10,000,000 shares authorized,
none issued and outstanding.................................................. - -
Common stock(Y)$0.01 par value, 2,000,000,000 shares authorized, 507,903,486 and
506,554,982 issued, 507,599,483 and 506,250,979 outstanding.................. 706 656
Retained earnings............................................................... 509 377
Accumulated other comprehensive income.......................................... 100 222
----------------- -----------------
Total stockholders' equity......................................................... 1,315 1,255
----------------- -----------------
Total liabilities and stockholders' equity......................................... $22,701 $23,272
================= =================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
4
<PAGE>
U S WEST, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in millions)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------------
2000 1999
---- ----
OPERATING ACTIVITIES
<S> <C> <C>
Net income................................................................................ $404 $634
Adjustments to net income:
Depreciation and amortization....................................................... 586 602
Decline in market value of derivative financial instruments......................... 129 -
Gain on sales of investments........................................................ (79) -
Cumulative effect of change in accounting principle................................. - (240)
Deferred income taxes and amortization of investment tax credits.................... 84 12
Changes in operating assets and liabilities:
Accounts receivable................................................................. 100 55
Inventories, supplies and other current assets...................................... (97) (116)
Accounts payable, accrued expenses and advance billings............................. (181) 51
Other............................................................................... (139) (61)
-------------- --------------
-------------- --------------
Cash provided by operating activities.................................................. 807 937
-------------- --------------
-------------- --------------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment......................................... (1,277) (753)
Payments on disposals of property, plant and equipment................................. (9) (8)
Proceeds from sale of Global Crossing Ltd. common stock................................ 1,140 -
Other.................................................................................. 136 (11)
-------------- --------------
Cash used for investing activities..................................................... (10) (772)
-------------- --------------
FINANCING ACTIVITIES
Net (repayments of) proceeds from short-term debt...................................... (520) 256
Repayments of long-term debt........................................................... (32) (181)
Proceeds from issuance of common stock................................................. 30 16
Dividends paid on common stock......................................................... (271) (269)
-------------- --------------
Cash used for financing activities..................................................... (793) (178)
-------------- --------------
CASH AND CASH EQUIVALENTS
Increase (decrease).................................................................... 4 (13)
Beginning balance...................................................................... 78 49
-------------- --------------
Ending balance......................................................................... $82 $36
============== ==============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
5
<PAGE>
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the three months ended March 31, 2000
(dollars in millions, except per share amounts)
(unaudited)
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation. The consolidated interim financial statements
are unaudited. We prepared the financial statements in accordance with the
instructions for Form 10-Q and therefore, did not include all information and
footnotes required by generally accepted accounting principles. In our opinion,
we made all the adjustments (consisting only of normal recurring adjustments)
necessary to fairly present our consolidated results of operations, financial
position and cash flows as of March 31, 2000 and for all periods presented. The
financial 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 for the year ended December 31, 1999. The
consolidated results of operations for the three months ended March 31, 2000 are
not necessarily indicative of the results expected for the full year.
NOTE 2: EARNINGS PER SHARE
The following table is a reconciliation of basic weighted average
shares to diluted weighted average shares (shares in thousands):
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------------------
2000 1999
---------------- --------------
<S> <C> <C>
Basic weighted average shares outstanding..................... 507,163 503,306
Dilutive effect of stock options.............................. 7,142 4,815
---------------- --------------
Diluted weighted average shares outstanding................... 514,305 508,121
================ ==============
</TABLE>
NOTE 3: 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 services, data services and
long-distance services. The wholesale services segment provides exchange 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 operating
expenses of 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 margins for the retail services and wholesale services
segments exclude network and corporate expenses. The margins for the network and
directory services segments exclude corporate expenses. The "other" category
includes our corporate expenses and intersegment eliminations.
6
<TABLE>
<CAPTION>
Total
Communications
and
Retail Wholesale Network Related Directory Reconciling Consolidated
Services Services Services Services Services Other Items Total
-------- -------- -------- -------- -------- ----- ----- -----
Three Months Ended March 31,
2000
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues........ $2,324 $747 $74 $3,145 $350 $- $(118)(1) $3,377
Margin.......... 1,469 581 (661) 1,389 190 25 (957)(2) 647
Assets.......... -(3) -(3) -(3) -(3) 799 -(3) 21,902(3) 22,701
Capital
expenditures. 154 24 1,050 1,228 11 2 - 1,241
1999
- ----
Revenues........ $2,169 $691 $50 $2,910 $328 $- $(70)(1) $3,168
Margin.......... 1,505 530 (685) 1,350 165 (35) (846)(2) 634
Assets.......... -(3) -(3) -(3) -(3) 895 -(3) 18,159(3) 19,054
Capital
expenditures. 111(4) 31 638 780 7 - - 787
- -----------------------
<FN>
<F1>
(1) Represents primarily intersegment charges.
<F2>
(2) Adjustments made to arrive at consolidated income before income taxes
and cumulative effect of change in accounting principle include the
following:
</FN>
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended March 31,
------------------------------------------
2000 1999
------------------- -------------------
Costs excluded from segment data but included in the consolidated total:
<S> <C> <C>
Taxes other than income taxes................................... $111 $90
Depreciation and amortization................................... 586 602
Decline in market value of derivative financial instruments..... 129 -
Gain on sales of investments.................................... (79) -
Interest expense................................................ 211 153
Other (income) expense-net...................................... (1) 1
------------------- -------------------
$957 $846
=================== ===================
<FN>
<F1>
(3) We do not provide a breakout of assets for all segments 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 revenues disclosed above, intersegment revenues were:
<TABLE>
<CAPTION>
Three Months Ended March 31,
--------------------------------------
2000 1999
----------------- -----------------
<S> <C> <C>
Retail services................................................. $24 $6
Wholesale services.............................................. 19 7
Network services................................................ 16 17
Directory services.............................................. 3 3
</TABLE>
NOTE 4: OTHER COMPREHENSIVE INCOME (LOSS)
Other comprehensive loss for the quarter ended March 31, 2000 was $122,
net of deferred taxes of $79. Other comprehensive income for the quarter ended
March 31, 1999 was $15, net of deferred taxes of $10. Other comprehensive income
(loss) consists of net unrealized gains and losses on available for sale
marketable securities.
Total comprehensive income for the three months ended March 31, 2000
and 1999 are as follows:
8
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended March 31,
2000 1999
---- ----
<S> <C> <C>
Net income.......................................................... $404 $634
Other comprehensive income (loss):
Net unrealized gains (losses) on available for sale
marketable securities........................................ (122) 15
---------------- ----------------
Comprehensive income................................................ $282 $649
================ ================
</TABLE>
In 2000, unrealized gains (losses) on marketable investments include
reclassification adjustments of $49, net of deferred taxes of $30, pertaining to
realized gains from the sale of securities.
NOTE 5: COMMITMENTS AND CONTINGENCIES
Commitments
We 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 March 31, 2000, we have a remaining commitment of $48
be paid in a combination of cash and services through 2004.
Contingencies
Regulatory Contingencies. On May 1, 1996, the Oregon Public Utilities
Commission ("OPUC") approved a stipulation terminating prematurely U S WEST
Communications, Inc.'s ("USWC"), a wholly owned subsidiary, 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, 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.
On September 9, 1999, USWC and the OPUC staff reached a tentative
settlement agreement whereby USWC would refund approximately $270 to current and
former Oregon customers of USWC and issue temporary bill credits of $63 annually
until the OPUC sets final rates. On April 14, 2000, the OPUC announced its
acceptance of the settlement agreement. We have reserved for the proposed
refunds.
9
In December 1999, the Colorado Public Utilities Commission decided to
levy reparations against USWC of $13 for violations of service quality rules
between January 1998 and April 1999, although a final written order has not yet
been issued. USWC has reserved for these reparations.
The New Mexico Public Regulation Commission has ordered an interim
annual rate reduction of approximately $29, effective February 15, 2000.
Permanent resolution of this matter is expected during 2000.
USWC has pending regulatory actions in local regulatory jurisdictions
which call for price decreases, refunds or both. These actions are generally
routine and incidental to USWC's business. USWC will continue to monitor and
evaluate the risks associated with its local regulatory jurisdictions.
Other Contingencies. In 1999, twelve complaints were filed against us
and our directors 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 our common stock, against us and our
directors. 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 U S WEST (the "Company") and refusing to
consider the Qwest Communications International Inc. ("Qwest") proposal,
resulting in the stockholders being prevented from maximizing the value of their
common stock. The complaints seek various injunctive and monetary relief,
including orders: a) requiring defendants to act in accordance with their
fiduciary duties by considering any bona fide proposal which would maximize
stockholder value; b) requiring the directors to undertake an evaluation of our
Company as a merger/ acquisition candidate and take steps to enhance that value
and create an active auction for our Company; c) preventing defendants from
using a stockholder rights plan to impede any bona fide offer for our Company;
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 us and the proposed Global Crossing-U S WEST merger;
and f) requiring defendants to pay damages to plaintiffs. We intend to
vigorously defend these actions.
On April 26, 2000, a Class Action Complaint was filed against U S WEST
and USWC purportedly on behalf of 100,000 customers in the State of New Mexico.
The complaint alleges, inter alia, that from 1993 to the present, U S WEST and
USWC, in violation of alleged statutory and common law obligations, willfully
delayed the provision of local telephone service to the purported class members.
In addition, the complaint alleges that U S WEST and USWC misrepresented the
date on which such local telephone service was to be provided to the purported
class members. The complaint seeks compensatory damages for purported class
members, disgorgement of profits and punitive damages. U S WEST and USWC intend
to vigorously defend this action.
10
On October 1, 1999, a Fifth Amended Class Action Complaint was filed
against U S WEST and USWC purportedly on behalf of 220,000 customers in the
State of Colorado. The complaint alleges, inter alia, that from 1993 to the
present, U S WEST and USWC, in violation of alleged statutory and common law
obligations, willfully delayed the provision of local telephone service to the
purported class members. In addition, the complaint alleges that U S WEST and
USWC misrepresented the date on which such local telephone service was to be
provided to the purported class members. The complaint seeks compensatory
damages for purported class members, disgorgement of profits and punitive
damages. U S WEST and USWC intend to vigorously defend this action.
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 6: MERGER AGREEMENT
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 Qwest and us together
from the 30 consecutive trading days ending on the third trading day preceding
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, our desire to
provide a cash element to our stockholders and both companies' desire to
maintain the merged company's strong financial condition. We 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 and their stockholders approved the
proposed merger. The merger is subject to federal and state regulatory approvals
without significant conditions and other customary closing conditions.
11
NOTE 7: CHANGE IN ACCOUNTING METHOD
Prior to 1999, U S WEST Dex ("Dex") recognized revenues and expenses
related to publishing directories using the "deferral method," under which
revenues and expenses were recognized over the lives of the directories,
generally one year. Effective the fourth quarter of 1999, Dex changed to the
"point of publication" method of accounting, which recognizes revenues and
expenses at the time the related directory is published. The change in
methodology was made to align our revenue and expense policy with the earnings
process and to better reflect the operating activity of the business. The
accounting change resulted in a one-time increase in net income of $240 (net of
income tax of $153), or $0.47 per diluted share, which was reported as a
cumulative effect (as of January 1, 1999) of a change in accounting principle.
We restated our quarter ended March 31, 1999 results of operations to give
effect to the point of publication method which decreased net income by $3 or
$0.01 per diluted share as compared to results that would have been reported
under the deferral method.
12
<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);
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 and service pricing in the local exchange
market;
o acceleration of the deployment of advanced new services and/or advanced new
services to customers, such as broadband data, wireless (including the
purchase of spectrum licenses) and video services, which would require
substantial expenditure of financial and other resources;
o changes 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 timing, cost and 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
13
o timing and completion of the announced merger with Qwest Communications
International Inc. ("Qwest") and the subsequent integration of the
businesses of the two companies.
You should not construe these cautionary statements as an exhaustive list
or as any admission by us regarding the adequacy of the disclosures made by us.
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, you are urged to 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.
Results of Operations
Three Months Ended March 31, 2000 Compared with 1999
Several non-recurring items impacted net income for the three months ended
March 2000 and 1999. Results of operations, normalized to exclude the effects of
such items, are as follows:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------------------
Increase
(Decrease)
2000 1999 ----------
---- ----
<S> <C> <C> <C> <C>
Net income ..................................... $404 $634 $(230) (36.3)%
Non-recurring items............................. 41(1) (240)(2) 281 117.1
------------
--------------- ------------ ------------
Normalized income............................... $445 $394 $51 12.9%
=============== ============ ============ ============
Diluted earnings per share...................... $0.79 $1.25 $(0.46) (36.8)%
Non-recurring items............................. 0.08 (0.47) 0.55 117.0
--------------- ------------ ------------ ------------
Normalized diluted earnings per share........... $0.87 $0.78 $0.09 11.5%
=============== ============ ============ ============
<FN>
<F1>
(1) Reflects an after-tax charge of $81 or $0.16 per diluted share for the
decline in the market value of derivative financial instruments, an
after-tax charge of $9 or $0.02 per diluted share for merger-related
costs and an after-tax benefit of $49 or $0.10 per diluted share for
the gain on sales of investments.
<F2>
(2) Reflects an after-tax benefit of $240 or $0.47 per diluted share
representing the cumulative effect of a change in accounting principle
applicable to the change in accounting method for directory publishing
revenues and expenses.
</FN>
</TABLE>
14
Normalized net income increased by $51, or 12.9% to $445 for the quarter
ended March 31, 2000. We experienced a 6.6% increase in revenues for the three
months ended March 31, 2000, over the comparable 1999 period. The increase was
partially offset by an increase in expenses to support our growth initiatives,
enhance customer service and improve our network.
The following sections provide a more detailed discussion of the changes in
revenues and expenses.
Revenues
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999 Increase
--------
<S> <C> <C> <C> <C>
Local services revenues................................. $2,040 $1,863 $177 9.5%
====== ====== ==== ====
</TABLE>
Local services revenues. Local services revenues include retail and
wholesale basic monthly service fees, fees for calling services such as voice
messaging and caller identification, wireless revenues, subscriber line charges
("SLCs"), MegaBit [Trademark Symbol] data services, local number portability
("LNP") charges, public phone revenues, interconnection, paging and installation
and connection charges. State public service commissions regulate most local
service rates.
Local services revenues increased primarily due to greater sales of
wireless and calling services. Wireless services accounted for $66 and calling
services accounted for $23 of the increase. Increased demand for basic monthly
services, including second line installations, accounted for $25 of the revenue
increase over the quarter ended March 31, 1999. Reductions in regulatory rate
changes added $17 to the revenue growth. Also contributing to revenue growth
were greater revenues from LNP charges, interconnection revenues, SLCs, paging
services and increases in the subscriber base of our MegaBit [Trademark Symbol]
data services.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999 Increase
--------
<S> <C> <C> <C> <C>
Access services revenues................................ $709 $671 $38 5.7%
==== ==== === ====
</TABLE>
Access services revenues. Access services revenues are derived primarily
from charging interexchange carriers ("IXCs"), such as AT&T and MCI WorldCom,
for use of our local network to connect customers to their long-distance
networks. Also included in access services revenues are special access and
private line revenues from end-users buying dedicated local exchange capacity to
support their private networks.
15
Increased demand for private line and special access services, as well as
demand from IXCs resulted in a $74 increase for the quarter ended March 31,
2000. Access minutes of use increased 4.7% for the three months ended March 31,
2000. Offsetting demand increases were FCC and state mandated rate reductions
aggregating $36 primarily relating to access reforms.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
2000 1999 Increase
---- ---- --------
<S> <C> <C> <C> <C>
Directory services revenues............................ $347 $326 $21 6.4%
==== ==== === ====
</TABLE>
Directory services revenues. Directory services revenues are primarily
derived from selling advertising in our published directories. The increase in
directory services revenues was primarily attributable to increased sales of
premium advertisements and price increases.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
2000 1999 Decrease
---- ---- --------
<S> <C> <C> <C> <C>
Long-distance services revenues..................... $107 $174 $(67) (38.5)%
==== ==== ===== =======
</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 months ended March 31, 2000 was primarily attributable to greater
competition and strategic price reductions resulting in revenue declines of $57.
Mandated rate reductions of $10 for the three months ended March 31, 2000 also
contributed to the revenue decrease.
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 13.
16
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999 Increase
--------
<S> <C> <C> <C> <C>
Other services revenues.................................. $174 $134 $40 29.9%
==== ==== === =====
</TABLE>
Other services revenues. Other services revenues include billing and
collection services for IXCs, collocation services for other competitive local
exchange carriers ("CLECs"), customer equipment sales and sales of other
unregulated products, such as U S WEST.net [Registered Trademark Symbol], our
Internet service. Other services revenues increased primarily as a result of
increased subscribers for U S WEST.net [Registered Trademark Symbol], the
national expansion of our data business and increased customer equipment sales.
Operating Expenses
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
2000 1999 Increase
---- ---- --------
<S> <C> <C> <C> <C>
Employee-related expenses.............................. $1,167 $1,122 $45 4.0%
====== ====== === ====
</TABLE>
Employee-related expenses. Employee-related expenses include salaries and
wages, benefits, payroll taxes and contract labor.
Employee-related expenses increased because of growth in several sectors of
the business, primarily wireless and data communications, resulting in increased
employee levels. Additionally, increased commitments towards improving customer
service, including responding to requests for installation and repair services,
resulted in higher labor costs. Across-the-board wage increases also contributed
to the increase in employee-related expenses. The number of employees increased
from 55,324 at the end of the first quarter of 1999 to 60,785 at March 31, 2000.
Partially offsetting these increases were improvements in benefit-related costs,
primarily in our pension plan, mainly attributable to favorable returns on
pension plan assets. Pension credits were $74 in the first quarter of 2000
compared to $25 in the first quarter of 1999. We anticipate our pension credit
for the remaining quarters in 2000 will be consistent with our first quarter's
experience. We also anticipate that employee expenses will be higher in the
quarter the Qwest merger closes, due to retention initiatives (awards and
bonuses) associated with the consummation of the merger. See "Special Note
Regarding Forward-Looking Statements" on page 13.
17
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
2000 1999 Increase
--------
<S> <C> <C> <C> <C>
Other operating expenses............................... $717 $656 $61 9.3%
==== ==== === ====
</TABLE>
Other operating expenses. Other operating expenses include access charges
paid to carriers for the routing of local and long-distance traffic through
their facilities, taxes other than income taxes, paper, printing, delivery and
distribution costs associated with publishing activities and other operating
costs. The increase in other operating expenses for the quarter ended March 31,
2000 was primarily attributable to the following:
o increased costs of product sales associated with our growth initiatives,
including wireless handset costs and costs applicable to our data
communications services and other communication services;
o higher property taxes; and
o increased provision for uncollectibles, primarily attributable to increased
wireless revenues.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------------
2000 1999 Decrease
---- ---- --------
<S> <C> <C> <C> <C>
Depreciation and amortization expense................. $586 $602 $(16) (2.7)%
==== ==== ===== ======
</TABLE>
Depreciation and amortization expense. The decrease in depreciation and
amortization expense was attributable to the cessation of depreciation,
beginning in April 1999, associated with access lines that are intended to be
sold. Additionally, in 1999, we accelerated and fully depreciated certain assets
due to changes in technology. Offsetting the decrease in expense was an increase
in depreciation and amortization expense due to higher overall property, plant
and equipment balances resulting from continued investment in our network.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------------
2000 1999 Increase
---- ---- --------
<S> <C> <C> <C> <C>
Other expense-net.................................... $260 $154 $106 68.8%
==== ==== ==== =====
</TABLE>
18
Other expense-net. Interest expense was $211 for the first quarter of 2000
compared to $153 for the first quarter of 1999. The increase in interest expense
was primarily attributable to debt we incurred to acquire 39 million shares of
Global Crossing Ltd. ("Global Crossing") common stock.
In December 1999, we entered into an equity swap on 24 million shares of
Global Crossing common stock. For the quarter ended March 31, 2000, the market
value of the swap declined by $129. Partially offsetting the decline were
realized gains of $79 on the sales of other securities.
Segment results. Segment results represent margins which, for segment
reporting purposes, exclude certain costs and expenses, including depreciation
and amortization. See Note 3 to the consolidated financial statements.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
Increase
2000 1999 (Decrease)
----------
Segment results:
<S> <C> <C> <C> <C>
Retail segment...................................... $1,469 $1,505 $(36) (2.4)%
Wholesale segment................................... 581 530 51 9.6
Network segment..................................... (661) (685) 24 3.5
Directory segment................................... 190 165 25 15.2
</TABLE>
Margin from the retail services segment decreased for the three months
ended March 31, 2000 from the comparable prior period due to increased operating
expenses. Revenue from the retail services segment increased 7.1% for the three
months ended March 31, 2000 over the comparable 1999 period, primarily due to
growth in local services revenues. The revenue increase was offset by higher
operating expenses driven by growth initiatives and costs associated with
enhancing customer service. Margin from the wholesale services segment increased
as a result of greater demand for access and interconnection services, partially
offset by price reductions as mandated by both federal and state regulatory
authorities and higher operating costs associated with access charge expenses.
Margin from the network services segment increased for three months ended March
31, 2000, due to greater levels of spending on network enhancements partially
offset by expenditures to support growth in both the retail and wholesale
services segments. Margins from the directory services segment increased due to
increased sales of premium advertisements, price increases and increased efforts
to control costs.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999 Increase
---- ---- --------
<S> <C> <C> <C> <C>
Provision for income taxes................................. $243 $240 $3 1.3%
==== ==== == ====
</TABLE>
19
Provision for income taxes. The effective tax rate for the three months
ended March 31, 2000 of 37.6% remained consistent with the 1999 rate of 37.9%.
Liquidity and Capital Resources
Operating Activities. Cash provided by operations declined to $807 for the
three months ended March 31, 2000 from $937 for the prior comparable period. The
decrease was primarily related to a decrease in working capital caused by a
reduction in trade payables and acceleration of property tax payments for the
quarter ended March 31, 2000.
Future cash needs could increase with the pursuit of new business
opportunities, including the acceleration of the deployment of additional and/or
advanced new services to customers, such as broadband data, wireless (including
the purchase of spectrum licenses) and video services, and may additionally be
impacted by continued implementation of the requirements of the
Telecommunications Act of 1996 (the "Act"). The acceleration of such additional
and/or advanced new services could have a material adverse effect on our
financial condition or results of operations. Interconnection, LNP, universal
service and access charge reform will negatively impact cash flows to the extent
recovery mechanisms provided by the FCC and state public utility commissions
("PUCs") are inadequate. We would expect that such cash needs will be funded
through operations and, when necessary, the issuance of securities.
Investing Activities. Total capital expenditures, on a cash basis, were
$1,277 in 2000 and $753 in 1999. 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 Act, including
interconnection services such as LNP, operational support systems, collocation
and trunking. We continue to expand our investment to compete in the wireless,
data and video markets. For 2000, we anticipate total capital expenditures to be
approximately $4,700. See "Special Note Regarding Forward-Looking Statements" on
page 13.
Partially offsetting these capital expenditures was the receipt of $1,140
on the sale of 24 million shares of Global Crossing common stock.
Financing Activities. Cash used for financing activities was $793 and $178
for the quarters ended March 31, 2000 and 1999, respectively. For 2000, net
repayments of short-term and long-term debt were $552, compared to net proceeds
of $75 for 1999. The decrease was primarily due to the paydown of commercial
paper and bonds. We paid dividends on our common stock totaling $271 in 2000 and
$269 in 1999.
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 March 31, 2000, we had lines of credit with a total unused borrowing
capacity of $4,050.
20
<PAGE>
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.
As of March 31, 2000 and December 31, 1999, approximately $1,739 and
$2,265, respectively, of floating-rate debt was exposed to changes in interest
rates. This exposure is linked to commercial paper rates. A hypothetical
increase of one-percentage point in commercial paper rates would increase annual
pre-tax interest expense by $17. As of March 31, 2000 and December 31, 1999, we
also had $515 and $522, 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 March 31, 2000 and December 31, 1999, we had entered into
cross-currency swaps with notional amounts of $133. The cross-currency swaps
synthetically transform $90 and $94 of Swiss Franc borrowings at March 31, 2000
and December 31, 1999, 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.
As of March 31, 2000 and December 31, 1999, we had entered into equity
swaps with notional amounts of $1,201 and $1,140 relating to the sale of 24
million shares of Global Crossing common stock. In connection with the equity
swaps, we entered into several equity collars on certain shares. The equity
collars restrict the magnitude of any gains or losses generated by the equity
swaps. A hypothetical 10% reduction in the market price of Global Crossing
common shares, based upon a market price of $40.94 at March 31, 2000, would
decrease the market value of our net position by $53. A hypothetical increase of
one-percentage point in interest rates would decrease the market value of our
net position by $13.
At March 31, 2000 and December 31, 1999, we held marketable equity
investments recorded at fair values of $1,015 and $1,206, which included net
unrealized gains of $100 and $222, respectively. The investments 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 decrease the
fair value of our equity investments by $102.
Recent Regulatory Developments
Access Reform. In its access reform order, the FCC mandated a substantial
restructuring of interstate access pricing beginning July 1, 1997 and continuing
through 2001. A significant portion of the services that were sold using
minutes-of-use pricing are now being charged using a combination of
minutes-of-use rates, flat-rate presubscribed IXC carrier charges ("PICCs") and
SLCs. These changes generally improve the pricing structure for our competitive
services.
21
The access reform order also continued to allow information service
providers and purchasers of unbundled network elements ("UNEs") to avoid access
charges. This remains a problem as the volume of information service-related
usage continues to increase without an associated increase in revenues.
In 2000, the incumbent local exchange carriers ("ILECs") and MCI WorldCom
appealed the February 1999 FCC order declaring Internet traffic to be
interstate. The FCC order required current agreements to remain intact for
reciprocal compensation with CLECs until it rules on this matter. In March 2000,
the U.S. Court of Appeals partially vacated and remanded the order back to the
FCC. Until this is resolved, there will remain uncertainty regarding our payment
obligation for Internet traffic.
Pending before the FCC are several proposals for access reform, including
reducing interstate rates to remove universal service support, changing the rate
structure for switched access to a flat rated structure, changing the general
access structure including the removal of the productivity factor, eliminating
the PICC for single line customers and a U.S. Court of Appeals remanded review
of the productivity factor. Action on these items is expected by mid-2000.
Adoption of access reform proposals could result in significant reductions in
our interstate revenues. There is no assurance such reductions would be offset
by increases in other rates.
Court Remand of 6.5% Productivity Factor. In 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. In December 1999, the FCC issued a
notice of proposed rulemaking responding to the issues raised in the Court's
remand. The FCC proposed three alternative approaches to determining a new
productivity factor and asked whether it should be applied retroactively. We
expect the FCC to issue its order by June 2000. This issue is also being
addressed in conjunction with the access reform proposals. If the FCC does not
resolve this issue in conjunction with access reform, it may adopt a new higher
productivity factor or modified formula which could materially reduce our
interstate access charges.
Advanced Telecommunications Services. In March 2000, the District of
Columbia U.S. Court of Appeals partially vacated and remanded back to the FCC
its order establishing expanded collocation requirements for both conventional
voice and advanced services. We have also appealed the December 1999 FCC order
requiring that line sharing be provided as an UNE. Line sharing allows a CLEC to
provide advanced services over the same loop that the ILEC uses to provide
analog voice service. Previously, CLECs purchased a separate loop to provision
advanced services. In March 2000, the Company and GTE appealed the FCC's
December 1999 order on remand concerning the application of the unbundling
requirement to the provision of advanced services. We believe the Act did not
contemplate applying unbundling requirements to advanced services.
22
InterLATA Long-Distance Entry. We filed applications to enter the interLATA
long-distance business in Arizona, Colorado, Nebraska, Washington and Oregon and
continue to work with the state PUCs in those states to gain approval. We are
addressing operational support system issues on a regional basis and have agreed
to participate in regional testing. In February 2000, we filed notices of our
intention to file entry applications with our remaining state PUCs for their
review and expect to file actual applications in all states by the end of 2000,
with FCC filings following favorable state action. See "Special Note Regarding
Forward-Looking Statements " on page 13.
Universal Service Fees. In the first quarter of 2000, we appealed two
October 1999 FCC companion orders implementing a new universal service fund for
non-rural ILECs. The orders adopted a forward-looking cost model and determined
that an ILEC's costs at a study area (usually statewide) level must be greater
than 135% of the nationwide average to collect from the federal fund. As a part
of these orders, the FCC included a "hold harmless" provision. This provision
allows ILECs whose collections would otherwise decrease, to continue collecting
support using current methods for an indefinite period of time. The FCC will
determine the phase-out period for these collections in 2000. Because of
regulatory uncertainty regarding, among other things, the duration of the "hold
harmless" provision, we are currently unable to accurately estimate our federal
high cost support for 2000. In 2000, we will receive federal high cost support
for six states under the "hold harmless" provisions. The FCC has stated that
non-rural carriers should look to the states to make up some or all of the
shortfall in universal service support. We are in the process of seeking
additional support from the states, but the likelihood of success and the amount
of state support are as yet uncertain.
Number Pooling. In March 2000, the FCC issued an order substantially
changing the way telephone numbers are allocated among carriers in order to
avoid the premature exhaustion of telephone numbers in North America. This new
approach must be in place by mid-2001 in our region and will require significant
modifications to operational support systems and switch software with costs
exceeding $100. The FCC has issued a further notice of proposed rulemaking to
determine how ILECs may recover these costs in a competitively neutral way.
Contingencies
We have certain pending regulatory actions. See Note 5 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.
23
New Accounting Standards
In June 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 in the consolidated balance
sheets and changes in fair value generally be recognized currently in earnings
unless specific hedge accounting criteria are met. This standard is effective
for our 2001 fiscal year, although 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 2000, its impact on the
consolidated financial statements would not have been material.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 (the "Bulletin"), "Revenue Recognition in Financial
Statements," which addresses revenue recognition issues. The Bulletin requires,
in certain cases, nonrefundable up-front fees for services to be deferred and
recognized over the expected period of performance. The Bulletin also requires
that incremental direct costs incurred in obtaining the up-front fees be
deferred and recognized over the same period as the up-front fees. The Bulletin
is required to be adopted by June 30, 2000. We are assessing the types of
transactions that may be impacted by this pronouncement. The impact of the
Bulletin on the consolidated financial statements is not yet known.
24
<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 5: "Commitments and Contingencies" - to the consolidated financial
statements.
Item 5. Recent Developments
Debt Exchange Offer. In August 1999, U S WEST Capital Funding, Inc.
("Capital Funding"), a wholly-owned subsidiary of the Company, issued and sold
$1,150,000,000 aggregate principal amount of 6-7/8% Notes (the "old 6-7/8%
Notes") to certain initial purchasers in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the terms of a registration rights
agreement, on February 7, 2000, Capital Funding offered to exchange new 6-7/8%
Notes, which were registered under the Securities Act, for old 6-7/8% Notes. The
total aggregate principal amount of the old 6-7/8% Notes exchanged was
$1,147,274,000. Capital Funding used the net proceeds from the initial sale of
the old 6-7/8% Notes to repay a portion of its commercial paper indebtedness and
for general corporate purposes.
Commercial Paper Credit Facility. On May 5, 2000, the Company, Capital
Funding, and U S WEST Communications, Inc. executed a $4 billion 364-Day Credit
Agreement with the banks listed therein, and Morgan Guaranty Trust Company of
New York, as Administrative Agent, J.P. Morgan Securities Inc. and Banc of
America Securities LLC, Co-Joint Lead Arrangers and Bookrunners; Salomon Smith
Barney, Inc., Chase Securities Inc. and Commerzbank AG, Co-Arrangers; Bank of
America, N.A., Syndication Agent; and Citibank, N.A., and The Chase Manhattan
Bank, Co-Documentation Agents, to refinance and replace the Company's existing
credit facilities. The new $4 billion replacement credit facility, along with
existing credit facilities, provide credit support for the Capital Funding and U
S WEST Communications, Inc. commercial paper programs.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits filed for the Company through the filing of this Form 10-Q.
(2-A) Separation Agreement, dated June 5, 1998, between U S WEST, Inc.
(renamed MediaOne Group, Inc.) and USW-C, Inc (renamed U S WEST,
Inc.), (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).
25
(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 therein (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 listed therein (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 listed therein (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 and
amended by Amendment No. 1, dated as of September 8, 1999 (Annex A to
Schedule 14A dated September 17, 1999).
26
(2-A.12) Voting Agreement among each of the stockholders listed therein 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, dated as of July 18, 1999, between U S WEST,
Inc. and Global Crossing Ltd. (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 (Exhibit 2-A.14 to Form 10-Q, for the quarter ended June
30, 1999, File No. 1-14087).
(3-A) Restated Certificate of Incorporation of U S WEST, Inc. (Exhibit 3A to
Form S-4/A Registration Statement No. 333-45765, filed March 18,
1998).
(3-B) Bylaws of U S WEST, 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, dated as of June 1, 1998, between U S WEST,
Inc. (formerly USW-C, Inc.) and State Street Bank and Trust Company,
as Rights Agent, (Exhibit 4-A to the Form S-4 Registration Statement
No. 333-45765, filed April 2, 1998).
(4-A.1) Amendment No. 1 to Rights Agreement, dated as of May 16, 1999, between
U S WEST, Inc. and State Street Bank and Trust Company, (Exhibit 4 to
Form 8-K, dated May 21, 1999, File No. 1-14087).
(4-A.2) Amendment No. 2 to Rights Agreement, dated as of July 18, 1999,
between U S WEST, Inc. and State Street Bank and Trust Company,
(Exhibit 4-A.2 to Form 10-Q for the quarter ended June 30, 1999, File
No. 1-14087).
(4-A.3) Registration Rights Agreement, dated August 20, 1999, between U S WEST
Capital Funding Inc., U S WEST, Inc., J.P. Morgan Securities, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated (Exhibit 4-A.3 to
Form S-4 Registration Statement No. 333-92523, filed December 10,
1999).
(4-B) Indenture, dated as of June 29, 1998, by and among U S WEST Capital
Funding, Inc., U S WEST, Inc., and The First National Bank of Chicago
(now known as Bank One Trust Company, National Association), as
Trustee (Exhibit 4(a) to Form 8-K, dated 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).
27
(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 $3.5 Billion 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 $1 Billion 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 therein, 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
therein, (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 therein, and Morgan Guaranty Trust
Company of New York (Exhibit 10-D.3 to Form 10-Q for the quarter ended
June 30, 1999, File No. 1-14087).
(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, dated as of July 6, 1999, 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
(Exhibit 10-D.5 to Form 10-Q for the quarter ended June 30, 1999, File
No. 1-14087).
(10-E) 364-Day $800 Million Credit Agreement, dated as of May 19, 1999, among
the banks listed therein, U S WEST Communications, Inc., and Morgan
Guaranty Trust Company of New York, as administrative agent (Exhibit
10-E to Form 10-Q for the quarter ended June 30, 1999, File No.
1-14087).
28
(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 therein, and Morgan Guaranty
Trust Company of New York, as administrative agent, dated as of June
11, 1999 (Exhibit 10-F to Form 10-Q for the quarter ended June 30,
1999, File No. 1-14087).
10-F.1 364-Day $4.0 Billion Credit Agreement, dated as of May 5, 2000, among
U S WEST, Inc., U S WEST Capital Funding, Inc., U S WEST
Communications, Inc., the banks listed therein, and Morgan Guaranty
Trust Company of New York, as administrative agent.
(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-G.1)* Retention Agreement for the Chairman, Chief Executive Officer and
President of U S WEST, Inc., dated as of September 7, 1999 (Exhibit
10-G.1 to Form 8-K dated September 20, 1999, 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-H.1)* Form of Retention Agreement for Executive Officers of U S WEST, Inc.
(Exhibit 10-H.1 to Form 8-K dated September 20, 1999, 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).
29
(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-O.1)* 1998 U S WEST Stock Plan, as amended August 6, 1999 (Exhibit 10-O.1 to
Form 10-Q for the quarter ended September 30, 1999, File No. 1-14087).
(10-O.2)* 1999 U S WEST Stock Plan, as amended August 6, 1999 (Exhibit 10-O.2 to
Form 10-Q for the quarter ended September 30, 1999, File No. 1-14087).
(10-P)* Shareowner 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).
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, 1999 to be filed by amendment to the Company's
Form 10-K filed March 3, 2000.
- -------------------
( ) Previously filed.
* Executive Compensation Plans and Arrangements.
(b) Reports on Form 8-K filed during the first quarter of 2000 and through the
filing of this Form 10-Q:
(i) Form 8-K, dated December 31, 1999, as filed on January 4, 2000,
providing notification of a press release announcing that the Company
had monetized a portion of its Global Crossing stock ownership.
(ii) Form 8-K, dated January 26, 2000, providing notification of the
release of the Company's fourth quarter 1999 earnings.
(iii) Form 8-K, dated February 29, 2000, providing notification of a press
release announcing that Solomon D. Trujillo will not join the new
Qwest.
30
(iv) Form 8-K, dated March 3, 2000, reporting that Qwest announced the
post-merger management team.
(v) Form 8-K, dated March 10, 2000, filing the Chairman's letter to
shareholders dated March 3, 2000.
(vi) Form 8-K, dated March 10, 2000, providing notification of the Company's
and Qwest's joint press release announcing the Federal Communications
Commission's approval of the Qwest-U S WEST merger.
(vii) Form 8-K, dated March 15, 2000, providing notification of a press
release announcing that the Company and U S WEST Capital Funding, Inc.
("Capital Funding") had extended their exchange offer for $1.150
billion of 6-7/8% notes due August 15, 2001.
(viii) Form 8-K, dated April 5, 2000, providing notification of a press
release announcing the departure of Joseph R. Zell, President of U S
WEST !NTERPRISE Networking.
(ix) Form 8-K, dated April 28, 2000, providing notification of the release
of the Company's first quarter 2000 earnings.
31
<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
May 12, 2000
32
CONFORMED COPY
- --------------------------------------------------------------------------------
$4,000,000,000
364-DAY
CREDIT AGREEMENT
dated as of
May 5, 2000
among
U S WEST Capital Funding, Inc.
U S WEST Communications, Inc.
U S WEST, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
- --------------------------------------------------------------------------------
J.P. Morgan Securities Inc. and
Banc of America Securities LLC,
Co-Joint Lead Arrangers
and Bookrunners
Salomon Smith Barney Inc.,
Chase Securities Inc. and
Commerzbank AG,
Co-Arrangers
Bank of America, N.A.,
Syndication Agent
Citibank, N.A., and
The Chase Manhattan Bank,
Co-Documentation Agents
1
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. The Definitions..................................................................1
SECTION 1.02. Accounting Terms and Determinations.............................................13
SECTION 1.03. Types of Borrowings.............................................................14
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.............................................................14
SECTION 2.02. Notice of Committed Borrowing...................................................16
SECTION 2.03. Money Market Borrowings.........................................................17
SECTION 2.04. Notice to Banks; Funding of Loans...............................................21
SECTION 2.05. Notes...........................................................................22
SECTION 2.06. Maturity of Loans...............................................................22
SECTION 2.07. Interest Rates..................................................................23
SECTION 2.08. Facility Fees...................................................................25
SECTION 2.09. Termination or Reduction of Commitments.........................................25
SECTION 2.10. Method of Electing Interest Rates...............................................26
SECTION 2.11. Prepayments.....................................................................27
SECTION 2.12. General Provisions as to Payments...............................................28
SECTION 2.13. Funding Losses..................................................................28
SECTION 2.14. Computation of Interest and Fees................................................29
SECTION 2.15. Change of Control...............................................................29
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing.........................................................................30
SECTION 3.02. All Borrowings..................................................................31
SECTION 3.03. Loans after Merger..............................................................31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power...................................................32
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention...................................................................32
i
<PAGE>
PAGE
SECTION 4.03. Binding Effect..................................................................32
SECTION 4.04. Financial Information...........................................................33
SECTION 4.05. Litigation......................................................................33
SECTION 4.06. Compliance with ERISA...........................................................33
SECTION 4.07. Environmental Matters...........................................................34
SECTION 4.08. Taxes...........................................................................34
SECTION 4.09. Subsidiaries....................................................................34
SECTION 4.10. Not an Investment Company.......................................................35
SECTION 4.11. Full Disclosure.................................................................35
ARTICLE 5
COVENANTS
SECTION 5.01. Information.....................................................................35
SECTION 5.02. Maintenance of Property; Insurance..............................................37
SECTION 5.03. Maintenance of Existence........................................................37
SECTION 5.04. Compliance with Laws............................................................38
SECTION 5.05. Inspection of Property, Books and Records.......................................38
SECTION 5.06. Debt Coverage...................................................................38
SECTION 5.07. Negative Pledge.................................................................38
SECTION 5.08. Consolidations, Mergers and Sales of Assets.....................................39
SECTION 5.09. Use of Proceeds.................................................................39
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default...............................................................40
SECTION 6.02. Notice of Default...............................................................42
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization...................................................42
SECTION 7.02. Agent and Affiliates............................................................43
SECTION 7.03. Action by Agent.................................................................43
SECTION 7.04. Consultation with Experts.......................................................43
SECTION 7.05. Liability of Agent..............................................................43
SECTION 7.06. Indemnification.................................................................43
SECTION 7.07. Credit Decision.................................................................44
SECTION 7.08. Successor Agent.................................................................44
SECTION 7.09. Agent's Fee.....................................................................44
ii
<PAGE>
PAGE
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................45
SECTION 8.02. Illegality......................................................................45
SECTION 8.03. Increased Cost and Reduced Return...............................................46
SECTION 8.04. Taxes...........................................................................47
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans.................................................................................49
SECTION 8.06. Substitution of Bank............................................................49
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty....................................................................50
SECTION 9.02. Guaranty Unconditional..........................................................50
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances...........................................................51
SECTION 9.04. Waiver by the Company...........................................................51
SECTION 9.05. Subrogation.....................................................................51
SECTION 9.06. Stay of Acceleration............................................................52
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices........................................................................52
SECTION 10.02. No Waivers.....................................................................52
SECTION 10.03. Expenses; Indemnification......................................................52
SECTION 10.04. Sharing of Set-offs............................................................53
SECTION 10.05. Amendments and Waivers.........................................................54
SECTION 10.06. Successors and Assigns.........................................................54
SECTION 10.07. Termination of Existing Credit Agreements......................................57
SECTION 10.08. Governing Law; Submission to Jurisdiction......................................57
SECTION 10.09. Counterparts; Integration; Effectiveness.......................................57
SECTION 10.10. WAIVER OF JURY TRIAL...........................................................58
SECTION 10.11. Confidentiality................................................................58
SECTION 10.12. No Reliance on Margin Stock....................................................58
SECTION 10.13. Syndication and Co-Documentation Agents........................................59
</TABLE>
iii
<PAGE>
Pricing Schedule
Schedule 4.05 - Litigation
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 and the Borrowers
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
Exhibit I - Notice of Borrowing
iv
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 5, 2000 among U S WEST Capital Funding, Inc., U S
WEST Communications, Inc., U S WEST, Inc., the BANKS listed on the signature
pages hereof and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative
Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. The Definitions.
The following terms, as used herein, have the following meanings:
"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 10.06(c).
"Available Amount" means:
1
<PAGE>
(i) with respect to Capital Funding, $2,500,000,000 less the Blocked
Amount, plus or minus the aggregate amount by which the Available Amount
for Capital Funding has been increased pursuant to Section 2.01(c) or
reduced pursuant to Section 2.09, and plus or minus the Net Designated
Amount; and
(ii) with respect to Communications, $1,500,000,000 plus or minus the
aggregate amount by which the Available Amount for Communications has been
increased pursuant to Section 2.01(c) or reduced pursuant to Section 2.09
and minus or plus the Net Designated Amount.
For purposes of this definition, "Blocked Amount" means (x) prior to
consummation of the Merger, the aggregate amount of commitments (or, if the
commitments have been terminated, the aggregate outstanding principal amount of
loans) (if any) under Capital Funding's existing Amended and Restated Five- Year
Credit Agreement dated as of May 7, 1999, as amended, or any refinancing thereof
(other than under this Agreement), and (y) after consummation of the Merger, the
aggregate amount of commitments (or, if the commitments have been terminated,
the aggregate outstanding principal amount of loans) (if any) under Qwest
Communications International Inc.'s existing 364-Day Credit Agreement dated as
of March 9, 2000, as amended, and First Amended and Restated 364-Day and
Five-Year Credit Agreement dated as of March 9, 2000, as amended, or any
refinancing thereof (other than under this Agreement); provided that the Blocked
Amount shall be reduced in an amount equal to the aggregate amount by which the
Available Amount for Capital Funding has been reduced pursuant to Section 2.09;
and
"Net Designated Amount" means an amount equal to (I) the sum of the amounts
designated for transfer from Communications to Capital Funding, less (II) the
sum of the amounts designated for transfer from Capital Funding to
Communications. If the Net Designated Amount is positive, its absolute value
will be added to the Available Amount for Capital Funding and subtracted from
the Available Amount for Communications. If the Net Designated Amount is
negative, its absolute value will be subtracted from the Available Amount for
Capital Funding and added to the Available Amount for Communications. Each
designation of an amount for transfer shall be in a form of a notice from the
Company to the Agent and the Banks, which notice must state that it is a
"Designated Amount Notice", identify the transferor and transferee and designate
an amount of at least $100,000,000.
2
<PAGE>
"Bank" means each lender listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Capital Funding or Communications, as the context may
require, and their respective successors, and "Borrowers" means all of the
foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"Capital Funding" means U S WEST Capital Funding, Inc. (currently expected
to be renamed Qwest Capital Funding, Inc. after the Merger), a Colorado
corporation, and its successors.
"Closing Date" means the date on or after the Effective Date on which the
Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.09.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01; provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "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.
"Communications" means U S WEST Communications, Inc. (currently expected to
be renamed Qwest Communications, Inc. after the Merger), a Colorado corporation,
and its successors.
"Company" means U S WEST, Inc., a Delaware corporation, and its successors.
3
<PAGE>
"Company's 1999 Form 10-K" means U S WEST, Inc.'s annual report on Form
10-K for 1999, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Consolidated EBITDA" means, for any period, the net income of the Company
and its Consolidated Subsidiaries determined on a consolidated basis for such
period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Company in its
consolidated financial statements if such statements were prepared as of such
date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of 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 or the Borrower issued in connection with the
issuance of Trust Originated Preferred Securities or substantially similar
securities, so long as such Debt is subordinated and junior in right
4
<PAGE>
of payment to substantially all liabilities of the Company or the Borrower,
as the case may be, including, without limitation, the Loans.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"Domestic Loan" means (i) a 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 10.09.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
5
<PAGE>
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Company
and the Agent.
"Euro-Dollar Loan" means (i) a 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 Amended and Restated 364-Day Credit
Agreement dated as of May 7, 1999, as amended, and the 364-Day Credit Agreement
dated as of June 11, 1999, as amended, each among Capital Funding, the Company,
the banks listed on the signature pages thereof and Morgan Guaranty Trust
Company of New York, as administrative agent, and the 364-Day Credit Agreement
dated as of May 19, 1999, as amended, among Communications, the banks listed on
the signature pages thereof and Morgan Guaranty Trust Company of New York, as
administrative agent.
6
<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.
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"Indemnitee" has the meaning set forth in Section 10.03(b).
"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 Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period 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 Borrower 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
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(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 Borrower 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.
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"Material Debt" means Debt (other than the Notes) of the Company and/or one
or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $100,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $100,000,000.
"Merger" means the merger of the Company with and into Qwest Communications
International Inc. pursuant to and in accordance with the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as of July
18, 1999, as amended by Amendment No. 1 dated as of September 8, 1999, between
the Company and Qwest Communications International Inc. ("Qwest"), and as
further amended by any Acceptable Amendment. For purposes of this definition,
"Acceptable Amendment" means an amendment of the Merger Agreement which would
not (x) alter or change the amount or kinds of consideration to be received by
holders of common stock of U S WEST, Inc. ("USW") or Qwest upon the consummation
of the Merger, (y) alter or change any term of the certificate of incorporation
of USW or Qwest, or (z) alter or change any of the terms or conditions of the
Merger Agreement if such alteration or change would adversely affect the holders
of any class or series of securities of USW or Qwest.
"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
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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.
"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 a Borrower, substantially in the form of
Exhibit A hereto, evidencing the obligation of such Borrower 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 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
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"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto and identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"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.
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"Termination Date" means, with respect to each Bank, May 4, 2001, 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.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
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SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article 2 on a single date, all of which Loans are of the same type
(subject to Article 8) and, except in the case of Domestic Loans, have the same
Interest Period or initial Interest Period. Borrowings are classified for
purposes of this Agreement 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 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).
ARTICLE 2
THE CREDITS
SECTION 2.01. 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 either Borrower 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 (x) to the Borrowers shall not exceed the amount of its
Commitment and (y) to each Borrower shall not exceed such Bank's pro rata share
of such Borrower's Available Amount. 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, a Borrower 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.
(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
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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, but in any event no
earlier than 45 days prior to the Termination Date then in effect. 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 Borrowers, 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 and the
Borrowers 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, the Borrowers
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 (and of how such increase will be allocated
between Capital Funding and Communications for purposes of calculating their
respective Available Amounts) 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 $100,000,000 and (iii) the aggregate amount of the
Commitments shall at no time exceed $5,000,000,000. 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
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Borrowers shall prepay such Group in its entirety, and, to the extent a Borrower
elects to do so and subject to the conditions specified in Article 3, such
Borrower 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 either Borrower on the Termination
Date in amounts such that the aggregate principal amount of such Bank's
outstanding Loans (x) to the Borrowers at the close of business on the
Termination Date shall not exceed its Commitment and (y) to each Borrower shall
not exceed such Bank's pro rata share of such Borrower's Available Amount. 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 (the "Later Termination Date") pursuant to
subsection (b) above, but the Termination Date for those Banks which have not so
agreed (the "Earlier Termination Date") has not yet occurred, and a Borrower has
requested a Borrowing pursuant to this subsection (d), then such Borrowing shall
be made from all the Banks on the Earlier Termination Date, not the Later
Termination Date.
SECTION 2.02. Notice of Committed Borrowing. A Borrower 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
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(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 2.01(a), a Borrower may, as
set forth in this Section, request the Banks during the Revolving Credit Period
to make offers to make Money Market Loans to such Borrower. The Banks may, but
shall have no obligation to, make such offers and such Borrower 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 a Borrower 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,
(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.
A Borrower 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.
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(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 relevant Borrower
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.
(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 10.01 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 relevant Borrower 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 such
Borrower.
(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
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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;
(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 Borrower. 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
relevant Borrower 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
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correct a manifest error in such former Money Market Quote. The Agent's notice
to such Borrower 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 Borrower. 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 relevant Borrower 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. Such Borrower 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,
(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) such Borrower 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
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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 2.04. 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 Borrower.
(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 10.01. Unless any applicable condition
specified in Article 3 has not been satisfied, as determined by the Agent in
accordance with Article 3, the Agent will make the funds so received from the
Banks immediately available to the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day on which
the Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed by such Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b) of this Section, or
remitted by such Borrower to the Agent as provided in Section 2.12, as the case
may be.
(d) Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing (or, in the case of a Base Rate Borrowing, prior to Noon
(New York City time) on the date of such Borrowing) that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent may assume
that such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this Section 2.04 and
the Agent may, in reliance upon such assumption, make available to the relevant
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and
such Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of such Borrower, 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.
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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 such Borrower shall have repaid such corresponding amount
of such Bank, such Bank shall reimburse such Borrower for any loss on account
thereof incurred by such Borrower.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower shall be
evidenced by a single Note of such Borrower payable to the order of such Bank
for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent, request that its
Loans of a particular type to such Borrower be evidenced by a separate Note of
such Borrower in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the Agent
shall forward such Notes to such Bank. Each Bank shall record the date, amount
and type of each Loan made by it to each Borrower and the date and amount of
each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of any
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to such
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of such
Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by each Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. 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
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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 2.07. Interest Rates. (a) Each Domestic Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such Loan
is made until it becomes due, at a rate per annum equal to the Base Rate for
such day. Such interest shall be payable quarterly in arrears on the last day of
each calendar quarter and, with respect to the principal amount of any Domestic
Loan converted to a Euro-Dollar Loan, on each date a Domestic Loan is so
converted. Any overdue principal of or interest on any Domestic Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the rate otherwise applicable to Domestic Loans for such
day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Euro-Dollar Margin plus the applicable Adjusted London
Interbank Offered Rate. Such interest shall be payable for each Interest Period
on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
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respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment, at a rate per annum
equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin plus the
quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%)
by dividing (x) the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar Business Days, then for
such other period of time not longer than six months as the Agent may select)
deposits in dollars in an amount approximately equal to such overdue payment due
to each of the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Domestic Loans for such day) and (ii) the sum of the Euro-Dollar
Margin plus the Adjusted London Interbank Offered Rate applicable to such Loan
at the date such payment was due.
(d) 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.
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(e) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(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 2.08. 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 Available Amount (whether used or unused)
allocated to each Borrower pursuant to the definition of "Available Amount" (but
without giving effect to the deduction of the "Blocked Amount" determined
pursuant to such definition) and (ii) from and including the Termination Date
(or earlier date of termination of the Commitments in their entirety) to but
excluding the date the Loans shall be repaid in their entirety, on the daily
average aggregate outstanding principal amount of the Loans. Accrued facility
fees shall be payable quarterly in arrears on the last day of each calendar
quarter and upon the date of termination of the Commitments in their entirety
(and, if later, the date the Loans shall be repaid in their entirety).
"Facility Fee Rate" means a rate per annum determined in accordance with
the Pricing Schedule.
SECTION 2.09. 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. Any notice of a reduction shall also specify how
such reduction shall be allocated between Capital Funding and Communications for
purposes of calculating their respective Available Amounts.
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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 relevant Borrower in the applicable Notice of Committed
Borrowing. Thereafter, such Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective. A Notice
of Interest Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i)
such portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the remaining portion to which it
does not apply, are each $25,000,000 or any larger multiple of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
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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 a Borrower
pursuant to subsection (a) above, the Agent shall promptly notify each Bank of
the contents thereof and such notice shall not thereafter be revocable by such
Borrower. If such Borrower fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall be
converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.11. Prepayments.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, a
Borrower 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 or subsection (d) below, no
Borrower may prepay all or any portion of the principal amount of any Money
Market Loan prior to the maturity thereof.
(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 Borrower. Each such prepayment shall be applied to prepay
ratably the Loans of the several Banks included in the relevant Group or
Borrowing.
(d) On the date of any reduction of Commitments pursuant to Section 2.09 or
any reduction in the Available Amount for a Borrower pursuant to the definition
of "Available Amount", one or both Borrowers, as the case may be, shall repay
such principal amount (together with accrued interest thereon) of outstanding
Loans, if any, as may be necessary so that after such repayment (i) the
aggregate outstanding principal amount of each Bank's Committed Loans does not
exceed the amount of such Bank's Commitment as then reduced, (ii) the aggregate
outstanding principal amount of each Bank's Committed Loans to each Borrower
does not exceed such Bank's pro rata share of such Borrower's
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Available Amount as then reduced, (iii) the aggregate outstanding principal
amount of all outstanding Loans does not exceed the aggregate amount of the
Commitments as then reduced, and (iv) the aggregate principal amount of all
outstanding Loans to each Borrower does not exceed such Borrower's Available
Amount as then reduced.
SECTION 2.12. General Provisions as to Payments. (a) The Borrowers shall
make each payment of principal of, and interest on, the Loans and of fees and
other amounts payable hereunder, not later than 12:00 Noon (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, without off set or counterclaim, to the Agent at its address referred
to in Section 10.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees or other amounts payable hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. 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 a Borrower prior to
the date on which any payment is due from such Borrower to the Banks hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that such Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If a Borrower 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
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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 a Borrower 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),
2.11(d), 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
Borrowers, in each case effective on the Optional Termination Date.
A "Change of Control" shall occur if any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to
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constitute a majority of the board of directors of the Company. The Merger shall
not constitute a Change of Control.
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon receipt by
the Agent of the following (in the case of any document, dated the Closing Date
unless otherwise indicated):
(a) a duly executed Note of each Borrower 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 and
the Borrowers, 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 Borrower or the Company
hereunder; and
(f) all documents the Agent may reasonably request relating to the
existence of the Company and the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent.
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The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. All Borrowings. The obligation of any Bank to make a Loan on
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) the fact that the Closing Date shall have occurred on or prior to May
30, 2000;
(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 and the aggregate outstanding principal
amount of the Loans made to each Borrower will not exceed such Borrower's
Available Amount;
(d) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of such Borrowing (except, in the
case of the representations and warranties contained in Section 4.04(b), as
disclosed by the Borrower to the Banks in writing in the Notice of Borrowing
relating to such Borrowing).
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (c), (d) and (e) of this Section.
SECTION 3.03. Loans after Merger. The obligation of any Bank to make or
maintain a Loan after the Merger is also subject to receipt by the Agent of the
following documents, each dated or effective on the date of consummation of the
Merger:
(a) evidence satisfactory to the Agent (which may take the form of a
certificate of a senior officer of the Company) that the Merger has been
consummated substantially on the terms described in the Merger Agreement;
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(b) an opinion of Thomas O. McGimpsey, Esq., counsel for the Company,
addressed to the Agent and the Banks, to the effect that Qwest Communications
International, Inc. has assumed the obligations of U S WEST, Inc. under this
Agreement and is the Company; and
(c) all documents the Agent may reasonably request relating to the Merger,
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
satisfaction of the foregoing conditions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each of the Company and each of the Borrowers represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the Company and the
Borrowers is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Company and each Borrower of this
Agreement and by each Borrower of its Notes are within such Person's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of such Person or of any agreement, judgment, injunction, order, decree or other
instrument binding upon such Person or any Significant Subsidiary or result in
the creation or imposition of any Lien on any material asset of such Person or
any Significant Subsidiary.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and each Borrower, and the Notes of each
Borrower, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of such Borrower, in each case
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enforceable in accordance with its terms except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1999 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 1999 Form 10-K, a copy of which
has been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
the Company and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) Since December 31, 1999 there has been no material adverse change in
the financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole (it being understood that the
consummation of the Merger shall not be considered such a change).
SECTION 4.05. Litigation. Except as disclosed in the Company's 1999 Form
10-K and as specifically identified in Schedule 4.05, there is no action, suit
or proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which would materially adversely
affect the consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole, or
which in any manner draws into question the validity of this Agreement or the
Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the
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posting of a bond or other security under ERISA or the Internal Revenue Code or
(iii) incurred any liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. (a) The operations of the Company and
each of its Subsidiaries comply in all respects with all Environmental Laws
except such non-compliance which would not (if enforced in accordance with
applicable law) reasonably be expected to result, individually or in the
aggregate, in a material adverse effect on the financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole.
(b) Except as specifically identified in Schedule 4.07, the Company and
each of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Laws
("Environmental Permits") necessary for their respective operations, and all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically identified in Schedule 4.07, there are neither
any conditions or circumstances known to the Company which may give rise to any
claims or liabilities respecting any Environmental Laws or Hazardous Substances
arising from the operations of the Company or its Subsidiaries (including,
without limitation, off-site liabilities), nor any additional costs of
compliance with Environmental Laws, which collectively have an aggregate
potential liability in excess of $50,000,000.
SECTION 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1987. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except for taxes the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrowers) 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
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governmental licenses, authorizations, qualifications, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company. None of the Company and the
Borrowers is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All written information heretofore furnished
by the Company or the Borrowers to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Company or the Borrowers to the
Agent or any Bank will be, true and accurate in all material respects on the
date as of which such information is stated or certified.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the Banks:
(a) as soon as available and in any event within 120 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 60 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
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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 and 5.07 on the date of such
financial statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Company is taking or proposes to take with
respect thereto;
(d) within five Domestic Business Days after any officer of the Company or
either Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer or the chief accounting
officer of the Company or such Borrower setting forth the details thereof and
the action which the Company or such Borrower is taking or proposes to take with
respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed;
(f) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
(other than any amendment on Form 8-K the sole purpose of which is to file
exhibits relating to existing Debt meeting the requirements of clause (ii) of
the definition of Debt) which the Company shall have filed with the Securities
and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in
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respect of, or appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the financial
position or business of the Company and its Subsidiaries and each Borrower and
its Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant Subsidiary
to maintain (either in the name of the Borrower or in such Significant
Subsidiary's own name), with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are usually
insured against in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Banks, upon
request from the Agent, information presented in reasonable detail as to the
insurance so carried; provided that, in lieu of any such insurance, the Company
and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
SECTION 5.03. Maintenance of Existence. Except for the Merger, 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
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respective rights, privileges and franchises necessary or desirable in the
normal conduct of business.
SECTION 5.04. Compliance with Laws. The Company will comply, and will cause
each Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
for which adequate reserves in conformity with generally accepted accounting
principles have been established.
SECTION 5.05. Inspection of Property, Books and Records. The Company will
keep, and will cause each Significant Subsidiary to keep, proper books of record
and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. 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 375% of Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on such date.
SECTION 5.07. Negative Pledge. Neither the Company nor either Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt outstanding
on the date of this Agreement in an aggregate principal amount not exceeding
$265,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such asset, provided
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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.
SECTION 5.08. Consolidations, Mergers and Sales of Assets. Except for the
Merger, the Company will not (i) consolidate with or merge into any other Person
or (ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, to any other Person. The Company will retain ownership, directly or
indirectly, of at least 80% of the capital stock, and at least 80% of the voting
power, of each Borrower.
SECTION 5.09. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrowers 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
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the purpose, whether immediate, incidental or ultimate, of buying or carryin any
Margin Stock.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any interest,
any fees or any other amount payable hereunder shall not be paid within five
days of the due date thereof;
(b) the Company or either Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.09, inclusive;
(c) the Company or either Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 10 days after written notice thereof has been given
to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by the
Company or either Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment or
payments, in the aggregate in excess of $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
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official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize or
otherwise acquiesce in any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the
Company or any Significant Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Significant Subsidiary under
the federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $100,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $100,000,000;
(j) a judgment or order for the payment of money in excess of $100,000,000
shall be rendered against the Company or any Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a period of 10 days (it being
understood that in any event an administrative order of a public utility
commission shall not constitute an "order" for purposes of this clause (j) so
long as (x) no one is seeking to enforce such order in an action, suit or
proceeding before a court and (y) reserves in the
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full amount of the cost of such order are maintained on the books of the Company
and its Subsidiaries);
(k) the Company shall repudiate in writing any of its obligations under
Article 9 or any such obligation shall be unenforceable against the Company in
accordance with its terms, or the Company shall so assert in writing; or
(l) the Merger shall have occurred on terms and conditions which are not
substantially the same as those set forth in the Merger Agreement; or the Merger
shall have occurred and Qwest Communications International Inc. shall not have
assumed the obligations of U S WEST, Inc. under this Agreement;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and each Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or either Borrower, without any
notice to the Company or either Borrower or any other act by the Agent or the
Banks, the Commitments shall thereupon automatically terminate and the Notes
(together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Company and each Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the Company
under Section 6.01(c) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to the
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Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of New
York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, any Borrower or any Subsidiary or affiliate of the
Company or any Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Company or a Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or any Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
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Company or the Borrowers) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank or any
affiliate of 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 or any
affiliate of the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Company. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for its own
account fees in the amounts and at the times previously agreed upon between the
Company and the Agent.
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ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar Loan 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 Borrower 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.
SECTION 8.02. Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to a
Borrower and such Bank shall so notify the Agent, the Agent shall forthwith give
notice
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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 such
Borrower, or to convert outstanding Loans into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such notice is given, each
Euro-Dollar Loan of such Bank then outstanding shall be converted to a Domestic
Loan either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Bank may lawfully continue to maintain and fund
such Loan to such day or (b) immediately if such Bank shall determine that it
may not lawfully continue to maintain and fund such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after (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
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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 (including, without limitation, any determination by any such authority,
central bank or agency that, for purposes of determining capital adequacy
requirements, the Commitments do not constitute commitments with an original
maturity of one year or less), has or would have the effect of reducing the rate
of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Agent), the Company shall pay
to such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Taxes. (a) Any and all payments by the Company or a Borrower
to or for the account of any Bank or the Agent hereunder or under any Note shall
be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise or similar taxes imposed on it,
by the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Company or a Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note to any
Bank or the Agent,
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(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or similar
levies which arise from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and from
time to time thereafter if requested in writing by the Company (but only so long
as such Bank remains lawfully able to do so), shall provide the Company with
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States. If the
form provided by a Bank at the time such Bank first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide the
Company with the appropriate form pursuant to Section 8.04(d) (unless such
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failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Company or a Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.04, then such Bank
will change the jurisdiction of its Applicable Lending Office so as to eliminate
or reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Bank, is not otherwise disadvantageous to such
Bank.
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar Loans. If
(i) the obligation of any Bank to make Euro-Dollar Loans to a Borrower has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its Euro-Dollar Loans and the
Borrower shall, by at least five Euro-Dollar Business Days' prior notice to such
Bank through the Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Company that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans to such Borrower which would otherwise be made by such Bank
as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to such Borrower has been repaid
(or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies such Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
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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 (by paying to such Bank the principal amount
of such Note, together with accrued interest thereon and any other amounts
payable to such Bank hereunder) and assume the Commitment of such Bank.
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by Capital
Funding pursuant to this Agreement, and the full and punctual payment of all
other amounts payable by Capital Funding under this Agreement. Upon failure by
Capital Funding to pay punctually any such amount, the Company shall forthwith
on demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of Capital Funding under this Agreement or any
Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of Capital Funding under
this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership of
Capital Funding or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Capital Funding or its assets or any resulting
release or discharge of any obligation of Capital Funding contained in this
Agreement or any Note;
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(v) the existence of any claim, set-off or other rights which the
Company may have at any time against Capital Funding, the Agent, any Bank
or any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against Capital
Funding for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by Capital
Funding of the principal of or interest on any Note or any other amount
payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by Capital
Funding, the Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In Certain
Circumstances. The Company's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
interest on the Notes and all other amounts payable by the Company and Capital
Funding under this Agreement shall have been indefeasibly paid in full. If at
any time any payment of the principal of or interest on any Note or any other
amount payable by Capital Funding under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of Capital Funding or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated at such time as though such payment
had been due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Capital Funding or any other Person.
SECTION 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
Capital Funding with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of Capital Funding in respect thereof.
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SECTION 9.06. Stay of Acceleration. In the event that acceleration of the
time for payment of any amount payable by Capital Funding under this Agreement
or its Notes is stayed upon insolvency, bankruptcy or reorganization of Capital
Funding, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Company hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Company, a Borrower or the Agent, at its address or facsimile number
set forth on the signature pages hereof, (y) in the case of any Bank, at its
address or facsimile number set forth in its Administrative Questionnaire or (z)
in the case of any party, such other address or facsimile number as such party
may hereafter specify for the purpose by notice to the Agent and the Company.
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (ii) if given by facsimile
transmission, when such facsimile is transmitted to the facsimile number
specified pursuant to this Section 10.01 and telephonic confirmation of receipt
thereof is received, or (iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to the Agent under
Article 2 or Article 8 shall not be effective until received.
SECTION 10.02. No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a) The Company shall pay (i) all
reasonable out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including fees and disbursements of counsel, in
connection
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with such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that (i) no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction and (ii)
the Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice after
it receives any notice of the commencement of any action, suit or proceeding for
which such Indemnitee may wish to claim indemnification pursuant to subsection
(b). The Company shall have the right, exercisable by giving written notice
within fifteen Domestic Business Days after the receipt of notice from such
Indemnitee of such commencement, to assume, at the Company's expense, the
defense of any such action, suit or proceeding; provided, that such Indemnitee
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such separate counsel shall be at such Indemnitee's expense unless (1) the
Company shall have agreed to pay such fees and expenses; (2) the Company shall
have failed to assume the defense of such action, suit or proceeding or shall
have failed to employ counsel reasonably satisfactory to such Indemnitee in any
such action, suit or proceeding; or (3) such Indemnitee shall have been advised
by independent counsel in writing (with a copy to the Company) that there may be
one or more defenses available to such Indemnitee which are in conflict with
those available to the Company (in which case, if such Indemnitee notifies the
Company in writing that it elects to employ separate counsel at the Company's
expense, the Company shall be obligated to assume the expense, it being
understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
SECTION 10.04. Sharing of Set-offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a
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proportion of the aggregate amount of principal and interest due with respect to
any Note held by it which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 10.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Company, the Borrowers and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) amend or waive the provisions of Article 9 or (v) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement.
SECTION 10.06. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that none of the Company and the
Borrowers may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and
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the Agent, which consents shall not be unreasonably withheld; provided that if a
Participant is an affiliate of such grantor Bank or is another Bank, no such
consent shall be required. In the event of any such grant by a Bank of a
participating interest to a Participant, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Company, the Borrowers and
the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company and the Borrowers hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii) of Section 10.05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below but which is consented to in accordance with this subsection
(b) shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit 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
$5,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations under this Agreement and the Notes 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
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(c), the transferor Bank, the Agent and the Borrowers 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.
(f) Notwithstanding anything to the contrary contained herein, any Bank (a
"Granting Bank") may grant to a special purpose funding vehicle (an "SPC") of
such Granting Bank, identified as such in writing from time to time by the
Granting Bank to the Agent and the Company, the option to provide all or any
part of any Loan that such Granting Bank would otherwise be obligated to make
hereunder, provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC and (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to
the same extent, and as if, such Loan were made by the Granting Bank. Each party
hereto agrees that no SPC shall be liable for any payment under this Agreement
for which a Bank would otherwise be liable, for so long as, and to the extent,
the related Granting Bank makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees that, prior to the date that is one year and one
day after the payment in full of all outstanding senior indebtedness of any SPC,
it will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 10.06, any SPC may (i) with notice to, but without the prior
written consent of, the Company or the Agent and without paying any processing
fee therefor, assign all
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or portion of its interests in any Loans to its Granting Bank or to any
financial institutions (if consented to by the Company and the Agent) providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of a surety, guarantee or credit or liquidity enhancement to such
SPC.
SECTION 10.07. Termination of Existing Credit Agreements. The Company and
each of the Banks that is also a "Bank" or "Lender" party to the Existing Credit
Agreements agrees that the "Commitments" as defined in the Existing Credit
Agreements shall be terminated in their entirety on the Effective Date in
accordance with the terms thereof, subject only to this Section 10.07. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.08 or 2.09, as the case may be, of the Existing Credit Agreements and
(b) any claim to any facility fees or other fees under the Existing Credit
Agreements for any day on or after the Effective Date. Each of the Company and
the Borrowers (i) represents and warrants that (x) after giving effect to the
preceding sentences of this Section 10.07, 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 facility fees and any other amounts due and payable under
the Existing Credit Agreements shall have been paid on or prior to the Effective
Date.
SECTION 10.08. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. Each of the Company and the Borrowers hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 10.09. Counterparts; Integration; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
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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 Borrowers, the Banks and the Agent
(or, in the case of any party as to which an executed counterpart shall not have
been received, receipt by the Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWERS,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. Confidentiality. Each of the Agent and the Banks agrees to
use its reasonable best efforts to keep confidential any information delivered
or made available by the Company or a Borrower to it which is clearly stated by
the Company or such Borrower to be confidential; provided that nothing herein
shall prevent the Agent or any Bank from disclosing such information (i) to the
Agent or any other Bank in connection with the transactions contemplated hereby,
(ii) to its officers, directors, employees, agents, attorneys and accountants
who have a need to know such information in accordance with customary banking
practices and who receive such information having been made aware of the
restrictions set forth in this Section, (iii) upon the order of any court or
administrative agency, (iv) upon the request or demand of any regulatory agency
or authority having jurisdiction over such party, (v) which has been publicly
disclosed, (vi) which has been obtained from any Person other than the Company
and its Subsidiaries, provided that such Person is not (x) known to it to be
bound by a confidentiality agreement with the Company or its Subsidiaries or (y)
known to it to be otherwise prohibited from transmitting the information to it
by a contractual, legal or fiduciary obligation, (vii) in connection with the
exercise of any remedy hereunder or under the Notes or (viii) to any actual or
proposed participant or assignee of all or any of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section.
SECTION 10.12. No Reliance on Margin Stock. Each Bank represents to the
Agent and each of the other Banks that it in good faith is not relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
58
<PAGE>
SECTION 10.13. Syndication and Co-Documentation Agents. No Bank identified
on the cover page of this Agreement as a syndication agent or co- documentation
agent shall have any right, power, obligation, liability, responsibility or duty
under this Agreement in such capacity.
59
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By /s/ Sean P. Foley
Title: Vice President and Treasurer
1801 California Street
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean P. Foley
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 303-308-1657
Telephone number: 303-672-2712
Attention: Thomas O. McGimpsey
U S WEST COMMUNICATIONS, INC.
By /s/ Sean P. Foley
Title: Vice President and Treasurer
1801 California Street
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean P. Foley
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 303-308-1657
Telephone number: 303-672-2712
Attention: Thomas O. McGimpsey
60
<PAGE>
U S WEST, INC.
By /s/ Sean P. Foley
Title: Vice President and Treasurer
1801 California Street
Denver, Colorado 80202
Facsimile number: 303-896-6468
Telephone number: 303-896-4197
Attention: Sean P. Foley
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 303-308-1657
Telephone number: 303-672-2712
Attention: Thomas O. McGimpsey
61
<PAGE>
Commitments
$187,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Dennis Wilczek
Title: Associate
$187,000,000 BANK OF AMERICA, N.A.
By /s/ Anthony M. Cacheria
Title: Managing Director
$187,000,000 THE CHASE MANHATTAN BANK
By /s/ Edmond DeForest
Title: Vice President
$187,000,000 CITIBANK, N.A.
By /s/ Suneet Gupta
Title: Vice President
62
<PAGE>
$187,000,000 COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Christian Jagenberg
Title: Senior Vice President
and Manager
By /s/ Steven F. Larsen
Title: Vice President
$160,000,000 ABN AMRO BANK N.V.
By /s/ Roxana Sopala
Title: Vice President
By /s/ Sang W. Lee
Title: Assistant Vice President
$160,000,000 THE BANK OF NEW YORK
By /s/ James Whitaker
Title: Senior Vice President
$160,000,000 BANK ONE N.A.
By /s/ Lynne M. Sanders
Title: Assistant Vice President
63
<PAGE>
$160,000,000 BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH
By /s/ Hereward Drummond
Title: Senior Vice President
By /s/ James H. Boyle
Title: Vice President
$160,000,000 FIRST UNION NATIONAL BANK
By /s/ C. Brand Hosford
Title: Vice President
$160,000,000 FLEET NATIONAL BANK
By /s/ Barbara Agostini Keegan
Title: Vice President
$160,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By /s/ Mike Oakes
Title: Senior Vice President,
Houston Office
64
<PAGE>
$160,000,000 MELLON BANK N.A.
By /s/ Henry S. Beukema
Title: Assistant Vice President
$160,000,000 ROYAL BANK OF CANADA
By /s/ Andrew C. Williamson
Title: Vice President
$160,000,000 THE ROYAL BANK OF SCOTLAND PLC
By /s/ Kenneth C. Barclay
Title: Head of Media &
Telecommunications
$160,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Lisa M. Walker
Title: Associate Director
By /s/ Barry S. Wadler
Title: Manager
65
<PAGE>
$130,000,000 WELLS FARGO BANK, N.A.
By /s/ Carol A. Ward
Title: Vice President
By /s/ Jeffrey P. Rose
Title: Vice President
$120,000,000 THE BANK OF NOVA SCOTIA
By /s/ Jon A. Burckin
Title: Director, Corporate
$120,000,000 BANQUE NATIONALE DE PARIS
By /s/ Marc T. Schaefer
Title: Vice President
By /s/ Janice S. H. Ho
Title: Vice President
66
<PAGE>
$120,000,000 DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By /s/ Virginia Mahler Cosenza
Title: Vice President
By /s/ Robert B. Landis
Title: Managing Director
$120,000,000 KBC BANK N.V.
By /s/ Robert Snauffer
Title: First Vice President
By /s/ Patrick A. Janssens
Title: Vice President
$120,000,000 KEYBANK NATIONAL ASSOCIATION
By /s/ Thomas A. Crandell
Title: Vice President
$120,000,000 U.S. BANK NATIONAL ASSOCIATION
By /s/ Scott E. Page
Title: Senior Vice President
67
<PAGE>
$90,000,000 LEHMAN COMMERCIAL PAPER INC.
By /s/ G. Andrew Keith
Title: Senior Vice President
$90,000,000 MERRILL LYNCH BANK USA
By /s/ Raymond J. Dardano
Title: Senior Credit Officer
$90,000,000 THE SUMITOMO BANK, LIMITED
By /s/ Bob Granfelt
Title: Vice President and Manager
$50,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ Michael Deadder
Title: Vice President
68
<PAGE>
$50,000,000 THE SANWA BANK, LIMITED
By /s/ Kenneth C. Eichwald
Title: Vice President & Area Manager
$30,000,000 FIRST SECURITY BANK, N.A.
By /s/ Troy S. Akagi
Title: Vice President
$30,000,000 THE NORTHERN TRUST COMPANY
By /s/ David J. Mitchell
Title: Vice President
$25,000,000 FIRST NATIONAL BANK OF OMAHA
By /s/ James P. Bonham
Title: Vice President
Total Commitments:
- -----------------
$4,000,000,000
==============
69
<PAGE>
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent
By /s/ Dennis Wilczek
-------------------
Title: Associate
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Tribbitt
Facsimile number: 302-634-1092
Telephone number: 302-634-4349
70
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<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
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<CURRENT-ASSETS> 3,049
<PP&E> 38,806
<DEPRECIATION> 21,874
<TOTAL-ASSETS> 22,701
<CURRENT-LIABILITIES> 5,908
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 1,315
<TOTAL-LIABILITY-AND-EQUITY> 22,701
<SALES> 3,377
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<INCOME-TAX> 243
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<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 404
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