EXHIBIT 5-B
October 30, 2001
To: Qwest Capital Funding, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Re: QWEST CAPITAL FUNDING, INC.: REGISTRATION RIGHTS AGREEMENT AND EXCHANGE
OFFER.
Ladies and Gentlemen:
We have acted as special counsel with respect to the laws of the State of
Colorado to Qwest Capital Funding, Inc. (formerly known as U S WEST Capital
Funding, Inc.), a Colorado corporation (the "Company"), in connection with the
Registration Rights Agreement, dated as of July 30, 2001, (the "Registration
Rights Agreement"), among the Company, Qwest Communications International Inc.,
a Delaware corporation (the "Guarantor") and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxx Brothers Inc., Bear, Xxxxxxx & Co. Inc., Credit
Suisse First Boston Corporation, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx
Xxxxxx Inc., ABN AMRO Incorporated, Banc One Capital Markets, Inc., Commerzbank
Capital Markets Corp., First Union Securities, Inc., Fleet Securities Inc.,
Mellon Financial Markets, LLC, Mizuho International plc, RBC Dominion Securities
Corporation, Royal Bank of Scotland plc, U.S. Bancorp Xxxxx Xxxxxxx, Inc.,
Wachovia Securities, Inc., Xxxxx Fargo Brokerage Services, LLC and Westdeutsche
Landesbank Girozentrale (collectively, the "Initial Purchasers"), which provides
for an offer to exchange (the "Exchange Offer") up to $1,250,000,000 aggregate
principal amount of the 5 7/8% Notes of the Company due 2004, $2,000,000,000
aggregate principal amount of the 7% Notes of the Company due 2009, and
$500,000,000 aggregate principal amount of the 7 7/8% Notes of the Company due
2021 (collectively, the "Notes"), purchased by the Initial Purchasers pursuant
to the Purchase Agreement dated July 25, 2001 (the "Purchase Agreement"), among
the Company, the Guarantor, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxx Brothers Inc., as representatives of the Initial
Purchasers, in a transaction that we have been advised is exempt from the
registration requirements of the Securities Act of
Qwest Capital Funding, Inc.
October 30, 2001
Page 2
1933, as amended (the "Securities Act"), for new 5 7/8% Notes of the Company due
2004, 7% Notes of the Company due 2009 and 7 7/8% Notes of the Company due 2021
to be registered under the Securities Act (the "Exchange Notes"), all in
accordance with the terms of the Registration Rights Agreement. Capitalized
terms used but not defined herein shall have the respective meanings ascribed
thereto in the Registration Rights Agreement.
MATERIAL EXAMINED
In connection with this opinion, we have examined the following documents:
i. A copy of the Registration Rights Agreement.
ii. Photocopies of the applicable board resolutions of the Company
pertaining to the Exchange Offer and the issuance and
registration of the Exchange Notes, certified as being
complete, true and correct by an officer of the Company (the
"Board Resolutions").
iii. Certificate issued by the Colorado Secretary of State, dated
as of October 1, 2001, relating to the due organization and
good standing of the Company in the State of Colorado.
In addition, we have examined originals or photocopies of such other corporate
documents and records of the Company, certificates of public officials relating
to the Company and certificates of officers of the Company as we have deemed
necessary as a basis for the opinions expressed herein. As to all factual
matters material to the opinions expressed herein, we have (with your permission
and without any independent investigation) relied upon, and assumed the accuracy
and completeness of, such certificates and corporate records.
ASSUMPTIONS
In connection with this opinion, we have, with your consent and without
investigation or independent verification, assumed the following:
Qwest Capital Funding, Inc.
October 30, 2001
Page 3
a. All signatures are genuine, all documents and instruments submitted
to us as originals are authentic and all documents and instruments submitted to
us as photocopies, telecopies or facsimiles conform to the original documents
and instruments.
b. All documents we have reviewed are enforceable in accordance with
their respective terms against the parties thereto.
OPINION
Based solely upon the foregoing and subject to the comments, qualifications and
other matters set forth herein, we are of the opinion that:
1. The Company is a corporation duly organized, and is validly existing
and in good standing, under the laws of the State of Colorado, with corporate
power to consummate the Exchange Offer in accordance with the terms of the
Registration Rights Agreement.
2. The consummation of the Exchange Offer by the Company in accordance
with the terms of the Registration Rights Agreement has been duly authorized by
all necessary corporate action on the part of the Company, and the Exchange
Notes, when duly executed by authorized officers of the Company as set forth in
the Board Resolutions and when duly executed and authenticated in the manner
contemplated in the Indenture, shall be duly executed by the Company.
COMMENTS AND QUALIFICATIONS
A. AT&T Divestiture. We express no opinion on the impact on the
opinions contained herein of any litigation or ruling relating to the
divestiture by American Telephone and Telegraph Company of ownership of its
operating telephone companies.
B. Existence and Good Standing. The opinions expressed herein with
respect to the due organization, existence and good standing of the Company are
based solely upon the good standing certificate reviewed by us and described in
the Material Examined section above.
Qwest Capital Funding, Inc.
October 30, 2001
Page 4
C. PUC Matters. We express no opinion with respect to matters relating
to any state public utilities commission or similar authority for the Company,
including without limitation whether any consents or approvals are required to
be obtained from any such entity.
D. Factual Matters. As to various questions of fact relevant to this
opinion we have relied, without independent investigation, upon the certificates
of officers of the Company.
E. Law Limitations. All the opinions expressed herein are limited to
the substantive laws of the State of Colorado.
F. Non-Participation in Negotiations. We have not participated in
negotiation of the Registration Rights Agreement, the Purchase Agreement or the
transactions contemplated thereby, nor have we participated in the preparation
of any documents or filings with respect to the Exchange Offer, including
without limitation, any registration statements or related prospectuses,
amendments or supplements relating thereto. Our undertaking has been limited to
a review of the form and content of the Registration Rights Agreement to the
extent we deem appropriate to render the opinions expressed herein. We have not
reviewed any other agreement for the purposes of rendering this legal opinion or
been informed of any other understanding, and we offer no opinion as to the
effect of any such other agreement or understanding on the opinions expressed
herein. Without limiting the generality of the foregoing, we express no opinion
herein with respect to the legal, valid and binding nature of or the
enforceability of the Exchange Notes, with respect to which we understand that
you have received a legal opinion from O'Melveny & Xxxxx LLP, dated the date
hereof.
The opinions expressed herein are rendered as of the date hereof. We do
not undertake to advise you of matters that come to our attention subsequent to
the date hereof and that may affect the opinions expressed herein, including
without limitation, future changes in applicable law. This letter is our opinion
as to certain legal conclusions as specifically set forth herein and is not and
should not be deemed to be a representation or opinion as to any factual
matters. The opinions expressed herein may be relied upon only in connection
with the Exchange Offer by the addressees hereof and by holders of the Notes or
the Exchange Notes; provided that O'Melveny & Xxxxx LLP may rely on this
Qwest Capital Funding, Inc.
October 30, 2001
Page 5
opinion with respect to Colorado law for the purposes of delivering its legal
opinion dated the date hereof in connection with the Exchange Offer. The
opinions expressed herein may not be quoted in whole or in part or otherwise
used or referred to in connection with any other transactions and may not be
furnished to or filed with any governmental agency or other person or entity
without the prior written consent of this firm; provided that we consent to the
filing by the Company of this opinion as an exhibit to the Registration
Statement on Form S-4 (the "Registration Statement") to be filed
contemporaneously herewith with the Securities and Exchange Commission in
connection with the Exchange Offer, and we further consent to the use of our
name under the caption "Legal Opinions" in the prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ XXXXX XXXXXXX & XXXX LLP
