CONFORMED COPY
$3,000,000,000
364-DAY
CREDIT AGREEMENT
dated as of
November 1, 1996
among
U S WEST Capital Funding, Inc.
U S WEST, Inc.
The Banks Listed Herein
Citibank, N.A.,
as Syndication Agent
The Bank of New York,
as Documentation Agent
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent
TABLE OF CONTENTS*
Page
ARTICLE 1
Definitions
Section 1.01. Definitions...................................................1
Section 1.02. Accounting Terms and Determinations..........................12
Section 1.03. Types of Borrowings..........................................12
ARTICLE 2
The Credit
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................................................24
Section 2.09. Optional Termination or Reduction of Commitments.............24
Section 2.10. Method of Electing Interest Rates............................24
Section 2.11. Optional 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. Borrowings...................................................29
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power................................30
Section 4.02. Corporate and Governmental Authorization;
__________
* The Table of Contents is not part of this Agreement.
i
No Contravention.............................................30
Section 4.03. Binding Effect...............................................30
Section 4.04. Financial Information........................................30
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.................................................32
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................................................36
Section 5.08. Negative Pledge..............................................37
Section 5.09. Consolidations, Mergers and Sales of Assets..................38
Section 5.10. Use of Proceeds..............................................38
ARTICLE 6
Defaults
Section 6.01. Events of Default............................................38
Section 6.02. Notice of Default............................................41
ARTICLE 7
The Agent
Section 7.01. Appointment and Authorization................................41
Section 7.02. Agent and Affiliates.........................................41
Section 7.03. Action by Agent..............................................42
Section 7.04. Consultation with Experts....................................42
Section 7.05. Liability of Agent...........................................42
Section 7.06. Indemnification..............................................42
Section 7.07. Credit Decision..............................................42
Section 7.08. Successor Agent..............................................43
Section 7.09. Agent's Fee..................................................43
ii
Section 7.10. Other Agents.................................................43
ARTICLE 8
Changes in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate
or Unfair....................................................43
Section 8.02. Illegality...................................................44
Section 8.03. Increased Cost and Reduced Return............................45
Section 8.04. Taxes........................................................46
Section 8.05. Domestic Loans Substituted for Affected
Euro-Dollar Loans............................................48
Section 8.06. Substitution of Bank.........................................48
ARTICLE 9
Guaranty
Section 9.01. The Guaranty.................................................49
Section 9.02. Guaranty Unconditional.......................................49
Section 9.03. Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances.......................50
Section 9.04. Waiver by the Company........................................50
Section 9.05. Subrogation..................................................50
Section 9.06. Stay of Acceleration.........................................50
ARTICLE 10
Miscellaneous
Section 10.01. Notices.....................................................51
Section 10.02. No Waivers..................................................51
Section 10.03. Expenses; Indemnification...................................51
Section 10.04. Sharing of Set-offs.........................................52
Section 10.05. Amendments and Waivers......................................53
Section 10.06. Successors and Assigns.....................................53
Section 10.07. Termination of Existing Credit Agreements...................55
Section 10.08. Governing Law; Submission to Jurisdiction...................55
Section 10.09. Counterparts; Integration; Effectiveness....................55
Section 10.10. WAIVER OF JURY TRIAL........................................56
Section 10.11. Confidentiality.............................................56
iii
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
iv
CREDIT AGREEMENT
AGREEMENT dated as of November 1, 1996 among U S WEST Capital Funding,
Inc., U S WEST, Inc., the BANKS listed on the signature pages hereof,
CITIBANK, N.A., as Syndication Agent, THE BANK OF NEW YORK, as Documentation
Agent, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative
Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. 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.
"Acquisition" means the merger of Continental Cablevision, Inc.
("Continental"), with and into the Company or a Wholly-Owned Consolidated
Subsidiary, provided that the cash consideration payable to shareholders of
Continental in connection with such merger shall not exceed the "Cash
Consideration Amount" (as defined in the Agreement and Plan of Merger among the
Company, Continental Merger Corporation and Continental dated as of February 27,
1996 and amended and restated as of June 27, 1996 and further amended as of
October 7, 1996) without the consent of the Required Banks, which consent shall
not be unreasonably withheld or delayed.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"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 ▇▇▇▇▇▇ 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).
"Bank" means each bank 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 U S WEST, Inc., a Delaware corporation, and its successors.
2
"Company's 1995 Form 10-K" means the Company's annual report on Form 10-K for
1995, as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"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 Guarantee 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.
"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.
3
"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.
4
"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(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to Section
2.07(b) on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of Citibank,
N.A., The Bank of New York and ▇▇▇▇▇▇ 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(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means the Credit Agreements dated as of August
8, 1994, as amended, among the Borrower, the Company, the banks listed on
the signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
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 ▇▇▇▇▇▇ Guaranty Trust
Company of New York on such day on such transactions as determined by the
Agent.
5
"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.
"Guarantee" 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 Guarantee 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 10 5/8%
Senior Subordinated Notes Due June 15, 2002; (ii) the 11% Senior Subordinated
Debentures Due June 1, 2007; (iii) the 8 5/8% Senior Notes Due August 15,
2003; (iv) the 9% Senior Debentures Due September 1, 2008; (v) the 8 7/8%
Senior Debentures Due September 15, 2002; (vi) the 9 1/2% Senior Debentures
Due August 1, 2013; (vii) the 8 1/2% Senior Notes Due September 15, 2001; and
(viii) any other Debt containing terms and conditions as or more
6
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 numerically
corresponding day in the calendar month at the end of such
7
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(b).
8
"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
Guarantee 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.
9
"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.
10
"Pricing Schedule" means the Schedule attached hereto and identified as such.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty
Trust Company of New York in New York City from time to time as its Prime
Rate.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the Effective
Date to but excluding the Termination Date.
"Significant Subsidiary" means any Subsidiary which would meet the definition
of "significant subsidiary" contained as of the date hereof in Regulation S-X
of the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at
the time directly or indirectly owned by the Company.
"Super-Majority Banks" means at any time Banks having at least 85% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 85% of the aggregate unpaid
principal amount of the Loans.
"Termination Date" means with respect to each Bank October 31, 1997, 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
11
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
12
2.03 in which the Bank participants are determined on the basis of their bids
in accordance therewith).
ARTICLE 2
The Credit
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
13
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, 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 $4,200,000,000. 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
14
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
15
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
16
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:
17
(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
18
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
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
19
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 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.
20
(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 2.01(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,
21
on each date a Domestic Loan is so converted. Any overdue principal of or
interest on any Domestic Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Domestic Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Euro-Dollar Margin plus the applicable
Adjusted London Interbank Offered Rate. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business
Days before the first day of such Interest Period in an amount approximately
equal to the principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of "Eurocurrency liabilities" (or in respect of any other category
of liabilities which includes deposits by reference to which the interest
rate on Euro-Dollar Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
any Bank to United States
22
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(b) 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.
23
(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 earlier of the Closing Date and
December 31, 1996 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. Optional Termination or Reduction of Commitments. During
the Revolving Credit Period, the Company may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the Commitments at any
time, if no Loans are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 or any larger multiple of
$5,000,000, the aggregate amount of the Commitments in excess of the
aggregate outstanding principal amount of the Loans.
Section 2.10. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the
24
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.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
25
(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 Optional Prepayments
(a) 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)) 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) The Borrower may, upon at least three Euro-Dollar Business Days' notice
to the Agent, in the case of a Group of Euro-Dollar Loans, prepay the Loans
comprising such a Group on the last day of any Interest Period applicable to
such Group, 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.
(c) 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.
(d) Upon receipt of a notice of prepayment pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower. Each such prepayment shall be
applied to prepay ratably the Loans of the several Banks included in the
relevant Group or Borrowing.
Section 2.12. 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
26
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 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 or prepay any Fixed Rate Loans after notice has been given to any
Bank in accordance with Section 2.04(a) or 2.11(d), the Company shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to
borrow or prepay, provided that such Bank shall have delivered to the Company
a certificate as to the amount of such
27
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.
28
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur upon receipt by the
Agent of the following documents, each 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 that all conditions to the
consummation of the Acquisition have been satisfied; and
(f) all documents the Agent may reasonably request relating to the existence
of the Company, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in form
and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
Section 3.02. 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:
29
(a) the fact that the Closing Date shall have occurred on or prior to
February 15, 1997;
(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(c),
as disclosed by the Borrower to the Banks in writing in the Notice of
Borrowing relating to such Borrowing).
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Borrowing as to the facts specified in
clauses (c), (d) and (e) of this Section.
ARTICLE 4
Representations and Warranties
Each of the Company and the Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. Each of the Company and the
Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
qualifications, consents and approvals required to carry on its business as
now conducted.
Section 4.02. Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company and the Borrower of this
Agreement and by the Borrower of the Notes are within such Person's corporate
powers, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
30
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.
Section 4.04. Financial Information.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1995 and the related consolidated statements
of income and cash flows for the fiscal year then ended, reported on by
Coopers & ▇▇▇▇▇▇▇ and set forth in the Company's 1995 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) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of June 30, 1996 and the related unaudited
consolidated statements of income and cash flows for the six months then
ended, set forth in the Company's quarterly report for the fiscal quarter
ended June 30, 1996 as filed with the Securities and Exchange Commission on
Form 10-Q, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles applied
on a basis consistent with the financial statements referred to in subsection
(a) of this Section, 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 six month period (subject to normal
year-end adjustments).
(c) Since June 30, 1996 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 Acquisition shall not be considered such a change).
Section 4.05. Litigation. Except as disclosed in the Company's 1995 Form 10-K
and quarterly report for the fiscal quarter ended June 30, 1996 as filed with
the Securities and Exchange Commission on Form 10-Q, there is no action,
31
suit or proceeding pending against, or to the knowledge of the Company
threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision which would
materially adversely affect the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into
question the validity of this Agreement or the Notes.
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in
all respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan, except where failure to
comply would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole. No member of the ERISA
Group has (i) sought a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make
any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. (a) The operations of the Company and
each of its Subsidiaries comply in all respects with all Environmental Laws
except such non-compliance which would not (if enforced in accordance with
applicable law) reasonably be expected to result, individually or in the
aggregate, in a material adverse effect on the financial position or results
of operations of the Company and its Consolidated Subsidiaries, considered as
a whole.
(b) Except as specifically identified in Schedule 4.07, the Company and each
of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Laws
("Environmental Permits") necessary for their respective operations, and all
such Environmental Permits are in good standing, and the Company and each of
its Subsidiaries is in compliance with all material terms and conditions of
such Environmental Permits.
(c) Except as specifically identified in Schedule 4.07, (i) none of the
Company, any of its Subsidiaries or any of their present property or
operations are
32
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.
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.
33
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
34
Default then exists, setting forth the details thereof and the action which
the Company is taking or proposes to take with respect thereto;
(d) within five Domestic Business Days after any officer of the Company or
the Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements
so mailed;
(f) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8
or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which
is to file exhibits relating to existing Debt meeting the requirements of
clause (ii) of the definition of Debt) which the Company shall have filed
with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or
35
makes any amendment to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such occurrence
and action, if any, which the Company or applicable member of the ERISA Group
is required or proposes to take; and
(h) from time to time such additional information regarding the financial
position or business of the Company and its Subsidiaries and the Borrower and
its Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
Section 5.02. Maintenance of Property; Insurance. (a) The Company will keep,
and will cause each Significant Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain, and will cause each Significant Subsidiary to
maintain (either in the name of the Borrower or in such Significant
Subsidiary's own name), with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such
amounts and against at least such risks (and with such risk retention) as are
usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the
Banks, upon request from the Agent, information presented in reasonable
detail as to the insurance so carried; provided that, in lieu of any such
insurance, the Company and any Significant Subsidiary may maintain a system
or systems of self-insurance and reinsurance which will accord with sound
practices of similarly situated corporations maintaining such systems and
with respect to which the Company or such Significant Subsidiary will
maintain adequate insurance reserves, all in accordance with generally
accepted accounting principles and in accordance with sound insurance
principles and practice.
Section 5.03. Maintenance of Existence. The Company will, and will cause each
Significant Subsidiary to, preserve, renew and keep in full force and effect
their respective corporate existence and their respective rights, privileges
and franchises necessary or desirable in the normal conduct of business;
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.
36
Section 5.04. Compliance with Laws. The Company will comply, and will cause
each Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws
and ERISA and the rules and regulations thereunder), except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings and for which adequate reserves in conformity with generally
accepted accounting principles have been established.
Section 5.05. Inspection of Property, Books and Records. The Company will
keep, and will cause each Significant Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities; and
will permit, and will cause each Significant Subsidiary to permit,
representatives of any Bank at such Bank's expense to visit and inspect any
of their respective properties, to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as
may reasonably be desired.
Section 5.06. Subsidiary Debt. Total Debt of all Consolidated Subsidiaries
(excluding Debt of 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 Section, any preferred stock of
a Consolidated Subsidiary other than the Borrower which is held by a Person
other than the Company or a Wholly-Owned Consolidated Subsidiary shall be
included, at the higher of its voluntary or involuntary liquidation value, in
the Debt of such Consolidated Subsidiary.
Section 5.07. Debt Coverage. Consolidated Debt of the Company and its
Consolidated Subsidiaries 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.
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
$123,700,000;
37
(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;
(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 10% of Consolidated Net Worth; and
38
(j) any Lien on Margin Stock, if and to the extent the value of all Margin
Stock of the Company and its Subsidiaries exceeds 25% of the value of the
total assets subject to this Section.
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. Nothing in this Section shall be construed to
restrict any sales of Margin Stock for fair value as determined in good faith
by the board of directors of the Company.
Section 5.10. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for financing the Acquisition and for
general corporate purposes. None of such proceeds will be used, directly or
indirectly, in violation of any applicable law or regulation, and no use of
such proceeds for general corporate purposes will include any use for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
Margin Stock.
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
39
covered by clause (a) or (b) above) for 10 days after written notice thereof
has been given to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by the
Company or 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 shall have become
liable to pay under Title IV of ERISA; or notice of intent to
40
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; or
(l) (i) Continental Cablevision, Inc. shall have merged with and into the
Company and Debt is outstanding under the Indentures, and (ii) 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;
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
41
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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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),
42
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.05. Liability of Agent. Neither the Agent nor any of its affiliates
nor any of their respective directors, officers, agents or employees shall be
liable for any action taken or not taken by it in connection herewith (i)
with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the
Company or the Borrower; (iii) the satisfaction of any condition specified in
Article 3, except receipt of items required to be delivered to the Agent; or
(iv) the validity, effectiveness or genuineness of this Agreement, the Notes
or any other instrument or writing furnished in connection herewith. The
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex or similar writing) believed by it to be genuine or to be signed by the
proper party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by
the Company or the Borrower) against any cost, expense (including counsel
fees and disbursements), claim, demand, action, loss or liability (except
such as result from such indemnitees' gross negligence or willful misconduct)
that such indemnitees may suffer or incur in connection with this Agreement
or any action taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
Section 7.08. Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Company. Upon any such resignation,
43
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.
Section 7.10. Other Agents. Neither Citibank, N.A. nor The Bank of New York
shall have any responsibility, obligation or liability under this Agreement
in its capacity as Syndication Agent or Documentation Agent, respectively.
ARTICLE 8
Changes in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or UnfairIf 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,
44
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
45
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.
46
(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").
47
(c) The Company agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 15 days
from the date such Bank or the Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Company
(but only so long as such Bank remains lawfully able to do so), shall provide
the Company with Internal Revenue Service form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service, certifying
that such Bank is entitled to benefits under an income tax treaty to which
the United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Bank at the time
such Bank first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.04(a)
imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide the
Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent
to the date on which a form originally was required to be provided), such
Bank shall not be entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided, however, that should
a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Company shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.04, then such Bank
will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue
if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
48
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.
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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
50
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.
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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
52
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
53
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.
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. 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
54
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, 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
55
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 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.
56
Section 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof. This Agreement shall become effective upon receipt by the
Agent of counterparts hereof signed by each of the Company, the Borrower, the
Banks and the Agent (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party).
Section 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided
that nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii)
upon the order of any court or administrative agency, (iv) upon the request
or demand of any regulatory agency or authority having jurisdiction over such
party, (v) which has been publicly disclosed, (vi) which has been obtained
from any Person other than the Company and its Subsidiaries, provided that
such Person is not (x) known to it to be bound by a confidentiality agreement
with the Company or its Subsidiaries or (y) known to it to be otherwise
prohibited from transmitting the information to it by a contractual, legal or
fiduciary obligation, (vii) in connection with the exercise of any remedy
hereunder or under the Notes or (viii) to any actual or proposed participant
or assignee of all or any of its rights hereunder which has agreed in writing
to be bound by the provisions of this Section.
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Executive Director
Treasury Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
U S WEST, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
& Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
58
Commitments
-----------
$140,000,000 ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Title: Vice President
$ 140,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------
Title: Vice President
$ 140,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Senior Vice President
$ 100,000,000 ABN AMRO BANK N.V.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇. Honda
------------------------
Title: Vice President
59
$ 37,500,000 BANK OF AMERICA NW, N.A. dba
SEAFIRST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Vice President
$ 62,500,000 BANK OF AMERICA NT & SA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Senior Vice President
Manager Commercial Building
$100,000,000 BARCLAYS BANK PLC
By /s/ ▇▇▇ ▇▇▇
---------------------------
Title: Director
$ 100,000,000 CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Director, CIBC Wood Gundy
Securities acting, as Agent
$100,000,000 THE CHASE MANHATTAN BANK
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Vice President
60
$100,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Director
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Vice President
$100,000,000 THE FIRST NATIONAL BANK OF
BOSTON
By /s/ ▇▇▇▇▇▇▇ D. Rainie
---------------------------
Title: Director
$100,000,000 MELLON BANK N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Vice President
$ 100,000,000 THE SANWA BANK LIMITED,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: First Vice President and Assistant
General Manager
61
$ 100,000,000 SWISS BANK CORPORATION,
SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By /s/ Hans-Uoli ▇▇▇▇▇▇
-------------------------
Title: Executive Director Merchant
Banking
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Title: Associate Director Accounting
$ 100,000,000 TORONTO-DOMINION BANK
(TEXAS), INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
$ 70,000,000 BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: Senior Vice President & Manager
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Vice President
$ 70,000,000 BANQUE PARIBAS
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Group Vice President
62
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Title: Assistant Vice President
$ 70,000,000 CREDIT SUISSE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Title: Member of Senior Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: Associate
$ 70,000,000 THE DAI-ICHI KANGYO BANK,
LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Senior Vice President & Joint
General Manager
$ 70,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Title: Vice President
$ 70,000,000 THE FUJI BANK LIMITED
LOS ANGELES AGENCY
63
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Title: Joint General Manager
$ 70,000,000 THE INDUSTRIAL BANK OF JAPAN,
LTD. NEW YORK BRANCH
By /s/ Akijiro Yoshino
-----------------------
Title: Executive Vice President,
Houston Office
$ 70,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Title: Vice President
$ 70,000,000 ROYAL BANK OF CANADA
By /s/ ▇▇▇▇ ▇. Page
-----------------------
Title: Senior Manager
$ 70,000,000 THE SAKURA BANK LIMITED
By /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------
Title: Senior Vice President & Assistant
General Manager
64
$ 70,000,000 THE SUMITOMO BANK, LIMITED
LOS ANGELES BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------
Title: Joint General Manager
$ 70,000,000 UNION BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Title: Vice President
$ 70,000,000 ▇▇▇▇▇ FARGO BANK (COLORADO),
N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Title: Vice President
$ 47,500,000 BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇ ▇▇▇
----------------------
Title: Senior Vice President
$ 47,500,000 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: Vice President
65
$ 47,500,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Assistant Treasurer
$ 47,500,000 BAYERISCHE HYPO-BANK AG,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
$ 47,500,000 KREDIETBANK N.A.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
$ 47,500,000 LLOYDS BANK PLC
66
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President B374
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Senior Vice President W075
$ 47,500,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
LOS ANGELES AGENCY
By /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
--------------------------
Title: Deputy General Manager
$ 47,500,000 THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
----------------------------
Title: Senior Vice President & Assistant
General Manager
$ 47,500,000 THE ROYAL BANK OF SCOTLAND plc
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President & Manager
$ 47,500,000 SOCIETE GENERALE
67
SOUTHWEST AGENCY
By /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------
Title: Vice President
$ 47,500,000 THE TOKAI BANK, LIMITED
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Assistant General Manager
Corporate Finance
$ 47,500,000 WESTDEUTSCHE LANDESBANK
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Vice President Credit
Total Commitments:
$3,000,000,000
--------------
--------------
68
CITIBANK, N.A., as Syndication Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------
Title: As-Attorney-in -Fact
THE BANK OF NEW YORK, as
Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Senior Vice President
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
Address
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
69
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 .150% .175% .200% .290% .350%
________________________________________________________________________________
Facility Fee Rate .050% .050% .050% .060% .100%
________________________________________________________________________________
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 are rated A or higher
by S&P or A2 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 are rated
A- or higher by S&P or A3 or higher by Moody's and (ii) Level I Status does
not exist.
"Level III Status" exists at any date if, at such date, (i) the
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) 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 are rated
BBB or higher by S&P or Baa2 or higher by Moody's and 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
without third-party credit enhancement, 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
SCHEDULE 4.07
Environmental Matters
NONE.
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 ▇▇▇▇▇▇ Guaranty Trust
Company of 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 November 1, 1996 among U S WEST Capital Funding, Inc.,
U S WEST, Inc., the banks listed on the signature pages thereof, the other
agents named therein and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
U S WEST, Inc., has, pursuant to the provisions of the Credit Agreement,
unconditionally guaranteed the payment in full of the principal of and
interest on this Note.
U S WEST CAPITAL FUNDING, INC.
By
----------------------------
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Amount of
Amount of Principal Notation Made
Date Loan Type of Loan Repaid Maturity Date By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ 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 November 1,
1996 among U S WEST Capital Funding, Inc., U S WEST, Inc., the Banks listed
on the signature pages thereof, the other agents named therein and 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 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.] Terms used herein have the meanings assigned to them in the Credit
Agreement.
____________________
**Amount must be $25,000,000 or a larger multiple of
$5,000,000.
***Not 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.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
U S WEST CAPITAL FUNDING, INC.
By________________________
Title:
2
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 November 1, 1996 among U S WEST Capital Funding, Inc., U S WEST, 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].
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: ▇▇▇▇▇▇ 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:
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 $____________.]**
__________
* As specified in the related Invitation.
(notes continued on following 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 November 1, 1996 among U S WEST Capital Funding, Inc.,
U S WEST, Inc., the Banks listed on the signature pages thereof, the other
agents named therein and 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%).
2
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc. and U S WEST Capital Funding,
Inc., in connection with the 364-Day Credit Agreement (the "Credit
Agreement") dated as of November 1, 1996, among them, the banks listed on the
signature pages thereof, the other agents named therein and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Administrative Agent. Terms defined in the
Credit Agreement are used herein as therein defined. This opinion is being
rendered to you at the instruction of the client pursuant to Section 3.01(b)
of the Credit Agreement.
I am familiar with the proceedings taken by the Company and the Borrower
in connection with the authorization, execution and delivery of the Credit
Agreement and the Notes, and I have examined such documents, certificates,
and such other matters of fact and questions of law as I have deemed relevant
under the circumstances to express an informed opinion. Upon the basis of
the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all
corporate powers and all governmental licenses, authorizations,
qualifications, consents and approvals required to carry on its business as
now conducted, except where the absence of any such license, authorization,
qualification, consent or approval would not have a material adverse effect
on the consolidated financial position or consolidated results of operations
of the Company and its Consolidated Subsidiaries considered as one enterprise.
2. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement and by the Borrower of the Notes are within
such Person's corporate powers, have been duly authorized by all necessary
corporate action, and require no action by or in respect of, or filing with,
any governmental body, agency or official.
3. The execution, delivery and performance by the Company and the
Borrower of the Credit Agreement and by the Borrower of the Notes will not
(i) result in a breach or violation of, conflict with, or constitute a
default under, the articles of incorporation or bylaws of such Person or any
material law or regulation or any material order, judgment, agreement or
instrument to which such Person is a party or by which such Person is bound,
or (ii) result in the creation or imposition of any Lien on any asset of such
Person.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the Borrower and the Notes constitute valid and binding
obligations of the Borrower.
5. To my knowledge, 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 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 is a corporation validly existing and in good standing under the
laws of their jurisdictions of incorporation, and have all corporate powers
and all governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated
financial position or consolidated results of operations of the Company and
its Consolidated Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I
have assumed that the laws of the State of New York, which are stated to
govern the Credit Agreement and the Notes, are the same as the laws of
Colorado.
2
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,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
3
EXHIBIT F
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the 364-Day Credit Agreement
(the "Credit Agreement") dated as of November 1, 1996 among U S WEST Capital
Funding, Inc., U S WEST, Inc., the banks listed on the signature pages
thereof (the "Banks"), the other agents named therein and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Administrative Agent (the "Agent"), and have
acted as special counsel for the Agent for the purpose of rendering this
opinion pursuant to Section 3.01(c) of the Credit Agreement. Terms defined
in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming
that the execution, delivery and performance by the Company and the Borrower
of the Credit Agreement and by the Borrower of the Notes are within such
Person's corporate powers and have been duly authorized by all necessary
corporate action, the Credit Agreement constitutes a valid and binding
agreement of the Company and the Borrower and the Notes constitute valid and
binding obligations of the Borrower.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the
foregoing opinion, we express no opinion as to the effect (if any) of any law
of any jurisdiction (except the State of New York) in which any Bank is
located which limits the rate of interest that such Bank may charge or
collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
2
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
▇▇▇▇▇▇ 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 November 1, 1996 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
here in shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit
Agreement to the extent 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.**** 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.]
____________________
****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.
2
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Company or the Borrower, or the validity and enforceability
of the obligations of the Company or the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it has, independently
and without reliance on the Assignor, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Company and the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By__________________________
Title:
3
[ASSIGNEE]
By_________________________
Title:
[U S WEST, INC.
By_________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By________________________
Title:]
4
EXHIBIT H
EXTENSION AGREEMENT
US WEST Capital Funding, Inc.
US WEST, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period under
the 364-Day Credit Agreement dated as of November 1, 1996 among US WEST
Capital Funding, Inc., US WEST, Inc., the Banks listed therein, the other
agents named therein and ▇▇▇▇▇▇ 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]*****
By_________________________
____________________
*****Insert names of Banks which have responded
affirmatively in accordance with Section 2.01(b) of the Credit Agreement.
Title:
[NAME OF BANK]*****
By________________________
Title:
[NAME OF BANK]*
By_______________________
Title:
[NAME OF BANK]*
By_______________________
Title:
[NAME OF BANK]*
By______________________
Title:
[NAME OF BANK]*
By______________________
Title:
____________________
*****Insert names of Banks which have responded affirmatively in
accordance with Section 2.01(b) of the Credit Agreement.
2
Agreed and accepted:
US WEST CAPITAL FUNDING, INC.
By_________________________
Title
US WEST, INC.
By__________________________
Title
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By___________________________
Title
3
CONFORMED COPY
$3,000,000,000
FIVE-YEAR
CREDIT AGREEMENT
dated as of
November 1, 1996
among
U S WEST Capital Funding, Inc.
U S WEST, Inc.
The Banks Listed Herein
Citibank, N.A.,
as Syndication Agent
The Bank of New York,
as Documentation Agent
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Definitions.....................................................1
Section 1.02. Accounting Terms and Determinations............................11
Section 1.03. Types of Borrowings............................................12
ARTICLE 2
The Credit
Section 2.01. Commitments to Lend.......... .................................12
Section 2.02. Notice of Committed Borrowing..................................13
Section 2.03. Money Market Borrowings........................................14
Section 2.04. Notice to Banks; Funding of Loans..............................18
Section 2.05. Notes..........................................................19
Section 2.06. Maturity of Loans..............................................19
Section 2.07. Interest Rates.................................................19
Section 2.08. Facility Fees..................................................22
Section 2.09. Optional Termination or Reduction of Commitments...............22
Section 2.10. Method of Electing Interest Rates..............................22
Section 2.11. Optional Prepayments...........................................24
Section 2.12. General Provisions as to Payments..............................24
Section 2.13. Funding Losses.................................................25
Section 2.14. Computation of Interest and Fees...............................25
Section 2.15. Change of Control..............................................26
ARTICLE 3
Conditions
Section 3.01. Closing........................................................26
Section 3.02. Borrowings.....................................................27
------------------
*The Table of Contents is not part of this Agreement.
i
ARTICLE 4
Representations and Warranties
Page
Section 4.01. Corporate Existence and Power.................................28
Section 4.02. Corporate and Governmental Authorization; No Contravention....28
Section 4.03. Binding Effect................................................28
Section 4.04. Financial Information.........................................28
Section 4.05. Litigation....................................................29
Section 4.06. Compliance with ERISA.........................................29
Section 4.07. Environmental Matters.........................................30
Section 4.08. Taxes.........................................................30
Section 4.09. Subsidiaries..................................................31
Section 4.10. Not an Investment Company.....................................31
Section 4.11. Full Disclosure...............................................31
ARTICLE 5
Covenants
Section 5.01. Information....................................................31
Section 5.02. Maintenance of Property; Insurance.............................33
Section 5.03. Maintenance of Existence.......................................34
Section 5.04. Compliance with Laws...........................................34
Section 5.05. Inspection of Property, Books and Records......................34
Section 5.06. Subsidiary Debt................................................34
Section 5.07. Debt Coverage..................................................35
Section 5.08. Negative Pledge................................................35
Section 5.09. Consolidations, Mergers and Sales of Assets....................36
Section 5.10. Use of Proceeds................................................36
ARTICLE 6
Defaults
Section 6.01. Events of Default..............................................37
Section 6.02. Notice of Default..............................................39
ARTICLE 7
The Agent
Section 7.01. Appointment and Authorization..................................39
Section 7.02. Agent and Affiliates...........................................39
Section 7.03. Action by Agent................................................40
Section 7.04. Consultation with Experts......................................40
Section 7.05. Liability of Agent.............................................40
ii
Page
Section 7.06. Indemnification..............................................40
Section 7.07. Credit Decision..............................................41
Section 7.08. Successor Agent..............................................41
Section 7.09. Agent's Fee..................................................41
Section 7.10. Other Agents.................................................41
ARTICLE 8
Changes in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate
or Unfair....................................................42
Section 8.02. Illegality.....................................................42
Section 8.03. Increased Cost and Reduced Return..............................43
Section 8.04. Taxes..........................................................44
Section 8.05. Domestic Loans Substituted for Affected
Euro-Dollar Loans............................................46
Section 8.06. Substitution of Bank...........................................46
ARTICLE 9
Guaranty
Section 9.01. The Guaranty...................................................47
Section 9.02. Guaranty Unconditional.........................................47
Section 9.03. Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances.......................48
Section 9.04. Waiver by the Company..........................................48
Section 9.05. Subrogation....................................................48
Section 9.06. Stay of Acceleration...........................................49
ARTICLE 10
Miscellaneous
Section 10.01. Notices.......................................................49
Section 10.02. No Waivers....................................................49
Section 10.03. Expenses; Indemnification.....................................49
Section 10.04. Sharing of Set-offs...........................................51
Section 10.05. Amendments and Waivers........................................51
Section 10.06. Successors and Assigns.......................................51
Section 10.07. Termination of Existing Credit Agreements.....................53
Section 10.08. Governing Law; Submission to Jurisdiction.....................53
Section 10.09. Counterparts; Integration; Effectiveness......................54
Section 10.10. WAIVER OF JURY TRIAL..........................................54
Section 10.11. Confidentiality...............................................54
iii
iv
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
v
CREDIT AGREEMENT
AGREEMENT dated as of November 1, 1996 among U S WEST Capital Funding,
Inc., U S WEST, Inc., the BANKS listed on the signature pages hereof,
CITIBANK, N.A., as Syndication Agent, THE BANK OF NEW YORK, as Documentation
Agent, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. 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.
"Acquisition" means the merger of Continental Cablevision, Inc.
("Continental"), with and into the Company or a Wholly-Owned Consolidated
Subsidiary, provided that the cash consideration payable to shareholders of
Continental in connection with such merger shall not exceed the "Cash
Consideration Amount" (as defined in the Agreement and Plan of Merger among
the Company, Continental Merger Corporation and Continental dated as of
February 27, 1996 and amended and restated as of June 27, 1996 and further
amended as of October 7, 1996) without the consent of the Required Banks,
which consent shall not be unreasonably withheld or delayed.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"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 ▇▇▇▇▇▇ 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).
"Bank" means each bank 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 U S WEST, Inc., a Delaware corporation, and its
successors.
2
"Company's 1995 Form 10-K" means the Company's annual report on Form
10-K for 1995, as filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934.
"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 Guarantee 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.
"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.
3
"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.
4
"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(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07(b) on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
Citibank, N.A., The Bank of New York and ▇▇▇▇▇▇ 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(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means the Credit Agreements dated as of
August 8, 1994, as amended, among the Borrower, the Company, the banks
listed on the signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as 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 ▇▇▇▇▇▇ Guaranty Trust
Company of New York on such day on such transactions as determined by the
Agent.
5
"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.
"Guarantee" 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 Guarantee 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
10 5/8% Senior Subordinated Notes Due June 15, 2002; (ii) the 11% Senior
Subordinated Debentures Due June 1, 2007; (iii) the 8 5/8% Senior Notes Due
August 15, 2003; (iv) the 9% Senior Debentures Due September 1, 2008; (v) the
8 7/8% Senior Debentures Due September 15, 2002; (vi) the 9 1/2% Senior
Debentures Due August 1, 2013; (vii) the 8 1/2% Senior Notes Due September
15, 2001; and (viii) any other Debt containing terms and conditions as or more
6
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
7
(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(b).
"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.
8
"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 Guarantee 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.
9
"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.
10
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to but excluding the Termination Date.
"Significant Subsidiary" means any Subsidiary which would meet the
definition of "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are
at the time directly or indirectly owned by the Company.
"Super-Majority Banks" means at any time Banks having at least 85% of
the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 85% of the aggregate
unpaid principal amount of the Loans.
"Termination Date" means, with respect to each Bank, November 1, 2001,
or such later date to which the Termination Date for such Bank shall have
been extended pursuant to Section 2.01(b), or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair
market value of all Plan assets allocable to such liabilities under Title IV
of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
11
"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
12
2.03 in which the Bank participants are determined on the basis of their bids
in accordance therewith).
ARTICLE 2
The Credit
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 Section 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 Section, repay, or
to the extent permitted by Section 2.11, prepay Loans and reborrow at any
time during the Revolving Credit Period under this Section. The Commitments
shall terminate at the close of business on the Termination Date.
(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 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
13
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.
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,
14
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
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
15
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, (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.
16
(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 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
17
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.
18
(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
19
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 Ssection 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.
20
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
21
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(b) 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 earlier of the Closing Date and
December 31, 1996 to but excluding the Termination Date (or earlier date of
termination of the
22
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. Optional Termination or Reduction of Commitments. During
the Revolving Credit Period, the Company may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the Commitments at any
time, if no Loans are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 or any larger multiple of
$5,000,000, the aggregate amount of the Commitments in excess of the
aggregate outstanding principal amount of the Loans.
Section 2.10. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the 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
23
portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the remaining portion to which
it does not apply, are each $25,000,000 or any larger multiple of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by such Borrower. If the Borrower fails to deliver a timely Notice
of Interest Rate Election to the Agent for any Group of Euro-Dollar Loans,
such Loans shall be converted into Domestic Loans on the last day of the then
current Interest Period applicable thereto.
Section 2.11. Optional Prepayments.
(a) 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)) 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) The Borrower may, upon at least three Euro-Dollar Business Days'
notice to the Agent, in the case of a Group of Euro-Dollar Loans, prepay the
24
Loans comprising such a Group on the last day of any Interest Period
applicable to such Group, 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.
(c) 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.
(d) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower. Each such prepayment shall be
applied to prepay ratably the Loans of the several Banks included in the
relevant Group or Borrowing.
Section 2.12. 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
25
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 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 or prepay any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.04(a) or 2.11(d), the Company
shall reimburse each Bank within 15 days after demand for any resulting loss
or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or conversion
or failure to borrow or prepay, provided that such Bank shall have delivered
to the Company a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
Section 2.14 Computation Of Interest And Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees hereunder shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
Section 2.15. Change Of Control. If a Change of Control shall occur, the
Company will, within ten days after the occurrence thereof, give each Bank
notice thereof, which notice shall describe in reasonable details the facts
and circumstances giving rise thereto and shall specify an Optional
Termination Date for purposes of this Section (the "Optional Termination
Date") which date shall not be less than 30 nor more than 60 days after the
date of such notice. Each Bank may, by notice to the Company and the Agent
given not less than three Domestic Business Days prior to the Optional
Termination Date, terminate its Commitment (if any), which shall thereupon be
terminated, and declare the Note held by it (together with accrued interest
thereon) and any other amounts payable
26
hereunder for its account to be, and such Note and such other amounts shall
thereupon become, due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company and
the Borrower, in each case effective on the Optional Termination Date.
A "Change of Control" shall occur if any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 30% or more of the outstanding shares of common stock of
the Company; or, during any period of twelve consecutive calendar months,
individuals who were directors of the Company on the first day of such period
shall cease to constitute a majority of the board of directors of the Company.
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur upon receipt
by the Agent of the following documents, each 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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;
27
(e) evidence satisfactory to the Agent that all conditions to the
consummation of the Acquisition have been satisfied; and
(f) all documents the Agent may reasonably request relating to the
existence of the Company, the corporate authority for and the validity of
this Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
Section 3.02 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
February 15, 1997;
(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(c),
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.
28
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.
Section 4.04. Financial Information
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1995 and the related consolidated statements
of income and cash flows for the fiscal year then ended, reported on by
Coopers & ▇▇▇▇▇▇▇ and set forth in the Company's 1995 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) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of June 30, 1996 and the related unaudited
consolidated statements of income and cash flows for the six months then
ended,
29
set forth in the Company's quarterly report for the fiscal quarter ended June
30, 1996 as filed with the Securities and Exchange Commission on Form 10-Q, a
copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in subsection (a) of
this Section, 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 six month period (subject to normal
year-end adjustments).
(c) Since June 30, 1996 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 Acquisition shall not be considered such a change).
Section 4.05. Litigation. Except as disclosed in the Company's 1995 Form
10-K and quarterly report for the fiscal quarter ended June 30, 1996 as filed
with the Securities and Exchange Commission on Form 10-Q, there is no action,
suit or proceeding pending against, or to the knowledge of the Company
threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision which would
materially adversely affect the consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into
question the validity of this Agreement or the Notes.
Section 4.06. Compliance With Erisa. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in
all respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan, except where failure to
comply would not have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole. No member of the ERISA
Group has (i) sought a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make
any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
30
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.
Section 4.09. Subsidiaries. Each of the Company's corporate Significant
Subsidiaries (including, but not limited to, the Borrower) is a
31
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
32
statements of income and cash flows for such quarter and for the portion of
the Company's fiscal year ended at the end of such quarter, setting forth in
the case of such statements of income and cash flows in comparative form the
figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief
accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer (or such officer's designee, designated in writing by
such officer) or the chief accounting officer of the Company (i) setting
forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.06 to 5.08,
inclusive, on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(d) within five Domestic Business Days after any officer of the Company
or the Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements
so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) (other than any amendment on Form 8-K the sole purpose of
which is to file exhibits relating to existing Debt meeting the requirements
of clause (ii) of the definition of Debt) which the Company shall have filed
with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might
33
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any payment or contribution to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement or makes any amendment to any Plan
or Benefit Arrangement which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which the
Company or applicable member of the ERISA Group is required or proposes to
take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
Section 5.02. Maintenance Of Property; Insurance. (a) The Company will
keep, and will cause each Significant Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary
wear and tear excepted.
(b) The Company will maintain, and will cause each Significant Subsidiary
to maintain (either in the name of the Borrower or in such Significant
Subsidiary's own name), with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such
amounts and against at least such risks (and with such risk retention) as are
usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the
Banks, upon request from the Agent, information presented in reasonable
detail as to the insurance so
34
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 discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as
may reasonably be desired.
Section 5.06. Subsidiary Debt. Total Debt of all Consolidated
Subsidiaries (excluding Debt of 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 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,
35
at the higher of its voluntary or involuntary liquidation value, in the Debt
of such Consolidated Subsidiary.
Section 5.07. Debt Coverage. Consolidated Debt of the Company and its
Consolidated Subsidiaries 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.
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 $123,700,000;
(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;
36
(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;
(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 10% of Consolidated Net Worth;
and
(j) any Lien on Margin Stock, if and to the extent the value of all
Margin Stock of the Company and its Subsidiaries exceeds 25% of the value of
the total assets subject to this Section.
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. Nothing in this Section shall be construed to
restrict any sales of Margin Stock for fair value as determined in good faith
by the board of directors of the Company.
Section 5.10. Use Of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for financing the Acquisition and for
general corporate purposes. None of such proceeds will be used, directly or
indirectly, in violation of any applicable law or regulation, and no use of
such proceeds for general corporate purposes will include any use for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
Margin Stock.
37
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 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;
38
(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; or
(l) (i) Continental Cablevision, Inc. shall have merged with and into
the Company and Debt is outstanding under the Indentures, and (ii) 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
9
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;
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.
40
Section 7.02. Agent And Affiliates. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
41
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.
Section 7.10. Other Agents. Neither Citibank, N.A. nor The Bank of New
York shall have any responsibility, obligation or liability under this
Agreement in its capacity as Syndication Agent or Documentation Agent,
respectively.
42
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
43
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.
44
(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
45
required deductions (including deductions applicable to additional sums
payable under this Section 8.04) such Bank or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Person shall make such deductions, (iii) such
Person shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) such Person
shall furnish to the Agent, at its address referred to in Section 10.01, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note
or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 15 days
from the date such Bank or the Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Company
(but only so long as such Bank remains lawfully able to do so), shall provide
the Company with Internal Revenue Service form 1001 or 4224, as appropriate,
or any successor form prescribed by the Internal Revenue Service, certifying
that such Bank is entitled to benefits under an income tax treaty to which
the United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Bank at the time
such Bank first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.04(a)
imposed by the United States.
(e) For any period with respect to which a Bank has failed to provide the
Company with the appropriate form pursuant to Section 8.04(d) (unless such
46
failure is due to a change in treaty, law or regulation occurring subsequent
to the date on which a form originally was required to be provided), such
Bank shall not be entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided, however, that should
a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Company shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.04, then such Bank
will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue
if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
Section 8.05. Domestic Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make Euro-Dollar Loans to the Borrower
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until such Bank
notifies the Company that the circumstances giving rise to such suspension or
demand for compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such Bank as
(or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been repaid (or
converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to
repay its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall
be converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Banks.
47
Section 8.06. Substitution of Bank. If (i) the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii) any
Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or
more of the Banks) to purchase the Notes and assume the Commitment of such
Bank.
ARTICLE 9
Guaranty
Section 9.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note
issued by the Borrower pursuant to this Agreement, and the full and punctual
payment of all other amounts payable by the Borrower under this Agreement.
Upon failure by the Borrower to pay punctually any such amount, the Company
shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in this Agreement.
Section 9.02. Guaranty Unconditional. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of the Borrower under this Agreement or any Note, by
operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement or
any Note;
(iii) any release, impairment, non-perfection or invalidity of any direct
or indirect security for any obligation of the Borrower under this Agreement
or any Note;
(iv) any change in the corporate existence, structure or ownership of the
Borrower, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or its assets or any resulting
48
release or discharge of any obligation of the Borrower contained in this
Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against the Borrower, the Agent, any Bank or
any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Borrower of the principal of or interest on any Note or any other amount
payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute
a legal or equitable discharge of the Company's obligations hereunder.
Section 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. The Company's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Company and the Borrower under this Agreement shall have been indefeasibly
paid in full. If at any time any payment of the principal of or interest on
any Note or any other amount payable by the Borrower under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, the Company's
obligations hereunder with respect to such payment shall be reinstated at
such time as though such payment had been due but not made at such time.
Section 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken
by any Person against the Borrower or any other Person.
Section 9.05. Subrogation. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee
against the Borrower with respect to such payment or against any direct or
indirect security
49
therefor, or otherwise to be reimbursed, indemnified or exonerated by or for
the account of the Borrower in respect thereof.
Section 9.06. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by the Borrower under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable
by the Company hereunder forthwith on demand by the Agent made at the request
of the Required Banks.
ARTICLE 10
Miscellaneous
Section 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Company, the Borrower or the Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of
any Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or
facsimile number as such party may hereafter specify for the purpose by
notice to the Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (ii) if given by facsimile transmission, when such
facsimile is transmitted to the facsimile number specified pursuant to this
Section 10.01 and telephonic confirmation of receipt thereof is received, or
(iii) if given by any other means, when delivered at the address specified in
this Section; provided that notices to the Agent under Article 2 or Article 8
shall not be effective until received.
Section 10.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 10.03. Expenses; Indemnification. (a) The Company shall pay (i)
all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation and
50
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agent and
each Bank, including fees and disbursements of counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought
or threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that (i) no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction and (ii) the Company shall not be liable for any settlement
entered into by an Indemnitee without its consent (which shall not be
unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice after
it receives any notice of the commencement of any action, suit or proceeding
for which such Indemnitee may wish to claim indemnification pursuant to
subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of
notice from such Indemnitee of such commencement, to assume, at the Company's
expense, the defense of any such action, suit or proceeding; provided, that
such Indemnitee shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at such Indemnitee's
expense unless (1) the Company shall have agreed to pay such fees and
expenses; (2) the Company shall have failed to assume the defense of such
action, suit or proceeding or shall have failed to employ counsel reasonably
satisfactory to such Indemnitee in any such action, suit or proceeding; or
(3) such Indemnitee shall have been advised by independent counsel in writing
(with a copy to the Company) that there may be one or more defenses available
to such Indemnitee which are in conflict with those available to the Company
(in which case, if such Indemnitee notifies the Company in writing that it
elects to employ separate counsel at the Company's expense, the Company shall
be obligated to assume the expense, it being understood, however, that the
Company shall not be liable for the fees or expenses
51
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.
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
52
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. 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, 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
53
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 other amounts due and
payable under the Existing Credit Agreements shall have been paid on or prior
to the Effective Date.
54
Section 10.08. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws
of the State of New York. Each of the Company and the Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York State court sitting
in New York City for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby, and
irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 10.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof. This Agreement shall become effective upon receipt by the
Agent of counterparts hereof signed by each of the Company, the Borrower, the
Banks and the Agent (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of execution of a counterpart hereof by such party).
Section 10.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWER,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11. Confidentiality. Each of the Agent and the Banks agrees
to use its reasonable best efforts to keep confidential any information
delivered or made available by the Company or the Borrower to it which is
clearly stated by the Company or the Borrower to be confidential; provided
that nothing herein shall prevent the Agent or any Bank from disclosing such
information (i) to the Agent or any other Bank in connection with the
transactions contemplated hereby, (ii) to its officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section, (iii)
upon the order of any court or administrative agency, (iv) upon the request
or demand of any regulatory agency
55
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.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
U S WEST CAPITAL FUNDING, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
________________________________
Title: Executive Director Treasury
Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
U S WEST, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Title: Vice President & Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
57
Commitments
___________
$140,000,000 ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________________
Title: Vice President
$ 140,000,000 CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
________________________________
Title: Vice President
$ 140,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Senior Vice President
$ 100,000,000 ABN AMRO BANK N.V.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Title: Vice President
By /s/ ▇▇▇▇ ▇. Honda
________________________________
Title: Vice President
58
$ 37,500,000 BANK OF AMERICA NW, N.A. dba
SEAFIRST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Title: Vice President
$ 62,500,000 BANK OF AMERICA NT & SA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Senior Vice President Manager
Commercial Building
$100,000,000 BARCLAYS BANK PLC
By /s/ ▇▇▇ ▇▇▇
________________________________
Title: Director
$ 100,000,000 CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Title: Director, CIBC Wood Gundy
Securities acting, as Agent
$100,000,000 THE CHASE MANHATTAN BANK
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Vice President
59
$100,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Title: Director
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
________________________________
Title: Vice President
$100,000,000 THE FIRST NATIONAL BANK OF
BOSTON
By /s/ ▇▇▇▇▇▇▇ D. Rainie
________________________________
Title: Director
$100,000,000 MELLON BANK N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Vice President
$ 100,000,000 THE SANWA BANK LIMITED,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Title: First Vice President and
Assistant General Manager
60
$ 100,000,000 SWISS BANK CORPORATION,
SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By /s/ Hans-Uoli ▇▇▇▇▇▇
________________________________
Title: Executive Director Merchant
Banking
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
________________________________
Title: Associate Director Accounting
$ 100,000,000 TORONTO DOMINION BANK
(TEXAS), INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Title: Vice President
$ 70,000,000 BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Senior Vice President
& Manager
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Vice President
$ 70,000,000 BANQUE PARIBAS
By /s/ ▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Group Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Assistant Vice President
61
$ 70,000,000 CREDIT SUISSE
By /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇
________________________________
Title: Member of Senior Management
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Title: Associate
$ 70,000,000 THE DAI-ICHI KANGYO BANK,
LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________
Title: Senior Vice President & Joint
General Manager
$ 70,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Title: Vice President
$ 70,000,000 THE FUJI BANK LIMITED
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Joint General Manager
62
$ 70,000,000 THE INDUSTRIAL BANK OF JAPAN,
LTD. NEW YORK BRANCH
By /s/ Akijiro Yoshino
________________________________
Title: Executive Vice President,
Houston Office
$ 70,000,000 NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Vice President
$ 70,000,000 ROYAL BANK OF CANADA
By /s/ ▇▇▇▇ ▇. Page
________________________________
Title: Senior Manager
$ 70,000,000 THE SAKURA BANK LIMITED
By /s/ ▇▇▇▇▇ ▇▇▇▇
________________________________
Title: Senior Vice President
& Assistant General Manager
$ 70,000,000 THE SUMITOMO BANK LIMITED
LOS ANGELES BRANCH
63
By /s/ ▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Joint General Manager
$ 70,000,000 UNION BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Vice President
$ 70,000,000 ▇▇▇▇▇ FARGO BANK (COLORADO), N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
________________________________
Title: Vice President
$ 47,500,000 BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇ ▇▇▇
________________________________
Title: Senior Vice President
$ 47,500,000 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Title: Vice President
64
$ 47,500,000 DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Title: Assistant Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________
Title: Assistant Treasurer
$ 47,500,000 BAYERISCHE HYPO-BANK AG,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Title: Vice President
$ 47,500,000 KREDIETBANK N.A.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
________________________________
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________
Title: Vice President
$ 47,500,000 LLOYDS BANK PLC
65
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________
Title: Vice President B374
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
Title: Senior Vice President W075
$ 47,500,000 THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
LOS ANGELES AGENCY
By /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
________________________________
Title: Deputy General Manager
$ 47,500,000 THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
________________________________
Title: Senior Vice President
& Assistant General Manager
$ 47,500,000 THE ROYAL BANK OF SCOTLAND plc
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Title: Senior Vice President
& Manager
66
$ 47,500,000 SOCIETE GENERALE
SOUTHWEST AGENCY
By /s/ ▇▇▇▇ ▇. ▇▇▇
________________________________
Title: Vice President
$ 47,500,000 THE TOKAI BANK, LIMITED
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Assistant General Manager
Corporate Finance
$ 47,500,000 WESTDEUTSCHE LANDESBANK
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
________________________________
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________
Title: Vice President Credit
Total Commitments:
$3,000,000,000
============
67
CITIBANK, N.A., as Syndication Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
________________________________
Title: As-Attorney-in-Fact
THE BANK OF NEW YORK, as
Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Title: Senior Vice President
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________________
Title: Vice President
Address
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
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:
--------------------------------------------------------------------------------
Status Level I Level II Level III Level IV Level V
--------------------------------------------------------------------------------
Euro-Dollar Margin .130% .150% .165% .240% .295%
--------------------------------------------------------------------------------
Facility Fee Rate .070% .075% .085% .110% .155%
--------------------------------------------------------------------------------
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 are rated A or higher
by S&P or A2 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 are rated A- or higher
by S&P or A3 or higher by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
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) 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 are rated BBB or
higher by S&P or Baa2 or higher by Moody's and 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
without third-party credit enhancement, 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
SCHEDULE 4.07
Environmental Matters
NONE.
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 ▇▇▇▇▇▇ Guaranty Trust
Company of 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 $3,000,000,000 Five-Year
Credit Agreement dated as of November 1, 1996 among U S WEST Capital
Funding, Inc., U S WEST, Inc., the banks listed on the signature pages
thereof, the other agents named therein and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
U S WEST, Inc., has, pursuant to the provisions of the Credit Agreement,
unconditionally guaranteed the payment in full of the principal of and
interest on this Note.
U S WEST CAPITAL FUNDING, INC.
By_____________________________
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Date Amount of
Amount of Principal Notation Made
Loan Type of Loan Repaid Maturity Date By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
3
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
(the "Agent")
From: U S WEST Capital Funding, Inc.
Re: $3,000,000,000 Five-Year Credit Agreement (the "Credit Agreement") dated
as of November 1, 1996 among U S WEST Capital Funding, Inc., U S WEST,
Inc., the Banks listed on the signature pages thereof, the other agents
named therein and 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 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.]Terms used
herein have the meanings assigned to them in the Credit Agreement.
----------------
** Amount must be $25,000,000 or a larger multiple of $5,000,000.
*** Not 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.
Terms used herein have the meanings assigned to them in the Credit Agreement.
U S WEST CAPITAL FUNDING, INC.
By________________________
Title:
2
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 $3,000,000,000 Five-Year Credit Agreement
dated as of November 1, 1996 among U S WEST Capital Funding, Inc., U S WEST,
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].
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By______________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: ▇▇▇▇▇▇ 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:
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 $____________.]**
__________
* As specified in the related Invitation.
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the $3,000,000,000
Five-Year Credit Agreement dated as of November 1, 1996 among U S WEST
Capital Funding, Inc., U S WEST, Inc., the Banks listed on the signature
pages thereof, the other agents named therein and 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%).
2
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc. and U S WEST Capital Funding,
Inc., in connection with the $3,000,000,000 Five-Year Credit Agreement (the
"Credit Agreement") dated as of November 1, 1996, among them, the banks
listed on the signature pages thereof, the other agents named therein and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent. Terms
defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the instruction of the client pursuant to
Section 3.01(b) of the Credit Agreement.
I am familiar with the proceedings taken by the Company and the Borrower in
connection with the authorization, execution and delivery of the Credit
Agreement and the Notes, and I have examined such documents, certificates,
and such other matters of fact and questions of law as I have deemed relevant
under the circumstances to express an informed opinion. Upon the basis of
the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all corporate
powers and all governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted,
except where the absence of any such license, authorization, qualification,
consent or approval would not have a material adverse effect on the
consolidated financial position or consolidated results of operations of the
Company and its Consolidated Subsidiaries considered as one enterprise.
2. The execution, delivery and performance by the Company and the Borrower
of the Credit Agreement and by the Borrower of the Notes are within such
Person's corporate powers, have been duly authorized by all necessary
corporate action, and require no action by or in respect of, or filing with,
any governmental body, agency or official.
3. The execution, delivery and performance by the Company and the Borrower
of the Credit Agreement and by the Borrower of the Notes will not (i) result
in a breach or violation of, conflict with, or constitute a default under,
the articles of incorporation or bylaws of such Person or any material law or
regulation or any material order, judgment, agreement or instrument to which
such Person is a party or by which such Person is bound, or (ii) result in
the creation or imposition of any Lien on any asset of such Person.
4. The Credit Agreement constitutes a valid and binding agreement of the
Company and the Borrower and the Notes constitute valid and binding
obligations of the Borrower.
5. To my knowledge, 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 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 is a corporation validly existing and in good standing under the
laws of their jurisdictions of incorporation, and have all corporate powers
and all governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted, except where
the absence of any such license, authorization, qualification, consent or
approval would not have a material adverse effect on the consolidated
financial position or consolidated results of operations of the Company and
its Consolidated Subsidiaries considered as one enterprise.
For purposes of my opinion set forth in numbered paragraph 4 above, I have
assumed that the laws of the State of New York, which are stated to govern
the Credit Agreement and the Notes, are the same as the laws of Colorado.
2
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,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
3
EXHIBIT F
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the $3,000,000,000 Five-Year
Credit Agreement (the "Credit Agreement") dated as of November 1, 1996 among
U S WEST Capital Funding, Inc., U S WEST, Inc., the banks listed on the
signature pages thereof (the "Banks"), the other agents named therein and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(c) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that, assuming that
the execution, delivery and performance by the Company and the Borrower of
the Credit Agreement and by the Borrower of the Notes are within such
Person's corporate powers and have been duly authorized by all necessary
corporate action, the Credit Agreement constitutes a valid and binding
agreement of the Company and the Borrower and the Notes constitute valid and
binding obligations of the Borrower.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York. In giving the
foregoing opinion, we express no opinion as to the effect (if any) of any law
of any jurisdiction (except the State of New York) in which any Bank is
located which limits the rate of interest that such Bank may charge or
collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied
upon by or furnished to any other person without our prior written consent.
Very truly yours,
2
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE](the "Assignee"), U S WEST, Inc. (the "Company") and ▇▇▇▇▇▇
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 $3,000,000,000 Five-Year Credit Agreement dated as of November
1, 1996 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
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.
**** 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.]
-----------------------
**** 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.
2
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Company or the Borrower, or the validity and enforceability
of the obligations of the Company or the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it has, independently
and without reliance on the Assignor, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Company and the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By______________________________
Title:
3
[ASSIGNEE]
By______________________________
Title:
[U S WEST, INC.
By_______________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By______________________________
Title:]
4
EXHIBIT H
EXTENSION AGREEMENT
US WEST Capital Funding, Inc.
US WEST, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent
under the Credit Agreement referred
to below
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned hereby agree to extend the Revolving Credit Period under
the Five-Year Credit Agreement dated as of November 1, 1996 among US WEST
Capital Funding, Inc., US WEST, Inc., the Banks listed therein, the other
agents named therein and ▇▇▇▇▇▇ 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] *****
By
----------------------------
-----------------
***** Insert names of Banks which have responded
affirmatively in accordance with Section 2.01(b) of the Credit Agreement.
Title:
[NAME OF BANK]******
By__________________________
Title:
[NAME OF BANK]*
By__________________________
Title:
[NAME OF BANK]*
By__________________________
Title:
[NAME OF BANK]*
By__________________________
Title:
[NAME OF BANK]*
By__________________________
Title:
-------------
******Insert names of Banks which have responded affirmatively in accordance
with Section 2.01(b) of the Credit Agreement.
2
Agreed and accepted:
US WEST CAPITAL FUNDING, INC.
By__________________________
Title
US WEST, INC.
By__________________________
Title
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By__________________________
Title
3