EXHIBIT (b)(4)
[EXECUTION COPY]
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT dated as of May 7, 1999 among
U S WEST Capital Funding, Inc., U S WEST, Inc. and the Banks listed on the
signature pages hereof (the "Amendment and Restatement").
W I T N E S S E T H :
WHEREAS, the parties hereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent (the "Administrative Agent"), have heretofore entered
into a 364-Day Credit Agreement dated as of May 8, 1998, as amended by Amendment
No. 1 dated as of June 30, 1998 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to provide for
the extension of the termination date for an additional 364 days and changes in
interest rates and facility fees and additional commitment amounts, and to
restate the Agreement in its entirety to read as set forth in the Agreement with
the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
and restated hereby.
Section 2. Amendment of Section 1.01. The definition of "Termination
Date" in Section 1.01 of the Agreement is amended to replace "May 7, 1999" with
"May 5, 2000".
Section 3. Amendment of Section 2.01(c). Section 2.01(c) of the Agreement
is amended to replace "$3,750,000,000" with "$1,000,000,000".
Section 4. Amendment of Pricing Schedule. The Pricing Schedule is amended
and restated to read in its entirety as set forth in the attached Pricing
Schedule.
Section 5. Additional and Departing Banks; Total Commitments. The Northern
Trust Company hereby becomes, and each of Bank of Hawaii, Bank One, Colorado,
N.A., Barclays Bank Plc, Canadian Imperial Bank of Commerce, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Capital Corporation, Norwest Bank of Colorado National Association, Royal Bank
of Canada, The Provident Bank and The Tokai Bank, Limited hereby ceases to be, a
party to the Agreement as amended by this Amendment and Restatement and a "Bank"
for all purposes thereof, entitled to all rights and subject to all duties of a
"Bank" thereunder. The aggregate amount of the Commitments as of the date
hereof is $750,000,000, and each Bank's Commitment is the amount set forth
opposite its name on the signature pages hereof.
Section 6. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New York.
Section 7. Counterparts; Effectiveness. This Amendment and Restatement
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 Amendment and Restatement shall become effective as of the
date hereof when the Administrative Agent shall have received:
(a) duly executed counterparts hereof signed by the parties hereto (or, in
the case of any party as to which an executed counterpart shall not have been
received, the Administrative Agent shall have received telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party);
(b) an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Counsel for the Company and
the Borrower, substantially in the form of Exhibit A hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request; and
(c) all documents the Administrative Agent may reasonably request relating
to the existence of the Borrower, the corporate authority for and the validity
of the Agreement as amended by this Amendment and Restatement, and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed as of the date first above written.
U S WEST CAPITAL FUNDING, INC.
By
-----------------------------
Title:
Name:
U S WEST, INC.
By
-----------------------------
Title:
Name:
3
Commitment
$48,000,000 ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By
-----------------------------
Title:
Name:
$48,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By
-----------------------------
Name:
Title:
$48,000,000 CITIBANK, N.A.
By
-----------------------------
Name:
Title:
$48,000,000 THE CHASE MANHATTAN BANK
By
-----------------------------
Name:
Title:
$48,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By
-----------------------------
4
Commitment
Name:
Title:
$45,000,000 ABN AMRO BANK N.V.
By-----------------------------
Name:
Title:
By-----------------------------
Name:
Title:
$45,000,000 COMMERZBANK AG LOS ANGELES
BRANCH
By-----------------------------
Name:
Title:
By-----------------------------
Name:
Title:
$45,000,000 MELLON BANK, N.A.
By-----------------------------
Name:
Title:
$45,000,000 ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
5
Commitment
By-----------------------------
Name:
Title:
$34,000,000 FLEET NATIONAL BANK
By-----------------------------
Name:
Title:
$34,000,000 ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By-----------------------------
Name:
Title:
By-----------------------------
Name:
Title:
$34,000,000 KBC BANK N.V.
By-----------------------------
Name:
Title:
By-----------------------------
Name:
Title:
6
Commitment
$34,000,000 THE BANK OF NEW YORK
By
-----------------------------
Name:
Title:
$25,000,000 BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
$25,000,000 THE NORTHERN TRUST COMPANY
By
-----------------------------
Name:
Title:
$25,000,000 THE ROYAL BANK OF SCOTLAND PLC
By
-----------------------------
Name:
Title:
7
Commitment
$25,000,000 U.S. BANK NATIONAL ASSOCIATION
By
-----------------------------
Name:
Title:
$24,000,000 KEYBANK NATIONAL ASSOCIATION
By
-----------------------------
Name:
Title:
$20,000,000 BANKERS TRUST COMPANY
By
-----------------------------
Name:
Title:
$20,000,000 BAYERISCHE HYPO- UND
VEREINSBANK, AG, NEW YORK
BRANCH
By
-----------------------------
Name:
Title:
$15,000,000 BANQUE NATIONALE DE PARIS
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
8
Commitment
By
-----------------------------
Name:
Title:
$15,000,000 ▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By
------------------------------
Name:
Title:
$ 0 BANK OF HAWAII
By
------------------------------
Name:
Title:
$ 0 BARCLAYS BANK PLC
By
-------------------------------
Name:
Title:
$ 0 CANADIAN IMPERIAL BANK OF
COMMERCE
By
-------------------------------
Name:
Title:
$ 0 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION
9
Commitment
By
-------------------------------
Name
Title
$ 0 NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By
-------------------------------
Name:
Title:
$ 0 THE FIRST NATIONAL BANK OF
CHICAGO
By
-------------------------------
Name:
Title:
$ 0 THE PROVIDENT BANK
By
-------------------------------
Name:
Title:
$ 0 ROYAL BANK OF CANADA
By
-------------------------------
Name:
Title:
10
Commitment
$ 0 THE TOKAI BANK, LIMITED
By-------------------------------
Name:
Title:
Total Commitments:
$ 750,000,000
=============
11
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:
===============================================================================
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ I II III IV V
-------------------------------------------------------------------------------
Euro-Dollar Margin .365% .430% .545% .650% .750%
-------------------------------------------------------------------------------
Facility Fee Rate .060% .070% .080% .100% .125%
===============================================================================
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
are rated A+ or higher by S&P or A1 or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
are rated 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 at any date if, such date, the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
are rated A- or higher by S&P or A3 or higher by Moody's and (ii) neither Level
I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the Borrower's
outstanding senior unsecured long-term debt securities guaranteed by the Company
are rated BBB+ or higher by S&P or Baa1 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 if, at such date, none of Level I
Status, Level II Status, Level III Status or Level IV Status exists.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "Moody's"
shall be deemed to refer to any other nationally recognized securities rating
agency designated by the Required Banks, with the approval of the Company, by
notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation, and
its successors or, if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status exists at any date.
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.
2
EXHIBIT A
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
May 7, 1999
To the Banks and the Administrative Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentleman and Ladies:
I have acted as counsel for U S WEST, Inc. (the "Company") and U S WEST
Capital Funding, Inc. (the "Borrower") in connection with the Amended and
Restated 364-Day Credit Agreement dated as of May 7, 1999 (the "Amendment and
Restatement"), which amends and restates the 364-Day Credit Agreement dated as
of May 8, 1998 among them, the banks listed on the signature pages thereof and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, as amended
by Amendment No. 1 dated as of June 30, 1998 (the "Credit Agreement"). Such
Credit Agreement as in effect prior to the effectiveness of the Amendment and
Restatement is referred to herein as the "Existing Agreement", and the Existing
Credit Agreement as amended by the Amendment and Restatement is referred to
herein as the "Amended Credit Agreement". Terms defined in the Existing Credit
Agreement and not otherwise defined are used herein as therein defined. This
opinion is being rendered to you at the request of my clients pursuant to
Section 7(b) of the Amendment and Restatement.
I am familiar with the proceedings taken by each of the Company and the
Borrower in connection with the authorization, execution and delivery of the
Amendment and Restatement, and I have examined such documents, certificates, and
such other matters of fact and questions of law as I have deemed relevant
under the circumstances to express an informed opinion. Upon the basis of the
foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all corporate
powers and all governmental licenses, authorizations, qualifications, consents
and approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries considered as one enterprise.
2. The execution, delivery and performance by each of the Company and the
Borrower of the Amendment and Restatement 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 agency or
official.
3. The execution, delivery and performance by each of the Company and the
Borrower of the Amendment and Restatement will not (i) result in a breach or
violation of, conflict with or constitute a default under, the articles or
certificate 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. Each of the Amendment and Restatement and the Amended Credit Agreement
constitutes a valid and binding agreement of the Company and the Borrower, in
each case enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
5. To my knowledge, and except as disclosed in the Company's 1998 Form 10-
K/A and the Company's Form 10-Q for the quarter ended March 31, 1999, as filed
with the Securities and Exchange Commission, there is no action, suit or
proceeding pending against or 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 Amendment and Restatement or the Amended
Credit Agreement.
6. Each of the Borrower and the Company's other corporate Significant
Subsidiaries is a corporation validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where the absence thereof 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, I have
assumed that the laws of the State of New York, which are stated to govern the
Amendment and Restatement and the Amended Credit Agreement, are the same as the
laws of the State of Colorado.
In rendering the opinions set forth herein, I have assumed that the
Amendment and Restatement will conform to the specimen thereof examined by me,
that the signatures on all documents examined by me were genuine, and the
authenticity of all documents submitted to me as originals or as copies of
originals, assumptions which I have not independently verified. Further, this
opinion is governed by, and shall be interpreted in accordance with, the Legal
Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). This
opinion is subject to a number of qualifications (including the General
Qualification, as defined in the Accord), exceptions, definitions and
limitations on coverage, all as more particularly described in the Accord.
This opinion is furnished by me as counsel for the Company and the Borrower
and is solely for your benefit and the benefit of any Assignee under the Amended
Credit Agreement. Without my prior written consent, the 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 any 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 Amended 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
3
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,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
4