UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1998
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 1-8611
U S WEST, Inc.
A Delaware Corporation IRS Employer No. 84-0926774
7800 East Orchard Road, Englewood, Colorado 80111-2526
Telephone Number 303-793-6500
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X_ No __
The number of shares of each class of U S WEST, Inc.'s common stock outstanding
(net of shares held in treasury), at April 30, 1998, was:
U S WEST Communications Group Common Stock - 484,953,012 shares;
U S WEST Media Group Common Stock - 608,893,048 shares
<PAGE>
U S WEST, Inc.
Form 10-Q
TABLE OF CONTENTS
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Item Page
PART I - FINANCIAL INFORMATION
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1. U S WEST, Inc. Financial Information
Consolidated Statements of Operations -
Three Months Ended March 31, 1998 and 1997 3
Consolidated Balance Sheets -
March 31, 1998 and December 31, 1997 5
Consolidated Statements of Cash Flows -
Three Months Ended March 31, 1998 and 1997 7
Notes to Consolidated Financial Statements 8
2. U S WEST, Inc. Management's Discussion and Analysis of Financial
Condition and Results of Operations 26
3. U S WEST, Inc. Quantitative and Qualitative Disclosures About
Market Risk 44
PART II - OTHER INFORMATION
1. Legal Proceedings 45
6. Exhibits and Reports on Form 8-K 45
</TABLE>
<PAGE>
Form 10-Q - Part I
<TABLE>
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CONSOLIDATED STATEMENTS OF OPERATIONS U S WEST, Inc.
(Unaudited)
- ---------------------------------------------------------------------------------- ---------------------------
Three Months Ended
March 31,
Dollars in millions 1998 1997
- ---------------------------------------------------------------------------- ------------------ --------------
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Sales and other revenues $3,967 $3,766
Operating expenses:
Employee-related expenses 1,247 1,148
Other operating expenses 914 842
Taxes other than income taxes 111 124
Depreciation and amortization 880 830
------------------ --------------
Total operating expenses 3,152 2,944
------------------ --------------
Operating income 815 822
Interest expense (247) (278)
Equity losses in unconsolidated ventures (136) (165)
Gain on asset sales:
Investments 17 51
Rural telephone exchanges - 18
Guaranteed minority interest expense (22) (22)
Other expense - net (62) (26)
------------------ --------------
Income before income taxes 365 400
Provision for income taxes (153) (170)
------------------ --------------
NET INCOME $ 212 $ 230
================== ==============
Dividends on preferred stock (13) (13)
------------------ --------------
EARNINGS AVAILABLE FOR COMMON STOCK $ 199 $ 217
================== ==============
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
Form 10-Q - Part I
<TABLE>
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CONSOLIDATED STATEMENTS OF OPERATIONS U S WEST, Inc.
(Unaudited), continued
- ---------------------------------------------------------------------------------- ---------------------------
Three Months Ended
March 31,
In thousands (except per share amounts) 1998 1997
- ----------------------------------------------------------------------------
------------------ --------------
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COMMUNICATIONS GROUP:
Basic earnings per common share $0.72 $0.70
================== ==============
Basic average common shares outstanding 484,964 481,341
================== ==============
Diluted earnings per common share $0.71 $0.70
================== ==============
Diluted average common shares outstanding 489,113 492,394
================== ==============
Dividends per common share $0.535 $0.535
================== ==============
MEDIA GROUP:
Basic and diluted loss per common share $(0.24) $(0.20)
================== ==============
Basic and diluted average common shares outstanding 608,295 606,527
================== ==============
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See Notes to Consolidated Financial Statements.
<PAGE>
Form 10-Q - Part I
<TABLE>
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CONSOLIDATED BALANCE SHEETS U S WEST, Inc.
(Unaudited)
- ------------------------------------------------------------------------ ---------------- --------------------
March 31, December 31,
Dollars in millions 1998 1997
- ------------------------------------------------------------------------ ---------------- --------------------
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ASSETS
Current assets:
Cash and cash equivalents $ 521 $ 211
Accounts and notes receivable - net 2,053 2,249
Inventories and supplies 202 179
Deferred directory costs 263 257
Deferred tax asset 330 373
Prepaid and other 148 130
---------------- --------------------
Total current assets 3,517 3,399
Gross property, plant and equipment 39,791 39,223
Accumulated depreciation 21,135 20,643
---------------- --------------------
Property, plant and equipment - net 18,656 18,580
Investment in Time Warner Entertainment 2,487 2,486
Net investment in international ventures 456 475
Intangible assets - net 12,537 12,674
Net investment in assets held for sale 441 419
Other assets 1,786 1,707
---------------- --------------------
Total assets $ 39,880 $ 39,740
================ ====================
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
Form 10-Q - Part I
<TABLE>
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CONSOLIDATED BALANCE SHEETS U S WEST, Inc.
(Unaudited), continued
- -------------------------------------------------------------------- ------------------- ---------------------
March 31, December 31,
Dollars in millions 1998 1997
- -------------------------------------------------------------------- ------------------- ---------------------
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LIABILITIES AND SHAREOWNERS' EQUITY
Current liabilities:
Short-term debt $ 1,882 $ 1,430
Accounts payable 1,446 1,751
Employee compensation 402 521
Dividends payable 269 268
Deferred revenues and customer deposits 466 444
Other 1,982 1,901
------------------- ---------------------
Total current liabilities 6,447 6,315
Long-term debt 13,178 13,248
Postretirement and other postemployment
benefit obligations 2,562 2,570
Deferred income taxes 4,086 4,068
Deferred credits and other 1,075 1,035
Contingencies
Company-obligated mandatorily redeemable preferred
securities of subsidiary trust holding solely
Company-guaranteed debentures 1,080 1,080
Preferred stock subject to mandatory redemption 100 100
Shareowners' equity:
Preferred stock 923 923
Common shares 10,871 10,876
Retained deficit (417) (369)
LESOP guarantee (46) (46)
Accumulated other comprehensive income (loss) 21 (60)
------------------- ---------------------
Total shareowners' equity 11,352 11,324
------------------- ---------------------
Total liabilities and shareowners' equity $ 39,880 $ 39,740
=================== =====================
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
Form 10-Q - Part I
<TABLE>
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CONSOLIDATED STATEMENTS OF CASH FLOWS U S WEST, Inc.
(Unaudited)
- ----------------------------------------------------------------------------------- --------------------------
Three Months Ended March 31, 1998 1997
- ------------------------------------------------------------------------------------ ------------ ------------
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Dollars in millions
OPERATING ACTIVITIES
Net income $212 $230
Adjustments to net income:
Depreciation and amortization 880 830
Equity losses in unconsolidated ventures 136 165
Gain on sales of investments (17) (51)
Gain on sale of rural telephone exchanges - (18)
Deferred income taxes and amortization of investment tax credits 33 (27)
Changes in operating assets and liabilities:
Postretirement medical and life costs, net of cash fundings (19) (6)
Accounts and notes receivable 168 108
Inventories, supplies and other current assets (49) (51)
Accounts payable and accrued liabilities (104) 161
Other - net 19 5
----------- ------------
Cash provided by operating activities 1,259 1,346
----------- ------------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment (918) (764)
Payment to Continental Cablevision shareowners - (1,150)
Investment in international ventures (45) (48)
Investment in domestic ventures (117) (55)
Proceeds from sales of investments 71 176
Cash from net investment in assets held for sale 13 29
Other - net 21 4
----------- ------------
Cash used for investing activities (975) (1,808)
----------- ------------
FINANCING ACTIVITIES
Net proceeds from (repayments of) short-term debt 326 (3,339)
Proceeds from issuance of long-term debt - 4,090
Repayments of long-term debt (23) (55)
Dividends paid on common and preferred stock (272) (248)
Proceeds from issuance of common stock 30 30
Purchases of treasury stock (35) (53)
----------- ------------
Cash provided by financing activities 26 425
----------- ------------
CASH AND CASH EQUIVALENTS
Increase (decrease) 310 (37)
Beginning balance 211 201
=========== ============
Ending balance $521 $164
=========== ============
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Three Months Ended March 31, 1998
(Dollars in millions)
(Unaudited)
A. Summary of Significant Accounting Policies
Basis of Presentation. U S WEST, Inc. ("U S WEST" or the "Company") has two
classes of common stock that are intended to reflect separately the
performance of its communications and multimedia businesses. One class of
stock, Communications Stock, reflects the communications businesses of
U S WEST known as U S WEST Communications Group ("Communications Group") and
the other class of stock, Media Stock, reflects the multimedia businesses of
U S WEST known as U S WEST Media Group ("Media Group").
The Consolidated Financial Statements have been prepared by U S WEST pursuant
to the interim reporting rules and regulations of the Securities and Exchange
Commission ("SEC"). Certain information and footnote disclosures normally
accompanying financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to
such SEC rules and regulations. In the opinion of U S WEST's management, the
Consolidated Financial Statements include all adjustments, consisting of
only normal recurring adjustments, necessary to present fairly the financial
information set forth therein. It is suggested that these Consolidated
Financial Statements be read in conjunction with the 1997 U S WEST Consolidated
Financial Statements and notes thereto filed on Form 10-K, as amended by
Form 10-K/A filed April 13, 1998, and included in U S WEST's proxy statement
mailed to all shareowners on April 20, 1998.
Certain reclassifications within the Consolidated Financial Statements have
been made to conform to the current year presentation.
New Accounting Standards. Statement of Position ("SOP") 98-5, "Reporting on
the Costs of Start-Up Activities," was issued in April 1998. SOP 98-5
requires, among other things, that the costs related to start-up activities of
a new entity, facility, product or service be expensed. Adoption of SOP 98-5 is
required as of January 1, 1999, but earlier adoption is allowed. The effect of
adopting SOP 98-5 is under evaluation.
B. U S WEST Separation
On October 25, 1997, the Board of Directors of U S WEST adopted a
proposal to separate U S WEST into two independent companies
(the "Separation"). As a result of the Separation, the Communications Group
will become an independent public company and will be renamed "U S WEST, Inc."
("New U S WEST"). In addition, Media Group's directory business known as
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
U S WEST Dex, Inc. ("Dex") will be aligned with New U S WEST
(the "Dex Alignment"). Following the Separation, U S WEST will continue as an
independent public company comprised of the current businesses of Media Group
other than Dex and will be renamed "MediaOne Group, Inc." ("MediaOne").
The Separation will be implemented pursuant to the terms of a separation
agreement between U S WEST and New U S WEST (the "Separation Agreement"). In
connection with the Dex Alignment, (i) U S WEST will distribute, as a dividend,
an aggregate of $850 in value of New U S WEST common stock to holders of Media
Stock and (ii) $3.9 billion of U S WEST debt, currently allocated to Media
Group, will be refinanced by New U S WEST (the "Dex Indebtedness").
MediaOne will account for the Separation as a discontinuance of the businesses
comprising New U S WEST. The measurement date for discontinued operations
accounting purposes will be the date upon which U S WEST stockholder approval is
obtained. Because the distribution is non pro-rata, as compared with the
businesses previously attributed to U S WEST's two classes of stockholders, it
will be accounted for at fair value and MediaOne will recognize a gain on the
distribution of New U S WEST. Based on the number of shares of Communications
Stock outstanding and market price as of May 1, 1998, the gain (net of
Separation costs) is estimated at approximately $25.6 billion. The Company will
incur Separation costs during 1998 of approximately $175, which includes cash
payments under severance agreements of $45 and financial advisory, legal,
registration fee, printing and mailing costs. Separation costs also include a
one-time payment to terminate the sale of the Media Group cable system in
Minnesota.
Further information about the Separation is contained in U S WEST's proxy
statement mailed to all shareowners on April 20, 1998. U S WEST shareowners
have been asked to consider and approve the Separation at its annual
meeting to be held on June 4, 1998. Subject to shareowner approval, the
transaction is expected to be completed by mid-June 1998.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
C. Comprehensive Income
During first-quarter 1998, U S WEST adopted Statement of Financial Accounting
Standards ("SFAS") No. 130, "Reporting Comprehensive Income." SFAS No. 130
requires, among other things, that the components and total amount of
comprehensive income be displayed in the financial statements for interim and
annual periods beginning in 1998. Comprehensive income includes net income and
all changes in equity during a period that arise from nonowner sources, such
as foreign currency items and unrealized gains and losses on certain
investments in debt and equity securities.
Total comprehensive income and the components of comprehensive income follow:
<TABLE>
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Three Months Ended
March 31,
1998 1997
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Net income $ 212 $ 230
Other comprehensive income, before tax:
Foreign currency translation adjustments 16 12
Unrealized gains (losses) on debt and equity securities 118 (63)
Reclassification for losses realized in net income - (3)
Income tax (expense) benefit related to items of other comprehensive
income (53) 22
-------------------- -----------------
Total comprehensive income $ 293 $ 198
======================================================================= ==================== ==================
</TABLE>
D. Minnesota System
In May 1997, pursuant to a Federal Communications Commission ("FCC") order,
U S WEST entered into an agreement to sell its cable systems
(the "Minnesota System") in Minnesota for proceeds of $600. Under the terms
of the agreement, Media Group had the right to terminate the agreement at any
time upon payment of a $30 termination fee. As a result of the Separation,
Media Group will no longer be prohibited by federal law from owning the
Minnesota System. In February 1998, in response to U S WEST's petition, the
FCC granted to U S WEST a waiver which would permit Media Group to retain the
Minnesota System so long as the Separation is consummated by July
31, 1998. Media Group has terminated the agreement to sell the Minnesota System
and otherwise settled all claims related thereto.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
E. Earnings Per Share
The following reflects the computation of diluted earnings (loss) per share
for Communications Stock and Media Stock:
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Three Months Ended
March 31,
1998 1997
- ------------------------------------------------------------------------------- ---------------- -------------
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(Shares in thousands)
Communications Group
Income used for basic earnings per share $347 $339
Interest on convertible zero coupon subordinated
notes, net of tax - 3
---------------- -------------
Income used for diluted earnings per share $347 $342
================ =============
Weighted average number of shares used for basic
earnings per share 484,964 481,341
Effect of dilutive securities:
Stock options 4,149 1,667
Convertible zero coupon subordinated notes - 9,386
---------------- -------------
Weighted average number of shares used for diluted
earnings per share 489,113 492,394
================ =============
Communications Group basic earnings per share $0.72 $0.70
Communications Group diluted earnings per share 0.71 0.70
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</TABLE>
The Communications Group dilutive securities represent the incremental weighted
average shares from the assumed exercise of Communications Group stock options
and the assumed conversion of the zero coupon subordinated notes which were
redeemed in August 1997.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
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Three Months Ended
March 31,
1998 1997
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(Shares in thousands)
<S> <C> <C>
Media Group
Loss $(135) $(109)
Dividends on preferred stock (13) (13)
---------------- -------------
Loss available to common shareowners used for basic and
diluted loss per share $(148) $(122)
================ =============
Weighted average number of shares used for basic and
diluted loss per share 608,295 606,527
================ =============
Media Group basic and diluted loss per share $(0.24) $(0.20)
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</TABLE>
Media Group diluted loss per share does not include potential share issuances
associated with Media Group stock options, convertible zero coupon subordinated
notes and the convertible Series D Preferred Stock due to their antidilutive
effects. The zero coupon subordinated notes were redeemed in August 1997.
F. Contingencies
At U S WEST Communications, Inc. ("U S WEST Communications") there are pending
regulatory actions in local regulatory jurisdictions that call for price
decreases, refunds or both.
Oregon. On May 1, 1996, the Oregon Public Utilities Commission ("OPUC")
approved a stipulation terminating prematurely U S WEST Communications'
alternative form of regulation ("AFOR") plan, and it then undertook a review
of U S WEST Communications' earnings. In May 1997, the OPUC ordered U S WEST
Communications 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. The one-time refund is for interim rates which became subject to refund
when U S WEST Communications' AFOR plan was terminated on May 1, 1996.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
U S WEST Communications filed an appeal of the order and asked for an immediate
stay of the refund with the Oregon Circuit Court which granted U S WEST
Communications' request for a stay, pending a full review of the OPUC's order.
On February 19, 1998, the Oregon Circuit Court entered a judgment in U S WEST
Communications' favor on most of the appealed issues. The OPUC appealed on
March 19, 1998. The potential exposure, including interest, at March 31, 1998,
is not expected to exceed $210.
Utah. In another proceeding, the Utah Supreme Court has remanded a Utah Public
Service Commission ("UPSC") order to the UPSC for hearing, thereby establishing
two exceptions to the rule against retroactive ratemaking: 1) unforeseen and
extraordinary events, and 2) misconduct. The UPSC's initial order denied a
refund request from interexchange carriers and other parties related to the Tax
Reform Act of 1986. The potential exposure, including interest, at March 31,
1998, is not expected to exceed $160.
State Regulatory Accruals. U S WEST Communications has accrued $148 at
March 31, 1998, which represents its estimated liability for all state
regulatory proceedings, predominately the items discussed above. It is possible
that the ultimate liability could exceed the recorded liability by an amount up
to approximately $220. U S WEST Communications will continue to monitor and
evaluate the risks associated with its local regulatory jurisdictions, and will
adjust estimates as new information becomes available.
In addition to its estimated liability for state regulatory proceedings,
U S WEST Communications has an accrued liability of approximately $230 at
March 31, 1998 related to refunds in the state of Washington. The Company
expects that the majority of these refunds will be issued to ratepayers,
interexchange carriers ("IXCs") and independent local exchange carriers
("LECs") during the second- and third-quarters of 1998.
G. Subsequent Events
PrimeStar. Prior to April 1, 1998, Media Group held a 10.4 percent interest in
PrimeStar Partners, L.P. ("Old PrimeStar"). In addition, Media Group
distributed PrimeStar direct broadcast satellite ("DBS") services to
subscribers in its service areas and, as a result, reflected consolidated
operating results with respect to such subscribers. On April 1, 1998, Media
Group contributed its interest in Old PrimeStar, as well as its PrimeStar
subscribers and certain related assets, to PrimeStar, Inc. ("PrimeStar"), a
newly formed entity, in exchange for an approximate 10 percent interest in
PrimeStar and approximately $80 in cash (the "PrimeStar Contribution").
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
AirTouch Transaction. On April 6, 1998, Media Group sold its domestic wireless
businesses to AirTouch Communications, Inc. ("AirTouch") in a tax-efficient
transaction (the "AirTouch Transaction"). The AirTouch Transaction was
consummated pursuant to an agreement and plan of merger (the "AirTouch Merger
Agreement") dated as of January 29, 1998. The domestic wireless businesses
included cellular communication services provided to 2.6 million customers in 12
western and midwestern states and a 25 percent interest in PrimeCo Personal
Communications, L.P. ("PrimeCo"). Pursuant to the AirTouch Merger Agreement,
AirTouch acquired these cellular and personal communications services ("PCS")
interests. Consideration under the AirTouch Transaction consisted of (i) debt
reduction of $1.35 billion, (ii) the issuance to U S WEST of $1.65 billion in
liquidation preference of dividend bearing AirTouch preferred stock (fair value
of approximately $1.5 billion), and (iii) the issuance to U S WEST of 59.5
million shares of AirTouch common stock.
This transaction resulted in the disposition of Media Group's domestic wireless
businesses. Applying the terms of the AirTouch Merger Agreement, this
transaction resulted in a gain of approximately $2.2 billion, net of deferred
taxes of $1.7 billion.
In connection with this transaction, U S WEST and AirTouch have entered into an
investment agreement, pursuant to which AirTouch has agreed to provide to
U S WEST registration rights with respect to the shares of AirTouch
preferred stock and AirTouch common stock which U S WEST received in the
AirTouch Transaction and to assist U S WEST in the monetization of such shares.
In order to minimize U S WEST's exposure to fluctuations in the market value of
its investment in AirTouch preferred stock, U S WEST entered into an interest
rate swap transaction on April 6, 1998 in the notional amount of $1.5 billion
terminating on September 30, 1998. Such transaction requires that U S WEST
(MediaOne after the Separation) either pay or receive the difference between
the fixed interest rate of 5.865 percent and a floating rate which is indexed
to the 30-year U. S. Treasury Bond rate. The contract qualifies for hedge
accounting and is carried at market value with gains or losses recorded in
equity until sale of the investment.
Debt and Preferred Securities Refinancing. In connection with the Separation,
New U S WEST and MediaOne are seeking to refinance substantially all of the
indebtedness issued or guaranteed by U S WEST (the "U S WEST Indebtedness")
through a combination of tender offers, prepayments, defeasance, consent
solicitations and/or exchange offers (the "Refinancing").
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
At March 31, 1998, prior to giving effect to the AirTouch Transaction, U S WEST
and its subsidiaries (including U S WEST's capital assets segment) had
outstanding approximately $16.5 billion of indebtedness. Such indebtedness
consists of approximately $8.1 billion of U S WEST Indebtedness, $5.5 billion of
U S WEST Communications indebtedness, $2.7 billion of MediaOne of Delaware,
Inc.("MediaOne Delaware") indebtedness and $200 million of indebtedness of U S
WEST Financial Services, Inc. ("Financial Services"), a member of the capital
assets segment. The approximate $8.1 billion of U S WEST Indebtedness includes
$5.4 billion of medium and long-term debt securities, $1.1 billion of commercial
paper, $500 million of other indebtedness and $1.08 billion of Company-obligated
mandatorily redeemable preferred securities of subsidiary trust holding solely
Company-guaranteed debentures ("Preferred Securities").
As part of the Refinancing, the Company is offering the holders of Preferred
Securities the right to exchange their Preferred Securities for an equal amount
of new preferred securities guaranteed by MediaOne or cash (the "Exchange
Offer"). Also as part of the Refinancing, the Company is making offers to
purchase for cash (the "Cash Tender Offer") $5.2 billion of medium and
long-term debt securities. Any securities not tendered pursuant to the Cash
Tender Offer will be assumed by MediaOne, although U S WEST may determine to
defease certain of such securities in lieu of assumption. In addition, U S WEST
will prepay certain other U S WEST Indebtedness pursuant to the Refinancing.
Consummation of the Exchange Offer and the Cash Tender Offer is subject to
certain conditions, including the approval of the Separation by U S WEST's
shareowners.
After the Separation and related Refinancing, New U S WEST will have
approximately $9.9 billion of debt, which will include $5.5 billion of U S WEST
Communications indebtedness and $4.4 billion of U S WEST Indebtedness which
includes the effects of the Refinancing (which includes the Dex Indebtedness)
and the funding of certain costs of the Separation. New U S WEST, through its
financing subsidiary U S WEST Capital Funding, Inc. ("Capital Funding), will
initially finance the repurchase or repayment of U S WEST Indebtedness with
commercial paper. Following consummation of the Separation, New U S WEST will
issue medium and long-term securities to refinance a portion of the commercial
paper.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
After the Separation and related Refinancing and after giving effect to the
AirTouch Transaction, MediaOne will have approximately $5.4 billion of debt and
preferred securities, which will include $2.7 billion of MediaOne Delaware
indebtedness and $2.7 billion of debt and preferred securities issued or
guaranteed by MediaOne, which includes new debt incurred by MediaOne Group
Funding, Inc. ("MediaOne Funding"), a newly formed financing subsidiary of
MediaOne, to refinance a portion of the U S WEST Indebtedness. It is
anticipated that such new debt will be a combination of commercial paper and
commercial bank debt. In addition, the capital assets segment, which will
remain with MediaOne, will have approximately $400 million of indebtedness.
MediaOne Funding's bank debt will include certain additional terms and
covenants which are generally included in the bank indebtedness of cable
companies. In addition, any senior indebtedness issued by MediaOne Funding
after the Separation will be guaranteed by MediaOne Delaware and, as a
result, will rank pari passu with MediaOne Delaware's senior indebtedness. To
the extent the Preferred Securities are tendered for cash pursuant to the
Exchange Offers, it is anticipated that MediaOne will issue additional
preferred securities following the Separation so that it will have
approximately $1 billion of preferred securities outstanding. Following the
Separation, MediaOne intends to monetize the AirTouch securities it received in
the AirTouch Transaction and use a portion of the proceeds to reduce its
commercial paper and commercial bank debt.
In May 1998, New U S WEST and MediaOne entered into revolving bank credit
facilities to support their commercial paper programs and, in the case of
MediaOne, to provide financing in conjunction with the Refinancing. New
U S WEST's credit facility totals $4.5 billion; $3.5 billion matures in one
year and $1.0 billion matures in five years. MediaOne's credit facility totals
$4.0 billion; $2.0 billion matures in one year and $2.0 billion matures in five
years.
H. Net Investment in Assets Held for Sale
The capital assets segment is being accounted for in accordance with Staff
Accounting Bulletin No. 93, issued by the SEC, which requires discontinued
operations not disposed of within one year of the measurement date to be
accounted for prospectively in continuing operations as "net investment in
assets held for sale." The net realizable value of the assets is evaluated on
an ongoing basis with adjustments to the existing reserve, if any, being
charged to continuing operations. No such adjustment has been required. Prior
to January 1, 1995, the entire capital assets segment was accounted for as
discontinued operations in accordance with Accounting Principles Board Opinion
No. 30.
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
The components of net investment in assets held for sale follow:
- ------------------------------------------------------------------------ ----------------------- -------------------
March 31, December 31,
1998 1997
- ------------------------------------------------------------------------ ----------------------- -------------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 65 $ 54
Finance receivables - net 774 777
Investment in real estate - net of valuation allowance 107 156
Bonds, at market value 118 119
Investment in FSA 397 365
Other assets 206 197
----------------------- -------------------
Total assets 1,667 1,668
----------------------- -------------------
LIABILITIES
Debt 364 372
Deferred income taxes 683 669
Accounts payable, accrued liabilities and other 168 197
Minority interests 11 11
----------------------- -------------------
Total liabilities 1,226 1,249
----------------------- -------------------
Net investment in assets held for sale $ 441 $ 419
====================================================================================================================
</TABLE>
Building sales and operating revenues of the capital assets segment were $63
and $57 for the three months ended March 31, 1998 and 1997, respectively.
Revenues of Financial Services were $5 for the three months ended
March 31, 1998 and 1997. Selected financial data for Financial Services
follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
March 31, December 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Net finance receivables $ 822 $ 824
Total assets 1,174 1,208
Total debt 353 363
Total liabilities 1,082 1,121
Equity 92 87
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
I. Supplemental Communications Group and Media Group Combined Statements
U S WEST COMMUNICATIONS GROUP COMBINED STATEMENTS OF INCOME
- --------------------------------------------------------------------------------------------------------------
Three Months Ended
March 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Operating revenues:
Local service $1,350 $1,231
Interstate access service 698 687
Intrastate access service 206 200
Long-distance network services 201 250
Other services 255 219
---------------- -------------
Total operating revenues 2,710 2,587
Operating expenses:
Employee-related expenses 938 864
Other operating expenses 481 445
Taxes other than income taxes 97 107
Depreciation and amortization 524 527
---------------- -------------
Total operating expenses 2,040 1,943
---------------- -------------
Operating income 670 644
Interest expense (97) (103)
Gain on sale of rural telephone exchanges - 18
Other expense - net (25) (22)
---------------- -------------
Income before income taxes 548 537
Provision for income taxes (201) (198)
---------------- -------------
NET INCOME $347 $339
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST COMMUNICATIONS GROUP COMBINED BALANCE SHEETS
- --------------------------------------------------------------------------------------------------------------
March 31, December 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 373 $ 27
Accounts and notes receivable - net 1,586 1,681
Inventories and supplies 179 150
Deferred tax asset 217 247
Prepaid and other 78 77
---------------- --------------------
Total current assets 2,433 2,182
Gross property, plant and equipment 33,681 33,408
Accumulated depreciation 19,503 19,176
---------------- --------------------
Property, plant and equipment - net 14,178 14,232
Other assets 825 832
---------------- --------------------
Total assets $17,436 $17,246
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST COMMUNICATIONS GROUP COMBINED BALANCE SHEETS (continued)
- --------------------------------------------------------------------------------------------------------------
March 31, December 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES AND EQUITY
Current liabilities:
Short-term debt $ 898 $ 626
Accounts payable 1,113 1,325
Employee compensation 287 375
Dividends payable 260 259
Advanced billings and customer deposits 306 292
Payable to Media Group 92 90
Other 1,202 1,033
------------------ ---------------------
Total current liabilities 4,158 4,000
Long-term debt 4,931 5,020
Postretirement and other postemployment
benefit obligations 2,456 2,468
Deferred income taxes 839 805
Deferred credits and other 771 754
Contingencies
Communications Group equity 4,281 4,199
------------------ ---------------------
Total liabilities and equity $17,436 $17,246
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST COMMUNICATIONS GROUP COMBINED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------------------------------------
Three Months Ended March 31, 1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $347 $ 339
Adjustments to net income:
Depreciation and amortization 524 527
Gain on sale of rural telephone exchanges - (18)
Deferred income taxes and amortization of investment tax credits 61 18
Changes in operating assets and liabilities:
Postretirement medical and life costs, net of cash fundings (22) (10)
Accounts receivable 95 82
Inventories, supplies and other current assets (36) (34)
Accounts payable and accrued liabilities 98 193
Other - net 2 -
----------- ------------
Cash provided by operating activities 1,069 1,097
----------- ------------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment (557) (400)
Proceeds from sale of rural telephone exchanges - 7
Proceeds from (payments on) disposals of
property, plant and equipment 19 (7)
Purchase of PCS licenses (18) -
----------- ------------
Cash used for investing activities (556) (400)
----------- ------------
FINANCING ACTIVITIES
Net proceeds from (repayments of) short-term debt 119 (429)
Repayments of long-term debt (23) (54)
Dividends paid on common stock (259) (237)
Proceeds from issuance of common stock 17 24
Purchases of treasury stock (21) -
----------- ------------
Cash used for financing activities (167) (696)
----------- ------------
CASH AND CASH EQUIVALENTS
Increase 346 1
Beginning balance 27 80
=========== ============
Ending balance $373 $ 81
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST MEDIA GROUP COMBINED STATEMENTS OF OPERATIONS
- --------------------------------------------------------------------------------------------------------------
Three Months Ended
March 31,
------------------------------
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Sales and other revenues:
Cable and broadband $ 624 $ 556
Wireless communications 341 335
Directory and information services 307 309
Other 7 7
--------------- --------------
Total sales and other revenues 1,279 1,207
Operating expenses:
Cost of sales and other revenues 424 406
Selling, general and administrative expenses 354 320
Depreciation and amortization 356 303
--------------- --------------
Total operating expenses 1,134 1,029
--------------- --------------
Operating income 145 178
Interest expense (150) (175)
Equity losses in unconsolidated ventures (136) (165)
Gains on sales of investments 17 51
Guaranteed minority interest expense (22) (22)
Other expense - net (37) (4)
--------------- --------------
Loss before income taxes (183) (137)
Income tax benefit 48 28
--------------- --------------
NET LOSS $(135) $(109)
=============== ==============
Dividends on preferred stock (13) (13)
--------------- --------------
LOSS AVAILABLE FOR COMMON STOCK $(148) $(122)
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST MEDIA GROUP COMBINED BALANCE SHEETS
- --------------------------------------------------------------------------------------------------------------
March 31, December 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $148 $184
Accounts and notes receivable - net 478 589
Deferred directory costs 263 257
Receivable from Communications Group 92 90
Deferred tax asset 113 126
Other 93 82
----------------- -------------------
Total current assets 1,187 1,328
Property, plant and equipment - net 4,478 4,348
Investment in Time Warner Entertainment 2,487 2,486
Net investment in international ventures 456 475
Intangible assets - net 12,443 12,597
Net investment in assets held for sale 441 419
Other assets 1,064 961
----------------- -------------------
Total assets $22,556 $22,614
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST MEDIA GROUP COMBINED BALANCE SHEETS (continued)
- --------------------------------------------------------------------------------------------------------------
March 31, December 31,
1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES AND EQUITY
Current liabilities:
Short-term debt $ 984 $ 804
Accounts payable 338 432
Deferred revenue and customer deposits 160 152
Other 910 1,038
-------------------- -------------------
Total current liabilities 2,392 2,426
Long-term debt 8,247 8,228
Deferred income taxes 3,247 3,262
Deferred credits and other 419 393
Company-obligated mandatorily redeemable preferred
securities of subsidiary trust holding solely
Company-guaranteed debentures 1,080 1,080
Preferred stock subject to mandatory redemption 100 100
Media Group equity 7,071 7,125
-------------------- -------------------
Total liabilities and equity $22,556 $22,614
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
U S WEST, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions)
(Unaudited)
<TABLE>
<CAPTION>
U S WEST MEDIA GROUP COMBINED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------------------------------------
Three Months Ended March 31, 1998 1997
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net loss $(135) $(109)
Adjustments to net loss:
Depreciation and amortization 356 303
Equity losses in unconsolidated ventures 136 165
Distributions from unconsolidated ventures 3 3
Gains on sales of investments (17) (51)
Deferred income taxes (27) (45)
Provision for uncollectibles 28 25
Changes in operating assets and liabilities:
Accounts and notes receivable 81 8
Deferred directory costs, prepaid and other (17) (17)
Accounts payable and accrued liabilities (209) (36)
Other - net (9) 3
----------- ------------
Cash provided by operating activities 190 249
----------- ------------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment (361) (364)
Payment to Continental Cablevision shareowners - (1,150)
Investment in international ventures (45) (48)
Investment in domestic ventures (99) (55)
Proceeds from sales of investments 71 176
Cash from net investment in assets held for sale 13 29
Other - net 2 4
----------- ------------
Cash used for investing activities (419) (1,408)
----------- ------------
FINANCING ACTIVITIES
Net proceeds from (repayments of) short-term debt 207 (2,910)
Proceeds from issuance of long-term debt - 4,090
Repayments of long-term debt - (1)
Proceeds from issuance of common stock 13 6
Dividends paid on preferred stock (13) (11)
Purchases of treasury stock (14) (53)
----------- ------------
Cash provided by financing activities 193 1,121
----------- ------------
CASH AND CASH EQUIVALENTS
Decrease (36) (38)
Beginning balance 184 121
=========== ============
Ending balance $ 148 $ 83
==============================================================================================================
</TABLE>
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions, except per share amounts)
Some of the information presented in or in connection with this report
constitutes "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Although the Company believes that its
expectations are based on reasonable assumptions within the bounds of its
knowledge of its business and operations, there can be no assurance that actual
results will not differ materially from its expectations. Factors that could
cause actual results to differ from expectations include: (i) greater than
anticipated competition from new entrants into the local exchange, intraLATA
toll, cable, wireless, data and directories markets, (ii) changes in demand for
the Company's products and services, including optional custom calling features,
(iii) higher than anticipated employee levels, capital expenditures, and
operating expenses (such as costs associated with year 2000 remediation), (iv)
the loss of significant customers, (v) pending regulatory actions in state
jurisdictions, (vi) regulatory changes affecting the cable and
telecommunications industries, including changes that could have an impact on
the competitive environment in the local exchange market, (vii) a change in
economic conditions in the various markets served by the Company's operations,
including international markets, that could adversely affect the level of demand
for cable, telephone, wireless, directories or other services offered by the
Company, (viii) greater than anticipated competitive activity requiring new
pricing for services, (ix) higher than anticipated start-up costs associated
with new business opportunities, (x) increases in fraudulent activity with
respect to broadband and wireless services, (xi) delays in the Company's ability
to begin offering interLATA long-distance services, (xii) consumer acceptance of
broadband services, including telephony, data, and wireless services, or (xiii)
delays in the development of anticipated technologies, or the failure of such
technologies to perform according to expectations.
Results of Operations - First Quarter 1998 Compared with First Quarter 1997
<TABLE>
<CAPTION>
Net Income (Loss)
- -------------------------------- ----------------------------------------- -- ---------------------------------------
Net Income (Loss) Diluted Earnings (Loss) Per Share
----------------------------------------- ---------------------------------------
Increase Increase
(Decrease) (Decrease)
-------- ----------- -------- ----------
Three Months Ended March 31, 1998 1997 $ % 1998 1997 $ %
- --------------------------------- -------- ---------- -------- ----------- --------- --------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Communications Group $ 347 $ 339 $ 8 2.4 $ 0.71 $ 0.70 $ 0.01 1.4
Media Group (135) (109) (26) 23.9 (0.24) (0.20) (0.04) 20.0
========= ========== ======== ===========
Total net income $ 212 $ 230 $(18) (7.8)
================================ ========= ========== ======== ===========
</TABLE>
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions, except per share amounts),
continued
<TABLE>
<CAPTION>
Communications Group Net Income
- ---- --- -- --------------------------- ------------------------------------ -- -------------------------------------
Net Income Diluted Earnings Per Share
------------------- ---------------- -------------------- ----------------
Increase Increase
---------------- ----------------
Three Months Ended March 31, 1998 1997 % 1998 1997(1) $ %
$
- --------------------------------------- -------- --------- ------- --------- --------- --------- --------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Reported net income $347 $339 $8 2.4 $0.71 $0.70 $0.01 1.4
Adjustment to reported net income:
Gain on sale of rural
telephone exchanges (2) - (11) 11 - - (0.02) 0.02 -
-------- --------- ------- --------- ---------- ---------- ------- ------
Normalized income $347 $328 $19 5.8 $0.71 $0.67 $0.04 6.0
======================================= ======== ========= ======= ========= == ========== ========== ======= ======
</TABLE>
(1) Column does not add due to rounding of individual components.
(2) In first-quarter 1997, the Communications Group sold certain rural
telephone exchanges in Nebraska for a pretax gain of $18 and an after-tax gain
of $11.
During 1998, the Communications Group's normalized income increased $19, or
5.8 percent, to $347 Normalized diluted earnings per share was $0.71 per
Communications share, an increase of $0.04, or 6.0 percent. The increase in
normalized income is primarily due to higher demand for services partially
offset by interstate access rate reductions, higher expenses related to
interconnection and start-up costs associated with growth initiatives,
including wireless PCS.
<TABLE>
<CAPTION>
Media Group Net Loss
- ---- --- -- ---------------------- ------------------------------------- -- -----------------------------------------
Net Loss Diluted Loss Per Share
------------------- ------------------ -------------------- -------------------
Increase Increase
(Decrease) (Decrease)
------- ---------- -------- -----------
Three Months Ended March 31, 1998 1997 $ % 1998 1997 $ %
- ---------------------------------- --------- --------- ------- ---------- ---------- --------- -------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Reported net loss $(135) $(109) $(26) 23.9 $(0.24) $(0.20) $(0.04) 20.0
Adjustments to reported net loss:
Gains on sales of investments (10) (31) 21 (67.7) (0.02) (0.05) 0.03 (60.0)
Other - Separation costs 35 - 35 - 0.06 - 0.06 -
========= ========= ======= ========== ========== ========= ======== ===========
Normalized loss $(110) $(140) $30 (21.4) $(0.20) $(0.25) $0.05 (20.0)
================================== ========= ========= ======= ========== == ========== ========= ======== ===========
</TABLE>
During 1998, Media Group's normalized net loss decreased $30, or 21.4 percent,
to $110. Normalized diluted loss per share was $0.20, a decrease of $0.05, or
20.0 percent. The normalized net loss decrease was primarily a result of lower
interest expense and reductions in losses generated by unconsolidated
international ventures. During first-quarter 1998, Media Group recorded a gain
on the sale of an investment of $10, net of tax expense of $7, and U S WEST
incurred costs related to the proposed Separation of $35, net of tax benefits
of $14.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
Upon consummation of the Separation, certain Separation costs will be netted
against the gain realized upon distribution of the New U S WEST common stock to
U S WEST's shareowners. The estimated $25.6 billion gain on the distribution
represents the difference between the fair value of New U S WEST and the
historical investment in New U S WEST.
<TABLE>
<CAPTION>
Sales and Other Revenues
- --------------------------------------------------------------- -------------------------- -------------------------
Three Months Ended Increase
March 31, (Decrease)
-------------------------- -------------------------
1998 1997 $ %
- --------------------------------------------------------------- ------------ ------------- ------------- -----------
<S> <C> <C> <C> <C>
Communications Group $2,710 $2,587 $123 4.8
Media Group 1,279 1,207 72 6.0
Intergroup eliminations (22) (28) 6 (21.4)
============ ============= ============= ===========
Total $3,967 $3,766 $201 5.3
=============================================================== ============ ============= ============= ===========
Communications Group Operating Revenues
- --------------------------------------------------------------- -------------------------- --- ---------------------
Three Months Ended Increase
March 31, (Decrease)
-------------------------- ---------------------
-------------
1998 1997 $ %
- --------------------------------------------------------------- ------------ ------------- ------------- -----------
Local service $1,350 $1,231 $119 9.7
Interstate access service 698 687 11 1.6
Intrastate access service 206 200 6 3.0
Long-distance network services 201 250 (49) (19.6)
Other services 255 219 36 16.4
============ ============= ============= ===========
Total $2,710 $2,587 $123 4.8
=============================================================== ============ ============= ============= ===========
</TABLE>
Local Service Revenues. During 1998, local service revenues increased $119, or
9.7 percent, to $1,350, primarily as a result of access line growth and
increased demand for new product and service offerings, and existing central
office features. Total reported access lines increased 568,000, or 3.6 percent,
during the past 12 months, of which 284,000 was attributable to second lines.
Second line installations increased 25.2 percent. Access lines grew 634,000, or
4.1 percent, when adjusted for sales of approximately 66,000 rural telephone
access lines during the past twelve months. Also contributing to the increase
in revenues were rate increases of $17 in various states, and interim
compensation revenues from IXCs as a result of the FCC payphone orders which
took effect in April 1997.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
Interstate Access Service Revenues. Interstate access service revenues increased
$11, or 1.6 percent, to $698 during 1998, primarily due to a change in the
classification of universal service fundings which increased revenues by $19. In
1997 these fundings were offset against interstate access service revenues
through a contra-revenue account. Beginning in 1998 these fundings are recorded
as access expense within other operating expense. Excluding the effects of the
reclassification, interstate access revenues declined $8, or 1.2 percent,
primarily due to the effects of lower prices under the FCC's current price cap
plan and the effects of 1997 true-ups to sharing-related accruals. Partially
offsetting these decreases were the effects of a 6.1 percent increase in billed
interstate access minutes of use and increased demand for private line services.
Intrastate Access Service Revenues. Intrastate access service revenues
increased $6 in 1998, or 3.0 percent, to $206, primarily due to a 7.1 percent
increase in billed intrastate minutes of use and higher demand for private
line services. Partially offsetting the increase were net rate reductions of
$5 in local jurisdictions, the majority of which were in the state of
Washington.
Long Distance Network Services Revenues. Long-distance network services revenues
decreased $49, or 19.6 percent, to $201, primarily due to the effects of
competition and rate reductions of $14 in local jurisdictions. Also contributing
to the decline were the implementation of multiple toll carrier plans ("MTCPs")
in various jurisdictions in 1997. The MTCPs essentially allow independent
telephone companies to act as toll carriers and are net income neutral with the
reduction in toll revenues largely offset by increased intrastate access service
revenues and lower access expense.
Other Services Revenues. Revenues from other services increased $36, or 16.4
percent, to $255, primarily as a result of greater sales of inside wire
maintenance and continued market penetration in voice messaging services.
Increased sales of wireless communication services and other unregulated
products and services also contributed to the increase.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
<TABLE>
<CAPTION>
Media Group Sales and Other Revenues
- ----------------------------------------------------------- ---------------------------- ---------------------------
Three Months Ended Increase
March 31, (Decrease)
---------------------------- ---------------------------
1998 1997 $ %
- ----------------------------------------------------------- -------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Cable and broadband:
Domestic $619 $552 $67 12.1
International 5 4 1 25.0
-------------- ------------- ------------- -------------
624 556 68 12.2
Wireless communications:
Cellular service 318 303 15 5.0
Cellular equipment 23 32 (9) (28.1)
-------------- ------------- ------------- -------------
341 335 6 1.8
Directory and information services:
Domestic 307 287 20 7.0
International - 22 (22) -
-------------- ------------- ------------- -------------
307 309 (2) (0.6)
Other 7 7 - -
============== ============= ============= =============
Total $1,279 $1,207 $72 6.0
=========================================================== ============== ============= ============= =============
</TABLE>
Media Group sales and other revenues increased $72, or 6.0 percent, to $1,279
in 1998, primarily as a result of growth in domestic cable and broadband
services.
Cable and Broadband. Domestic cable and broadband revenues increased $67, or
12.1 percent, to $619, primarily as a result of higher core cable revenue per
subscriber and continued growth in PrimeStar DBS service revenues. Excluding the
one-time effects of cable system acquisitions and dispositions and a change in
classification of late fee revenues, revenues increased $69, or 12.5 percent.
Basic cable programming services revenue increased $46, or 12.5 percent, due
primarily to a 10 percent increase in revenue per average cable subscriber and a
1.5 percent increase in basic subscribers. The increase in revenue per
subscriber is primarily a result of expanded channel offerings and rate
increases resulting from higher programming fees. PrimeStar DBS service revenues
contributed $11 to the revenue increase, due primarily to a 27 percent increase
in PrimeStar DBS subscribers since the end of first quarter 1997. Advertising
and equipment and installation revenues also contributed $11 to the increase in
domestic cable and broadband revenues. Core cable revenue per average cable
subscriber increased 7.4 percent to $39.17 in 1998, compared with $36.47 in the
first quarter of 1997. Excluding the one-time effects of cable system
acquisitions and dispositions and a change in classification of late fee
revenues, core cable revenue per average cable subscriber increased 8.3 percent.
<PAGE>
Form 10-Q - Part I
Item 2 Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
Prior to April 1, 1998, Media Group distributed PrimeStar DBS services to
subscribers in its service areas, and as a result, reflected consolidated
operating results with respect to such subscribers. Subsequent to April 1,
1998, in conjunction with the Prime Star Contribution, Media Group will no
longer reflect consolidated operating results for PrimeStar DBS services.
Wireless Communications. Cellular service revenues increased $15, or 5.0
percent, to $318 in 1998 due to a 22 percent increase in subscribers,
partially offset by a 15 percent decrease in average revenue per subscriber to
$40.46 per month.
On April 6, 1998, U S WEST sold its domestic wireless businesses to AirTouch in
a tax-efficient transaction.
Directory and Information Services. Revenues related to Yellow Pages directory
advertising represent 99 percent of domestic directory and information
services revenues. Yellow Pages directory advertising revenues increased
$20, or 7.0 percent, to $304. The increase is driven by a 5.8 percent increase
in revenue per local advertiser primarily resulting from price increases of
4.7 percent and an increase in volume and complexity of advertisements sold.
In conjunction with the proposed Separation, the domestic directory business
will be aligned with New U S WEST.
During 1997, Media Group sold its wholly
owned international directory and information services operations.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
<TABLE>
<CAPTION>
Operating Income
- --------------------------------------------------------------- -------------------------- --- ---------------------
Three Months Ended Increase
March 31, (Decrease)
-------------------------- ---------------------
1998 1997 $ %
- --------------------------------------------------------------- ------------ ------------- ------------- -----------
<S> <C> <C> <C> <C>
Communications Group $670 $644 $26 4.0
Media Group 145 178 (33) (18.5)
============ ============= ============= ===========
Total $815 $822 $(7) (0.9)
=============================================================== ============ ============= ============= ===========
Communications Group Operating Income
--------------------------------------------------------------------------------------------------------------------
hree Months Ended Increase
March 31, (Decrease)
-------------------------------------------------
1998 1997 $ %
------------------------------------------------------------------------------------------------------------------------------
Operating revenues $2,710 $2,587 $123 4.8
Operating expenses:
Employee-related expenses 938 864 74 8.6
Other operating expenses 481 445 36 8.1
Taxes other than income taxes 97 107 (10) (9.3)
Depreciation and amortization 524 527 (3) (0.6)
------------------------------------------------
Total operating expenses 2,040 1,943 97 5.0
------------------------------------------------
Operating income $670 $644 $26 4.0
===================================================================================================================
</TABLE>
During 1998, the Communications Group's operating income increased $26, or 4.0
percent, to $670. Revenue growth of $123, or 4.8 percent, was partially
offset by an increase of $97, or 5.0 percent, in operating costs, including
approximately $50 of expenses related to interconnection. Total operating
expense growth was primarily due to increases in employee-related costs and
other operating expenses.
Total employee-related expenses increased $74, or 8.6 percent, to $938 during
1998 primarily due to higher contract labor costs and increased salaries and
wages. The higher contract labor costs were predominately a result of systems
development work (which includes expenses related to interconnection and
year 2000 costs) and marketing and sales efforts. Higher salaries and wages
were a result of workforce increases and wage increases.
Other operating expenses increased $36, or 8.1 percent, to $481 during 1998.
The increase is primarily due to interconnection expenses of approximately
$30 and costs associated with growth initiatives (primarily PCS). Other
operating expenses also increased $19 due to the change
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
in the classification of the universal service funding expenses. Partially
offsetting the increases were reduced access expense (primarily due to
dial-around competition and the MTCPs) and a 1997 reserve adjustment associated
with billing and collection activities performed for IXCs.
Taxes other than income taxes decreased $10, or 9.3 percent, primarily as a
result of adjustments related to the 1997 property tax accrual.
<TABLE>
<CAPTION>
Media Group Operating Income
- -------------------------------------------------------- ------------------------------- ---------------------------
Three Months Ended Increase
March 31, (Decrease)
------------------------------- ---------------------------
1998 1997 $ %
- -------------------------------------------------------- --------------- --------------- ------------- -------------
<S> <C> <C> <C> <C>
Cable and broadband:
Domestic $(48) $(17) $(31) -
International (2) (4) 2 (50.0)
--------------- --------------- ------------- -------------
(50) (21) (29) -
Wireless communications:
Domestic 87 95 (8) (8.4)
International (3) (3) - -
--------------- --------------- ------------- -------------
84 92 (8) (8.7)
Directory and information services:
Domestic 143 130 13 10.0
International - (7) 7 -
--------------- --------------- ------------- -------------
143 123 20 16.3
Other (1) (32) (16) (16) -
--------------- --------------- ------------- -------------
Total operating income $145 $178 $(33) (18.5)
======================================================== =============== =============== ============= =============
</TABLE>
(1) Primarily includes headquarters expenses for shared services and
divisional expenses associated with equity investments.
During 1998, Media Group's operating income decreased $33, or 18.5 percent, to
$145. The decrease in operating income is primarily a result of an increase in
domestic cable and broadband operating losses.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
Cable and Broadband. Domestic cable and broadband operating losses increased
$31, to $48, as compared with 1997. Revenue increases of $67, or 12.1 percent,
to $619, were more than offset by increased programming costs of $22, or 17.3
percent, to $149, increases in operating, marketing and advertising, and general
and administrative costs of $30 or 15.0 percent, to $230, and increased
depreciation and amortization charges of $46, or 19.0 percent, to $288.
Programming cost increases were primarily a result of expanded channel
offerings and increased programming costs per subscriber as a result of
rate increases. Programming costs increased 13.4 percent excluding
programming costs related to PrimeStar services. Increases in operating,
marketing and advertising, and general and administrative costs are
primarily a function of an increase in employee costs primarily associated
with customer service initiatives, as well as costs associated with
deployment of new services such as high-speed data, and advertising costs.
The termination of the Minnesota System sale resulted in a one-time
increase to depreciation and amortization expense of $28 during 1998.
Depreciation and amortization expense was suspended on this property while
it was held for sale in 1997.
The domestic cable and broadband business will continue to generate
operating losses for the foreseeable future due to the amortization of
intangible assets associated with the acquisition of Media Group's cable
properties and depreciation associated with network upgrades.
Wireless Communications. Domestic cellular operating income decreased $8,
or 8.4 percent, to $87 during 1998. The decrease in operating income is
primarily a result of accelerated depreciation associated with the
replacement of certain infrastructure equipment. On a per subscriber basis,
revenue decreased 15.3 percent and the costs incurred to acquire and
support customers decreased 12.8 percent.
Directory and Information Services. Domestic Yellow Pages directory
advertising operating income increased $12, or 8.8 percent, to $149.
Revenue increases of $20, or 7.0 percent, were partially offset by
increases in the costs associated with selling more premium advertising,
primarily graphic arts design, and higher general operating costs,
including printing and paper costs. Operating losses associated with
on-going product development activities reduced domestic directory and
information services operating income by $6 in 1998, compared with a
reduction of $7 in 1997.
During 1997, Media Group sold its wholly owned international directory and
information services operations.
Other. Other operating losses increased primarily as a result of increased
corporate costs, including costs associated with international activities.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
<TABLE>
<CAPTION>
Interest Expense and Other
- -------------------------------------------------------------------------------------------------------------------
Three Months Ended Increase
March 31, (Decrease)
------------------------------------------------------
1998 1997 $ %
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Interest expense $(247) $(278) $(31) (11.2)
Equity losses in unconsolidated ventures (136) (165) (29) (17.6)
Gains on sales of investments 17 51 (34) (66.7)
Gain on sale of rural telephone exchanges - 18 (18) -
Guaranteed minority interest expense (22) (22) - -
Other expense - net (62) (26) 36 -
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
Interest Expense. Interest expense decreased $31, or 11.2 percent, due
primarily to lower debt levels at the Media Group during 1998 as compared with
1997.
Equity Losses in Unconsolidated Ventures. Equity losses decreased $29 in
1998. This decrease is comprised of a $41 decrease in international losses
offset by a $12 increase in domestic losses. The decrease in international
losses relates to foreign exchange rate improvements at Telewest
Communications, plc ("Telewest"); rapid subscriber growth experienced by
the central European wireless ventures located in Hungary, the Czech and
Slovak Republics, and Poland; and the absence of losses related to ventures
in Malaysia and Indonesia in the first quarter of 1998. In 1998, equity
method accounting was suspended on the Company's investments in Malaysia
and Indonesia in conjunction with a 1997 adjustment to write down the
carrying value of the investment in Malaysia to its fair value of zero and
to recognize probable funding commitments in connection with a shareholder
support agreement related to the investment in Indonesia.
The Company continues to monitor its investments in Malaysia and Indonesia.
During the first quarter of 1998, the Indonesian currency declined 55 percent
as compared with the U. S. dollar; whereas, the Malaysian currency recovered
slightly. The Company funded an additional $6 pursuant to the terms of the
Indonesian venture shareholder support agreement. After such funding the
Company's contractual funding commitment is reduced to $13 and its partners'
commitments remain at $36.
Domestically, the increase in losses is attributed to Media Group's interests
in PrimeCo, Time Warner Entertainment and Old PrimeStar. U S WEST's interest
in PrimeCo was transferred to AirTouch on April 6, 1998 pursuant to the
AirTouch Transaction, and U S WEST's interest in Old PrimeStar was exchanged
for an approximate 10 percent interest in PrimeStar on April 1, 1998.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
Gains on Sales of Investments. During 1998, Media Group sold a cable
programming investment resulting in a pretax gain of $17. During 1997, Media
Group sold its 5 percent interest in a wireless venture in France resulting in
a pretax gain of $51 and Communications Group sold certain rural telephone
exchanges in Nebraska resulting in a pretax gain of $18.
Other Expense - Net. Other expense increased primarily due to costs incurred by
U S WEST related to the proposed Separation totaling $49. Such costs
include the Minnesota System termination fee and settlement of related claims,
and certain filing and consulting fees as of March 31, 1998, to effect the
Separation. U S WEST will incur total Separation costs during 1998 of
approximately $175. Upon consummation of the Separation, certain Separation
costs will be netted against the gain realized upon distribution of the New
U S WEST common stock to U S WEST's shareowners. The Separation costs were
partially offset by decreased foreign exchange transaction losses associated
with loans to international ventures during the quarter.
Liquidity and Capital Resources
<TABLE>
<CAPTION>
Operating Activities
- ------------------------------------------------------------ -------------------------------------- ----------------
Three Months Ended
March 31, Decrease
-------------------------------------- ---------------
1998 1997 $
- ------------------------------------------------------------ --------------------- ---------------- ----------------
<S> <C> <C> <C>
Communications Group (1) $1,069 $1,097 $(28)
Media Group (1) 190 249 (59)
===================== ================ ================
Total cash provided by operating activities $1,259 $1,346 $(87)
============================================================ ===================== ================ ================
</TABLE>
(1) Individual group cash flow statements are provided in Note I -
Supplemental Communications Group and Media Group Combined Statements - to
the Consolidated Financial Statements.
The decrease in Communications Group's operating cash flow during 1998, as
compared with 1997, reflects a reduction in accounts payable largely offset
by business growth and lower tax payments and restructuring expenditures.
Operating cash flow at Media Group decreased primarily due to the timing of
interest payments as compared with 1997, a one-time payment for the
termination of the Minnesota System sale and increased tax payments. Such
decreases were partially offset by an increase in cash generated by
operations.
The Communications Group's operating cash flow during the second- and
third-quarters of 1998 will be affected by the payment of approximately $205 of
rate refunds and $25 of interest in the state of Washington. The rate refunds
are for revenues that were collected subject to refund (with interest) from
May 1, 1996 through January 31, 1998.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
<TABLE>
<CAPTION>
Investing Activities
- --------------------------------------------------------------------------------- ------------------------------
Three Months Ended
March 31,
------------------------------
1998 1997
- --------------------------------------------------------------------------------- --------------- --------------
<S> <C> <C>
Communications Group (1) $ 556 $ 400
Media Group (1) 419 1,408 (2)
=============== ==============
Total cash used for investing activities $ 975 $1,808
================================================================================= =============== ==============
</TABLE>
(1) Individual group cash flow statements are provided in Note I -
Supplemental Communications Group and Media Group Combined Statements - to the
Consolidated Financial Statements.
(2) 1997 Media Group investing activities include the cash portion of the
Continental Cablevision, Inc. ("Continental") acquisition of $1,150 paid by
Media Group during 1997 to the Continental shareowners.
Total capital expenditures, on a cash basis, were $918 during first-quarter
1998. On a cash basis, Communications Group capital expenditures were $557 and
Media Group capital expenditures were $361 during 1998. The majority of the
Communications Group's capital expenditures related to access line growth and
continued improvement of the telecommunications network. Expenditures
associated with entering wireless communications markets and meeting the
Telecommunications Act requirements including interconnection and local number
portability also impacted capital expenditures. The majority of Media Group
capital expenditures in 1998 were devoted to upgrading the domestic cable
network and preparing for the provision of new and enhanced services. Media
Group anticipates capital expenditures will accelerate during the remainder of
1998.
Investing activities include Media Group's investments in international
ventures of $45, primarily capital contributions to a cable investment in
Belgium, and the Company's investments in domestic ventures of $117. The
investments in domestic ventures include Media Group's capital contributions to
PrimeCo of $64 and the purchase of various cable investments totaling $35, and
Communications Group's purchase of PCS licenses in connection with its launch
of PCS service in various markets of $18. Media Group also sold various cable
investments during 1998, resulting in proceeds of $71.
On March 29, 1998, Telewest announced that merger discussions were underway
for Telewest to acquire General Cable plc ("General Cable"). On April 15,
1998, the boards of Telewest and General Cable announced agreement on the
proposed merger terms for Telewest to acquire General Cable for Telewest shares
and cash ("Merger Offer"). General Cable shareholders will receive 1.243 new
Telewest shares and 65 pence in cash for each General Cable share (or an
aggregate of approximately L409 million in Telewest shares and L240 million
in cash). Telewest intends to raise the cash portion of the purchase price
through a rights offering to Telewest's existing shareholders
("Pre-emptive Issue"), including Media Group. Media Group and certain
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
of Telewest's other principal shareholders have agreed to purchase any
Telewest shares not purchased by Telewest's other shareholders in the
rights offering.
The Merger Offer and Pre-emptive Issue are conditional on the approval of
Telewest's shareholders. A 40 percent shareholder of General Cable has agreed
to irrevocably accept the Merger Offer. There can be no assurance that any
transaction involving the acquisition of General Cable will be consummated.
<TABLE>
<CAPTION>
Financing Activities
- --------------------------------------------- -------------------------------- -------------------------------------
Three Months Ended
March 31,
-------------------------------------
1998 1997
- ------------------------------------------------------------------------------ ------------------- -----------------
<S> <C> <C>
Communications Group (1) $(167) $ (696)
Media Group (1) 193 1,121
=================== =================
Total cash provided by financing activities $ 26 $ 425
============================================================================== =================== =================
</TABLE>
(1) Individual group cash flow statements are provided in Note I -
Supplemental Communications Group and Media Group Combined Statements - to the
Consolidated Financial Statements.
Dividends
U S WEST paid dividends on the Communications Stock totaling $259 and $237
during the three months ended March 31, 1998 and 1997, respectively.
Debt Activity
Total debt at March 31, 1998 was $15,060, an increase of $382 compared with
December 31, 1997. Including debt associated with the capital assets segment of
$364 and Preferred Securities of $1,080, total indebtedness at March 31, 1998
was $16,504. Excluding debt associated with the capital assets segment, the
Company's percentage of debt to total capital at March 31, 1998, was 54.6
percent compared with 54.0 percent at December 31, 1997. Including debt
associated with the capital assets segment, Preferred Securities and
mandatorily redeemable preferred stock, the Company's percentage of debt to
total capital at March 31, 1998, was 59.4 percent compared with 58.9 percent at
December 31, 1997.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
U S WEST Communications and New U S WEST Credit Ratings
During the first quarter of 1998, Moody's downgraded U S WEST Communications'
senior unsecured debt from Aa3 to A2 due to recent regulatory rulings and
financial challenges associated with the Separation. See "Contingencies."
U S WEST Communications' debt remains under review by Moody's for possible
downgrade pending clarification of New U S WEST's corporate structure and
future strategic initiatives.
On May 7, 1998, Duff & Phelps reaffirmed U S WEST Communications' senior
unsecured debt and commercial paper ratings of AA- and D-1+, respectively.
In addition, Duff & Phelps announced that the credit ratings to be assigned
to the senior unsecured debt and commercial paper of Capital Funding
following the consummation of the Separation will be A and D-1,
respectively.
MediaOne Credit Ratings
On May 7, 1998, Duff & Phelps announced MediaOne Funding's senior unsecured
indebtedness will be rated BBB, its commercial paper will be rated D-2,
and MediaOne's Preferred Securities will be rated BBB-. In addition,
MediaOne Delaware's senior indebtedness will be assigned a rating of BBB.
Other
U S WEST from time to time engages in preliminary discussions regarding
restructurings, dispositions and other similar transactions. Any such
transaction may include, among other things, the transfer of certain assets,
businesses or interests, or the incurrence or assumption of indebtedness, and
could be material to the financial condition and results of operations of
U S WEST. There is no assurance that any such discussions will result in the
consummation of any such transaction.
Risk Management
In conjunction with the AirTouch Transaction, Media Group received $1.65
billion in liquidation preference of dividend bearing AirTouch preferred stock
and 59.5 million shares of AirTouch common stock. As of April 30, 1998, the
market value of the AirTouch common stock was approximately $3.2 billion and
the market value of the preferred stock was approximately $1.5 billion.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
Equity-Price Risk Management. Media Group is exposed to market risks associated
with fluctuations in the price of the AirTouch common securities. A
hypothetical 10 percent increase in the price of AirTouch common stock would
increase the market value of Media Group's investment in AirTouch common stock
by approximately $320.
Interest Rate Risk Management. The market value of the AirTouch preferred
stock is exposed to market risks associated with fluctuations in interest
rates. U S WEST has reduced its exposure to fluctuations in the market
value of the AirTouch preferred stock by entering into an interest rate
swap which locks in the treasury rate component of the market value of the
AirTouch preferred stock. As a result, a hypothetical 25 basis point change
in interest rates would not have a material effect on the combined market
value of the AirTouch preferred stock and the interest rate swap.
Effects of the Separation, the Refinancing and the AirTouch Transaction
In connection with the Separation, New U S WEST and MediaOne are seeking to
refinance substantially all of the U S WEST Indebtedness through a combination
of tender offers, prepayments, defeasance, consent solicitations and/or
exchange offers.
At March 31, 1998, prior to giving effect to the AirTouch Transaction, U S
WEST and its subsidiaries (including U S WEST's capital assets segment) had
outstanding approximately $16.5 billion of indebtedness. Such indebtedness
consists of approximately $8.1 billion of U S WEST Indebtedness, $5.5
billion of U S WEST Communications indebtedness, $2.7 billion of MediaOne
Delaware indebtedness and $200 million of Financial Services indebtedness.
The approximate $8.1 billion of U S WEST Indebtedness includes $5.4 billion
of medium and long-term debt securities, $1.1 billion of commercial paper,
$500 million of other indebtedness and $1.08 billion of Preferred
Securities.
As part of the Refinancing, the Company is offering the holders of
Preferred Securities the right to exchange their Preferred Securities for
an equal amount of new preferred securities guaranteed by MediaOne or cash.
Also as part of the Refinancing, the Company is making offers to purchase
for cash $5.2 billion of medium and long-term debt securities. Any
securities not tendered pursuant to the Cash Tender Offer will be assumed
by MediaOne, although U S WEST may determine to defease certain of such
securities in lieu of assumption. In addition, U S WEST will prepay certain
other U S WEST Indebtedness pursuant to the Refinancing.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
As of April 30, 1998, the estimated cost of the Refinancing is $339 (net of
income tax benefits of $226) which includes approximately $278 (net of
income tax benefits of $186) of debt extinguishment costs. In addition to
refinancing costs, such costs include the difference between the market and
fair value of the U S WEST Indebtedness and a charge for unamortized debt
issuance costs. Refinancing costs also include $48 (net of income tax
benefits of $32) related to the Exchange Offer. Such costs will reduce
MediaOne equity and earnings available for common stock.
Consummation of the Exchange Offer and the Cash Tender Offer is subject to
certain conditions, including the approval of the Separation by U S WEST's
shareowners.
After the Separation and related Refinancing, New U S WEST will have
approximately $9.9 billion of debt, which will include $5.5 billion of
U S WEST Communications indebtedness and $4.4 billion of U S WEST Indebtedness
which includes the effects of the Refinancing (which includes the Dex
Indebtedness) and the funding of certain costs of the Separation. During the
second-quarter of 1998, New U S WEST's operating cash flow will be affected by
the payment of its allocated share of Separation costs, estimated at $45
(after-tax). In addition, New U S WEST will pay to MediaOne approximately $122
for its allocated, after-tax share of Refinancing costs. New U S WEST, through
its financing subsidiary Capital Funding, will initially finance the repurchase
or repayment of U S WEST Indebtedness with commercial paper. Following
consummation of the Separation, New U S WEST will issue medium and long-term
securities to refinance a portion of the commercial paper.
After the Separation and related Refinancing and after giving effect to the
AirTouch Transaction, MediaOne will have approximately $5.4 billion of debt
and preferred securities, which will include $2.7 billion of MediaOne
Delaware indebtedness and $2.7 billion of debt and preferred securities
issued or guaranteed by MediaOne, which includes new debt incurred by
MediaOne Funding to refinance a portion of the U S WEST Indebtedness. It is
anticipated that such new debt will be a combination of commercial paper
and commercial bank debt. In addition, the capital assets segment, which
will remain with MediaOne, will have approximately $400 million of
indebtedness. MediaOne Funding's bank debt will include certain additional
terms and covenants which are generally included in the bank indebtedness
of cable companies. In addition, any senior indebtedness issued by MediaOne
Funding after the Separation will be guaranteed by MediaOne Delaware and,
as a result, will rank pari passu with MediaOne Delaware's senior
indebtedness. To the extent the Preferred Securities are tendered for cash
pursuant to the Exchange Offers, it is anticipated that MediaOne will issue
additional preferred securities following the Separation so that it will
have approximately $1 billion of preferred securities outstanding.
Following the Separation, MediaOne intends to monetize the AirTouch securities
it received in the AirTouch Transaction and use a portion of the proceeds to
reduce its commercial paper and commercial bank debt.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollars in millions), continued
U S WEST, after consultation with and based upon the advice of its financial
advisors, believes that New U S WEST and MediaOne have sufficient financing
capability to accomplish the refinancings described above.
In May 1998, New U S WEST and MediaOne entered into revolving bank credit
facilities to support their commercial paper programs and, in the case of
MediaOne, to provide financing in conjunction with the Refinancing. New U S
WEST's credit facility totals $4.5 billion; $3.5 billion matures in one year
and $1.0 billion matures in five years. MediaOne's credit facility totals $4.0
billion; $2.0 billion matures in one year and $2.0 billion matures in five
years.
Contingencies
Communications Group Contingencies
At U S WEST Communications there are pending regulatory actions in local
regulatory jurisdictions that call for price decreases, refunds or both.
Oregon. On May 1, 1996, the OPUC approved a stipulation terminating
prematurely U S WEST Communications' AFOR plan, and it then undertook a
review of U S WEST Communications' earnings. In May 1997, the OPUC ordered
U S WEST Communications 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. The one-time refund is for interim rates which
became subject to refund when U S WEST Communications' AFOR plan was
terminated on May 1, 1996.
U S WEST Communications filed an appeal of the order and asked for an
immediate stay of the refund with the Oregon Circuit Court which granted U
S WEST Communications' request for a stay, pending a full review of the
OPUC's order. On February 19, 1998, the Oregon Circuit Court entered a
judgment in U S WEST Communications' favor on most of the appealed issues.
The OPUC appealed on March 19, 1998. The potential exposure, including
interest, at March 31, 1998, is not expected to exceed $210.
Utah. In another proceeding, the Utah Supreme Court has remanded a UPSC
order to the UPSC for hearing, thereby establishing two exceptions to the
rule against retroactive ratemaking: 1) unforeseen and extraordinary
events, and 2) misconduct. The UPSC's initial order denied a refund request
from interexchange carriers and other parties related to the Tax Reform Act
of 1986. The potential exposure, including interest, at March 31, 1998, is
not expected to exceed $160.
<PAGE>
Form 10-Q - Part I
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Dollars in millions), continued
State Regulatory Accruals. U S WEST Communications has accrued $148 at
March 31, 1998, which represents its estimated liability for all state
regulatory proceedings, predominately the items discussed above. It is possible
that the ultimate liability could exceed the recorded liability by an amount up
to approximately $220. U S WEST Communications will continue to monitor and
evaluate the risks associated with its local regulatory jurisdictions, and
will adjust estimates as new information becomes available.
In addition to its estimated liability for state regulatory proceedings,
U S WEST Communications has an accrued liability of approximately $230 at
March 31, 1998 related to refunds in the state of Washington. The Company
expects that the majority of these refunds will be issued to rate payers, IXCs
and independent LECs during the second- and third-quarters of 1998.
New Accounting Standards
SOP 98-5, "Reporting on the Costs of Start-Up Activities," was issued in
April 1998. SOP 98-5 requires, among other things, that the costs related to
start-up activities of a new entity, facility, product or service be expensed.
Adoption of SOP 98-5 is required as of January 1, 1999, but earlier adoption
is allowed. The effect of adopting SOP 98-5 is under evaluation.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Reference is made to the information set forth on pages 39 and 40.
<PAGE>
Form 10-Q - Part II
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
U S WEST and its subsidiaries are subject to claims and proceedings arising in
the ordinary course of business. While complete assurance cannot be given as to
the outcome of any contingent liabilities, in the opinion of U S WEST, any
financial impact to which U S WEST and its subsidiaries are subject is not
expected to be material in amount to U S WEST's operating results or its
financial position.
Item 6. Exhibits and Reports on Form 8-K
<TABLE>
<CAPTION>
(a) Exhibits
<S> <C>
Exhibit Number 10a. 364-Day Credit Agreement dated May 8, 1998, among
MediaOne Group Funding, Inc., U S WEST, Inc., the Banks listed therein and
Morgan Guaranty Trust Company of New York, as Administrative Agent. 10b.
Five-Year Credit Agreement dated May 8, 1998, among MediaOne Group Funding,
Inc., U S WEST, Inc., the Banks listed therein and Morgan Guaranty Trust
Company of New York, as Administrative Agent. 10c. 364-Day Credit Agreement
dated May 8, 1998, among U S WEST Capital Funding, Inc., U S WEST, Inc.,
USW-C, Inc., the Banks listed therein and Morgan Guaranty Trust Company of
New York, as Administrative Agent. 10d. Five-Year Credit Agreement dated
May 8, 1998, among U S WEST Capital Funding, Inc., U S WEST, Inc., USW-C,
Inc., the Banks listed therein and Morgan Guaranty Trust Company of New
York, as Administrative Agent. 12. Statement regarding computation of
earnings to fixed charges ratio of U S WEST, Inc. and U S WEST Financial
Services, Inc. 27. Financial Data Schedule.
</TABLE>
<TABLE>
<CAPTION>
(b) Reports on Form 8-K filed during the First Quarter of 1998
<S> <C>
(i) Form 8-K report dated January 29, 1998, regarding a press release with respect to a merger
agreement between AirTouch and U S WEST Media Group.
(ii) Form 8-K report dated February 6, 1998, concerning the release of earnings for the year ended
December 31, 1997, and
(iii) Form 8-K report dated March 25, 1998, concerning Unaudited Pro Forma Condensed Combined
Financial Statements of U S WEST, Inc.
</TABLE>
<PAGE>
SIGNATURES
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.
May 15, 1998 U S WEST, INC.
/s/ Michael P. Glinksy
---------------------------
Michael P. Glinsky
Executive Vice President and
Chief Financial Officer
EXHIBIT 10a.
$2,000,000,000
364-DAY
CREDIT AGREEMENT
dated as of
May 8, 1998
among
MediaOne Group Funding, Inc.
U S WEST, Inc.
(to be renamed MediaOne Group, Inc.)
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
J.P. Morgan Securities Inc.
Lead Arranger
The Bank of New York,
Citicorp Securities, Inc. and
NationsBank, N.A.,
Co-Syndication Agents
<PAGE>
TABLE OF CONTENTS
----------------------
ARTICLE 1
DEFINITIONS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 1.01. The Definitions..................................................................1
SECTION 1.02. Accounting Terms and Determinations.............................................13
SECTION 1.03. Types of Borrowings.............................................................13
</TABLE>
ARTICLE 2
THE CREDITS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 2.01. Commitments to Lend.............................................................14
SECTION 2.02. Notice of Committed Borrowing...................................................16
SECTION 2.03. Money Market Borrowings.........................................................16
SECTION 2.04. Notice to Banks; Funding of Loans...............................................20
SECTION 2.05. Notes...........................................................................21
SECTION 2.06. Maturity of Loans...............................................................22
SECTION 2.07. Interest Rates..................................................................22
SECTION 2.08. Facility Fees...................................................................24
SECTION 2.09. Termination or Reduction of Commitments.........................................25
SECTION 2.10. Method of Electing Interest Rates...............................................25
SECTION 2.11. Prepayments....................................................................27
SECTION 2.12. General Provisions as to Payments...............................................27
SECTION 2.13. Funding Losses..................................................................28
SECTION 2.14. Computation of Interest and Fees................................................28
</TABLE>
ARTICLE 3
CONDITIONS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 3.01. Closing.........................................................................29
SECTION 3.02. All Borrowings..................................................................30
SECTION 3.03. Loans after Separation..........................................................30
</TABLE>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 4.01. Corporate Existence and Power...................................................31
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.........................................................................31
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 4.03. Binding Effect..................................................................31
SECTION 4.04. Financial Information...........................................................31
SECTION 4.05. Litigation......................................................................32
SECTION 4.06. Compliance with ERISA...........................................................32
SECTION 4.07. Environmental Matters...........................................................32
SECTION 4.08. Taxes...........................................................................33
SECTION 4.09. Subsidiaries....................................................................33
SECTION 4.10. Not an Investment Company.......................................................34
SECTION 4.11. Full Disclosure.................................................................34
</TABLE>
ARTICLE 5
COVENANTS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 5.01. Information.....................................................................34
SECTION 5.02. Maintenance of Property; Insurance..............................................36
SECTION 5.03. Maintenance of Existence........................................................36
SECTION 5.04. Compliance with Laws............................................................37
SECTION 5.05. Inspection of Property, Books and Records.......................................37
SECTION 5.06. Subsidiary Debt; Fixed Charge Coverage..........................................37
SECTION 5.07. Debt Coverage; Minimum EBITDA...................................................38
SECTION 5.08. Negative Pledge.................................................................38
SECTION 5.09. Consolidations, Mergers and Sales of Assets.....................................40
SECTION 5.10. Use of Proceeds.................................................................41
SECTION 5.11. Year 2000 Compatibility.........................................................41
</TABLE>
<TABLE>
<CAPTION>
ARTICLE 6
DEFAULTS
<S> <C> <C> <C>
SECTION 6.01. Events of Default...............................................................41
SECTION 6.02. Notice of Default...............................................................44
</TABLE>
ARTICLE 7
THE AGENT
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 7.01. Appointment and Authorization...................................................44
SECTION 7.02. Agent and Affiliates............................................................44
SECTION 7.03. Action by Agent.................................................................45
SECTION 7.04. Consultation with Experts.......................................................45
SECTION 7.05. Liability of Agent..............................................................45
SECTION 7.06. Indemnification.................................................................45
SECTION 7.07. Credit Decision.................................................................46
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 7.08. Successor Agent.................................................................46
SECTION 7.09. Agent's Fee.....................................................................46
</TABLE>
ARTICLE 8
CHANGES IN CIRCUMSTANCES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................46
SECTION 8.02. Illegality......................................................................47
SECTION 8.03. Increased Cost and Reduced Return...............................................48
SECTION 8.04. Taxes...........................................................................49
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans.................................................................................51
SECTION 8.06. Substitution of Bank............................................................51
</TABLE>
ARTICLE 9
GUARANTY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 9.01. The Guaranty....................................................................52
SECTION 9.02. Guaranty Unconditional..........................................................52
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances.................................................................53
SECTION 9.04. Waiver by the Company...........................................................53
SECTION 9.05. Subrogation.....................................................................53
SECTION 9.06. Stay of Acceleration............................................................53
</TABLE>
ARTICLE 10
MISCELLANEOUS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
SECTION 10.01. Notices........................................................................54
SECTION 10.02. No Waivers.....................................................................54
SECTION 10.03. Expenses; Indemnification......................................................54
SECTION 10.04. Sharing of Set-offs............................................................55
SECTION 10.05. Amendments and Waivers.........................................................56
SECTION 10.06. Successors and Assigns........................................................56
SECTION 10.07. Termination of Existing Credit Agreements......................................58
SECTION 10.08. Governing Law; Submission to Jurisdiction......................................58
SECTION 10.09. Counterparts; Integration; Effectiveness.......................................58
SECTION 10.10. WAIVER OF JURY TRIAL...........................................................59
SECTION 10.11. Confidentiality................................................................59
</TABLE>
<PAGE>
Pricing Schedule
Schedule 4.07 - Environmental Matters
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company, MediaOne of
Delaware, Inc. and the Borrower
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
Exhibit I - Form of MediaOne Delaware Guaranty
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 8, 1998 among MediaOne Group Funding, Inc., U
S WEST, Inc. (to be renamed MediaOne Group, 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).
<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 MediaOne Group Funding, Inc., a Colorado
corporation, and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a
majority of the board of directors of the Company. The Separation shall not
constitute a Change of Control.
"Closing Date" means the date on or after the Effective Date on which
the Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09 and 2.11.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01(a); provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Committed Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
<PAGE>
"Company" means U S WEST, Inc., a Delaware corporation (to be
renamed MediaOne Group, Inc. after the Separation), and its successors.
"Company's 1997 Form 10-K" means U S WEST, Inc.'s annual report on Form
10-K for 1997, as amended by Form 10-K/A filed April 13, 1998, in each case as
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis for
such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"Consolidated Fixed Charges" means, for any period, the sum, determined
without duplication, of (i) interest expense of the Company and its Consolidated
Subsidiaries (reduced by the amount of cash dividends on preferred stock of
AirTouch Communications, Inc. (or its successors) received by the Company and
its Consolidated Subsidiaries, to the extent such interest expense is incurred
in respect of Debt, payments on which may be contingent upon receipt of such
dividends or which is secured in whole or in part by such preferred stock) and
(ii) dividends paid on preferred stock issued by the Company and its
Consolidated Subsidiaries, all determined on a consolidated basis for such
period.
"Consolidated Net Worth" means at any date the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business,
<PAGE>
(iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(w) Debt (i) (A) of a Minor Subsidiary, or (B) which is
secured by a Lien on the assets or capital stock of a Minor Subsidiary
or the equity interests in a Person which is not a Consolidated
Subsidiary, which Debt or Lien is incurred in connection with the
international 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 which is not a Minor Subsidiary;
(x) Debt of the Company or the Borrower issued in connection
with the issuance of Trust Originated Preferred Securities or
substantially similar securities, so long as such Debt is subordinated
and junior in right of payment to substantially all liabilities of the
Company or the Borrower, as the case may be, including, without
limitation, the Loans;
(y) Debt of the Company or the Borrower consisting of
Mandatorily Exchangeable Debt Securities or substantially similar
securities, so long as (i) such Debt is subordinated and junior in
right of payment to substantially all liabilities of the Company or the
Borrower, as the case may be, including, without limitation, the Loans,
and (ii) upon maturity or exchange prior to maturity the obligations of
the Company or the Borrower, as the case may be, will be satisfied
solely by the delivery of capital stock of the Company, AirTouch
Communications, Inc., Financial Security Assurance Holdings Ltd., or
Enhance Financial Services Group Inc. (or their respective successors);
and
(z) Debt incurred (i) in connection with discontinued
operations outstanding on the date of this Agreement in an aggregate
principal amount not exceeding $200,000,000 and (ii) for the payment of
which no recourse may be had to continuing operations of the Company
and its Subsidiaries.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
<PAGE>
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"Domestic Loan" means (i) a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article 8 or (ii) an overdue amount
which was a Domestic Loan immediately before it became overdue.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 10.09.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
<PAGE>
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan before it became overdue.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07 on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of The
Bank of New York, Citibank, 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 Credit
Agreements dated as of October 31, 1997, among the Borrower, the Company, the
banks listed on the signature pages thereof and Morgan Guaranty Trust Company of
New York, as administrative agent.
"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.
<PAGE>
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Domestic Loans at such time or (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time;
provided that, if a Committed Loan of any particular Bank is converted to or
made as a Domestic Loan pursuant to Section 8.02 or 8.05, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guaranty" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 10.03(b).
"Indentures" means the agreements or instruments evidencing the
following Debt of Continental Cablevision, Inc., and its successors: (i) the 11%
Senior Subordinated Debentures Due June 1, 2007; (ii) the 8 5/8% Senior Notes
Due August 15, 2003; (iii) the 9% Senior Debentures Due September 1, 2008; (iv)
the 8 7/8% Senior Debentures Due September 15, 2002; (v) the 9 1/2% Senior
Debentures Due August 1, 2013; (vi) the 8 1/2% Senior Notes Due September 15,
2001; (vii) the 8.3% Senior Notes Due May 15, 2006; and (viii) any other Debt
containing terms and conditions as or more favorable to the holders thereof than
the terms and conditions of any of the foregoing Debt.
<PAGE>
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, a
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the 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
<PAGE>
(c) any Interest Period beginning prior to a Termination Date
which would otherwise end after a Termination Date shall end on such
Termination Date.
(3) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the 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.
<PAGE>
"Material Debt" means Debt (other than the Notes) of the Company and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $75,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $75,000,000.
"MediaOne Delaware Guaranty" shall mean a Guaranty of MediaOne of
Delaware, Inc., substantially in the form of Exhibit I hereto.
"Minor Subsidiary" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) each
of U S WEST International Holdings, Inc. (to be renamed MediaOne International
Holdings, Inc.) and its Subsidiaries, but only if such Person is engaged only in
operations outside the United States, and (ii) any other Subsidiary which, at
the time of the issuance of a Guaranty or grant of a Lien referred to in the
Relevant Provisions, had assets which, when taken together with all assets of
Subsidiaries at any earlier time when such Subsidiaries were deemed to be Minor
Subsidiaries pursuant to this clause (ii), did not exceed $250,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
<PAGE>
"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 the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" 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.
"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.
<PAGE>
"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.
"Proxy Statement" means the definitive Proxy Statement for 1998 Annual
Meeting of Stockholders of U S WEST, Inc., dated and filed with the Securities
and Exchange Commission on April 20, 1998.
"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.
"Separation" has the meaning set forth in the Proxy Statement.
"Significant Subsidiary" means any Subsidiary which would meet the
definition of "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Super-Majority Banks" means at any time Banks having at least 85% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 85% of the aggregate unpaid
principal amount of the Loans.
"Termination Date" means, with respect to each Bank, May 7, 1999, 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
<PAGE>
PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market value
of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Domestic Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement 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
<PAGE>
Section 2.01(a) in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing under Section 2.03
in which the Bank participants are determined on the basis of their bids in
accordance therewith).
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 the 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 to the Borrower shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this 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
of the Banks of such request. Each Bank will use its best efforts to respond to
such request, whether affirmatively or negatively, as it may elect in its
discretion, within 30 days of such notice to the Agent. If any Bank shall not
have responded affirmatively within such 30-day period, such Bank shall be
deemed to have rejected the Company's proposal to extend its Commitment, and
only the Commitments of those Banks which have responded affirmatively shall be
extended, subject to receipt by the Agent of counterparts of an Extension
Agreement in substantially the form of Exhibit H hereto duly completed and
signed by the Borrower, the Company, the Agent and all of the Banks which have
<PAGE>
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 Borrower 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 (unless the Commitments shall have been reduced pursuant to Section
2.09(b)), 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
Borrower and such Bank or other Person of an instrument of assumption in form
and amount satisfactory to the Administrative Agent, such existing Bank shall
have a Commitment as therein set forth or such other Person shall become a Bank
with a Commitment as therein set forth and all the rights and obligations of a
Bank with such a Commitment hereunder; provided that (i) the Company shall
provide prompt notice of such increase to the Agent, which shall promptly notify
the other Banks, (ii) the aggregate amount of each such increase which is
effective on any day shall be at least $50,000,000 and (iii) the aggregate
amount of the Commitments shall at no time exceed $2,250,000,000. 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 Borrower shall prepay such Group in its entirety, and, to the extent the
Borrower elects to do so and subject to the conditions specified in Article 3,
the 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 the Borrower on the
Termination Date in amounts such that the aggregate principal amount of such
Bank's outstanding Loans to the Borrower at the close of business on the
Termination Date shall not exceed its Commitment. Each Borrowing under this
<PAGE>
subsection (d) shall be made from the several Banks ratably in proportion to
their respective Commitments. Amounts prepaid pursuant to Section 2.11 shall not
be reborrowed. If less than all the Banks shall have agreed to extend the
Termination Date pursuant to subsection (b) above, but the Termination Date for
those Banks which have not so agreed has not yet occurred (the "Earlier Date"),
and the Borrower has requested a Borrowing pursuant to this subsection (d), then
such Borrowing shall be made on the Earlier Date.
SECTION 2.02. Notice of Committed Borrowing. The 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
(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), the 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 the Borrower. The Banks may,
but shall have no obligation to, make such offers and the 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 the 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
<PAGE>
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.
The 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.
(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
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
<PAGE>
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 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 the 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 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:
<PAGE>
(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 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 correct a manifest error in
such former Money Market Quote. The Agent's notice to the 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 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
<PAGE>
accepted. The 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) the 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
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.
<PAGE>
(c) If any Bank makes a new Loan hereunder to the Borrower on a day on
which the Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by the Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, 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
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. If the Borrower shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Borrower for
any loss on account thereof incurred by the Borrower.
SECTION 2.05. Notes. (a) The Loans of each Bank to the Borrower shall
be evidenced by a single Note of the Borrower payable to the order of such Bank
for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of
<PAGE>
such Bank shall be deemed to refer to and include any or all of such Notes, as
the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.06. 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 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.
<PAGE>
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar
<PAGE>
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.
(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 Commitments (whether used or unused) and
(ii)
<PAGE>
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. (a) 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.
(b) If the Separation has not been consummated on or before November
8, 1998, the Commitments shall be ratably reduced by 50% on the next succeeding
Domestic Business Day.
(c) On each date of incurrence by the Company or any of its
Subsidiaries of any Debt or other obligations secured by Liens on capital stock
of AirTouch Communications, Inc., the Commitments shall be ratably reduced by
the 364-Day Percentage of 75% of the Net Cash Proceeds of such Debt or other
obligations, but only until the Aggregate Commitments equal $2,000,000,000. For
purposes of this subsection (c), "Net Cash Proceeds" means, in each case as set
forth in reasonable detail in a statement delivered to the Agent, the gross cash
proceeds received less all discounts, commissions and legal and other customary
third-party expenses incurred in connection with the transaction giving rise to
such proceeds; "364-Day Percentage" means the percentage equivalent of a
fraction, the numerator of which is the Commitments and the denominator of which
is the sum of the Commitments and the commitments (the "Five-Year Commitments")
under the Five-Year Credit Agreement dated as of the date hereof among the
Borrower and the other parties named therein (as the same may be amended from
time to time); and "Aggregate Commitments" means the sum of the Commitments and
the Five-Year Commitments.
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 Borrower in the applicable Notice of Committed Borrowing.
<PAGE>
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective. A Notice
of Interest Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i)
such portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the remaining portion to which it
does not apply, are each $25,000,000 or any larger multiple of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
<PAGE>
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.11. Prepayments.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the
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, the Borrower may not
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(b) or (c), the Borrower 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, and (ii) the aggregate unpaid principal amount of all outstanding
Loans does not exceed the aggregate amount of the Commitments as then reduced.
Any such prepayment shall be made in accordance with all applicable provisions
of this Agreement (including without limitation subsections (a) (other than as
to amount), (b) and (c) of this Section 2.11).
<PAGE>
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees and
other amounts payable hereunder, not later than 12:00 Noon (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, without off set or counterclaim, to the Agent at its address referred
to in Section 10.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees or other amounts payable hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due from the Borrower to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the 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 than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.07(c), or if the
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), 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
<PAGE>
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).
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon receipt
by the Agent of the following (in the case of any document, dated the Closing
Date unless otherwise indicated):
(a) a duly executed Note of the Borrower for the account of each Bank
dated on or before the Closing Date complying with the provisions of Section
2.05;
(b) an opinion of Stephen E. Brilz, Esq., counsel for the Company and
the Borrower, 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;
<PAGE>
(e) a duly executed MediaOne Delaware Guaranty;
(f) 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
(g) all documents the Agent may reasonably request relating to the
existence of the Company, the Borrower and MediaOne of Delaware, Inc., the
corporate authority for and the validity of this Agreement, the Notes and the
MediaOne Delaware Guaranty, and any other matters relevant hereto, all in form
and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. All Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or prior
to May 30, 1998;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of such Borrowing
(except, in the case of the representations and warranties contained in
Section 4.04(b), but only if neither Level V Status nor Level VI Status
(as defined in the Pricing Schedule) exists on the date of such
Borrowing, as disclosed by the Borrower to the Banks in writing in the
Notice of Borrowing relating to such Borrowing).
<PAGE>
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 Separation. The obligation of any Bank to
make or maintain a Loan after the Separation is subject to receipt by the Agent
of evidence satisfactory to it that the Separation has been consummated
substantially on the terms described in the Proxy Statement. The Agent shall
promptly notify the Company and the Banks of the satisfaction of the foregoing
condition.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company and the
Borrower of this Agreement, by the Borrower of the Notes and by MediaOne of
Delaware, Inc. of the MediaOne Delaware Guaranty are within such Person's
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of such Person or of any agreement, judgment, injunction, order,
decree or other instrument binding upon such Person or any Significant
Subsidiary or result in the creation or imposition of any Lien on any material
asset of such Person or any Significant Subsidiary.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower, and the MediaOne Delaware Guaranty constitutes a
valid and binding agreement of MediaOne of Delaware, Inc., in each case
enforceable in accordance with its terms except as the same may be limited
<PAGE>
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, 1997 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 1997 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, 1997 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 Separation shall not be considered such a change).
SECTION 4.05. Litigation. Except as disclosed in the Company's 1997
Form 10-K, 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, the MediaOne Delaware Guaranty or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or
<PAGE>
(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, (i) none of
the Company, any of its Subsidiaries or any of their present property or
operations are subject to any outstanding written order from or settlement or
consent agreement with any governmental authority or other Person, nor is any of
the foregoing subject to any judicial or docketed administrative proceedings,
respecting any Environmental Laws or Hazardous Substances with a potential
liability in excess of $1,000,000 and (ii) there are no other conditions or
circumstances known to the Company which may give rise to any claims respecting
any Environmental Laws arising from the operations of the Company or its
Subsidiaries (including, without limitation, off-site liabilities), or any
additional costs of compliance with Environmental Laws, that would reasonably be
expected to have a material adverse effect on the financial position or results
of operations of the Company and its Subsidiaries, considered as a whole.
SECTION 4.08. 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.
<PAGE>
SECTION 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrower and MediaOne of
Delaware, Inc.) is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
qualifications, consents and approvals required to carry on its business as now
conducted.
SECTION 4.10. Not an Investment Company. None of the Company, the
Borrower or MediaOne of Delaware, Inc. is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Arthur Andersen L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for
<PAGE>
such quarter and for the portion of the Company's fiscal year ended at the end
of such quarter, setting forth in the case of such statements of income and cash
flows in comparative form the figures for the corresponding quarter and the
corresponding portion of the Company's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief financial
officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to
<PAGE>
be given to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name), with financially sound and responsible
insurance companies, insurance on all their respective properties in at least
such amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Banks,
upon request from the Agent, information presented in reasonable detail as to
the insurance so carried; provided that, in lieu of any such insurance, the
Company and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
<PAGE>
SECTION 5.03. Maintenance of Existence. The Company will, and will
cause each Significant Subsidiary to, preserve, renew and keep in full force and
effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.03 shall prohibit or interfere
with the Company's publicly announced strategy to discontinue or dispose of in
one or more transactions the financial services businesses of it or of any of
its Subsidiaries.
SECTION 5.04. Compliance with Laws. The Company will comply, and will
cause each Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
for which adequate reserves in conformity with generally accepted accounting
principles have been established.
SECTION 5.05. Inspection of Property, Books and Records. The Company
will keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. Subsidiary Debt; Fixed Charge Coverage. (a) Prior to the
Separation, total debt of all Consolidated Subsidiaries (excluding Debt of a
Consolidated Subsidiary to the Company or to a Wholly-Owned Consolidated
Subsidiary) will at no time exceed 250% of Consolidated Net Worth. For purposes
of this subsection (a), any preferred stock of a Consolidated Subsidiary other
than the Borrower which is held by a Person other than the Company or a
Wholly-Owned Consolidated Subsidiary shall be included, at the higher of its
voluntary or involuntary liquidation value, in the Debt of such Consolidated
Subsidiary.
(b) After the Separation, Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on the last day of any fiscal quarter of
the Company during any period set forth below will equal or exceed the
percentage of Consolidated Fixed Charges set forth below opposite such period;
provided that,
<PAGE>
for purposes of the foregoing calculation, in the case of any four fiscal
quarter period ending prior to the first anniversary of the Separation, (x)
Consolidated EBITDA and Consolidated Fixed Charges for such period shall equal
Consolidated EBITDA and Consolidated Fixed Charges, respectively, for each
fiscal quarter (a "Relevant Quarter") ending after the Separation and on or
prior to the last day of such period, multiplied by a fraction, the numerator of
which is four and the denominator of which is the number of Relevant Quarters,
and (y) Consolidated EBITDA and Consolidated Fixed Charges shall be calculated
on a pro forma basis for the fiscal quarter in which the Separation occurs in
order to exclude items which are not attributable to operations which are
continuing after the Separation.
<TABLE>
<CAPTION>
Period Percentage
<S> <C>
Prior to December 31, 1998 145%
On or after December 31, 1998 150%
</TABLE>
SECTION 5.07. Debt Coverage; Minimum EBITDA. (a) Prior to the
Separation, consolidated Debt of the Company and its Consolidated Subsidiaries
will at all times be less than 70% of the sum of consolidated Debt of the
Company and its Consolidated Subsidiaries and consolidated shareowners' equity
of the Company and its Consolidated Subsidiaries.
(b) If the Separation has occurred, Consolidated EBITDA (calculated on
a pro forma basis for the quarter in which the Separation occurs in order to
exclude items not attributable to operations which are continuing after the
Separation) shall equal or exceed $175,000,000 for the fiscal quarter ending on
June 30, 1998, $360,000,000 for the two consecutive fiscal quarters ending on
September 30, 1998, and $550,000,000 for the three consecutive fiscal quarters
ending on December 31, 1998.
(c) After the Separation, consolidated Debt of the Company and its
Consolidated Subsidiaries as of the last day of any fiscal quarter of the
Company ending on or after March 31, 1999 will not exceed 500% of Consolidated
EBITDA (calculated on a pro forma basis for the fiscal quarter in which the
Separation occurs in order to exclude items not attributable to operations which
are continuing after the Separation) for the four consecutive fiscal quarters of
the Company ending on such date.
SECTION 5.08. Negative Pledge. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
<PAGE>
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof.
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a Subsidiary
and not created in contemplation of such event;
(e)any Lien existing on any asset prior to the acquisition thereof by the
Company or a Subsidiary and not created in contemplation of such acquisition;
(f) any Lien on assets or capital stock of Minor Subsidiaries which
secures Debt of Persons in which the Company or any of its Subsidiaries has made
investments, but for the payment of which Debt no other recourse may be had to
the Company or any Subsidiaries which are not Minor Subsidiaries ("Limited
Recourse Debt"), or any Lien on equity interests in a Person which is not a
Consolidated Subsidiary (a "Joint Venture") securing Limited Recourse Debt of
such Joint Venture;
(g) Liens on capital stock of AirTouch Communications, Inc., Financial
Security Assurance Holdings Ltd. or Enhance Financial Services Group Inc. (or
their respective successors) which secure Debt for borrowed money;
(h) 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;
(i) 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
(j) 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
<PAGE>
outstanding not to exceed 20% of Consolidated EBITDA for the four consecutive
fiscal quarters most recently ended; provided that in the case of any four
fiscal quarter period ending after the Separation but prior to the first
anniversary of the Separation, Consolidated EBITDA for such period shall equal
Consolidated EBITDA (calculated on a pro forma basis for the fiscal quarter in
which the Separation occurs in order to exclude items not attributable to
operations which are continuing after the Separation) for each fiscal quarter (a
"Relevant Quarter") ending after the Separation and on or prior to the last day
of such period, multiplied by a fraction, the numerator of which is four and the
denominator of which is the number of Relevant Quarters.
SECTION 5.09. Consolidations, Mergers and Sales of Assets. (a) 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 any
substantial part of the assets of the Company and its Subsidiaries, taken as a
whole, to any other Person.
It is understood that this covenant shall not prohibit:
(w) a swap of cable systems or cable system assets by the
Company or any of its Subsidiaries with any other Person to the extent
such swap involves a like-kind exchange (with receipt or payment of any
other consideration being subject to any other applicable provisions of
this Agreement, including, without limitation, the first sentence of
this Section 5.09(a)),
(x) a disposition of cable systems or cable system assets by
the Company or any of its Subsidiaries for cash or other consideration,
to the extent such cash proceeds have been committed to be reinvested
within six months of such disposition, and have actually been
reinvested within twelve months of such disposition, in other cable
systems or cable system assets (with receipt or payment of any other
consideration being subject to any other applicable provisions of this
Agreement, including, without limitation, the first sentence of this
Section 5.09(a)),
(y) a disposition of a Minor Subsidiary, if, after giving
effect thereto, the Company shall be in compliance with Sections 5.06
and 5.07 on a pro forma basis until the end of the twelve-month period
immediately following the last day of the month in which such
disposition is proposed to be consummated, and the Company shall have
delivered to each of the Banks at least 15 days prior to the
consummation of such disposition a certificate to such effect and an
accompanying report establishing the basis for such certification, in a
form, and providing detail and justification for the information
contained therein, satisfactory to the Agent, or
<PAGE>
(z) a disposition of assets constituting discontinued operations on
the date of this Agreement.
(b) Prior to the Separation, the Company will retain ownership,
directly or indirectly, of at least 80% of the capital stock, and at least 80%
of the voting power, of U S WEST Communications, Inc. ("Communications"), and
will cause Communications to continue to own substantially all of the
telecommunications assets it owns on the date of this Agreement.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of any
applicable law or regulation, and no use of such proceeds will include any use
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock.
SECTION 5.11. Year 2000 Compatibility. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be
paid within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform
any covenant contained in Sections 5.06 to 5.10, inclusive;
<PAGE>
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by clause (a) or (b) above) for 10 days (or, in the case of
Section 5.11, 30 days) after written notice thereof has been given to
the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment or
payments, in the aggregate in excess of $75,000,000, 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 or enables the holder
of such Debt or obligor with respect to any commitment to provide such
Debt or any Person acting on such holder's or obligor's behalf to
accelerate the maturity thereof or, because such event or condition
constitutes a default or event of default or similar event, however
defined, under the instrument governing such commitment, to terminate
such commitment;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize or otherwise acquiesce in any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such
<PAGE>
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 $75,000,000 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 $75,000,000;
(j) a judgment or order for the payment of money in excess of
$75,000,000 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;
(k) the Company shall repudiate in writing any of its obligations
under Article 9 or MediaOne Delaware shall repudiate in writing any of
its obligations under the MediaOne Delaware Guaranty or any such
obligation shall be unenforceable against the Company or MediaOne
Delaware, as the case may be, in accordance with its terms, or the
Company or MediaOne Delaware shall so assert in writing;
(l) one or more events or conditions shall occur which result in a
default under any agreement or agreements in respect of any Material
Debt that is subject to the Indentures and as a consequence of such
default or defaults the Company or any of its Subsidiaries shall make
any payment or give or agree to give any consideration or benefit of
any kind (including, without limitation, any increased compensation,
prepayment, shortening of maturities, security or other credit support)
to the holders of such Debt and such payment, consideration or benefit
is determined by the Required Banks, after taking into account any
payment, consideration or benefit made, given or agreed to be given by
such holders to the Company or any
<PAGE>
of its Subsidiaries (other than a waiver of such default), to be a material
benefit to the holders of such Debt;
(m) the Separation shall have occurred on terms and conditions
which are not substantially the same as those set forth in the Proxy
Statement; or
(n) a Change of Control shall have occurred;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any
<PAGE>
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and Morgan Guaranty Trust Company of New York and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Company, the Borrower or any Subsidiary or affiliate
of the Company or the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Company or the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
<PAGE>
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and the Agent.
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any Euro-Dollar Loan
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
<PAGE>
(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
the Borrower and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and the Company, whereupon until such
Bank notifies the Company and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans to the Borrower, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given, each Euro-Dollar Loan of such Bank then outstanding shall be converted
to a Domestic Loan either (a) on the last day of the then current Interest
Period applicable to
<PAGE>
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 any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to
<PAGE>
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Taxes. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from
<PAGE>
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide
the Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
<PAGE>
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
<PAGE>
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of the Borrower
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or
its assets or any resulting release or discharge of any obligation of
the Borrower contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against the Borrower, the Agent, any
Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any Note, or any provision
<PAGE>
of applicable law or regulation purporting to prohibit the payment by
the Borrower of the principal of or interest on any Note or any other
amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
SECTION 9.06. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by the Borrower under this Agreement
or its Notes is stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Company hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
<PAGE>
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Company, the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.01 and telephonic
confirmation of receipt thereof is received, or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 10.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a) The Company shall pay (i)
all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of
<PAGE>
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement or any actual or proposed use of proceeds of
Loans hereunder; provided that (i) no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction and (ii) the
Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice
after it receives any notice of the commencement of any action, suit or
proceeding for which such Indemnitee may wish to claim indemnification pursuant
to subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of notice
from such Indemnitee of such commencement, to assume, at the Company's expense,
the defense of any such action, suit or proceeding; provided, that such
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Indemnitee's expense unless
(1) the Company shall have agreed to pay such fees and expenses; (2) the Company
shall have failed to assume the defense of such action, suit or proceeding or
shall have failed to employ counsel reasonably satisfactory to such Indemnitee
in any such action, suit or proceeding; or (3) such Indemnitee shall have been
advised by independent counsel in writing (with a copy to the Company) that
there may be one or more defenses available to such Indemnitee which are in
conflict with those available to the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall be obligated to assume the expense, it
being understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
SECTION 10.04. Sharing of Set-offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section
<PAGE>
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness hereunder.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 10.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Company, the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, except as provided below, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, (iv) amend or waive the provisions
of Article 9 or (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement.
SECTION 10.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such
<PAGE>
Bank shall retain the sole right and responsibility to enforce the obligations
of the Company and the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 10.05 without the consent of
the Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below but which is consented to
in accordance with this subsection (b) shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; (ii) such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; and (iii) any assignment shall not be less than
$15,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations under this Agreement and the Notes except for any rights
retained in accordance with clause (ii) of this proviso. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Company and
the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 8.04.
<PAGE>
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 10.07. Termination of Existing Credit Agreements. The Company
and each of the Banks that is also a "Bank" 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. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.09 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 Borrower (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, (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 Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
<PAGE>
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
hereof signed by each of the Company, the Borrower, the Banks and the Agent (or,
in the case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided that
nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii) upon
the order of any court or administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having jurisdiction over such party, (v)
which has been publicly disclosed, (vi) which has been obtained from any Person
other than the Company and its Subsidiaries, provided that such Person is not
(x) known to it to be bound by a confidentiality agreement with the Company or
its Subsidiaries or (y) known to it to be otherwise prohibited from transmitting
the information to it by a contractual, legal or fiduciary obligation, (vii) in
connection with the exercise of any remedy hereunder or under the Notes or
(viii) to any actual or proposed participant or assignee of all or any of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MEDIAONE GROUP FUNDING, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
U S WEST, INC. (TO BE RENAMED
MEDIAONE GROUP, INC.)
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
<PAGE>
Commitments
$95,500,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
Name:
Title:
$95,000,000 THE BANK OF NEW YORK
By
Name:
Title:
$95,000,0000 CITIBANK, N.A.
By
Name:
Title:
$95,000,000 NATIONSBANK, N.A.
By
Name:
Title:
<PAGE>
$87,500,000 ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
$87,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Name:
Title:
$87,500,000 BARCLAYS BANK PLC
By
Name:
Title:
$87,500,000 THE CHASE MANHATTAN BANK
By
Name:
Title:
<PAGE>
$87,500,000 FLEET NATIONAL BANK
By
Name:
Title:
$87,500,000 MELLON BANK, N.A.
By
Name:
Title:
$87,500,000 TORONTO DOMINION (TEXAS), INC.
By
Name:
Title:
$75,000,000 BANQUE NATIONALE DE PARIS
By
Name:
Title:
By
Title:
$75,000,000 CANADIAN IMPERIAL BANK OF
COMMERCE
By
Name:
Title:
<PAGE>
$75,000,000 SOCIETE GENERALE
SOUTHWEST AGENCY
By
Name:
Title:
$58,000,000 DRESDNER BANK A.G., NEW YORK AND
GRAND CAYMAN BRANCHES
By
Name:
Title:
By
Name:
Title:
$58,000,000 ROYAL BANK OF CANADA
By
Name:
Title:
$58,000,000 THE ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
<PAGE>
$58,000,000 WESTDEUTCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
$37,500,000 BANK ONE, COLORADO, N.A.
By
Name:
Title:
$37,500,000 BANKERS TRUST COMPANY
By
Name:
Title:
$37,500,000 BANQUE PARIBAS
By
Name:
Title:
By
Name:
Title:
<PAGE>
$37,500,000 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By
Name:
Title:
By
Name:
Title:
$37,500,000 DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By
Name:
Title:
By
Name:
Title:
$37,500,000 THE DAI-ICHI KANGYO BANK, LIMITED
By
Name:
Title:
$37,500,000 FIRST UNION NATIONAL BANK
By
Name:
Title:
<PAGE>
$37,500,000 THE FUJI BANK, LIMITED
LOS ANGELES AGENCY
By
Name:
Title:
$37,500,000 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESELLSCHAFT
By
Name:
Title:
$37,500,000 KREDIETBANK N.V.
By
Name:
Title:
By
Name:
Title:
$37,500,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By
Name:
Title:
<PAGE>
$37,500,000 NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By
Name:
Title:
$37,500,000 THE SAKURA BANK LIMITED, LOS
ANGELES AGENCY
By
Name:
Title:
$37,500,000 THE SUMITOMO BANK, LIMITED
By
Name:
Title:
$25,000,000 CRESTAR BANK
By
Name:
Title:
Total Commitments
$2,000,000,000
===========
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Connor
Facsimile number: 302-634-1092
Telephone number: 302-634-4218
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
Level Level Level Level Level Level
<S> <C> <C> <C> <C> <C> <C>
Status I II III IV V VI
Euro-Dollar
Margin:
Usage less than or
equal to 331/3% .170% .250% .315% .355% .4375% .750%
Usage more than 331/3%
and less than or
equal to 662/3% .245% .325% .390% .430% .5125% .750%
Usage more than
662/3% .295% .375% .440% .480% .5625% .750%
Facility Fee .080% .100% .110% .120% .1875% .250%
Rate
===================== ============ ============= ============= ============ ============= ============
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date after the Separation if, at such
date, the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB+ or
higher by S&P and Baa1 or higher by Moody's.
"Level II Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB or higher
by S&P and Baa2 or higher by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists (x) at any date prior to the Separation, and
(y) at any date after the Separation if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
and MediaOne of Delaware, Inc. are rated BBB or higher by S&P and Baa3 or higher
by Moody's, (ii) the Borrower's outstanding commercial paper is rated A2 or
higher by S&P
<PAGE>
and P3 or higher by Moody's or A3 or higher by S&P and P2 or higher by Moody's
and (iii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB- or
higher by S&P and Baa3 or higher by Moody's and (ii) none of Level I Status,
Level II Status or Level III Status exists.
"Level V Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BB+ or higher
by S&P and Ba1 or higher by Moody's and (ii) none of Level I Status, Level II
Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date after the Separation if, at such
date, none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
<PAGE>
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 662/3%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
guaranteed by the Company and MediaOne of Delaware, Inc., and any rating
assigned to any other debt security of the Borrower shall be disregarded. The
rating in effect at any date is that in effect at the close of business on such
date.
<PAGE>
SCHEDULE 4.07
Environmental Matters
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
________, 19__
For value received, MEDIAONE GROUP FUNDING, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the inaccuracy of, or the failure of the Bank to make, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of May 8, 1998 among MediaOne Group Funding, Inc., U S WEST,
Inc. (to be renamed MediaOne Group, Inc.), the banks listed on the signature
pages thereof, the other agents named therein and Morgan Guaranty Trust Company
of New York, as Administrative Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
<PAGE>
U S WEST, Inc. (to be renamed MediaOne Group, Inc.), has, pursuant to
the provisions of the Credit Agreement, unconditionally guaranteed the payment
in full of the principal of and interest on this Note.
MEDIAONE GROUP FUNDING, INC.
By
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Date Amount of Type of Loan Amount of Maturity Date Notation Made
Loan Principal By
Repaid
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: MediaOne Group Funding, Inc.
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of May 8,
1998 among MediaOne Group Funding, Inc., U S WEST, Inc. (to be
renamed MediaOne Group, Inc.), the Banks listed on the signature pages
thereof, the other agents named therein and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Terms
used herein have the meanings assigned to them in the Credit Agreement.
- --------
1Amount must be $25,000,000 or a larger multiple of $5,000,000.
2Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
MEDIAONE GROUP FUNDING, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to MediaOne Group Funding,
Inc. (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
May 8, 1998 among MediaOne Group Funding, Inc., U S WEST, Inc. (to be renamed
MediaOne Group, Inc.), the Banks parties thereto, the other agents named therein
and the undersigned, as Administrative Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Please
respond to this invitation by no later than [10:30 A.M.] [9:15 A.M.] (New York
City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Administrative Agent (the "Agent")
Re: Money Market Quote to
MediaOne Group Funding, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
</TABLE>
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
- ----------
* As specified in the related Invitation.
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of May 8, 1998 among MediaOne Group Funding, Inc., U S WEST,
Inc. (to be renamed MediaOne Group, Inc.), the Banks listed on the signature
pages thereof, the other agents named therein and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any offer(s)
are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000. *** Not less than one month or not less than
7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period. **** Margin over or under the London
Interbank Offered Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS". ***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY, MEDIAONE OF DELAWARE, INC.,
AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc., MediaOne of Delaware, Inc.
("MediaOne Delaware") and MediaOne Group Funding, Inc., in connection with the
364-Day Credit Agreement (the "Credit Agreement") dated as of May 8, 1998, among
them, the banks listed on the signature pages thereof, the other agents named
therein and Morgan Guaranty Trust Company of New York, as Administrative Agent.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the instruction of the client pursuant to
Section 3.01(b) of the Credit Agreement.
I am familiar with the proceedings taken by the Company, MediaOne
Delaware and the Borrower in connection with the authorization, execution and
delivery of the Credit Agreement, the MediaOne Delaware Guaranty and the Notes,
and I have examined such documents, certificates, and such other matters of fact
and questions of law as I have deemed relevant under the circumstances to
express an informed opinion. Upon the basis of the foregoing, I am of the
opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all corporate
powers and all governmental licenses, authorizations, qualifications, consents
and approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
<PAGE>
2. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement, by the Borrower of the Notes and by MediaOne
Delaware of the MediaOne Delaware Guaranty are within such Person's corporate
powers, have been duly authorized by all necessary corporate action, and require
no action by or in respect of, or filing with, any governmental body, agency or
official.
3. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement, by the Borrower of the Notes and by MediaOne
Delaware of the MediaOne Delaware Guaranty will not (i) result in a breach or
violation of, conflict with, or constitute a default under, the articles of
incorporation or bylaws of such Person or any material law or regulation or any
material order, judgment, agreement or instrument to which such Person is a
party or by which such Person is bound, or (ii) result in the creation or
imposition of any Lien on any asset of such Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Borrower, the Notes constitute valid and binding obligations
of the Borrower and the MediaOne Delaware Guaranty constitutes a valid and
binding agreement of MediaOne Delaware, in each case enforceable in accordance
with its terms except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
5. To my knowledge, and except as disclosed in the Company's 1997 Form
10-K (as amended by Form 10-K/A) as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or, to the
best of my knowledge, threatened against or affecting the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of the Credit Agreement, the MediaOne Delaware Guaranty or the
Notes.
6. The Borrower, MediaOne Delaware and each of the Company's other
corporate Significant Subsidiaries are corporations validly existing and in good
standing under the laws of their jurisdictions of incorporation, and have all
corporate powers and all governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted,
except where the absence of any such license, authorization, qualification,
consent or approval would not have a material adverse effect on the consolidated
financial
<PAGE>
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I
have assumed that the laws of the State of New York, which are stated to govern
the Credit Agreement, the MediaOne Delaware Guaranty and the Notes, are the same
as the laws of the State of Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement, the MediaOne Delaware Guaranty and the Notes will conform to
the specimens thereof examined by me, that the signatures on all documents
examined by me were genuine, and the authenticity of all documents submitted to
me as originals or as copies of originals, assumptions which I have not
independently verified.
This opinion is furnished by me as counsel for the Company, MediaOne
Delaware and the Borrower and is solely for your benefit and the benefit of any
Assignee under the Credit Agreement. Without my prior written consent, this
opinion may not be relied upon by you or any Assignee in any other context or by
any other person. This opinion may not be quoted, in whole or in part, or copies
thereof furnished, to any other person without my prior written consent, except
that you may furnish copies hereof (a) to your auditors and attorneys, (b) to
any state or federal authority having regulatory jurisdiction over you or the
Company or the Borrower, (c) pursuant to order or legal process of any court or
governmental agency, (d) in connection with any legal action to which you are a
party arising out of the transactions contemplated by the Credit Agreement, and
(e) to any Participant or proposed Participant in the Commitment of any Bank.
This opinion is limited to the present laws of the State of Colorado
and the General Corporation Law of the State of Delaware, to present judicial
interpretations thereof, and to the facts as they presently exist, and I assume
no responsibility as to the applicability or effect of the laws of any other
jurisdiction. In rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws of the State of Colorado or the
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision, or otherwise.
Very truly yours,
Stephen E. Brilz
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 364-Day Credit Agreement
(the "Credit Agreement") dated as of May 8, 1998 among MediaOne Group Funding,
Inc., U S WEST, Inc., the banks listed on the signature pages thereof (the
"Banks"), the other agents named therein and Morgan Guaranty Trust Company of
New York, as Administrative Agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.01(c) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming
that the execution, delivery and performance by the Company and the Borrower of
the Credit Agreement and by the Borrower of the Notes are within such Person's
corporate powers and have been duly authorized by all necessary corporate
action, the Credit Agreement constitutes a valid and binding agreement of the
Company and the Borrower and the Notes constitute valid and binding obligations
of the Borrower.
<PAGE>
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (to be renamed MEDIAONE
GROUP, INC.) (the "Company") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of May 8, 1998 among the
Company, the Borrower named therein, the Assignor and the other Banks party
thereto, as Banks, the other agents named therein and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
<PAGE>
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.3 It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with
respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of
the Company
- --------
3 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
<PAGE>
or the Borrower in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the Assignor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company and the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[U S WEST, INC.] [MEDIAONE
GROUP, INC.]
By
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:]
<PAGE>
EXHIBIT H
EXTENSION AGREEMENT
MediaOne Group Funding, Inc.
[U S WEST, Inc.] [MediaOne Group, Inc.]
7800 East Orchard Road
Englewood, Colorado 80111
Morgan Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period
under the 364-Day Credit Agreement dated as of May 8, 1998 among MediaOne Group
Funding, Inc., [U S WEST, Inc.] [MediaOne Group, Inc.], the Banks listed
therein, the other agents named therein and Morgan Guaranty Trust Company of New
York, as Administrative Agent (the "Credit Agreement") for 364 days to
____________ __, ____. Terms defined in the Credit Agreement are used herein as
therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. It may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[NAME OF BANK]1
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
[NAME OF BANK]1
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
Agreed and accepted:
MEDIAONE GROUP FUNDING, INC.
By
Title
[U S WEST, INC.] [MEDIAONE GROUP, INC.]
By
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Title
<PAGE>
EXHIBIT I
GUARANTY
GUARANTY dated as of May __, 1998 by MediaOne of Delaware, Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Banks and the
Agent referred to below.
WHEREAS, U S WEST, Inc. (to be renamed MediaOne Group, Inc.) (the
"Company") and MediaOne Group Funding, Inc. (the "Borrower"), have entered
into a Credit Agreement dated as of May 8, 1998 with the banks listed on the
signature pages thereof (the "Banks") and Morgan Guaranty Trust Company of
New York, as Administrative Agent (the "Agent"); and
WHEREAS, said Credit Agreement, as amended from time to time, is herein
referred to as the "Credit Agreement" and the terms defined therein and not
otherwise defined herein have, as used herein, their respective meanings set
forth in Section 1.01 of the Credit Agreement; and
WHEREAS, the obligations of the Banks to make loans under the Credit
Agreement are conditioned on, among other things the execution and delivery to
the Agent of a Guaranty in the form hereof by the Guarantor, which is a
wholly-owned subsidiary of the Company;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor agrees as follows:
SECTION 1. Guaranty.
1.1. The Guaranty. The Guarantor hereby unconditionally guarantees the
full and punctual payment when due (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to the Credit Agreement, and the full and punctual
payment of all other amounts payable by the Borrower under the Credit Agreement.
Upon failure by the Borrower to pay punctually any such amount in full, the
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in the Credit Agreement.
1.2 Guaranty Unconditional. The obligations of the Guarantor hereunder
shall be unconditional, irrevocable and absolute and, without limiting the
<PAGE>
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver
or release in respect of any obligation of the Borrower under
the Credit Agreement or any Note, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to the
Credit Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity
of any direct or indirect security for any obligation of the
Borrower under the Credit Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the
Borrower or its assets or any resulting release or discharge
of any obligation of the Borrower contained in the Credit
Agreement or any Note;
(v) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against the Borrower,
the Agent, any Bank or any other Person, whether in connection
herewith, with the Credit Agreement or with any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Borrower for any reason of the Credit Agreement or
any Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower of the
principal of or interest on any Note or any other amount
payable by the Borrower under the Credit Agreement; or
(vii) any other act or omission to act or delay of any kind
by the Borrower, the Agent, any Bank or any other Person or
any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantor's obligations hereunder.
1.3. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantor's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
<PAGE>
interest on the Notes and all other amounts under the Credit Agreement shall
have been indefeasibly paid in full. If at any time any payment of the principal
of or interest on any Note or any other amount payable by the Borrower under the
Credit Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantor'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.
1.4. Waiver by the Guarantor. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
1.5. Subrogation. The Guarantor irrevocably waives any and all rights
to which it may be entitled, by operation of law or otherwise, upon making any
payment hereunder to be subrogated to the rights of the payee against the
Borrower with respect to such payment or against any direct or indirect security
therefor, or otherwise to be reimbursed, indemnified or exonerated by or for the
account of the Borrower in respect thereof.
1.6. Stay of Acceleration. In the event that acceleration of the time
for payment of any amount payable by the Borrower under the Credit Agreement or
its Notes is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
the Credit Agreement shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the Agent made at the request of the Required Banks.
1.7. Limit of Liability. The obligations of the Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable
state law.
SECTION 2. Miscellaneous.
2.1. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of the
Banks and the Agent and their respective successors and assigns.
2.2. Amendments. Neither this Guaranty nor any provision hereof may be
amended, modified, waived, discharged or terminated orally, but only by a
<PAGE>
statement in writing signed by the Agent with the prior written consent of each
of the Banks or pursuant to Section 1.3 above.
2.3. Governing Law; Submission to Jurisdiction. This Guaranty shall be
construed in accordance with and governed by the laws of the State of New York.
The Guarantor 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.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first written above.
MEDIAONE OF DELAWARE, INC.
By _____________________________
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 70111
Facsimile number: 303-793-0307
Telephone number: 303-793-6250
Attention: Rahn Porter
EXHIBIT 10b.
$2,000,000,000
FIVE-YEAR
CREDIT AGREEMENT
dated as of
May 8, 1998
among
MediaOne Group Funding, Inc.
U S WEST, Inc.
(to be renamed MediaOne Group, Inc.)
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
J.P. Morgan Securities Inc.
Lead Arranger
The Bank of New York,
Citicorp Securities, Inc. and
NationsBank, N.A.,
Co-Syndication Agents
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
----------------------
ARTICLE 1
Definitions
<S> <C> <C> <C>
Section 1.01. The Definitions..................................................................1
Section 1.02. Accounting Terms and Determinations.............................................13
Section 1.03. Types of Borrowings.............................................................13
</TABLE>
ARTICLE 2
The Credits
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Section 2.01. Commitments to Lend.............................................................14
Section 2.02. Notice of Committed Borrowing...................................................15
Section 2.03. Money Market Borrowings.........................................................16
Section 2.04. Notice to Banks; Funding of Loans...............................................20
Section 2.05. Notes...........................................................................21
Section 2.06. Maturity of Loans...............................................................22
Section 2.07. Interest Rates..................................................................22
Section 2.08. Facility Fees...................................................................24
Section 2.09. Termination or Reduction of Commitments.........................................24
Section 2.10. Method of Electing Interest Rates...............................................25
Section 2.11. Prepayments....................................................................26
Section 2.12. General Provisions as to Payments...............................................27
Section 2.13. Funding Losses..................................................................28
Section 2.14. Computation of Interest and Fees................................................28
Section 2.15. Swingline Facility..............................................................28
</TABLE>
<TABLE>
<CAPTION>
ARTICLE 3
Conditions
<S> <C> <C> <C>
Section 3.01. Closing.........................................................................30
Section 3.02. All Borrowings..................................................................31
Section 3.03. Loans after Separation..........................................................32
</TABLE>
ARTICLE 4
Representations and Warranties
<TABLE>
<CAPTION>
<S> <C> <C>
Section 4.01. Corporate Existence and Power...................................................32
Section 4.02. Corporate and Governmental Authorization; No
Contravention.........................................................................32
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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....................................................................35
Section 4.10. Not an Investment Company.......................................................35
Section 4.11. Full Disclosure.................................................................35
</TABLE>
ARTICLE 5
Covenants
<TABLE>
<CAPTION>
<S> <C> <C>
Section 5.01. Information.....................................................................35
Section 5.02. Maintenance of Property; Insurance..............................................37
Section 5.03. Maintenance of Existence........................................................38
Section 5.04. Compliance with Laws............................................................38
Section 5.05. Inspection of Property, Books and Records.......................................38
Section 5.06. Subsidiary Debt; Fixed Charge Coverage..........................................38
Section 5.07. Debt Coverage; Minimum EBITDA
.....................................................................................39
Section 5.08. Negative Pledge.................................................................40
Section 5.09. Consolidations, Mergers and Sales of Assets.....................................41
Section 5.10. Use of Proceeds.................................................................42
Section 5.11. Year 2000 Compatibility.........................................................42
</TABLE>
ARTICLE 6
Defaults
<TABLE>
<CAPTION>
<S> <C> <C>
Section 6.01. Events of Default...............................................................43
Section 6.02. Notice of Default...............................................................45
</TABLE>
ARTICLE 7
The Agent
<TABLE>
<CAPTION>
<S> <C> <C>
Section 7.01. Appointment and Authorization...................................................46
Section 7.02. Agent and Affiliates............................................................46
Section 7.03. Action by Agent.................................................................46
Section 7.04. Consultation with Experts.......................................................46
Section 7.05. Liability of Agent..............................................................46
Section 7.06. Indemnification.................................................................47
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 7.07. Credit Decision.................................................................47
Section 7.08. Successor Agent.................................................................47
Section 7.09. Agent's Fee.....................................................................47
</TABLE>
ARTICLE 8
Changes in Circumstances
<TABLE>
<CAPTION>
<S> <C> <C>
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................48
Section 8.02. Illegality......................................................................48
Section 8.03. Increased Cost and Reduced Return...............................................49
Section 8.04. Taxes...........................................................................50
Section 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans.................................................................................52
Section 8.06. Substitution of Bank............................................................52
</TABLE>
ARTICLE 9
Guaranty
<TABLE>
<CAPTION>
<S> <C> <C>
Section 9.01. The Guaranty....................................................................53
Section 9.02. Guaranty Unconditional..........................................................53
Section 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances.................................................................54
Section 9.04. Waiver by the Company...........................................................54
Section 9.05. Subrogation.....................................................................54
Section 9.06. Stay of Acceleration............................................................55
</TABLE>
ARTICLE 10
Miscellaneous
<TABLE>
<CAPTION>
<S> <C> <C>
Section 10.01. Notices........................................................................55
Section 10.02. No Waivers.....................................................................55
Section 10.03. Expenses; Indemnification......................................................55
Section 10.04. Sharing of Set-offs............................................................57
Section 10.05. Amendments and Waivers.........................................................57
Section 10.06. Successors and Assigns........................................................57
Section 10.07. Termination of Existing Credit Agreements......................................59
Section 10.08. Governing Law; Submission to Jurisdiction......................................60
Section 10.09. Counterparts; Integration; Effectiveness.......................................60
Section 10.10. WAIVER OF JURY TRIAL...........................................................60
Section 10.11. Confidentiality................................................................60
</TABLE>
<PAGE>
Pricing Schedule
Schedule 4.07 - Environmental Matters
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company, MediaOne of Delaware,
Inc. and the Borrower
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
Exhibit I - Form of MediaOne Delaware Guaranty
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 8, 1998 among MediaOne Group Funding, Inc., U
S WEST, Inc. (to be renamed MediaOne Group, 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).
<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 MediaOne Group Funding, Inc., a Colorado
corporation, and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a
majority of the board of directors of the Company. The Separation shall not
constitute a Change of Control.
"Closing Date" means the date on or after the Effective Date on which
the Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09 and 2.11.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01(a); provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Committed Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
<PAGE>
"Company" means U S WEST, Inc., a Delaware corporation (to be
renamed MediaOne Group, Inc. after the Separation), and its successors.
"Company's 1997 Form 10-K" means U S WEST, Inc.'s annual report on Form
10-K for 1997, as amended by Form 10-K/A filed April 13, 1998, in each case as
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis for
such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"Consolidated Fixed Charges" means, for any period, the sum, determined
without duplication, of (i) interest expense of the Company and its Consolidated
Subsidiaries (reduced by the amount of cash dividends on preferred stock of
AirTouch Communications, Inc. (or its successors) received by the Company and
its Consolidated Subsidiaries, to the extent such interest expense is incurred
in respect of Debt, payments on which may be contingent upon receipt of such
dividends or which is secured in whole or in part by such preferred stock) and
(ii) dividends paid on preferred stock issued by the Company and its
Consolidated Subsidiaries, all determined on a consolidated basis for such
period.
"Consolidated Net Worth" means at any date the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business,
<PAGE>
(iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(w) Debt (i) (A) of a Minor Subsidiary or (B) which is secured
by a Lien on the assets or capital stock of a Minor Subsidiary or the
equity interests in a Person which is not a Consolidated Subsidiary,
which Debt or Lien is incurred in connection with the international
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 which is not a Minor Subsidiary;
(x) Debt of the Company or the Borrower issued in connection
with the issuance of Trust Originated Preferred Securities or
substantially similar securities, so long as such Debt is subordinated
and junior in right of payment to substantially all liabilities of the
Company or the Borrower, as the case may be, including, without
limitation, the Loans;
(y) Debt of the Company or the Borrower consisting of
Mandatorily Exchangeable Debt Securities or substantially similar
securities, so long as (i) such Debt is subordinated and junior in
right of payment to substantially all liabilities of the Company or the
Borrower, as the case may be, including, without limitation, the Loans,
and (ii) upon maturity or exchange prior to maturity the obligations of
the Company or the Borrower, as the case may be, will be satisfied
solely by the delivery of capital stock of the Company, AirTouch
Communications, Inc., Financial Security Assurance Holdings Ltd., or
Enhance Financial Services Group Inc. (or their respective successors);
and
(z) Debt incurred (i) in connection with discontinued
operations outstanding on the date of this Agreement in an aggregate
principal amount not exceeding $200,000,000 and (ii) for the payment of
which no recourse may be had to continuing operations of the Company
and its Subsidiaries.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
<PAGE>
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent.
"Domestic Loan" means (i) a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article 8, (ii) a Swing Loan or
(iii) an overdue amount which was a Domestic Loan immediately before it became
overdue.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 10.09.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
<PAGE>
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan before it became overdue.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07 on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of The
Bank of New York, Citibank, 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 Credit
Agreements dated as of October 31, 1997, among the Borrower, the Company, the
banks listed on the signature pages thereof and Morgan Guaranty Trust Company of
New York, as administrative agent.
"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.
<PAGE>
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Domestic Loans at such time or (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time;
provided that, if a Committed Loan of any particular Bank is converted to or
made as a Domestic Loan pursuant to Section 8.02 or 8.05, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guaranty" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 10.03(b).
"Indentures" means the agreements or instruments evidencing the
following Debt of Continental Cablevision, Inc., and its successors: (i) the 11%
Senior Subordinated Debentures Due June 1, 2007; (ii) the 8 5/8% Senior Notes
Due August 15, 2003; (iii) the 9% Senior Debentures Due September 1, 2008; (iv)
the 8 7/8% Senior Debentures Due September 15, 2002; (v) the 9 1/2% Senior
Debentures Due August 1, 2013; (vi) the 8 1/2% Senior Notes Due September 15,
2001; (vii) the 8.3% Senior Notes Due May 15, 2006; and (viii) any other Debt
containing terms and conditions as or more favorable to the holders thereof than
the terms and conditions of any of the foregoing Debt.
<PAGE>
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, a
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after a
Termination Date shall end on 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
(c) any Interest Period 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
<PAGE>
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 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.
"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 $75,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $75,000,000.
<PAGE>
"MediaOne Delaware Guaranty" shall mean a Guaranty of MediaOne of
Delaware, Inc., substantially in the form of Exhibit I hereto.
"Minor Subsidiary" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) each
of U S WEST International Holdings, Inc. (to be renamed MediaOne International
Holdings, Inc.) and its Subsidiaries, but only if such Person is engaged only in
operations outside the United States, and (ii) any other Subsidiary which, at
the time of the issuance of a Guaranty or grant of a Lien referred to in the
Relevant Provisions, had assets which, when taken together with all assets of
Subsidiaries at any earlier time when such Subsidiaries were deemed to be Minor
Subsidiaries pursuant to this clause (ii), did not exceed $250,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"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
<PAGE>
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" 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.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto and identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
<PAGE>
"Proxy Statement" means the definitive Proxy Statement for 1998 Annual
Meeting of Stockholders of U S WEST, Inc., dated and filed with the Securities
and Exchange Commission on April 20, 1998.
"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.
"Separation" has the meaning set forth in the Proxy Statement.
"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.
"Swing Lenders" means Morgan Guaranty Trust Company of New York and
Bank of America National Trust and Savings Association, in their capacity as
lenders under the swingline facility described in Section 2.15, and their
respective successors in such capacity, and "Swing Lender" means any of such
Swing Lenders.
"Swing Loan" means a Loan made by a Swing Lender pursuant to Section
2.17.
"Termination Date" means, with respect to each Bank, May 8, 2003, 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.
<PAGE>
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
Section 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Domestic Loans, have the same Interest
Period or initial Interest Period (or a Swing Loan made by a Swing Lender).
Borrowings are classified for purposes of this Agreement either by reference to
<PAGE>
the pricing of Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions
of Article 2 under which participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01(a) in which all Banks participate
in proportion to their Commitments, while a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank participants are determined on
the basis of their bids in accordance therewith and a "Swing Borrowing" is a
Borrowing under Section 2.17 made by a Swing Lender).
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 the 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 to the Borrower shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this 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
of the Banks of such request. Each Bank will use its best efforts to respond to
such request, whether affirmatively or negatively, as it may elect in its
discretion, within 30 days of such notice to the Agent. If any Bank shall not
have responded affirmatively within such 30-day period, such Bank shall be
deemed to have rejected the Company's proposal to extend its Commitment, and
only the
<PAGE>
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
Borrower, 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 Borrower 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 (unless the Commitments shall have been reduced pursuant to Section
2.09(b)), 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
Borrower and such Bank or other Person of an instrument of assumption in form
and amount satisfactory to the Administrative Agent, such existing Bank shall
have a Commitment as therein set forth or such other Person shall become a Bank
with a Commitment as therein set forth and all the rights and obligations of a
Bank with such a Commitment hereunder; provided that (i) the Company shall
provide prompt notice of such increase to the Agent, which shall promptly notify
the other Banks, (ii) the aggregate amount of each such increase which is
effective on any day shall be at least $50,000,000 and (iii) the aggregate
amount of the Commitments shall at no time exceed $2,250,000,000. 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 Borrower shall prepay such Group in its entirety, and, to the extent the
Borrower elects to do so and subject to the conditions specified in Article 3,
the 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.
<PAGE>
Section 2.02. Notice of Committed Borrowing. The 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
(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), the 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 the Borrower. The Banks may,
but shall have no obligation to, make such offers and the 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 the 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,
<PAGE>
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $5,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
The 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.
(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
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 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
<PAGE>
Articles 3 and 6, any Money Market Quote so made shall be irrevocable except
with the written consent of the Agent given on the instructions of the 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 Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th
of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
<PAGE>
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to 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 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 correct a manifest error in
such former Money Market Quote. The Agent's notice to the 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 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. The 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,
<PAGE>
(ii) the principal amount of each Money Market Borrowing must
be $25,000,000 or a larger multiple of $5,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may
be, and
(iv) the 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
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 the Borrower on a day on
which the Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by the Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, as the case
may be.
<PAGE>
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing (or, in the case of a Base Rate Borrowing, prior to
Noon (New York City time) on the date of such Borrowing) that such Bank will not
make available to the Agent such Bank's share of such Borrowing, the Agent may
assume that such Bank has made such share available to the Agent on the date of
such Borrowing in accordance with subsections (b) and (c) of this Section 2.04
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. If the Borrower shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Borrower for
any loss on account thereof incurred by the Borrower.
Section 2.05. Notes. (a) The Loans of each Bank to the Borrower shall
be evidenced by a single Note of the Borrower payable to the order of such Bank
for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to
<PAGE>
evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
Section 2.06. 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 2.03 shall mature, and the principal amount thereof shall be
due and payable, together with accrued interest thereon, on the last day of the
Interest Period applicable thereto.
Section 2.07. 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
<PAGE>
of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Domestic Loans for such day) and (ii) the sum of the Euro-Dollar
Margin plus the Adjusted London Interbank Offered Rate applicable to such Loan
at the date such payment was due.
(d) 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
<PAGE>
as if the related Money Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.03. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.03. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue principal of
or interest on any Money Market Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the Base
Rate for such day.
(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the 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 Commitments (whether used or unused) and
(ii) from and including the Termination Date (or earlier date of termination of
the Commitments in their entirety) to but excluding the date the Loans shall be
repaid in their entirety, on the daily average aggregate outstanding principal
amount of the Loans. Accrued facility fees shall be payable quarterly in arrears
on the last day of each calendar quarter and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
<PAGE>
Section 2.09. Termination or Reduction of Commitments. (a) 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.
(b) If the Separation has not been consummated on or before November
8, 1998, the Commitments shall be ratably reduced by 50% on the next succeeding
Domestic Business Day.
(c) On each date of incurrence by the Company or any of its
Subsidiaries of any Debt or other obligations secured by Liens on capital stock
of AirTouch Communications, Inc., the Commitments shall be ratably reduced by
the Five-Year Percentage of 75% of the Net Cash Proceeds of such Debt or other
obligations, but only until the Aggregate Commitments equal $2,000,000,000. For
purposes of this subsection (c), "Net Cash Proceeds" means, in each case as set
forth in reasonable detail in a statement delivered to the Agent, the gross cash
proceeds received less all discounts, commissions and legal and other customary
third-party expenses incurred in connection with the transaction giving rise to
such proceeds; "Five-Year Percentage" means the percentage equivalent of a
fraction, the numerator of which is the Commitments and the denominator of which
is the sum of the Commitments and the commitments (the "364-Day Commitments")
under the 364-Day Credit Agreement dated as of the date hereof among the
Borrower and the other parties named therein (as the same may be amended from
time to time); and "Aggregate Commitments" means the sum of the Commitments and
the 364-Day Commitments.
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 Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
<PAGE>
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.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
<PAGE>
Section 2.11. Prepayments.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the
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, the Borrower may not
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(b) or (c), the Borrower 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, and (ii) the aggregate unpaid principal amount of all outstanding
Loans does not exceed the aggregate amount of the Commitments as then reduced.
Any such prepayment shall be made in accordance with all applicable provisions
of this Agreement (including without limitation subsections (a) (other than as
to amount), (b) and (c) of this Section 2.11).
Section 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees and
other amounts payable hereunder, not later than 12:00 Noon (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, without off set or counterclaim, to the Agent at its address referred
to in Section 10.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees or other amounts payable hereunder shall be due on a day which is not a
<PAGE>
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due from the Borrower to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If the 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 than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.07(c), or if the
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), 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
<PAGE>
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. Swingline Facility. (a) Swing Loans. Each Swing Lender
may, in its sole discretion, make loans to the Borrower pursuant to this Section
2.15(a) from time to time during the Revolving Credit Period; provided that
immediately after giving effect thereto (i) the aggregate outstanding principal
amount of all loans made pursuant to this Section 2.15(a) shall not at any time
exceed $50,000,000 and (ii) the sum of the aggregate outstanding principal
amount of the Loans shall not exceed the aggregate Commitments. Each loan under
this Section 2.15(a) shall be in an aggregate principal amount of at least
$5,000,000 or any larger multiple of $1,000,000 and shall bear interest at the
Base Rate or such other rate as is agreed to by the Borrower and such Swing
Lender.
(b) Request for Swing Loan. If the Borrower wishes to request a Swing
Loan, the Borrower shall give a Swing Lender notice of such request (with a copy
thereof sent simultaneously to the Agent) not later than 11:00 A.M. (New York
time) on the requested date of borrowing, specifying (i) the requested date of
such Swing Loan, which shall be a Domestic Business Day, and (ii) the requested
amount of such Swing Loan.
(c) Funding of Swing Loans. If a Swing Lender elects, in its sole
discretion, to make any requested Swing Loan, such Swing Lender shall, unless it
determines that any condition applicable to Borrowings specified in Section 3.02
or 3.03 has not been satisfied, make available the amount of such Swing Loan, in
Federal or other funds immediately available in New York, to the Borrower at the
Swing Lender's address referred to in Section 10.01, not later than 3:00 P.M.
(New York time) on the requested date of borrowing.
(d) Payment of Interest. The Borrower shall make each payment of
interest on the Swing Loans not later than 12:00 Noon (New York time) on the
maturity date for such Swing Loan, in Federal or other funds immediately
available in New York, to the Swing Lenders at their addresses referred to in
Section 10.01.
(e) Maturity of Swing Loans. Each Swing Loan shall mature on the
Termination Date or, if earlier, on the earlier of (x) the date when the next
Committed Loan, immediately following such Swing Loan, is made and (y) the day
that is seven days or less, as the Borrower may elect, after the date such Swing
Loan is made, and the principal amount thereof shall be due and payable on such
date together with interest accrued thereon to such date.
<PAGE>
(f) Swing Loan Participations. At any time, upon the request of a
Swing Lender, each Bank other than the requesting Swing Lender shall, on the
second Domestic Business Day after such request is made, purchase a
participating interest in the requesting Swing Lender's Swing Loans in an amount
equal to its ratable share of the aggregate principal amount of such Swing
Loans. Each Bank will immediately transfer to the requesting Swing Lender, in
immediately available funds, the amount of its participation. Whenever, at any
time after a Swing Lender has received from any Bank such Bank's participating
interest in a Swing Loan, such Swing Lender receives any payment on account
thereof, such Swing Lender will distribute to such Bank its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by such Swing Lender is required to be returned, such Bank
will return to such Swing Lender any portion thereof previously distributed by
such Swing Lender to it. Each Bank's obligation to purchase such participating
interests shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank or any other Person may have
against the Swing Lender requesting such purchase or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of a Default or an Event
of Default or the termination of the Commitments; (iii) any adverse change in
the condition (financial or otherwise) or results of operations of the Borrower,
the Company or any other Person; (iv) any breach of this Agreement by the
Borrower, the Company or any other Bank; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur upon receipt
by the Agent of the following (in the case of any document, dated the Closing
Date unless otherwise indicated):
(a) a duly executed Note of the Borrower for the account of each Bank
dated on or before the Closing Date complying with the provisions of Section
2.05;
<PAGE>
(b) an opinion of Stephen E. Brilz, Esq., counsel for the Company and
the Borrower, 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) a duly executed MediaOne Delaware Guaranty;
(f) 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
(g) all documents the Agent may reasonably request relating to the
existence of the Company, the Borrower and MediaOne of Delaware, Inc., the
corporate authority for and the validity of this Agreement, the Notes and the
MediaOne Delaware Guaranty, and any other matters relevant hereto, all in form
and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
Section 3.02. All Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or prior
to May 30, 1998;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
<PAGE>
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of such Borrowing
(except, in the case of the representations and warranties contained in
Section 4.04(b), but only if neither Level V Status nor Level VI Status
(as defined in the Pricing Schedule) exists on the date of such
Borrowing, 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 Separation. The obligation of any Bank to
make or maintain a Loan after the Separation is subject to receipt by the Agent
of evidence satisfactory to it that the Separation has been consummated
substantially on the terms described in the Proxy Statement. The Agent shall
promptly notify the Company and the Banks of the satisfaction of the foregoing
condition.
ARTICLE 4
Representations and Warranties
Each of the Company and the Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
Section 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company and the
Borrower of this Agreement, by the Borrower of the Notes and by MediaOne of
Delaware, Inc. of the MediaOne Delaware Guaranty are within such Person's
<PAGE>
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of such Person or of any agreement, judgment, injunction, order,
decree or other instrument binding upon such Person or any Significant
Subsidiary or result in the creation or imposition of any Lien on any material
asset of such Person or any Significant Subsidiary.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower, and the MediaOne Delaware Guaranty constitutes a
valid and binding agreement of MediaOne of Delaware, Inc., in each case
enforceable in accordance with its terms except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
Section 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1997 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 1997 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, 1997 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 Separation shall not be considered such a change).
Section 4.05. Litigation. Except as disclosed in the Company's 1997
Form 10-K, 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, the MediaOne Delaware Guaranty or the Notes.
<PAGE>
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. (a) The operations of the Company
and each of its Subsidiaries comply in all respects with all Environmental Laws
except such non-compliance which would not (if enforced in accordance with
applicable law) reasonably be expected to result, individually or in the
aggregate, in a material adverse effect on the financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole.
(b) Except as specifically identified in Schedule 4.07, the Company
and each of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Laws
("Environmental Permits") necessary for their respective operations, and all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically identified in Schedule 4.07, (i) none of
the Company, any of its Subsidiaries or any of their present property or
operations are subject to any outstanding written order from or settlement or
consent agreement with any governmental authority or other Person, nor is any of
the foregoing subject to any judicial or docketed administrative proceedings,
respecting any Environmental Laws or Hazardous Substances with a potential
liability in excess of $1,000,000 and (ii) there are no other conditions or
circumstances known to the Company which may give rise to any claims respecting
any Environmental Laws arising from the operations of the Company or its
Subsidiaries (including, without limitation, off-site liabilities), or any
additional costs of compliance with Environmental Laws, that would reasonably be
expected to have a material
<PAGE>
adverse effect on the financial position or results of operations of the Company
and its Subsidiaries, considered as a whole.
Section 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1987. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except for taxes the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
Section 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrower and MediaOne of
Delaware, Inc.) is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
qualifications, consents and approvals required to carry on its business as now
conducted.
Section 4.10. Not an Investment Company. None of the Company, the
Borrower or MediaOne of Delaware, Inc. is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Section 4.11. Full Disclosure. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
ARTICLE 5
Covenants
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
<PAGE>
Section 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Arthur Andersen L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
<PAGE>
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
Section 5.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property
useful
<PAGE>
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name), with financially sound and responsible
insurance companies, insurance on all their respective properties in at least
such amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Banks,
upon request from the Agent, information presented in reasonable detail as to
the insurance so carried; provided that, in lieu of any such insurance, the
Company and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
Section 5.03. Maintenance of Existence. The Company will, and will
cause each Significant Subsidiary to, preserve, renew and keep in full force and
effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.03 shall prohibit or interfere
with the Company's publicly announced strategy to discontinue or dispose of in
one or more transactions the financial services businesses of it or of any of
its Subsidiaries.
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
<PAGE>
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
Section 5.06. Subsidiary Debt; Fixed Charge Coverage. (a) Prior to the
Separation, total debt of all Consolidated Subsidiaries (excluding Debt of a
Consolidated Subsidiary to the Company or to a Wholly-Owned Consolidated
Subsidiary) will at no time exceed 250% of Consolidated Net Worth. For purposes
of this subsection (a), any preferred stock of a Consolidated Subsidiary other
than the Borrower which is held by a Person other than the Company or a
Wholly-Owned Consolidated Subsidiary shall be included, at the higher of its
voluntary or involuntary liquidation value, in the Debt of such Consolidated
Subsidiary.
(b) After the Separation, Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on the last day of any fiscal quarter of
the Company during any period set forth below will equal or exceed the
percentage of Consolidated Fixed Charges set forth below opposite such period;
provided that, for purposes of the foregoing calculation, in the case of any
four fiscal quarter period ending prior to the first anniversary of the
Separation, (x) Consolidated EBITDA and Consolidated Fixed Charges for such
period shall equal Consolidated EBITDA and Consolidated Fixed Charges,
respectively, for each fiscal quarter (a "Relevant Quarter") ending after the
Separation and on or prior to the last day of such period, multiplied by a
fraction, the numerator of which is four and the denominator of which is the
number of Relevant Quarters, and (y) Consolidated EBITDA and Consolidated Fixed
Charges shall be calculated on a pro forma basis for the fiscal quarter in which
the Separation occurs in order to exclude items which are not attributable to
operations which are continuing after the Separation.
<TABLE>
<CAPTION>
Period Percentage
<S> <C>
Prior to December 31, 1998 145%
December 31, 1998-
December 30, 2000 150%
On or after December 31, 2000 200%
</TABLE>
Section 5.07. Debt Coverage; Minimum EBITDA. (a) Prior to the
Separation, consolidated Debt of the Company and its Consolidated Subsidiaries
will at all times be less than 70% of the sum of consolidated Debt of the
Company
<PAGE>
and its Consolidated Subsidiaries and consolidated shareowners' equity of the
Company and its Consolidated Subsidiaries.
(b) If the Separation has occurred, Consolidated EBITDA (calculated on
a pro forma basis for the quarter in which the Separation occurs in order to
exclude items not attributable to operations which are continuing after the
Separation) shall equal or exceed $175,000,000 for the fiscal quarter ending on
June 30, 1998, $360,000,000 for the two consecutive fiscal quarters ending on
September 30, 1998, and $550,000,000 for the three consecutive fiscal quarters
ending on December 31, 1998.
(c) After the Separation, consolidated Debt of the Company and its
Consolidated Subsidiaries as of the last day of any fiscal quarter of the
Company ending during any period set forth below will not exceed the percentage
of Consolidated EBITDA (calculated on a pro forma basis for the fiscal quarter
in which the Separation occurs in order to exclude items not attributable to
operations which are continuing after the Separation) for the four consecutive
fiscal quarters of the Company ending on such date set forth below opposite such
period.
<TABLE>
<CAPTION>
Period Percentage
<S> <C>
March 31, 1999-
December 30, 1999 500%
December 31, 1999-
December 30, 2000 475%
On or after December 31, 2000 400%
</TABLE>
Section 5.08. Negative Pledge. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided
<PAGE>
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 in which the Company or any of its Subsidiaries has made
investments, but for the payment of which Debt no other recourse may be had to
the Company or any Subsidiaries which are not Minor Subsidiaries ("Limited
Recourse Debt"), or any Lien on equity interests in a Person which is not a
Consolidated Subsidiary (a "Joint Venture") securing Limited Recourse Debt of
such Joint Venture;
(g) Liens on capital stock of AirTouch Communications, Inc., Financial
Security Assurance Holdings Ltd. or Enhance Financial Services Group Inc. (or
their respective successors) which secure Debt for borrowed money;
(h) 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;
(i) 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
(j) 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 20% of Consolidated EBITDA for the four
consecutive fiscal quarters most recently ended; provided that in the case of
any four fiscal quarter period ending after the Separation but prior to the
first anniversary of the Separation, Consolidated EBITDA for such period shall
equal Consolidated EBITDA (calculated on a pro forma basis for the fiscal
quarter in which the Separation occurs in order to exclude items not
attributable to operations which are continuing after the Separation) for each
fiscal quarter (a "Relevant Quarter") ending after the Separation and on or
prior to the last day of such period,
<PAGE>
multiplied by a fraction, the numerator of which is four and the denominator of
which is the number of Relevant Quarters.
Section 5.09. Consolidations, Mergers and Sales of Assets. (a) 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 any
substantial part of the assets of the Company and its Subsidiaries, taken as a
whole, to any other Person.
It is understood that this covenant shall not prohibit:
(w) a swap of cable systems or cable system assets by the
Company or any of its Subsidiaries with any other Person to the extent
such swap involves a like-kind exchange (with receipt or payment of any
other consideration being subject to any other applicable provisions of
this Agreement, including, without limitation, the first sentence of
this Section 5.09(a)),
(x) a disposition of cable systems or cable system assets by
the Company or any of its Subsidiaries for cash or other consideration,
to the extent such cash proceeds have been committed to be reinvested
within six months of such disposition, and have actually been
reinvested within twelve months of such disposition, in other cable
systems or cable system assets (with receipt or payment of any other
consideration being subject to any other applicable provisions of this
Agreement, including, without limitation, the first sentence of this
Section 5.09(a)),
(y) a disposition of a Minor Subsidiary, if, after giving
effect thereto, the Company shall be in compliance with Sections 5.06
and 5.07 on a pro forma basis until the end of the twelve-month period
immediately following the last day of the month in which such
disposition is proposed to be consummated, and the Company shall have
delivered to each of the Banks at least 15 days prior to the
consummation of such disposition a certificate to such effect and an
accompanying report establishing the basis for such certification, in a
form, and providing detail and justification for the information
contained therein, satisfactory to the Agent, or
(z) a disposition of assets constituting discontinued operations on
the date of this Agreement.
(b) Prior to the Separation, the Company will retain ownership,
directly or indirectly, of at least 80% of the capital stock, and at least 80%
of the voting power, of U S WEST Communications, Inc. ("Communications"), and
will cause Communications to continue to own substantially all of the
telecommunications assets it owns on the date of this Agreement.
<PAGE>
Section 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of any
applicable law or regulation, and no use of such proceeds will include any use
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock.
Section 5.11. Year 2000 Compatibility. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be
paid within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform
any covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by clause (a) or (b) above) for 10 days (or, in the case of
Section 5.11, 30 days) after written notice thereof has been given to
the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by the Company or the Borrower in this Agreement or in any certificate,
<PAGE>
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 $75,000,000, 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 or enables the holder
of such Debt or obligor with respect to any commitment to provide such
Debt or any Person acting on such holder's or obligor's behalf to
accelerate the maturity thereof or, because such event or condition
constitutes a default or event of default or similar event, however
defined, under the instrument governing such commitment, to terminate
such commitment;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize or otherwise acquiesce in any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Company or any Significant
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $75,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
<PAGE>
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 $75,000,000;
(j) a judgment or order for the payment of money in excess of
$75,000,000 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;
(k) the Company shall repudiate in writing any of its obligations
under Article 9 or MediaOne Delaware shall repudiate in writing any of
its obligations under the MediaOne Delaware Guaranty or any such
obligation shall be unenforceable against the Company or MediaOne
Delaware, as the case may be, in accordance with its terms, or the
Company or MediaOne Delaware shall so assert in writing;
(l) one or more events or conditions shall occur which result in a
default under any agreement or agreements in respect of any Material
Debt that is subject to the Indentures and as a consequence of such
default or defaults the Company or any of its Subsidiaries shall make
any payment or give or agree to give any consideration or benefit of
any kind (including, without limitation, any increased compensation,
prepayment, shortening of maturities, security or other credit support)
to the holders of such Debt and such payment, consideration or benefit
is determined by the Required Banks, after taking into account any
payment, consideration or benefit made, given or agreed to be given by
such holders to the Company or any of its Subsidiaries (other than a
waiver of such default), to be a material benefit to the holders of
such Debt;
(m) the Separation shall have occurred on terms and conditions
which are not substantially the same as those set forth in the Proxy
Statement; or
(n) a Change of Control shall have occurred;
<PAGE>
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
Section 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
The Agent
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
Section 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, the Borrower or any Subsidiary or affiliate of the
Company or the Borrower as if it were not the Agent hereunder.
Section 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
<PAGE>
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 6.
Section 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
Section 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Company or the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
<PAGE>
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
Section 7.09. Agent's Fee. The Company shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and the Agent.
ARTICLE 8
Changes in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar
Loan 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,
<PAGE>
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
the Borrower and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and the Company, whereupon until such
Bank notifies the Company and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans to the Borrower, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given, each Euro-Dollar Loan of such Bank then outstanding shall be converted
to a Domestic Loan either (a) on the last day of the then current Interest
Period applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan to such day or (b) immediately if such Bank shall
determine that it may not lawfully continue to maintain and fund such Loan to
such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
the date hereof, in the case of any Committed Loan or any obligation to make
<PAGE>
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System with respect to
any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction.
<PAGE>
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
Section 8.04. Taxes. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
<PAGE>
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide
the Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
Section 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
<PAGE>
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
Section 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
ARTICLE 9
Guaranty
Section 9.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
<PAGE>
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
Section 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of the Borrower
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or
its assets or any resulting release or discharge of any obligation of
the Borrower contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against the Borrower, the Agent, any
Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Borrower for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any Note or
any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
<PAGE>
Section 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
Section 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
Section 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
Section 9.06. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by the Borrower under this Agreement
or its Notes is stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Company hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
ARTICLE 10
Miscellaneous
Section 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Company, the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of
<PAGE>
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 out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that (i) no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction and (ii)
the Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
<PAGE>
(c) Each Indemnitee agrees to give the Company prompt written notice
after it receives any notice of the commencement of any action, suit or
proceeding for which such Indemnitee may wish to claim indemnification pursuant
to subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of notice
from such Indemnitee of such commencement, to assume, at the Company's expense,
the defense of any such action, suit or proceeding; provided, that such
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Indemnitee's expense unless
(1) the Company shall have agreed to pay such fees and expenses; (2) the Company
shall have failed to assume the defense of such action, suit or proceeding or
shall have failed to employ counsel reasonably satisfactory to such Indemnitee
in any such action, suit or proceeding; or (3) such Indemnitee shall have been
advised by independent counsel in writing (with a copy to the Company) that
there may be one or more defenses available to such Indemnitee which are in
conflict with those available to the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall be obligated to assume the expense, it
being understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
Section 10.04. Sharing of Set-offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
<PAGE>
Section 10.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Company, the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, except as provided below, (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; provided further, that no such amendment
or waiver shall, unless signed by all of the Swing Lenders and each other Lender
affected thereby, increase the maximum aggregate principal amount of Swing Loans
which may be outstanding at any time, postpone the date fixed for the maturity
of any Swing Loan or otherwise affect any of their rights and obligations
hereunder.
Section 10.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks and all Swing Lenders.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company and the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement
<PAGE>
described in clause (i), (ii) or (iii) of Section 10.05 without the consent of
the Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below but which is consented to
in accordance with this subsection (b) shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; (ii) such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; and (iii) any assignment shall not be less than
$15,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations under this Agreement and the Notes except for any rights
retained in accordance with clause (ii) of this proviso. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Company and
the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
<PAGE>
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
Section 10.07. Termination of Existing Credit Agreements. The Company
and each of the Banks that is also a "Bank" 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. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.09 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 Borrower (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, (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 Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
<PAGE>
hereof signed by each of the Company, the Borrower, the Banks and the Agent (or,
in the case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
Section 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided that
nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii) upon
the order of any court or administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having jurisdiction over such party, (v)
which has been publicly disclosed, (vi) which has been obtained from any Person
other than the Company and its Subsidiaries, provided that such Person is not
(x) known to it to be bound by a confidentiality agreement with the Company or
its Subsidiaries or (y) known to it to be otherwise prohibited from transmitting
the information to it by a contractual, legal or fiduciary obligation, (vii) in
connection with the exercise of any remedy hereunder or under the Notes or
(viii) to any actual or proposed participant or assignee of all or any of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MEDIAONE GROUP FUNDING, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
U S WEST, INC. (TO BE RENAMED
MEDIAONE GROUP, INC.)
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
<PAGE>
Commitments
$95,500,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
Name:
Title:
$95,000,000 THE BANK OF NEW YORK
By
Name:
Title:
$95,000,0000 CITIBANK, N.A.
By
Name:
Title:
$95,000,000 NATIONSBANK, N.A.
By
Name:
Title:
<PAGE>
$87,500,000 ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
$87,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Name:
Title:
$87,500,000 BARCLAYS BANK PLC
By
Name:
Title:
$87,500,000 THE CHASE MANHATTAN BANK
By
Name:
Title:
<PAGE>
$87,500,000 FLEET NATIONAL BANK
By
Name:
Title:
$87,500,000 MELLON BANK, N.A.
By
Name:
Title:
$87,500,000 TORONTO DOMINION (TEXAS), INC.
By
Name:
Title:
$75,000,000 BANQUE NATIONALE DE PARIS
By
Name:
Title:
By
Title:
$75,000,000 CANADIAN IMPERIAL BANK OF
COMMERCE
By
Name:
Title:
<PAGE>
$75,000,000 SOCIETE GENERALE
SOUTHWEST AGENCY
By
Name:
Title:
$58,000,000 DRESDNER BANK A.G., NEW YORK AND
GRAND CAYMAN BRANCHES
By
Name:
Title:
By
Name:
Title:
$58,000,000 ROYAL BANK OF CANADA
By
Name:
Title:
$58,000,000 THE ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
<PAGE>
$58,000,000 WESTDEUTCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
$37,500,000 BANK ONE, COLORADO, N.A.
By
Name:
Title:
$37,500,000 BANKERS TRUST COMPANY
By
Name:
Title:
$37,500,000 BANQUE PARIBAS
By
Name:
Title:
By
Name:
Title:
<PAGE>
$37,500,000 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By
Name:
Title:
By
Name:
Title:
$37,500,000 DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By
Name:
Title:
By
Name:
Title:
$37,500,000 THE DAI-ICHI KANGYO BANK, LIMITED
By
Name:
Title:
$37,500,000 FIRST UNION NATIONAL BANK
By
Name:
Title:
<PAGE>
$37,500,000 THE FUJI BANK, LIMITED
LOS ANGELES AGENCY
By
Name:
Title:
$37,500,000 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESELLSCHAFT
By
Name:
Title:
$37,500,000 KREDIETBANK N.V.
By
Name:
Title:
By
Name:
Title:
$37,500,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By
Name:
Title:
<PAGE>
$37,500,000 NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By
Name:
Title:
$37,500,000 THE SAKURA BANK LIMITED, LOS
ANGELES AGENCY
By
Name:
Title:
$37,500,000 THE SUMITOMO BANK, LIMITED
By
Name:
Title:
$25,000,000 CRESTAR BANK
By
Name:
Title:
Total Commitments
$2,000,000,000
===========
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Connor
Facsimile number: 302-634-1092
Telephone number: 302-634-4218
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
Level Level Level Level Level Level
<S> <C> <C> <C> <C> <C> <C>
Status I II III IV V VI
Euro-Dollar
Margin:
Usage less than or
equal to 331/3% .150% .225% .2875% .325% .375% .650%
Usage more than 331/3%
and less than or
equal to62/3% .225% .300% .3625% .400% .450% .650%
Usage more than
662/3% .275% .350% .4125% .450% .500% .650%
Facility Fee .100% .125% .1375% .150% .250% .350%
Rate
===================== ============ ============= ============= ============ ============= ============
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date after the Separation if, at such
date, the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB+ or
higher by S&P and Baa1 or higher by Moody's.
"Level II Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB or higher
by S&P and Baa2 or higher by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists (x) at any date prior to the Separation, and
(y) at any date after the Separation if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
and MediaOne of Delaware, Inc. are rated BBB or higher by S&P and Baa3 or higher
by Moody's, (ii) the Borrower's outstanding commercial paper is rated A2 or
higher by S&P
<PAGE>
and P3 or higher by Moody's or A3 or higher by S&P and P2 or higher by Moody's
and (iii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BBB- or
higher by S&P and Baa3 or higher by Moody's and (ii) none of Level I Status,
Level II Status or Level III Status exists.
"Level V Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
guaranteed by the Company and MediaOne of Delaware, Inc. are rated BB+ or higher
by S&P and Ba1 or higher by Moody's and (ii) none of Level I Status, Level II
Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date after the Separation if, at such
date, none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
<PAGE>
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 662/3%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
guaranteed by the Company and MediaOne of Delaware, Inc., and any rating
assigned to any other debt security of the Borrower shall be disregarded. The
rating in effect at any date is that in effect at the close of business on such
date.
<PAGE>
SCHEDULE 4.07
Environmental Matters
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
________, 19__
For value received, MEDIAONE GROUP FUNDING, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the inaccuracy of, or the failure of the Bank to make, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Five-Year Credit
Agreement dated as of May 8, 1998 among MediaOne Group Funding, Inc., U S WEST,
Inc. (to be renamed MediaOne Group, Inc.), the banks listed on the signature
pages thereof, the other agents named therein and Morgan Guaranty Trust Company
of New York, as Administrative Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
<PAGE>
U S WEST, Inc. (to be renamed MediaOne Group, Inc.), has, pursuant to
the provisions of the Credit Agreement, unconditionally guaranteed the payment
in full of the principal of and interest on this Note.
MEDIAONE GROUP FUNDING, INC.
By
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Date Amount of Type of Loan Amount of Maturity Date Notation Made
Loan Principal By
Repaid
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: MediaOne Group Funding, Inc.
Re: Five-Year Credit Agreement (the "Credit Agreement") dated as of May 8,
1998 among MediaOne Group Funding, Inc., U S WEST, Inc. (to be
renamed MediaOne Group, Inc.), the Banks listed on the signature pages
thereof, the other agents named therein and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Terms
used herein have the meanings assigned to them in the Credit Agreement.
- --------
1Amount must be $25,000,000 or a larger multiple of $5,000,000.
2Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
MEDIAONE GROUP FUNDING, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to MediaOne Group Funding,
Inc. (the "Borrower")
Pursuant to Section 2.03 of the Five-Year Credit Agreement dated as of
May 8, 1998 among MediaOne Group Funding, Inc., U S WEST, Inc. (to be renamed
MediaOne Group, Inc.), the Banks parties thereto, the other agents named therein
and the undersigned, as Administrative Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
<TABLE>
<CAPTION>
<S> <C>
Principal Amount Interest Period
$
</TABLE>
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Please
respond to this invitation by no later than [10:30 A.M.] [9:15 A.M.] (New York
City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Administrative Agent (the "Agent")
Re: Money Market Quote to
MediaOne Group Funding, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
</TABLE>
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
- ----------
* As specified in the related Invitation.
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Five-Year Credit
Agreement dated as of May 8, 1998 among MediaOne Group Funding, Inc., U S WEST,
Inc. (to be renamed MediaOne Group, Inc.), the Banks listed on the signature
pages thereof, the other agents named therein and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any offer(s)
are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000. *** Not less than one month or not less than
7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period. **** Margin over or under the London
Interbank Offered Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS". ***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY, MEDIAONE OF DELAWARE, INC.,
AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc., MediaOne of Delaware, Inc.
("MediaOne Delaware") and MediaOne Group Funding, Inc., in connection with the
Five-Year Credit Agreement (the "Credit Agreement") dated as of May 8, 1998,
among them, the banks listed on the signature pages thereof, the other agents
named therein and Morgan Guaranty Trust Company of New York, as Administrative
Agent. Terms defined in the Credit Agreement are used herein as therein defined.
This opinion is being rendered to you at the instruction of the client pursuant
to Section 3.01(b) of the Credit Agreement.
I am familiar with the proceedings taken by the Company, MediaOne
Delaware and the Borrower in connection with the authorization, execution and
delivery of the Credit Agreement, the MediaOne Delaware Guaranty and the Notes,
and I have examined such documents, certificates, and such other matters of fact
and questions of law as I have deemed relevant under the circumstances to
express an informed opinion. Upon the basis of the foregoing, I am of the
opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all corporate
powers and all governmental licenses, authorizations, qualifications, consents
and approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
<PAGE>
2. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement, by the Borrower of the Notes and by MediaOne
Delaware of the MediaOne Delaware Guaranty are within such Person's corporate
powers, have been duly authorized by all necessary corporate action, and require
no action by or in respect of, or filing with, any governmental body, agency or
official.
3. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement, by the Borrower of the Notes and by MediaOne
Delaware of the MediaOne Delaware Guaranty will not (i) result in a breach or
violation of, conflict with, or constitute a default under, the articles of
incorporation or bylaws of such Person or any material law or regulation or any
material order, judgment, agreement or instrument to which such Person is a
party or by which such Person is bound, or (ii) result in the creation or
imposition of any Lien on any asset of such Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Borrower, the Notes constitute valid and binding obligations
of the Borrower and the MediaOne Delaware Guaranty constitutes a valid and
binding agreement of MediaOne Delaware, in each case enforceable in accordance
with its terms except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
5. To my knowledge, and except as disclosed in the Company's 1997 Form
10-K (as amended by Form 10-K/A) as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or, to the
best of my knowledge, threatened against or affecting the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of the Credit Agreement, the MediaOne Delaware Guaranty or the
Notes.
6. The Borrower, MediaOne Delaware and each of the Company's other
corporate Significant Subsidiaries are corporations validly existing and in good
standing under the laws of their jurisdictions of incorporation, and have all
corporate powers and all governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted,
except where the absence of any such license, authorization, qualification,
consent or approval would not have a material adverse effect on the consolidated
financial
<PAGE>
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I
have assumed that the laws of the State of New York, which are stated to govern
the Credit Agreement, the MediaOne Delaware Guaranty and the Notes, are the same
as the laws of the State of Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement, the MediaOne Delaware Guaranty and the Notes will conform to
the specimens thereof examined by me, that the signatures on all documents
examined by me were genuine, and the authenticity of all documents submitted to
me as originals or as copies of originals, assumptions which I have not
independently verified.
This opinion is furnished by me as counsel for the Company, MediaOne
Delaware and the Borrower and is solely for your benefit and the benefit of any
Assignee under the Credit Agreement. Without my prior written consent, this
opinion may not be relied upon by you or any Assignee in any other context or by
any other person. This opinion may not be quoted, in whole or in part, or copies
thereof furnished, to any other person without my prior written consent, except
that you may furnish copies hereof (a) to your auditors and attorneys, (b) to
any state or federal authority having regulatory jurisdiction over you or the
Company or the Borrower, (c) pursuant to order or legal process of any court or
governmental agency, (d) in connection with any legal action to which you are a
party arising out of the transactions contemplated by the Credit Agreement, and
(e) to any Participant or proposed Participant in the Commitment of any Bank.
This opinion is limited to the present laws of the State of Colorado
and the General Corporation Law of the State of Delaware, to present judicial
interpretations thereof, and to the facts as they presently exist, and I assume
no responsibility as to the applicability or effect of the laws of any other
jurisdiction. In rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws of the State of Colorado or the
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision, or otherwise.
Very truly yours,
Stephen E. Brilz
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Five-Year Credit
Agreement (the "Credit Agreement") dated as of May 8, 1998 among MediaOne Group
Funding, Inc., U S WEST, Inc., the banks listed on the signature pages thereof
(the "Banks"), the other agents named therein and Morgan Guaranty Trust Company
of New York, as Administrative Agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.01(c) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming
that the execution, delivery and performance by the Company and the Borrower of
the Credit Agreement and by the Borrower of the Notes are within such Person's
corporate powers and have been duly authorized by all necessary corporate
action, the Credit Agreement constitutes a valid and binding agreement of the
Company and the Borrower and the Notes constitute valid and binding obligations
of the Borrower.
<PAGE>
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (to be renamed MEDIAONE
GROUP, INC.) (the "Company") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Five-Year Credit Agreement dated as of May 8, 1998 among the
Company, the Borrower named therein, the Assignor and the other Banks party
thereto, as Banks, the other agents named therein and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
<PAGE>
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.3 It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with
respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of
the Company -------- 3 Amount should combine principal together with
accrued interest and breakage compensation, if any, to be paid by the
Assignee, net of any portion of any upfront fee to be paid by the Assignor
to the Assignee. It may be preferable in an appropriate case to specify
these amounts generically or by formula rather than as a fixed sum.
<PAGE>
or the Borrower in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the Assignor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Company and the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[U S WEST, INC.] [MEDIAONE
GROUP, INC.]
By
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:]
<PAGE>
EXHIBIT H
EXTENSION AGREEMENT
MediaOne Group Funding, Inc.
[U S WEST, Inc.] [MediaOne Group, Inc.]
7800 East Orchard Road
Englewood, Colorado 80111
Morgan Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period
under the Five-Year Credit Agreement dated as of May 8, 1998 among MediaOne
Group Funding, Inc., [U S WEST, Inc.] [MediaOne Group, Inc.], the Banks listed
therein, the other agents named therein and Morgan Guaranty Trust Company of New
York, as Administrative Agent (the "Credit Agreement") for 364 days to
____________ __, ____. Terms defined in the Credit Agreement are used herein as
therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. It may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[NAME OF BANK]1
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
[NAME OF BANK]1
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
Agreed and accepted:
MEDIAONE GROUP FUNDING, INC.
By
Title
[U S WEST, INC.] [MEDIAONE GROUP, INC.]
By
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Title
<PAGE>
EXHIBIT I
GUARANTY
GUARANTY dated as of May 8, 1998 by MediaOne of Delaware, Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Banks and the
Agent referred to below.
WHEREAS, U S WEST, Inc. (to be renamed MediaOne Group, Inc.) (the
"Company") and MediaOne Group Funding, Inc. (the "Borrower"), have entered
into a Credit Agreement dated as of May 8, 1998 with the banks listed on the
signature pages thereof (the "Banks") and Morgan Guaranty Trust Company of
New York, as Administrative Agent (the "Agent"); and
WHEREAS, said Credit Agreement, as amended from time to time, is herein
referred to as the "Credit Agreement" and the terms defined therein and not
otherwise defined herein have, as used herein, their respective meanings set
forth in Section 1.01 of the Credit Agreement; and
WHEREAS, the obligations of the Banks to make loans under the Credit
Agreement are conditioned on, among other things the execution and delivery to
the Agent of a Guaranty in the form hereof by the Guarantor, which is a
wholly-owned subsidiary of the Company;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor agrees as follows:
SECTION 1. Guaranty.
1.1. The Guaranty. The Guarantor hereby unconditionally guarantees the
full and punctual payment when due (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to the Credit Agreement, and the full and punctual
payment of all other amounts payable by the Borrower under the Credit Agreement.
Upon failure by the Borrower to pay punctually any such amount in full, the
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in the Credit Agreement.
1.2. Guaranty Unconditional. The obligations of the Guarantor hereunder
shall be unconditional, irrevocable and absolute and, without limiting the
<PAGE>
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver
or release in respect of any obligation of the Borrower under
the Credit Agreement or any Note, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to the
Credit Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity
of any direct or indirect security for any obligation of the
Borrower under the Credit Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the
Borrower or its assets or any resulting release or discharge
of any obligation of the Borrower contained in the Credit
Agreement or any Note;
(v) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against the Borrower,
the Agent, any Bank or any other Person, whether in connection
herewith, with the Credit Agreement or with any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Borrower for any reason of the Credit Agreement or
any Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower of the
principal of or interest on any Note or any other amount
payable by the Borrower under the Credit Agreement; or
(vii) any other act or omission to act or delay of any kind
by the Borrower, the Agent, any Bank or any other Person or
any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantor's obligations hereunder.
1.3. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantor's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
<PAGE>
interest on the Notes and all other amounts under the Credit Agreement shall
have been indefeasibly paid in full. If at any time any payment of the principal
of or interest on any Note or any other amount payable by the Borrower under the
Credit Agreement is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantor'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.
1.4. Waiver by the Guarantor. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
1.5. Subrogation. The Guarantor irrevocably waives any and all rights
to which it may be entitled, by operation of law or otherwise, upon making any
payment hereunder to be subrogated to the rights of the payee against the
Borrower with respect to such payment or against any direct or indirect security
therefor, or otherwise to be reimbursed, indemnified or exonerated by or for the
account of the Borrower in respect thereof.
1.6. Stay of Acceleration. In the event that acceleration of the time
for payment of any amount payable by the Borrower under the Credit Agreement or
its Notes is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
the Credit Agreement shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the Agent made at the request of the Required Banks.
1.7. Limit of Liability. The obligations of the Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable
state law.
SECTION 2. Miscellaneous.
2.1. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of the
Banks and the Agent and their respective successors and assigns.
2.2. Amendments. Neither this Guaranty nor any provision hereof may be amended,
modified, waived, discharged or terminated orally, but only by a
<PAGE>
statement in writing signed by the Agent with the prior written consent of each
of the Banks or pursuant to Section 1.3 above.
2.3. Governing Law; Submission to Jurisdiction. This Guaranty shall be
construed in accordance with and governed by the laws of the State of New York.
The Guarantor 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.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first written above.
MEDIAONE OF DELAWARE, INC.
By _____________________________
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 70111
Facsimile number: 303-793-0307
Telephone number: 303-793-6250
Attention: Rahn Porter
EXHIBIT 10c.
$3,500,000,000
364-DAY
CREDIT AGREEMENT
dated as of
May 8, 1998
among
U S WEST Capital Funding, Inc.
U S WEST, Inc.
USW-C, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
- -------------------------------------------------------------------------------
J.P. Morgan Securities Inc.
Lead Arranger
Bank of America National Trust and Savings Association,
Chase Securities Inc. and
Mellon Bank, N.A.,
Co-Syndication Agents
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
----------------------
Page
ARTICLE 1
Definitions
<S> <C> <C>
Page
Section 1.01. The Definitions..................................................................1
Section 1.02. Accounting Terms and Determinations.............................................12
Section 1.03. Types of Borrowings.............................................................12
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend.............................................................13
Section 2.02. Notice of Committed Borrowing...................................................15
Section 2.03. Money Market Borrowings.........................................................15
Section 2.04. Notice to Banks; Funding of Loans...............................................19
Section 2.05. Notes...........................................................................20
Section 2.06. Maturity of Loans...............................................................21
Section 2.07. Interest Rates..................................................................21
Section 2.08. Facility Fees...................................................................23
Section 2.09. Termination or Reduction of Commitments.........................................24
Section 2.10. Method of Electing Interest Rates...............................................24
Section 2.11. Prepayments....................................................................25
Section 2.12. General Provisions as to Payments...............................................26
Section 2.13. Funding Losses..................................................................27
Section 2.14. Computation of Interest and Fees................................................27
Section 2.15. Change of Control...............................................................27
ARTICLE 3
Conditions
Section 3.01. Closing.........................................................................28
Section 3.02. All Borrowings..................................................................29
Section 3.03. Loans after Separation..........................................................30
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power...................................................30
Section 4.02. Corporate and Governmental Authorization; No
Contravention.........................................................................31
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Page
Section 4.03. Binding Effect..................................................................31
Section 4.04. Financial Information...........................................................31
Section 4.05. Litigation......................................................................31
Section 4.06. Compliance with ERISA...........................................................32
Section 4.07. Environmental Matters...........................................................32
Section 4.08. Taxes...........................................................................33
Section 4.09. Subsidiaries....................................................................33
Section 4.10. Not an Investment Company.......................................................33
Section 4.11. Full Disclosure.................................................................33
ARTICLE 5
Covenants
Section 5.01. Information.....................................................................34
Section 5.02. Maintenance of Property; Insurance..............................................36
Section 5.03. Maintenance of Existence........................................................36
Section 5.04. Compliance with Laws............................................................36
Section 5.05. Inspection of Property, Books and Records.......................................37
Section 5.06. Subsidiary Debt.................................................................37
Section 5.07. Debt Coverage...................................................................37
Section 5.08. Negative Pledge.................................................................38
Section 5.09. Consolidations, Mergers and Sales of Assets.....................................39
Section 5.10. Use of Proceeds.................................................................39
Section 5.11. Year 2000 Compatibility.........................................................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...................................................43
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.................................................................44
Section 7.07. Credit Decision.................................................................44
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Page
Section 7.08. Successor Agent.................................................................44
Section 7.09. Agent's Fee.....................................................................44
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
Section 9.07. Release upon Separation.........................................................52
ARTICLE 10
Miscellaneous
Section 10.01. Notices........................................................................52
Section 10.02. No Waivers.....................................................................52
Section 10.03. Expenses; Indemnification......................................................53
Section 10.04. Sharing of Set-offs............................................................54
Section 10.05. Amendments and Waivers.........................................................54
Section 10.06. Successors and Assigns........................................................55
Section 10.07. Termination of Existing Credit Agreements......................................56
Section 10.08. Governing Law; Submission to Jurisdiction......................................57
Section 10.09. Counterparts; Integration; Effectiveness.......................................57
Section 10.10. WAIVER OF JURY TRIAL...........................................................57
Section 10.11. Confidentiality................................................................57
</TABLE>
<PAGE>
Pricing Schedule
Schedule 4.07 - Environmental Matters
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company and the Borrower
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 8, 1998 among U S WEST Capital Funding, Inc.,
U S WEST, Inc., USW-C, 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).
<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 U S WEST Capital Funding, Inc., a Colorado
corporation, and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Closing Date" means the date on or after the Effective Date on which
the Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09 and 2.11.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01(a); provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Committed Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"Company" means (i) prior to the Separation, U S WEST, Inc., a Delaware
corporation, and its successors and (ii) after the Separation, USW-C, Inc., a
Delaware corporation, which will be renamed U S WEST, Inc., and its successors.
"Company's 1997 Form 10-K" means U S WEST, Inc.'s annual report on Form
10-K for 1997, as amended by Form 10-K/A filed April 13, 1998, in each case as
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis
<PAGE>
for such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"Consolidated Net Worth" means at any date the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(x) Debt of Persons which are not Consolidated Subsidiaries
("Joint Ventures") (i) which is secured by a Lien on the assets or
capital stock of a Minor Subsidiary or the equity interests in such
Joint Ventures or is Guaranteed by a Minor Subsidiary, which Lien or
Guaranty is incurred in connection with the international operations of
the Company and its Subsidiaries, and (ii) for the payment of which no
other recourse may be had to the Company or any of its Subsidiaries;
and
(y) Debt of the Company or the Borrower issued in connection
with the issuance of Trust Originated Preferred Securities or
substantially similar securities, so long as such Debt is subordinated
and junior in right of payment to substantially all liabilities of the
Company or the Borrower, as the case may be, including, without
limitation, the Loans.
<PAGE>
"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
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
<PAGE>
"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 Credit
Agreements dated as of October 31, 1997, among the Borrower, the Company, the
banks listed on the signature pages thereof and Morgan Guaranty Trust Company of
New York, as administrative agent.
"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
<PAGE>
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Morgan Guaranty Trust Company of New York on
such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Domestic Loans at such time or (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time;
provided that, if a Committed Loan of any particular Bank is converted to or
made as a Domestic Loan pursuant to Section 8.02 or 8.05, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guaranty" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 10.03(b).
"Indentures" means the agreements or instruments evidencing the
following Debt of Continental Cablevision, Inc., and its successors: (i) the 11%
Senior Subordinated Debentures Due June 1, 2007; (ii) the 8 5/8% Senior Notes
Due August 15, 2003; (iii) the 9% Senior Debentures Due September 1, 2008; (iv)
the 8 7/8% Senior Debentures Due September 15, 2002; (v) the 9 1/2% Senior
<PAGE>
Debentures Due August 1, 2013; (vi) the 8 1/2% Senior Notes Due September 15,
2001; (vii) the 8.3% Senior Notes Due May 15, 2006; and (viii) any other Debt
containing terms and conditions as or more favorable to the holders thereof than
the terms and conditions of any of the foregoing Debt.
"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
<PAGE>
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.
(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.
<PAGE>
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Material Debt" means Debt (other than the Notes) of the Company and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $100,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"Minor Subsidiary" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) USW
PCN Inc., and (ii) any other Subsidiary which, at the time of the issuance of a
Guaranty or grant of a Lien referred to in the Relevant Provisions, had assets
which, when taken together with all assets of Subsidiaries at any earlier time
when such Subsidiaries were deemed to be Minor Subsidiaries pursuant to this
clause (ii), did not exceed $250,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
<PAGE>
"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 the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" 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.
"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.
<PAGE>
"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.
"Proxy Statement" means the definitive Proxy Statement for 1998 Annual
Meeting of Stockholders of U S WEST, Inc., dated and filed with the Securities
and Exchange Commission on April 20, 1998.
"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.
"Separation" has the meaning set forth in the Proxy Statement.
"Significant Subsidiary" means any Subsidiary which would meet the
definition of "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Super-Majority Banks" means at any time Banks having at least 85% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 85% of the aggregate unpaid
principal amount of the Loans.
"Termination Date" means, with respect to each Bank, May 7, 1999, 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
<PAGE>
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
Section 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Domestic Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01(a) in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
<PAGE>
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 the 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 to the Borrower shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this 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
of the Banks of such request. Each Bank will use its best efforts to respond to
such request, whether affirmatively or negatively, as it may elect in its
discretion, within 30 days of such notice to the Agent. If any Bank shall not
have responded affirmatively within such 30-day period, such Bank shall be
deemed to have rejected the Company's proposal to extend its Commitment, and
only the Commitments of those Banks which have responded affirmatively shall be
extended, subject to receipt by the Agent of counterparts of an Extension
Agreement in substantially the form of Exhibit H hereto duly completed and
signed by the Borrower, 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
<PAGE>
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 Borrower 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 (unless the Commitments shall have been reduced pursuant to Section
2.09(b)), 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
Borrower and such Bank or other Person of an instrument of assumption in form
and amount satisfactory to the Administrative Agent, such existing Bank shall
have a Commitment as therein set forth or such other Person shall become a Bank
with a Commitment as therein set forth and all the rights and obligations of a
Bank with such a Commitment hereunder; provided that (i) the Company shall
provide prompt notice of such increase to the Agent, which shall promptly notify
the other Banks, (ii) the aggregate amount of each such increase which is
effective on any day shall be at least $50,000,000 and (iii) the aggregate
amount of the Commitments shall at no time exceed $3,750,000,000. 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 Borrower shall prepay such Group in its entirety, and, to the extent the
Borrower elects to do so and subject to the conditions specified in Article 3,
the 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 the Borrower on the
Termination Date in amounts such that the aggregate principal amount of such
Bank's outstanding Loans to the Borrower at the close of business on the
Termination Date shall not exceed its Commitment. Each Borrowing under this
subsection (d) shall be made from the several Banks ratably in proportion to
their respective Commitments. Amounts prepaid pursuant to Section 2.11 shall not
be
<PAGE>
reborrowed. If less than all the Banks shall have agreed to extend the
Termination Date pursuant to subsection (b) above, but the Termination Date for
those Banks which have not so agreed has not yet occurred (the "Earlier Date"),
and the Borrower has requested a Borrowing pursuant to this subsection (d), then
such Borrowing shall be made on the Earlier Date.
Section 2.02. Notice of Committed Borrowing. The 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
(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), the 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 the Borrower. The Banks may,
but shall have no obligation to, make such offers and the 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 the 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
<PAGE>
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.
The 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.
(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
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);
<PAGE>
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 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 the 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 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:
<PAGE>
(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 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 correct a manifest error in
such former Money Market Quote. The Agent's notice to the 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 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. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
<PAGE>
(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) the 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
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 the Borrower on a day on
which the Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the
<PAGE>
amount being borrowed by the Borrower and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (b) of this
Section, or remitted by the Borrower to the Agent as provided in Section 2.12,
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
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. If the Borrower shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Borrower for
any loss on account thereof incurred by the Borrower.
Section 2.05. Notes. (a) The Loans of each Bank to the Borrower shall
be evidenced by a single Note of the Borrower payable to the order of such Bank
for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
<PAGE>
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
Section 2.06. 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 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.
<PAGE>
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Domestic Loans for such day) and (ii) the sum of the Euro-Dollar
Margin plus the
<PAGE>
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.
(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 Commitments (whether used or unused) and
(ii) from and including the Termination Date (or earlier date of termination of
the Commitments in their entirety) to but excluding the date the Loans shall be
repaid in their entirety, on the daily average aggregate outstanding principal
amount of the Loans. Accrued facility fees shall be payable quarterly in arrears
on the last day of each calendar quarter and upon the date of termination of the
<PAGE>
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. (a) 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.
(b) If the Separation has not been consummated on or before November
8, 1998, the Commitments shall be ratably reduced by 50% on the next succeeding
Domestic Business Day.
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 Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans.
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.
<PAGE>
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
Section 2.11. Prepayments.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the
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, the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
<PAGE>
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the 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(b), the Borrower 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, and (ii) the aggregate unpaid principal amount of all outstanding
Loans does not exceed the aggregate amount of the Commitments as then reduced.
Any such prepayment shall be made in accordance with all applicable provisions
of this Agreement (including without limitation subsections (a) (other than as
to amount), (b) and (c) of this Section 2.11).
Section 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees and
other amounts payable hereunder, not later than 12:00 Noon (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, without off set or counterclaim, to the Agent at its address referred
to in Section 10.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees or other amounts payable hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due from the Borrower to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
<PAGE>
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If the 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 than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.07(c), or if the
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), 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
<PAGE>
thereupon become, due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company and the
Borrower, in each case effective on the Optional Termination Date.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a
majority of the board of directors of the Company. The Separation 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 the 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 Borrower, 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;
<PAGE>
(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.
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, 1998;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of such Borrowing
(except, in the case of the representations and warranties contained in
Section 4.04(b), as disclosed by the 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.
<PAGE>
Section 3.03. Loans after Separation. The obligation of any Bank to
make or maintain a Loan after the Separation is subject to receipt by the Agent
of the following documents, each dated or effective on the date of consummation
of the Separation:
(a) an instrument, satisfactory in form and substance to the
Agent, and duly executed and delivered by USW-C, Inc. pursuant to which
USW-C, Inc. (to be renamed U S WEST, Inc.) assumes the obligations of
U S WEST, Inc. (to be renamed MediaOne Group, Inc.) under this
Agreement;
(b) evidence satisfactory to it that the Separation has been
consummated substantially on the terms described in the Proxy
Statement;
(c) an opinion of Thomas O. McGimpsey, Esq., counsel for USW-C, Inc.,
substantially in the form of Exhibit E hereto with such modifications
as are acceptable to the Agent and covering such additional matters
relating to the transactions contemplated hereby as the Required Banks
may reasonably request; and
(d) all documents the Agent may reasonably request relating to the
existence of USW-C, Inc., 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 the Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
<PAGE>
Section 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company and the
Borrower of this Agreement and by the Borrower of the Notes are within such
Person's corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Person or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Person or any
Significant Subsidiary or result in the creation or imposition of any Lien on
any material asset of such Person or any Significant Subsidiary.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
Section 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1997 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 1997 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, 1997 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 Separation shall not be considered such a change).
Section 4.05. Litigation. Except as disclosed in the Company's 1997
Form 10-K, 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
<PAGE>
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of this Agreement or the Notes.
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. (a) The operations of the Company
and each of its Subsidiaries comply in all respects with all Environmental Laws
except such non-compliance which would not (if enforced in accordance with
applicable law) reasonably be expected to result, individually or in the
aggregate, in a material adverse effect on the financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole.
(b) Except as specifically identified in Schedule 4.07, the Company
and each of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Laws
("Environmental Permits") necessary for their respective operations, and all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically identified in Schedule 4.07, (i) none of
the Company, any of its Subsidiaries or any of their present property or
operations are subject to any outstanding written order from or settlement or
consent agreement with any governmental authority or other Person, nor is any of
the foregoing subject to any judicial or docketed administrative proceedings,
respecting any Environmental Laws or Hazardous Substances with a potential
liability in excess of $1,000,000 and (ii) there are no other conditions or
circumstances known to the Company which may give rise to any claims respecting
any Environmental Laws
<PAGE>
arising from the operations of the Company or its Subsidiaries (including,
without limitation, off-site liabilities), or any additional costs of compliance
with Environmental Laws, that would reasonably be expected to have a material
adverse effect on the financial position or results of operations of the Company
and its Subsidiaries, considered as a whole.
Section 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1987. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except for taxes the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
Section 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrower) is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, qualifications, consents and approvals
required to carry on its business as now conducted.
Section 4.10. Not an Investment Company. Neither the Company nor the
Borrower is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 4.11. Full Disclosure. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
<PAGE>
ARTICLE 5
Covenants
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
Section 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Arthur Andersen L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
<PAGE>
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
<PAGE>
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
Section 5.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name), with financially sound and responsible
insurance companies, insurance on all their respective properties in at least
such amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Banks,
upon request from the Agent, information presented in reasonable detail as to
the insurance so carried; provided that, in lieu of any such insurance, the
Company and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
Section 5.03. Maintenance of Existence. The Company will, and will
cause each Significant Subsidiary to, preserve, renew and keep in full force and
effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.03 shall prohibit or interfere
with the Company's publicly announced strategy to discontinue or dispose of in
one or more transactions the financial services businesses of it or of any of
its Subsidiaries.
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.
<PAGE>
Section 5.05. Inspection of Property, Books and Records. The Company
will keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
Section 5.06. Subsidiary Debt. (a) Prior to the Separation, total debt of
all Consolidated Subsidiaries (excluding Debt of a Consolidated Subsidiary to
the Company or to a Wholly-Owned Consolidated Subsidiary) ("Subsidiary Debt")
will at no time exceed 250% of Consolidated Net Worth.
(b) After the Separation, Subsidiary Debt as of the last day of any
fiscal quarter of the Company will not exceed 150% of Consolidated EBITDA for
the four consecutive fiscal quarters of the Company ending on such date;
provided that in the case of any four fiscal quarter period ending prior to the
first anniversary of the Separation, Consolidated EBITDA for such period shall
equal Consolidated EBITDA for each fiscal quarter (a "Relevant Quarter")
beginning after the Separation and ending on or prior to the last day of such
period, multiplied by a fraction, the numerator of which is four and the
denominator of which is the number of Relevant Quarters.
(c) For purposes of this Section, any preferred stock of a
Consolidated Subsidiary other than the Borrower which is held by a Person other
than the Company or a Wholly-Owned Consolidated Subsidiary shall be included, at
the higher of its voluntary or involuntary liquidation value, in the Debt of
such Consolidated Subsidiary.
Section 5.07. Debt Coverage. (a) Prior to the Separation, consolidated Debt
of the Company and its Consolidated Subsidiaries will at all times be less than
70% of the sum of consolidated Debt of the Company and its Consolidated
Subsidiaries and consolidated shareowners' equity of the Company and its
Consolidated Subsidiaries.
(b) After the Separation, consolidated Debt of the Company and its
Consolidated Subsidiaries as of the last day of any fiscal quarter of the
Company will not exceed 400% of Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on such date; provided that in the case of
any four fiscal quarter period ending prior to the first anniversary of the
Separation,
<PAGE>
Consolidated EBITDA for such period shall equal Consolidated EBITDA for each
fiscal quarter (a "Relevant Quarter") beginning after the Separation and ending
on or prior to the last day of such period, multiplied by a fraction, the
numerator of which is four and the denominator of which is the number of
Relevant Quarters.
Section 5.08. Negative Pledge. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof.
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien on assets or capital stock of Minor Subsidiaries which
secures Debt of Persons which are not Consolidated Subsidiaries in which the
Company or any of its Subsidiaries has made investments ("Joint Ventures"), but
for the payment of which Debt no other recourse may be had to the Company or any
Subsidiaries ("Limited Recourse Debt"), or any Lien on equity interests in a
Joint Venture securing Limited Recourse Debt of such Joint Venture;
(g) any Lien arising out of the refinancing, replacement, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased and
is not secured by any additional assets;
(h) Liens arising in the ordinary course of business which (i) do not
secure Debt, (ii) do not secure any obligation in an amount exceeding
<PAGE>
$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 5.09. Consolidations, Mergers and Sales of Assets. The Company
will not (i) consolidate with or merge into any other Person or (ii) sell, lease
or otherwise transfer, directly or indirectly, all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, to any other
Person. The Company will retain ownership, directly or indirectly, of at least
80% of the capital stock, and at least 80% of the voting power, of U S WEST
Communications, Inc. ("Communications"), and will cause Communications to
continue to own substantially all of the telecommunications assets it owns on
the date of this Agreement.
Section 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of any
applicable law or regulation, and no use of such proceeds will include any use
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock.
Section 5.11. Year 2000 Compatibility. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
<PAGE>
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be
paid within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by clause (a) or (b) above) for 10 days (or, in the case of
Section 5.11, 30 days) after written notice thereof has been given to
the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment or
payments, in the aggregate in excess of $100,000,000, in respect of any
Material Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail
<PAGE>
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;
(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;
(l) prior to the Separation, one or more events or conditions shall
occur which result in a default under any agreement or agreements in
<PAGE>
respect of any Material Debt that is subject to the Indentures and as a
consequence of such default or defaults the Company or any of its
Subsidiaries shall make any payment or give or agree to give any
consideration or benefit of any kind (including, without limitation,
any increased compensation, prepayment, shortening of maturities,
security or other credit support) to the holders of such Debt and such
payment, consideration or benefit is determined by the Required Banks,
after taking into account any payment, consideration or benefit made,
given or agreed to be given by such holders to the Company or any of
its Subsidiaries (other than a waiver of such default), to be a
material benefit to the holders of such Debt; or
(m) the Separation shall have occurred on terms and conditions which
are not substantially the same as those set forth in the Proxy
Statement;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
Section 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
<PAGE>
ARTICLE 7
The Agent
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
Section 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, the Borrower or any Subsidiary or affiliate of the
Company or the Borrower as if it were not the Agent hereunder.
Section 7.03. Action by Agent. The obligations of the Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
Section 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
Section 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any
<PAGE>
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Company or the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
Section 7.09. Agent's Fee. The Company shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and the Agent.
<PAGE>
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
the Borrower
<PAGE>
and such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Company, whereupon until such Bank notifies
the Company and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans to the
Borrower, or to convert outstanding Loans into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such notice is given, each
Euro-Dollar Loan of such Bank then outstanding shall be converted to a Domestic
Loan either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Bank may lawfully continue to maintain and fund
such Loan to such day or (b) immediately if such Bank shall determine that it
may not lawfully continue to maintain and fund such Loan to such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (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.
<PAGE>
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
Section 8.04. Taxes. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
<PAGE>
under this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide
the Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not
<PAGE>
be entitled to indemnification under Section 8.04(a) with respect to Taxes
imposed by the United States; provided, however, that should a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
Section 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
Section 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
<PAGE>
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
ARTICLE 9
Guaranty
Section 9.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
Section 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of the Borrower
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or
its assets or any resulting release or discharge of any obligation of
the Borrower contained in this Agreement or any Note;
<PAGE>
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against the Borrower, the Agent, any
Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Borrower for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any Note or
any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
Section 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
Section 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
Section 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
<PAGE>
Section 9.06. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by the Borrower under this Agreement
or its Notes is stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Company hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
Section 9.07. Release upon Separation. So long as, immediately before
and after the consummation of the Separation, no Default shall have occurred and
be continuing, simultaneously with such consummation, USW-C, Inc. (to be renamed
U S WEST, Inc.) shall succeed to all of the rights, duties and obligations of U
S WEST, Inc. (to be renamed MediaOne Group, Inc.) ("Old U S WEST") hereunder,
whereupon Old U S WEST shall have no further rights, duties and obligations
hereunder, in each case automatically, without any further action on the part of
any party hereto.
ARTICLE 10
Miscellaneous
Section 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Company, the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.01 and telephonic
confirmation of receipt thereof is received, or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be effective until
received.
Section 10.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or
<PAGE>
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 out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that (i) no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction and (ii)
the Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(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
<PAGE>
one or more defenses available to such Indemnitee which are in conflict with
those available to the Company (in which case, if such Indemnitee notifies the
Company in writing that it elects to employ separate counsel at the Company's
expense, the Company shall be obligated to assume the expense, it being
understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
Section 10.04. Sharing of Set-offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 10.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Company, the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, except as provided below, (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.
<PAGE>
Section 10.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company and the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii) of Section 10.05
without the consent of the Participant. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below but which is consented to in accordance with this subsection
(b) shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; (ii) such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; and (iii) any assignment shall not be less than
$15,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations
<PAGE>
under this Agreement and the Notes except for any rights retained in accordance
with clause (ii) of this proviso. Upon execution and delivery of such instrument
and payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, new Notes are issued to the
Assignee. In connection with any such assignment, the transferor Bank shall pay
to the Agent an administrative fee for processing such assignment in the amount
of $2,500. If the Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the Company and the
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
Section 10.07. Termination of Existing Credit Agreements. The Company
and each of the Banks that is also a "Bank" 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. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.09 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 Borrower (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, (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
<PAGE>
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 Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
hereof signed by each of the Company, the Borrower, the Banks and the Agent (or,
in the case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
Section 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided that
nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the
<PAGE>
restrictions set forth in this Section, (iii) upon the order of any court or
administrative agency, (iv) upon the request or demand of any regulatory agency
or authority having jurisdiction over such party, (v) which has been publicly
disclosed, (vi) which has been obtained from any Person other than the Company
and its Subsidiaries, provided that such Person is not (x) known to it to be
bound by a confidentiality agreement with the Company or its Subsidiaries or (y)
known to it to be otherwise prohibited from transmitting the information to it
by a contractual, legal or fiduciary obligation, (vii) in connection with the
exercise of any remedy hereunder or under the Notes or (viii) to any actual or
proposed participant or assignee of all or any of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
U S WEST, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
USW-C, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Sean Foley
<PAGE>
Commitments
$194,444,444 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
Name:
Title:
$194,444,444 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Name:
Title:
$194,444,444 THE CHASE MANHATTAN BANK
By
Name:
Title:
$194,444,444 MELLON BANK, N.A.
By
Name:
Title:
<PAGE>
$186,666,667 ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
$186,666,667 THE BANK OF NEW YORK
By
Name:
Title:
$186,666,667 BANK ONE, COLORADO, N.A.
By
Name:
Title:
$186,666,667 CITIBANK, N.A.
By
Name:
Title:
$186,666,667 KEYBANK NATIONAL ASSOCIATION
By
Name:
Title:
<PAGE>
$186,666,667 NATIONSBANK, N.A.
By
Name:
Title:
$155,555,556 COMMERZBANK AG LOS ANGELES
BRANCH
By
Name:
Title:
By
Name:
Title:
$155,555,556 FLEET NATIONAL BANK
By
Name:
Title:
$112,777,778 CANADIAN IMPERIAL BANK OF
COMMERCE
By
Name:
Title:
<PAGE>
$105,000,000 BANKERS TRUST COMPANY
By
Name:
Title:
$105,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By
Name:
Title:
$105,000,000 KREDIETBANK N.V.
By
Name:
Title:
By
Name:
Title:
$105,000,000 THE ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
<PAGE>
$105,000,000 WELLS FARGO BANK, N.A.
By
Name:
Title:
$58,333,333 BANK OF HAWAII
By
Name:
Title:
$58,333,333 BARCLAYS BANK PLC
By
Name:
Title:
$58,333,333 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By
Name:
Title:
By
Name:
Title:
<PAGE>
$58,333,333 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESELLSCHAFT
By
Name:
Title:
$58,333,333 LEHMAN COMMERCIAL PAPER INC.
By
Name:
Title:
$58,333,333 MERRILL LYNCH CAPITAL
CORPORATION
By
Name:
Title:
$58,333,333 NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By
Name:
Title:
$58,333,333 THE TOKAI BANK, LIMITED
By
Name:
Title:
<PAGE>
$58,333,333 U.S. BANK NATIONAL ASSOCIATION
By
Name:
Title:
$38,888,889 BANQUE NATIONALE DE PARIS
By
Name:
Title:
By
Name:
Title:
$38,888,889 ROYAL BANK OF CANADA
By
Name:
Title:
$38,888,889 ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By
Name:
Title:
By
Name:
Title:
<PAGE>
$11,666,667 THE PROVIDENT BANK.
By
Name:
Title:
Total Commitments:
$3,500,000,000
===========
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Connor
Facsimile number: 302-634-1092
Telephone number: 302-634-4218
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Level Level Level Level Level Level
Status I II III IV V VI
Euro-Dollar
Margin:
Usage less than 50% .1475% .155% .175% .215% .245% .300%
Usage more than or
equal to 50% .1975% .205% .225% .265% .295% .350%
Facility Fee .040% .045% .050% .060% .080% .100%
Rate
===================== ============ ============= ============= ============ ============= ============
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date after the Separation if, at such
date, the Borrower's outstanding senior unsecured long-term debt securities are
rated A+ or higher by S&P or A1 or higher by Moody's.
"Level II Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated A or higher by S&P or A2 or higher by Moody's and (ii) Level I Status
does not exist.
"Level III Status" exists (x) at any date prior to the Separation, and
(y) at any date after the Separation if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities are rated A- or higher by
S&P or A3 or higher by Moody's and (ii) neither Level I Status nor Level II
Status exists.
"Level IV Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated BBB+ or higher by S&P or Baa1 or higher by Moody's and (ii) none of
Level I Status, Level II Status or Level III Status exists.
<PAGE>
"Level V Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated BBB or higher by S&P or Baa2 or higher by Moody's and (ii) none of
Level I Status, Level II Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date after the Separation if, at such
date, none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
guaranteed by the Company, and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
<PAGE>
SCHEDULE 4.07
Environmental Matters
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
________, 19__
For value received, U S WEST CAPITAL FUNDING, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the inaccuracy of, or the failure of the Bank to make, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of May 8, 1998 among U S WEST Capital Funding, Inc., U S
WEST, Inc., USW-C, Inc., the banks listed on the signature pages thereof, the
other agents named therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
<PAGE>
U S WEST, Inc., has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this Note.
U S WEST CAPITAL FUNDING, INC.
By
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
Date Amount of Type of Loan Amount of Maturity Date Notation Made
Loan Principal By
Repaid
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: U S WEST Capital Funding, Inc.
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of May 8,
1998 among U S WEST Capital Funding, Inc., U S WEST, Inc., USW-C, Inc.,
the Banks listed on the signature pages thereof, the other agents named
therein and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Terms
used herein have the meanings assigned to them in the Credit Agreement.
- --------
1Amount must be $25,000,000 or a larger multiple of $5,000,000.
2Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
U S WEST CAPITAL FUNDING, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to U S WEST Capital
Funding, Inc. (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
May 8, 1998 among U S WEST Capital Funding, Inc., U S WEST, Inc., USW-C, Inc.,
the Banks parties thereto, the other agents named therein and the undersigned,
as Administrative Agent, we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Please
respond to this invitation by no later than [10:30 A.M.] [9:15 A.M.] (New York
City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Administrative Agent (the "Agent")
Re: Money Market Quote to
U S WEST Capital Funding, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
</TABLE>
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
- ----------
* As specified in the related Invitation.
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of May 8, 1998 among U S WEST Capital Funding, Inc., U S
WEST, Inc., USW-C, Inc., the Banks listed on the signature pages thereof, the
other agents named therein and yourselves, as Agent, irrevocably obligates us to
make the Money Market Loan(s) for which any offer(s) are accepted, in whole or
in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000. *** Not less than one month or not less than
7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period. **** Margin over or under the London
Interbank Offered Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS". ***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc., USW-C, Inc. and U S WEST
Capital Funding, Inc., in connection with the 364-Day Credit Agreement (the
"Credit Agreement") dated as of May 8, 1998, among them, the banks listed on the
signature pages thereof, the other agents named therein and Morgan Guaranty
Trust Company of New York, as Administrative Agent. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being rendered to
you at the instruction of the client pursuant to Section 3.01(b) of the Credit
Agreement.
I am familiar with the proceedings taken by the Company, USW-C, Inc.
and the Borrower in connection with the authorization, execution and delivery of
the Credit Agreement and the Notes, and I have examined such documents,
certificates, and such other matters of fact and questions of law as I have
deemed relevant under the circumstances to express an informed opinion. Upon the
basis of the foregoing, I am of the opinion that:
1. The Company and USW-C, Inc. are each corporations validly existing
and in good standing under the laws of the State of Delaware, and each has all
corporate powers and all governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted,
except where the absence of any such license, authorization, qualification,
consent or approval would not have a material adverse effect on the consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
<PAGE>
2. The execution, delivery and performance by the Company, USW-C, Inc.
and the Borrower of the Credit Agreement and by the Borrower of the Notes are
within such Person's corporate powers, have been duly authorized by all
necessary corporate action, and require no action by or in respect of, or filing
with, any governmental body, agency or official.
3. The execution, delivery and performance by the Company, USW-C, Inc.
and the Borrower of the Credit Agreement and by the Borrower of the Notes will
not (i) result in a breach or violation of, conflict with, or constitute a
default under, the articles of incorporation or bylaws of such Person or any
material law or regulation or any material order, judgment, agreement or
instrument to which such Person is a party or by which such Person is bound, or
(ii) result in the creation or imposition of any Lien on any asset of such
Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company USW-C, Inc. and the Borrower and the Notes constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
5. To my knowledge, and except as disclosed in the Company's 1997 Form
10-K (as amended by Form 10-K/A) as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or which in any manner draws
into question the validity of the Credit Agreement or the Notes.
6. The Borrower and each of the Company's other corporate Significant
Subsidiaries are corporations validly existing and in good standing under the
laws of their jurisdictions of incorporation, and have all corporate powers and
all governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted, except where the
absence of any such license, authorization, qualification, consent or approval
would not have a material adverse effect on the consolidated financial position
or consolidated results of operations of the Company and its Consolidated
Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I
have assumed that the laws of the State of New York, which are stated to govern
<PAGE>
the Credit Agreement and the Notes, are the same as the laws of the State of
Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement and the Notes will conform to the specimens thereof examined by
me, that the signatures on all documents examined by me were genuine, and the
authenticity of all documents submitted to me as originals or as copies of
originals, assumptions which I have not independently verified.
This opinion is furnished by me as counsel for the Company and the
Borrower and is solely for your benefit and the benefit of any Assignee under
the Credit Agreement. Without my prior written consent, this opinion may not be
relied upon by you or any Assignee in any other context or by any other person.
This opinion may not be quoted, in whole or in part, or copies thereof
furnished, to any other person without my prior written consent, except that you
may furnish copies hereof (a) to your auditors and attorneys, (b) to any state
or federal authority having regulatory jurisdiction over you or the Company or
the Borrower, (c) pursuant to order or legal process of any court or
governmental agency, (d) in connection with any legal action to which you are a
party arising out of the transactions contemplated by the Credit Agreement, and
(e) to any Participant or proposed Participant in the Commitment of any Bank.
This opinion is limited to the present laws of the State of Colorado
and the General Corporation Law of the State of Delaware, to present judicial
interpretations thereof, and to the facts as they presently exist, and I assume
no responsibility as to the applicability or effect of the laws of any other
jurisdiction. In rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws of the State of Colorado or the
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision, or otherwise.
Very truly yours,
Thomas O. McGimpsey
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 364-Day Credit Agreement
(the "Credit Agreement") dated as of May 8, 1998 among U S WEST Capital Funding,
Inc., U S WEST, Inc., USW-C, Inc., the banks listed on the signature pages
thereof (the "Banks"), the other agents named therein and Morgan Guaranty Trust
Company of New York, as Administrative Agent (the "Agent"), and have acted as
special counsel for the Agent for the purpose of rendering this opinion pursuant
to Section 3.01(c) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming
that the execution, delivery and performance by the Company and the Borrower of
the Credit Agreement and by the Borrower of the Notes are within such Person's
corporate powers and have been duly authorized by all necessary corporate
action, the Credit Agreement constitutes a valid and binding agreement of the
Company and the Borrower and the Notes constitute valid and binding obligations
of the Borrower.
<PAGE>
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (the "Company") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of May 8, 1998 among the
Company, USW-C, Inc., the Borrower named therein, the Assignor and the other
Banks party thereto, as Banks, the other agents named therein and the Agent (the
"Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
<PAGE>
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.3 It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
- --------
3 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
<PAGE>
with respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of the
Company or the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company and
the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[U S WEST, INC.
By
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:]
<PAGE>
EXHIBIT H
EXTENSION AGREEMENT
US WEST Capital Funding, Inc.
US WEST, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Morgan Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period
under the 364-Day Credit Agreement dated as of May 8, 1998 among US WEST Capital
Funding, Inc., US WEST, Inc., USW-C, Inc., the Banks listed therein, the other
agents named therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent (the "Credit Agreement") for 364 days to ____________ __,
____. Terms defined in the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. It may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[NAME OF BANK]1
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
[NAME OF BANK]1
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
Agreed and accepted:
US WEST CAPITAL FUNDING, INC.
By
Title
US WEST, INC.
By
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Title
EXHIBIT 10d.
$1,000,000,000
FIVE-YEAR
CREDIT AGREEMENT
dated as of
May 8, 1998
among
U S WEST Capital Funding, Inc. U S WEST, Inc.
USW-C, Inc.
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
- -------------------------------------------------------------------------------
J.P. Morgan Securities Inc.
Lead Arranger
Bank of America National Trust and Savings Association,
Chase Securities Inc. and
Mellon Bank, N.A.,
Co-Syndication Agents
<PAGE>
<TABLE>
<CAPTION>
PAGE
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
<S> <C> <C>
SECTION 1.01. The Definitions..................................................................1
SECTION 1.02. Accounting Terms and Determinations.............................................12
SECTION 1.03. Types of Borrowings.............................................................12
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.............................................................13
SECTION 2.02. Notice of Committed Borrowing...................................................14
SECTION 2.03. Money Market Borrowings.........................................................15
SECTION 2.04. Notice to Banks; Funding of Loans...............................................19
SECTION 2.05. Notes...........................................................................20
SECTION 2.06. Maturity of Loans...............................................................20
SECTION 2.07. Interest Rates..................................................................21
SECTION 2.08. Facility Fees...................................................................23
SECTION 2.09. Termination or Reduction of Commitments.........................................23
SECTION 2.10. Method of Electing Interest Rates...............................................24
SECTION 2.11. Prepayments....................................................................25
SECTION 2.12. General Provisions as to Payments...............................................26
SECTION 2.13. Funding Losses..................................................................26
SECTION 2.14. Computation of Interest and Fees................................................27
SECTION 2.15. Change of Control...............................................................27
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing.........................................................................28
SECTION 3.02. All Borrowings..................................................................29
SECTION 3.03. Loans after Separation..........................................................29
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power...................................................30
SECTION 4.02. Corporate and Governmental Authorization; No Contravention......................30
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
SECTION 4.03. Binding Effect..................................................................30
SECTION 4.04. Financial Information...........................................................31
SECTION 4.05. Litigation......................................................................31
SECTION 4.06. Compliance with ERISA...........................................................31
SECTION 4.07. Environmental Matters...........................................................32
SECTION 4.08. Taxes...........................................................................32
SECTION 4.09. Subsidiaries....................................................................33
SECTION 4.10. Not an Investment Company.......................................................33
SECTION 4.11. Full Disclosure.................................................................33
ARTICLE 5
COVENANTS
SECTION 5.01. Information.....................................................................33
SECTION 5.02. Maintenance of Property; Insurance..............................................35
SECTION 5.03. Maintenance of Existence........................................................36
SECTION 5.04. Compliance with Laws............................................................36
SECTION 5.05. Inspection of Property, Books and Records.......................................36
SECTION 5.06. Subsidiary Debt.................................................................36
SECTION 5.07. Debt Coverage...................................................................37
SECTION 5.08. Negative Pledge.................................................................37
SECTION 5.09. Consolidations, Mergers and Sales of Assets.....................................38
SECTION 5.10. Use of Proceeds.................................................................39
SECTION 5.11. Year 2000 Compatibility.........................................................39
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default...............................................................39
SECTION 6.02. Notice of Default...............................................................42
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization...................................................42
SECTION 7.02. Agent and Affiliates............................................................42
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.................................................................43
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
SECTION 7.08. Successor Agent.................................................................44
SECTION 7.09. Agent's Fee.....................................................................44
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................44
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....................................................................49
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............................................................51
SECTION 9.07. Release upon Separation.........................................................51
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......................................56
SECTION 10.08. Governing Law; Submission to Jurisdiction......................................56
SECTION 10.09. Counterparts; Integration; Effectiveness.......................................56
SECTION 10.10. WAIVER OF JURY TRIAL...........................................................57
SECTION 10.11. Confidentiality................................................................57
</TABLE>
<PAGE>
Pricing Schedule
Schedule 4.07 - Environmental Matters
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company and the Borrower
Exhibit F - Opinion of Special Counsel for the Administrative Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Extension Agreement
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of May 8, 1998 among U S WEST Capital Funding, Inc.,
U S WEST, Inc., USW-C, 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).
<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 U S WEST Capital Funding, Inc., a Colorado
corporation, and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Closing Date" means the date on or after the Effective Date on which
the Agent shall have received the documents specified in or pursuant to Section
3.01.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09 and 2.11.
"Committed Loan" means a loan to be made by a Bank pursuant to Section
2.01(a); provided that if any such loan or loans are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Committed Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"Company" means (i) prior to the Separation, U S WEST, Inc., a Delaware
corporation, and its successors and (ii) after the Separation, USW-C, Inc., a
Delaware corporation, which will be renamed U S WEST, Inc., and its successors.
"Company's 1997 Form 10-K" means U S WEST, Inc.'s annual report on Form
10-K for 1997, as amended by Form 10-K/A filed April 13, 1998, in each case as
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"Consolidated EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis
<PAGE>
for such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"Consolidated Net Worth" means at any date the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries determined
as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(x) Debt of Persons which are not Consolidated Subsidiaries
("Joint Ventures") (i) which is secured by a Lien on the assets or
capital stock of a Minor Subsidiary or the equity interests in such
Joint Ventures or is Guaranteed by a Minor Subsidiary, which Lien or
Guaranty is incurred in connection with the international operations of
the Company and its Subsidiaries, and (ii) for the payment of which no
other recourse may be had to the Company or any of its Subsidiaries;
and
(y) Debt of the Company or the Borrower issued in connection
with the issuance of Trust Originated Preferred Securities or
substantially similar securities, so long as such Debt is subordinated
and junior in right of payment to substantially all liabilities of the
Company or the Borrower, as the case may be, including, without
limitation, the Loans.
<PAGE>
"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
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
<PAGE>
"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 Credit
Agreements dated as of October 31, 1997, among the Borrower, the Company, the
banks listed on the signature pages thereof and Morgan Guaranty Trust Company of
New York, as administrative agent.
"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
<PAGE>
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Morgan Guaranty Trust Company of New York on
such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Domestic Loans at such time or (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time;
provided that, if a Committed Loan of any particular Bank is converted to or
made as a Domestic Loan pursuant to Section 8.02 or 8.05, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guaranty" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 10.03(b).
"Indentures" means the agreements or instruments evidencing the
following Debt of Continental Cablevision, Inc., and its successors: (i) the 11%
Senior Subordinated Debentures Due June 1, 2007; (ii) the 8 5/8% Senior Notes
Due August 15, 2003; (iii) the 9% Senior Debentures Due September 1, 2008; (iv)
the 8 7/8% Senior Debentures Due September 15, 2002; (v) the 9 1/2% Senior
<PAGE>
Debentures Due August 1, 2013; (vi) the 8 1/2% Senior Notes Due September 15,
2001; (vii) the 8.3% Senior Notes Due May 15, 2006; and (viii) any other Debt
containing terms and conditions as or more favorable to the holders thereof than
the terms and conditions of any of the foregoing Debt.
"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 which would otherwise end
after a Termination Date shall end on 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
<PAGE>
(c) any Interest Period 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 which would otherwise end after a
Termination Date shall end on such Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
<PAGE>
"Material Debt" means Debt (other than the Notes) of the Company and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $100,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"Minor Subsidiary" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) USW
PCN Inc., and (ii) any other Subsidiary which, at the time of the issuance of a
Guaranty or grant of a Lien referred to in the Relevant Provisions, had assets
which, when taken together with all assets of Subsidiaries at any earlier time
when such Subsidiaries were deemed to be Minor Subsidiaries pursuant to this
clause (ii), did not exceed $250,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; provided that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
<PAGE>
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" 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.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto and identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
<PAGE>
"Proxy Statement" means the definitive Proxy Statement for 1998 Annual
Meeting of Stockholders of U S WEST, Inc., dated and filed with the Securities
and Exchange Commission on April 20, 1998.
"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.
"Separation" has the meaning set forth in the Proxy Statement.
"Significant Subsidiary" means any Subsidiary which would meet the
definition of "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Super-Majority Banks" means at any time Banks having at least 85% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 85% of the aggregate unpaid
principal amount of the Loans.
"Termination Date" means, with respect to each Bank, May 8, 2003, 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.
<PAGE>
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Domestic Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01(a) in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are determined on the basis of their bids in
accordance therewith).
<PAGE>
ARTICLE 2
THE CREDITS
SECTION 2.01. 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 the 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 to the Borrower shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in an aggregate principal
amount of $25,000,000 or any larger multiple of $5,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this 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
of the Banks of such request. Each Bank will use its best efforts to respond to
such request, whether affirmatively or negatively, as it may elect in its
discretion, within 30 days of such notice to the Agent. If any Bank shall not
have responded affirmatively within such 30-day period, such Bank shall be
deemed to have rejected the Company's proposal to extend its Commitment, and
only the Commitments of those Banks which have responded affirmatively shall be
extended, subject to receipt by the Agent of counterparts of an Extension
Agreement in substantially the form of Exhibit H hereto duly completed and
signed by the Borrower, 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 Borrower may decline to execute
<PAGE>
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 (unless the Commitments shall have been reduced pursuant to Section
2.09(b)), 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
Borrower and such Bank or other Person of an instrument of assumption in form
and amount satisfactory to the Administrative Agent, such existing Bank shall
have a Commitment as therein set forth or such other Person shall become a Bank
with a Commitment as therein set forth and all the rights and obligations of a
Bank with such a Commitment hereunder; provided that (i) the Company shall
provide prompt notice of such increase to the Agent, which shall promptly notify
the other Banks, (ii) the aggregate amount of each such increase which is
effective on any day shall be at least $50,000,000 and (iii) the aggregate
amount of the Commitments shall at no time exceed $1,250,000,000. 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 Borrower shall prepay such Group in its entirety, and, to the extent the
Borrower elects to do so and subject to the conditions specified in Article 3,
the 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.
SECTION 2.02. Notice of Committed Borrowing. The 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,
<PAGE>
(iii) whether the Loans comprising such Borrowing bear
interest initially at the Base Rate or at a Euro-Dollar Rate, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 2.01(a), the 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 the Borrower. The Banks may,
but shall have no obligation to, make such offers and the 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 the 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.
The 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
<PAGE>
Quote Request shall be given within five Euro-Dollar Business Days (or such
other number of days as the Company and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
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 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 the 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,
<PAGE>
(y) may not exceed the principal amount of Money Market Loans
for which offers were requested, and (z) may be subject to an
aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank
may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th
of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(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 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
<PAGE>
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Agent's notice to the
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 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. The 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) the 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
<PAGE>
be, for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. 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 the Borrower on a day on
which the Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by the Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b) of this Section, or
remitted by the Borrower to the Agent as provided in Section 2.12, 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
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
<PAGE>
repaid to the Agent, at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement. If the Borrower shall have repaid such
corresponding amount of such Bank, such Bank shall reimburse the Borrower for
any loss on account thereof incurred by the Borrower.
SECTION 2.05. Notes. (a) The Loans of each Bank to the Borrower shall
be evidenced by a single Note of the Borrower payable to the order of such Bank
for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.06. 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 2.03 shall mature, and the principal amount thereof shall
<PAGE>
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
<PAGE>
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.
<PAGE>
(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 Commitments (whether used or unused) and
(ii) from and including the Termination Date (or earlier date of termination of
the Commitments in their entirety) to but excluding the date the Loans shall be
repaid in their entirety, on the daily average aggregate outstanding principal
amount of the Loans. Accrued facility fees shall be payable quarterly in arrears
on the last day of each calendar quarter and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
SECTION 2.09. Termination or Reduction of Commitments. (a) 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.
(b) If the Separation has not been consummated on or before November
8, 1998, the Commitments shall be ratably reduced by 50% on the next succeeding
Domestic Business Day.
<PAGE>
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 Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Domestic Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Domestic Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans.
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.
<PAGE>
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.11. Prepayments.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the
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, the Borrower may not
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(b), the Borrower 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, and (ii) the aggregate unpaid principal amount of all outstanding
Loans does not exceed the aggregate amount of the Commitments as then reduced.
Any such prepayment shall be made in accordance with all applicable
<PAGE>
provisions of this Agreement (including without limitation subsections (a)
(other than as to amount), (b) and (c) of this Section 2.11).
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees and
other amounts payable hereunder, not later than 12:00 Noon (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, without off set or counterclaim, to the Agent at its address referred
to in Section 10.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees or other amounts payable hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due from the Borrower to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the 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 than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.07(c), or if the
Borrower fails to borrow, convert, continue or prepay any Fixed Rate Loans after
notice has been
<PAGE>
given to any Bank in accordance with Section 2.04(a), 2.10(c) or 2.11(c), the
Company shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow or prepay, provided that such Bank shall have delivered to the Company a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees hereunder shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.15. Change of Control. If a Change of Control shall occur,
the Company will, within ten days after the occurrence thereof, give each Bank
notice thereof, which notice shall describe in reasonable details the facts and
circumstances giving rise thereto and shall specify an Optional Termination Date
for purposes of this Section (the "Optional Termination Date") which date shall
not be less than 30 nor more than 60 days after the date of such notice. Each
Bank may, by notice to the Company and the Agent given not less than three
Domestic Business Days prior to the Optional Termination Date, terminate its
Commitment (if any), which shall thereupon be terminated, and declare the Note
held by it (together with accrued interest thereon) and any other amounts
payable hereunder for its account to be, and such Note and such other amounts
shall thereupon become, due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company and the
Borrower, in each case effective on the Optional Termination Date.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30% or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a
majority of the board of directors of the Company. The Separation shall not
constitute a Change of Control.
<PAGE>
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon receipt
by the Agent of the following (in the case of any document, dated the Closing
Date unless otherwise indicated):
(a) a duly executed Note of the Borrower for the account of each Bank
dated on or before the Closing Date complying with the provisions of Section
2.05;
(b) an opinion of Thomas O. McGimpsey, Esq., counsel for the Company
and the Borrower, 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.
The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
<PAGE>
SECTION 3.02. 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, 1998;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of such Borrowing
(except, in the case of the representations and warranties contained in
Section 4.04(b), as disclosed by the 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 Separation. The obligation of any Bank to
make or maintain a Loan after the Separation is subject to receipt by the Agent
of the following documents, each dated or effective on the date of consummation
of the Separation:
(a) an instrument, satisfactory in form and substance to the
Agent, and duly executed and delivered by USW-C, Inc. pursuant to which
USW-C, Inc. (to be renamed U S WEST, Inc.) assumes the obligations of
U S WEST, Inc. (to be renamed MediaOne Group, Inc.) under this
Agreement;
(b) evidence satisfactory to it that the Separation has been
consummated substantially on the terms described in the Proxy
Statement;
(c) an opinion of Thomas O. McGimpsey, Esq., counsel for USW-C, Inc.,
substantially in the form of Exhibit E hereto with such
<PAGE>
modifications as are acceptable to the Agent and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request; and
(d) all documents the Agent may reasonably request relating to the
existence of USW-C, Inc., 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 the Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company and the
Borrower of this Agreement and by the Borrower of the Notes are within such
Person's corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Person or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Person or any
Significant Subsidiary or result in the creation or imposition of any Lien on
any material asset of such Person or any Significant Subsidiary.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or
<PAGE>
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, 1997 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 1997 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, 1997 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 Separation shall not be considered such a change).
SECTION 4.05. Litigation. Except as disclosed in the Company's 1997
Form 10-K, there is no action, suit or proceeding pending against, or to the
knowledge of the Company threatened against or affecting, the Company or any of
its Subsidiaries before any court or arbitrator or any governmental body, agency
or official in which there is a reasonable possibility of an adverse decision
which would materially adversely affect the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except where failure to comply would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole. No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or
<PAGE>
(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, (i) none of
the Company, any of its Subsidiaries or any of their present property or
operations are subject to any outstanding written order from or settlement or
consent agreement with any governmental authority or other Person, nor is any of
the foregoing subject to any judicial or docketed administrative proceedings,
respecting any Environmental Laws or Hazardous Substances with a potential
liability in excess of $1,000,000 and (ii) there are no other conditions or
circumstances known to the Company which may give rise to any claims respecting
any Environmental Laws arising from the operations of the Company or its
Subsidiaries (including, without limitation, off-site liabilities), or any
additional costs of compliance with Environmental Laws, that would reasonably be
expected to have a material adverse effect on the financial position or results
of operations of the Company and its Subsidiaries, considered as a whole.
SECTION 4.08. 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.
<PAGE>
SECTION 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrower) is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, qualifications, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company. Neither the Company nor the
Borrower is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Arthur Andersen L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for
<PAGE>
such quarter and for the portion of the Company's fiscal year ended at the end
of such quarter, setting forth in the case of such statements of income and cash
flows in comparative form the figures for the corresponding quarter and the
corresponding portion of the Company's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief financial
officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to
<PAGE>
be given to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain (either in the name of the Borrower or in such
Significant Subsidiary's own name), with financially sound and responsible
insurance companies, insurance on all their respective properties in at least
such amounts and against at least such risks (and with such risk retention) as
are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Banks,
upon request from the Agent, information presented in reasonable detail as to
the insurance so carried; provided that, in lieu of any such insurance, the
Company and any Significant Subsidiary may maintain a system or systems of
self-insurance and reinsurance which will accord with sound practices of
similarly situated corporations maintaining such systems and with respect to
which the Company or such Significant Subsidiary will maintain adequate
insurance reserves, all in accordance with generally accepted accounting
principles and in accordance with sound insurance principles and practice.
<PAGE>
SECTION 5.03. Maintenance of Existence. The Company will, and will
cause each Significant Subsidiary to, preserve, renew and keep in full force and
effect their respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.03 shall prohibit or interfere
with the Company's publicly announced strategy to discontinue or dispose of in
one or more transactions the financial services businesses of it or of any of
its Subsidiaries.
SECTION 5.04. Compliance with Laws. The Company will comply, and will
cause each Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
for which adequate reserves in conformity with generally accepted accounting
principles have been established.
SECTION 5.05. Inspection of Property, Books and Records. The Company
will keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. Subsidiary Debt. (a) Prior to the Separation, total debt of
all Consolidated Subsidiaries (excluding Debt of a Consolidated Subsidiary to
the Company or to a Wholly-Owned Consolidated Subsidiary) ("Subsidiary Debt")
will at no time exceed 250% of Consolidated Net Worth.
(b) After the Separation, Subsidiary Debt as of the last day of any
fiscal quarter of the Company ending during any period set forth below will not
exceed the percentage of Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ending on such date set forth below opposite such
period; provided that in the case of any four fiscal quarter period ending prior
to the first anniversary of the Separation, Consolidated EBITDA for such period
shall equal Consolidated EBITDA for each fiscal quarter (a "Relevant Quarter")
beginning after the Separation and ending on or prior to the last day of such
period,
<PAGE>
multiplied by a fraction, the numerator of which is four and the denominator of
which is the number of Relevant Quarters.
<TABLE>
<CAPTION>
<S> <C>
Period Percentage
Prior to December 31, 1999 150%
December 31, 1999-
December 30, 2000 140%
December 31, 2000-
December 30, 2001 130%
On or after December 31, 2001 125%
</TABLE>
(c) For purposes of this Section, any preferred stock of a Consolidated
Subsidiary other than the Borrower which is held by a Person other than the
Company or a Wholly-Owned Consolidated Subsidiary shall be included, at the
higher of its voluntary or involuntary liquidation value, in the Debt of such
Consolidated Subsidiary.
SECTION 5.07. Debt Coverage. (a) Prior to the Separation, consolidated Debt
of the Company and its Consolidated Subsidiaries will at all times be less than
70% of the sum of consolidated Debt of the Company and its Consolidated
Subsidiaries and consolidated shareowners' equity of the Company and its
Consolidated Subsidiaries.
(b) After the Separation, consolidated Debt of the Company and its
Consolidated Subsidiaries as of the last day of any fiscal quarter of the
Company will not exceed 400% of Consolidated EBITDA for the four consecutive
fiscal quarters of the Company ending on such date; provided that in the case of
any four fiscal quarter period ending prior to the first anniversary of the
Separation, Consolidated EBITDA for such period shall equal Consolidated EBITDA
for each fiscal quarter (a "Relevant Quarter") beginning after the Separation
and ending on or prior to the last day of such period, multiplied by a fraction,
the numerator of which is four and the denominator of which is the number of
Relevant Quarters.
SECTION 5.08. Negative Pledge. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
<PAGE>
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof.
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien on assets or capital stock of Minor Subsidiaries which
secures Debt of Persons which are not Consolidated Subsidiaries in which the
Company or any of its Subsidiaries has made investments ("Joint Ventures"), but
for the payment of which Debt no other recourse may be had to the Company or any
Subsidiaries ("Limited Recourse Debt"), or any Lien on equity interests in a
Joint Venture securing Limited Recourse Debt of such Joint Venture;
(g) any Lien arising out of the refinancing, replacement, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased and
is not secured by any additional assets;
(h) Liens arising in the ordinary course of business which (i) do not
secure Debt, (ii) 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 5.09. Consolidations, Mergers and Sales of Assets. The Company will
not (i) consolidate with or merge into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, all or substantially all of the
<PAGE>
assets of the Company and its Subsidiaries, taken as a whole, to any other
Person. The Company will retain ownership, directly or indirectly, of at least
80% of the capital stock, and at least 80% of the voting power, of U S WEST
Communications, Inc. ("Communications"), and will cause Communications to
continue to own substantially all of the telecommunications assets it owns on
the date of this Agreement.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general corporate purposes. None
of such proceeds will be used, directly or indirectly, in violation of any
applicable law or regulation, and no use of such proceeds will include any use
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock.
SECTION 5.11. Year 2000 Compatibility. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be
paid within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
<PAGE>
covered by clause (a) or (b) above) for 10 days (or, in the case of
Section 5.11, 30 days) after written notice thereof has been given to
the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment or
payments, in the aggregate in excess of $100,000,000, in respect of any
Material Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt;
(g) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize or otherwise acquiesce in any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Company or any Significant
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(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
<PAGE>
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;
(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;
(l) prior to the Separation, one or more events or conditions shall
occur which result in a default under any agreement or agreements in
respect of any Material Debt that is subject to the Indentures and as a
consequence of such default or defaults the Company or any of its
Subsidiaries shall make any payment or give or agree to give any
consideration or benefit of any kind (including, without limitation,
any increased compensation, prepayment, shortening of maturities,
security or other credit support) to the holders of such Debt and such
payment, consideration or benefit is determined by the Required Banks,
after taking into account any payment, consideration or benefit made,
given or agreed to be given by such holders to the Company or any of
its Subsidiaries (other than a waiver of such default), to be a
material benefit to the holders of such Debt; or
(m) the Separation shall have occurred on terms and conditions which
are not substantially the same as those set forth in the Proxy
Statement;
<PAGE>
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, the Borrower or any Subsidiary or affiliate of the
Company or the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
<PAGE>
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Company or the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
<PAGE>
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and the Agent.
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar Loan 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,
<PAGE>
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
the Borrower and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and the Company, whereupon until such
Bank notifies the Company and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans to the Borrower, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given, each Euro-Dollar Loan of such Bank then outstanding shall be converted
to a Domestic Loan either (a) on the last day of the then current Interest
Period applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan to such day or (b) immediately if such Bank shall
determine that it may not lawfully continue to maintain and fund such Loan to
such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after (x) the
date hereof, in the case of any Committed Loan or any obligation to make
<PAGE>
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System with respect to
any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction.
<PAGE>
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Taxes. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
<PAGE>
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide
the Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
<PAGE>
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
<PAGE>
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of the Borrower
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or
its assets or any resulting release or discharge of any obligation of
the Borrower contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against the Borrower, the Agent, any
Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Borrower for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any Note or
any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
<PAGE>
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
SECTION 9.06. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by the Borrower under this Agreement
or its Notes is stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Company hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
SECTION 9.07. Release upon Separation. So long as, immediately before
and after the consummation of the Separation, no Default shall have occurred and
be continuing, simultaneously with such consummation, USW-C, Inc. (to be renamed
U S WEST, Inc.) shall succeed to all of the rights, duties and obligations of U
S WEST, Inc. (to be renamed MediaOne Group, Inc.) ("Old U S WEST") hereunder,
whereupon Old U S WEST shall have no further rights, duties and obligations
hereunder, in each case automatically, without any further action on the part of
any party hereto.
<PAGE>
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Company, the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.01 and telephonic
confirmation of receipt thereof is received, or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 10.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a) The Company shall pay (i)
all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of
<PAGE>
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement or any actual or proposed use of proceeds of
Loans hereunder; provided that (i) no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction and (ii) the
Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice
after it receives any notice of the commencement of any action, suit or
proceeding for which such Indemnitee may wish to claim indemnification pursuant
to subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of notice
from such Indemnitee of such commencement, to assume, at the Company's expense,
the defense of any such action, suit or proceeding; provided, that such
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Indemnitee's expense unless
(1) the Company shall have agreed to pay such fees and expenses; (2) the Company
shall have failed to assume the defense of such action, suit or proceeding or
shall have failed to employ counsel reasonably satisfactory to such Indemnitee
in any such action, suit or proceeding; or (3) such Indemnitee shall have been
advised by independent counsel in writing (with a copy to the Company) that
there may be one or more defenses available to such Indemnitee which are in
conflict with those available to the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall be obligated to assume the expense, it
being understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
SECTION 10.04. Sharing of Set-offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to any Note held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section
<PAGE>
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness hereunder.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 10.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Company, the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, except as provided below, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, (iv) amend or waive the provisions
of Article 9 or (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement.
SECTION 10.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such
<PAGE>
Bank shall retain the sole right and responsibility to enforce the obligations
of the Company and the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 10.05 without the consent of
the Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below but which is consented to
in accordance with this subsection (b) shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; (ii) such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; and (iii) any assignment shall not be less than
$15,000,000, or if less, shall constitute an assignment of all of such Bank's
rights and obligations under this Agreement and the Notes except for any rights
retained in accordance with clause (ii) of this proviso. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Company and
the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 8.04.
<PAGE>
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 10.07. Termination of Existing Credit Agreements. The Company
and each of the Banks that is also a "Bank" 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. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.09 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 Borrower (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, (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 Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
<PAGE>
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Agent of counterparts
hereof signed by each of the Company, the Borrower, the Banks and the Agent (or,
in the case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
SECTION 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided that
nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii) upon
the order of any court or administrative agency, (iv) upon the request or demand
of any regulatory agency or authority having jurisdiction over such party, (v)
which has been publicly disclosed, (vi) which has been obtained from any Person
other than the Company and its Subsidiaries, provided that such Person is not
(x) known to it to be bound by a confidentiality agreement with the Company or
its Subsidiaries or (y) known to it to be otherwise prohibited from transmitting
the information to it by a contractual, legal or fiduciary obligation, (vii) in
connection with the exercise of any remedy hereunder or under the Notes or
(viii) to any actual or proposed participant or assignee of all or any of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
U S WEST, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Rahn Porter
USW-C, INC.
By
Name:
Title:
7800 East Orchard Road
Englewood, Colorado 80111
Facsimile number: 303-793-6307
Telephone number: 303-793-6250
Attention: Sean Foley
<PAGE>
Commitments
$55,555,556 REVOLVING COMMITMENT VEHICLE
CORPORATION
By
Name:
Title:
$55,555,556 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Name:
Title:
$55,555,556 THE CHASE MANHATTAN BANK
By
Name:
Title:
$55,555,556 MELLON BANK, N.A.
By
Name:
Title:
<PAGE>
$53,333,333 ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
$53,333,333 THE BANK OF NEW YORK
By
Name:
Title:
$53,333,333 BANK ONE, COLORADO, N.A.
By
Name:
Title:
$53,333,333 CITIBANK, N.A.
By
Name:
Title:
$53,333,333 KEYBANK NATIONAL ASSOCIATION
By
Name:
Title:
<PAGE>
$53,333,333 NATIONSBANK, N.A.
By
Name:
Title:
$44,444,444 COMMERZBANK AG LOS ANGELES
BRANCH
By
Name:
Title:
By
Name:
Title:
$44,444,444 FLEET NATIONAL BANK
By
Name:
Title:
$32,222,222 CANADIAN IMPERIAL BANK OF
COMMERCE
By
Name:
Title:
<PAGE>
$30,000,000 BANKERS TRUST COMPANY
By
Name:
Title:
$30,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By
Name:
Title:
$30,000,000 KREDIETBANK N.V.
By
Name:
Title:
By
Name:
Title:
$30,000,000 THE ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
<PAGE>
$30,000,000 WELLS FARGO BANK, N.A.
By
Name:
Title:
$16,666,667 BANK OF HAWAII
By
Name:
Title:
$16,666,667 BARCLAYS BANK PLC
By
Name:
Title:
$16,666,667 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By
Name:
Title:
By
Name:
Title:
<PAGE>
$16,666,667 BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESELLSCHAFT
By
Name:
Title:
$16,666,667 LEHMAN COMMERCIAL PAPER INC.
By
Name:
Title:
$16,666,667 MERRILL LYNCH CAPITAL
CORPORATION
By
Name:
Title:
$16,666,667 NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By
Name:
Title:
$16,666,667 THE TOKAI BANK, LIMITED
By
Name:
Title:
<PAGE>
$16,666,667 U.S. BANK NATIONAL ASSOCIATION
By
Name:
Title:
$11,111,111 BANQUE NATIONALE DE PARIS
By
Name:
Title:
By
Name:
Title:
$11,111,111 ROYAL BANK OF CANADA
By
Name:
Title:
$11,111,111 ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By
Name:
Title:
By
Name:
Title:
<PAGE>
$3,333,333 THE PROVIDENT BANK.
By
Name:
Title:
Total Commitments:
$1,000,000,000
===========
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Mark Connor
Facsimile number: 302-634-1092
Telephone number: 302-634-4218
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Level Level Level Level Level Level
Status I II III IV V VI
Euro-Dollar
Margin:
Usage less than 50% .1175% .125% .145% .185% .215% .250%
Usage greater than
or equal to 50% .1675% .175% .195% .235% .265% .300%
Facility Fee .070% .075% .080% .090% .110% .150%
Rate
===================== ============ ============= ============= ============ ============= ============
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date after the Separation if, at such
date, the Borrower's outstanding senior unsecured long-term debt securities are
rated A+ or higher by S&P or A1 or higher by Moody's.
"Level II Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated A or higher by S&P or A2 or higher by Moody's and (ii) Level I Status
does not exist.
"Level III Status" exists (x) at any date prior to the Separation, and
(y) at any date after the Separation if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities are rated A- or higher by
S&P or A3 or higher by Moody's and (ii) neither Level I Status nor Level II
Status exists.
"Level IV Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated BBB+ or higher by S&P or Baa1 or higher by Moody's and (ii) none of
Level I Status, Level II Status or Level III Status exists.
<PAGE>
"Level V Status" exists at any date after the Separation if, at such
date, (i) the Borrower's outstanding senior unsecured long-term debt securities
are rated BBB or higher by S&P or Baa2 or higher by Moody's and (ii) none of
Level I Status, Level II Status, Level III Status or Level IV Status exists.
"Level VI Status" exists at any date after the Separation if, at such
date, none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
"Usage" means at any date the percentage equivalent of a fraction (i)
the numerator of which is the sum of the aggregate outstanding principal amount
of the Loans at such date, after giving effect to any borrowing or payment on
such date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Usage for
each date on or after the date of such termination shall be deemed to be greater
than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
guaranteed by the Company, and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
<PAGE>
SCHEDULE 4.07
Environmental Matters
NONE.
<PAGE>
EXHIBIT A
NOTE
New York, New York
________, 19__
For value received, U S WEST CAPITAL FUNDING, INC., a Colorado
corporation (the "Borrower"), promises to pay to the order of (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date therefor specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the inaccuracy of, or the failure of the Bank to make, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Five-Year Credit
Agreement dated as of May 8, 1998 among U S WEST Capital Funding, Inc., U S
WEST, Inc., USW-C, Inc., the banks listed on the signature pages thereof, the
other agents named therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
<PAGE>
U S WEST, Inc., has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this Note.
U S WEST CAPITAL FUNDING, INC.
By
Title:
<PAGE>
<TABLE>
<CAPTION>
LOANS AND PAYMENTS OF PRINCIPAL
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
Date Amount of Type of Loan Amount of Maturity Date Notation Made
Loan Principa By
Repaid
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: U S WEST Capital Funding, Inc.
Re: Five-Year Credit Agreement (the "Credit Agreement") dated as of May 8,
1998 among U S WEST Capital Funding, Inc., U S WEST, Inc., USW-C, Inc.,
the Banks listed on the signature pages thereof, the other agents named
therein and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Terms
used herein have the meanings assigned to them in the Credit Agreement.
--------
1Amount must be $25,000,000 or a larger multiple of $5,000,000.
2Not less than one month (LIBOR Auction) or not less than 7 days (Absolute Rate
Auction), subject to the provisions of the definition of Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
U S WEST CAPITAL FUNDING, INC.
By________________________
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to U S WEST Capital
Funding, Inc. (the "Borrower")
Pursuant to Section 2.03 of the Five-Year Credit Agreement dated as of
May 8, 1998 among U S WEST Capital Funding, Inc., U S WEST, Inc., USW-C, Inc.,
the Banks parties thereto, the other agents named therein and the undersigned,
as Administrative Agent, we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Please
respond to this invitation by no later than [10:30 A.M.] [9:15 A.M.] (New York
City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Administrative Agent (the "Agent")
Re: Money Market Quote to
U S WEST Capital Funding, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
<FN>
- ----------
* As specified in the related Invitation.
</FN>
</TABLE>
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Five-Year Credit
Agreement dated as of May 8, 1998 among U S WEST Capital Funding, Inc., U S
WEST, Inc., USW-C, Inc., the Banks listed on the signature pages thereof, the
other agents named therein and yourselves, as Agent, irrevocably obligates us to
make the Money Market Loan(s) for which any offer(s) are accepted, in whole or
in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000. *** Not less than one month or not less than
7 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period. **** Margin over or under the London
Interbank Offered Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify whether "PLUS" or
"MINUS". ***** Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc., USW-C, Inc. and U S WEST
Capital Funding, Inc., in connection with the Five-Year Credit Agreement (the
"Credit Agreement") dated as of May 8, 1998, among them, the banks listed on the
signature pages thereof, the other agents named therein and Morgan Guaranty
Trust Company of New York, as Administrative Agent. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being rendered to
you at the instruction of the client pursuant to Section 3.01(b) of the Credit
Agreement.
I am familiar with the proceedings taken by the Company, USW-C, Inc.
and the Borrower in connection with the authorization, execution and delivery of
the Credit Agreement and the Notes, and I have examined such documents,
certificates, and such other matters of fact and questions of law as I have
deemed relevant under the circumstances to express an informed opinion. Upon the
basis of the foregoing, I am of the opinion that:
1. The Company and USW-C, Inc. are each corporations duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
and each has all corporate powers and all governmental licenses, authorizations,
qualifications, consents and approvals required to carry on its business as now
conducted, except where the absence of any such license, authorization,
qualification, consent or approval would not have a material adverse effect on
the consolidated financial position or consolidated results of operations of the
Company and its Consolidated Subsidiaries considered as one enterprise.
<PAGE>
2. The execution, delivery and performance by the Company, USW-C, Inc.
and the Borrower of the Credit Agreement and by the Borrower of the Notes are
within such Person's corporate powers, have been duly authorized by all
necessary corporate action, and require no action by or in respect of, or filing
with, any governmental body, agency or official.
3. The execution, delivery and performance by the Company, USW-C, Inc.
and the Borrower of the Credit Agreement and by the Borrower of the Notes will
not (i) result in a breach or violation of, conflict with, or constitute a
default under, the articles of incorporation or bylaws of such Person or any
material law or regulation or any material order, judgment, agreement or
instrument to which such Person is a party or by which such Person is bound, or
(ii) result in the creation or imposition of any Lien on any asset of such
Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company, USW-C, Inc. and the Borrower and the Notes constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
5. To my knowledge, and except as disclosed in the Company's 1997 Form
10-K (as amended by Form 10-K/A) as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against or threatened
against, or, to the best of my knowledge affecting the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or which in any manner draws
into question the validity of the Credit Agreement or the Notes.
6. The Borrower and each of the Company's other corporate Significant
Subsidiaries are corporations validly existing and in good standing under the
laws of their jurisdictions of incorporation, and have all corporate powers and
all governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted, except where the
absence of any such license, authorization, qualification, consent or approval
would not have a material adverse effect on the consolidated financial position
or consolidated results of operations of the Company and its Consolidated
Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I
have assumed that the laws of the State of New York, which are stated to govern
<PAGE>
the Credit Agreement and the Notes, are the same as the laws of the State of
Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement and the Notes will conform to the specimens thereof examined by
me, that the signatures on all documents examined by me were genuine, and the
authenticity of all documents submitted to me as originals or as copies of
originals, assumptions which I have not independently verified.
This opinion is furnished by me as counsel for the Company and the
Borrower and is solely for your benefit and the benefit of any Assignee under
the Credit Agreement. Without my prior written consent, this opinion may not be
relied upon by you or any Assignee in any other context or by any other person.
This opinion may not be quoted, in whole or in part, or copies thereof
furnished, to any other person without my prior written consent, except that you
may furnish copies hereof (a) to your auditors and attorneys, (b) to any state
or federal authority having regulatory jurisdiction over you or the Company or
the Borrower, (c) pursuant to order or legal process of any court or
governmental agency, (d) in connection with any legal action to which you are a
party arising out of the transactions contemplated by the Credit Agreement, and
(e) to any Participant or proposed Participant in the Commitment of any Bank.
This opinion is limited to the present laws of the State of Colorado
and the General Corporation Law of the State of Delaware, to present judicial
interpretations thereof, and to the facts as they presently exist, and I assume
no responsibility as to the applicability or effect of the laws of any other
jurisdiction. In rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws of the State of Colorado or the
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision, or otherwise.
Very truly yours,
Thomas O. McGimpsey
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Administrative Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Five-Year Credit
Agreement (the "Credit Agreement") dated as of May 8, 1998 among U S WEST
Capital Funding, Inc., U S WEST, Inc., USW-C, Inc., the banks listed on the
signature pages thereof (the "Banks"), the other agents named therein and Morgan
Guaranty Trust Company of New York, as Administrative Agent (the "Agent"), and
have acted as special counsel for the Agent for the purpose of rendering this
opinion pursuant to Section 3.01(c) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming
that the execution, delivery and performance by the Company and the Borrower of
the Credit Agreement and by the Borrower of the Notes are within such Person's
corporate powers and have been duly authorized by all necessary corporate
action, the Credit Agreement constitutes a valid and binding agreement of the
Company and the Borrower and the Notes constitute valid and binding obligations
of the Borrower.
<PAGE>
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (the "Company") and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Five-Year Credit Agreement dated as of May 8, 1998 among the
Company, USW-C, Inc., the Borrower named therein, the Assignor and the other
Banks party thereto, as Banks, the other agents named therein and the Agent (the
"Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
<PAGE>
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.3 It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees to that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
- --------
3 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
<PAGE>
with respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of the
Company or the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company and
the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
[U S WEST, INC.
By
Title:
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By
Title:]
<PAGE>
EXHIBIT H
EXTENSION AGREEMENT
US WEST Capital Funding, Inc.
US WEST, Inc.
7800 East Orchard Road
Englewood, Colorado 80111
Morgan Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
60 Wall Street
New York, NY 10260
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period
under the Five-Year Credit Agreement dated as of May 8, 1998 among US WEST
Capital Funding, Inc., US WEST, Inc., USW-C, Inc., the Banks listed therein, the
other agents named therein and Morgan Guaranty Trust Company of New York, as
Administrative Agent (the "Credit Agreement") for 364 days to ____________ __,
____. Terms defined in the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. It may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[NAME OF BANK]1
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
[NAME OF BANK]1
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
[NAME OF BANK]*
By
Title:
- --------
1 Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
<PAGE>
Agreed and accepted:
US WEST CAPITAL FUNDING, INC.
By
Title
US WEST, INC.
By
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Title
Exhibit 12
U S WEST, Inc.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(Dollars in Millions)
<TABLE>
<CAPTION>
Quarter Ended
3/31/98 3/31/97
- ------------------------------------------ -------- --------
<S> <C> <C>
Income before income taxes and
extraordinary item $ 365 $ 400
Interest expense (net of amounts
capitalized) 247 278
Interest factor on rentals (1/3) 25 25
Equity losses in unconsolidated
ventures (less than 50% owned) 75 105
Guaranteed minority interest expense 22 22
-------- --------
Earnings $ 734 $ 830
Interest expense $ 263 $ 288
Interest factor on rentals (1/3) 25 25
Guaranteed minority interest expense 22 22
Preferred stock dividends (pre-tax
equivalent) 23 22
-------- --------
Fixed charges $ 333 $ 357
Ratio of earnings to combined fixed
charges and preferred stock dividends 2.20 2.32
- ------------------------------------------ -------- --------
</TABLE>
Exhibit 12
U S WEST, Inc.
RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Millions)
<TABLE>
<CAPTION>
Quarter Ended
3/31/98 3/31/97
- ------------------------------------------ -------- --------
<S> <C> <C>
Income before income taxes and
extraordinary item $ 365 $ 400
Interest expense (net of amounts
capitalized) 247 278
Interest factor on rentals (1/3) 25 25
Equity losses in unconsolidated
ventures (less than 50% owned) 75 105
Guaranteed minority interest expense 22 22
-------- --------
Earnings $ 734 $ 830
Interest expense $ 263 $ 288
Interest factor on rentals (1/3) 25 25
Guaranteed minority interest expense 22 22
-------- --------
Fixed charges $ 310 $ 335
Ratio of earnings to fixed charges 2.37 2.48
- ------------------------------------------ -------- --------
</TABLE>
Exhibit 12
U S WEST Financial Services, Inc.
RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Quarter Ended
3/31/98 3/31/97
- ------------------------------------------ -------- --------
<S> <C> <C>
Income before income taxes $ 1,025 $ 6,671
Interest expense 7,729 5,424
Interest factor on rentals (1/3) 2 21
-------- --------
Earnings $ 8,756 $ 12,116
Interest expense $ 7,729 $ 5,424
Interest factor on rentals (1/3) 2 21
-------- --------
Fixed charges $ 7,731 $ 5,445
Ratio of earnings to fixed charges 1.13 2.23
- ------------------------------------------ -------- --------
</TABLE>
A Termination Agreement and Guarantee was entered into on June 24, 1994
between U S WEST, Inc. and U S WEST Capital Corporation and U S WEST
Financial Services, Inc. (USWFS). The Agreement terminates the Support
Agreement dated January 5, 1990 whereby U S WEST, Inc. agreed to
provide financial support to USWFS. The Agreement provides replacement
financial support in the form of a direct guarantee by U S WEST of all
outstanding indebtedness of USWFS.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000732718
<NAME> U S WEST, Inc.
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
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1,180
923
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