Exhibit (b)(6)
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$1,500,000,000
364-DAY
CREDIT AGREEMENT
dated as of
June 11, 1999
among
U S WEST Capital Funding, Inc.
U S WEST, Inc.
The Banks Listed Herein
and
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
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X.X. Xxxxxx Securities Inc.
Lead Arranger
and Bookrunner
Bank of America National Trust and Savings Association,
The Chase Manhattan Bank and
Citibank, N.A.,
Co-Syndication Agents
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. The Definitions...........................................
SECTION 1.02. Accounting Terms and Determinations.......................
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.......................................
SECTION 2.02. Notice of Borrowing.......................................
SECTION 2.03. Notice to Banks; Funding of Loans.........................
SECTION 2.04. Notes.....................................................
SECTION 2.05. Maturity of Loans.........................................
SECTION 2.06. Interest Rates............................................
SECTION 2.07. Facility Fees.............................................
SECTION 2.08. Termination or Reduction of Commitments...................
SECTION 2.09. Method of Electing Interest Rates.........................
SECTION 2.10. Prepayments...............................................
SECTION 2.11. General Provisions as to Payments.........................
SECTION 2.12. Funding Losses............................................
SECTION 2.13. Computation of Interest and Fees..........................
SECTION 2.14. Change of Control.........................................
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing...................................................
SECTION 3.02. All Borrowings............................................
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.............................
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.............................................
SECTION 4.03. Binding Effect............................................
SECTION 4.04. Financial Information.....................................
SECTION 4.05. Litigation................................................
SECTION 4.06. Compliance with ERISA.....................................
SECTION 4.07. Environmental Matters.....................................
SECTION 4.08. Taxes.....................................................
SECTION 4.09. Subsidiaries..............................................
SECTION 4.10. Not an Investment Company.................................
SECTION 4.11. Full Disclosure...........................................
ARTICLE 5
COVENANTS
SECTION 5.01. Information...............................................
SECTION 5.02. Maintenance of Property; Insurance........................
SECTION 5.03. Maintenance of Existence..................................
SECTION 5.04. Compliance with Laws......................................
SECTION 5.05. Inspection of Property, Books and Records.................
SECTION 5.06. Subsidiary Debt...........................................
SECTION 5.07. Debt Coverage.............................................
SECTION 5.08. Negative Pledge...........................................
SECTION 5.09. Consolidations, Mergers and Sales of Assets...............
SECTION 5.10. Use of Proceeds...........................................
SECTION 5.11. Year 2000 Compatibility...................................
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default.........................................
SECTION 6.02. Notice of Default.........................................
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization.............................
SECTION 7.02. Agent and Affiliates......................................
SECTION 7.03. Action by Agent...........................................
SECTION 7.04. Consultation with Experts.................................
SECTION 7.05. Liability of Agent........................................
SECTION 7.06. Indemnification...........................................
SECTION 7.07. Credit Decision...........................................
SECTION 7.08. Successor Agent...........................................
SECTION 7.09. Agent's Fee...............................................
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair....................................................
SECTION 8.02. Illegality................................................
SECTION 8.03. Increased Cost and Reduced Return.........................
SECTION 8.04. Taxes.....................................................
SECTION 8.05. Domestic Loans Substituted for Affected Euro-Dollar
Loans.....................................................
SECTION 8.06. Substitution of Bank......................................
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty..............................................
SECTION 9.02. Guaranty Unconditional....................................
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances.....................................
SECTION 9.04. Waiver by the Company.....................................
SECTION 9.05. Subrogation...............................................
SECTION 9.06. Stay of Acceleration......................................
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices...................................................
SECTION 10.02. No Waivers................................................
SECTION 10.03. Expenses; Indemnification.................................
SECTION 10.04. Sharing of Set-offs.......................................
SECTION 10.05. Amendments and Waivers....................................
SECTION 10.06. Successors and Assigns....................................
SECTION 10.07. No Reliance on Margin Stock...............................
SECTION 10.08. Governing Law; Submission to Jurisdiction.................
SECTION 10.09. Counterparts; Integration; Effectiveness..................
SECTION 10.10. WAIVER OF JURY TRIAL......................................
SECTION 10.11. Confidentiality...........................................
CREDIT AGREEMENT
AGREEMENT dated as of June 11, 1999 among U S WEST Capital Funding,
Inc., U S WEST, Inc., the BANKS listed on the signature pages hereof and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. THE DEFINITIONS.
The following terms, as used herein, have the following meanings:
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning set forth
in Section 2.06.
"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 Xxxxxx 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, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"ASSIGNEE" has the meaning set forth in Section 10.06(c).
"BANK" means each lender listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BORROWER" means U S WEST Capital Funding, Inc., a Colorado
corporation, and its successors.
"BORROWING" has the meaning set forth in Section 1.03.
"CLOSING DATE" means the date on or after the Effective Date on
which the Agent shall have received the documents specified in or pursuant to
Section 3.01.
"COMMITMENT" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.08.
"COMPANY" means U S WEST, Inc., a Delaware corporation, and its
successors.
"COMPANY'S 1998 FORM 10-K" means U S WEST, Inc.'s annual report on
Form 10-K for 1998, as amended by Form 10-K/A filed March 24, 1999, in each case
as filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
"CONSOLIDATED EBITDA" means, for any period, the net income of the
Company and its Consolidated Subsidiaries determined on a consolidated basis for
such period (adjusted to exclude the effect of (x) equity gains or losses in
unconsolidated Persons, (y) any preferred dividend income and any extraordinary
or other non-recurring non-cash gain or loss or (z) any gain or loss on the
disposition of investments), plus, to the extent deducted in determining such
adjusted net income, the aggregate amount of (i) interest expense, (ii) income
tax expense and (iii) depreciation, amortization and other similar non-cash
charges and minus, to the extent included in determining such adjusted net
income, the aggregate amount of (i) interest income and (ii) income tax benefit.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person. Notwithstanding the foregoing, for purposes of Sections 5.06 and 5.07
Debt shall in no event include the following:
(x) Debt of Persons which are not Consolidated Subsidiaries
("Joint Ventures") (i) which is secured by a Lien on the assets or
capital stock of a Minor Subsidiary or the equity interests in such
Joint Ventures or is Guaranteed by a Minor Subsidiary, which Lien or
Guaranty is incurred in connection with the 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.
"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 Loan which bears interest at the Base
Rate pursuant to the applicable Notice of 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.
"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 Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of 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 2.06.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.06 on the basis of an Adjusted London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE BANKs" means the principal London offices of
Bank of America National Trust and Savings Association, Mellon Bank, N.A., and
Xxxxxx 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 2.06.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"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 Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"GROUP OF LOANS" means at any time a group of Loans consisting of
(i) all Loans which are Domestic Loans at such time or (ii) all Loans which are
Euro-Dollar Loans having the same Interest Period at such time; provided that,
if a Loan of any particular Bank is converted to or made as a Domestic Loan
pursuant to Section 8.02 or 8.05, such Loan shall be included in the same Group
or Groups of Loans from time to time as it would have been in if it had not been
so converted or made.
"GUARANTY" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guaranty shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 10.03(b).
"INTEREST PERIOD" means, 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 the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"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 loan to be made by a Bank pursuant to Section 2.01;
provided that if any such loan or loans are combined or subdivided pursuant to a
Notice of Interest Rate Election, the term "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.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.06.
"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.
"MERGER" means any of the transactions constituting one of the
"Mergers" (as defined in the Merger Agreement as in effect on the date hereof)
or any similar transaction pursuant to which the Company merges with or into, or
controls is controlled by or is under common control with, Global Crossing Ltd.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as
of May 16, 1999 between the Company and Global Crossing Ltd., as amended prior
to the date of this Agreement.
"MINOR SUBSIDIARY" means, for purposes of the last sentence of the
definition of Debt and of Section 5.08(f) (the "Relevant Provisions"), (i) U S
WEST Wireless LLC and (ii) any other Subsidiary which, at the time of the
issuance of a Guaranty or grant of a Lien referred to in the Relevant
Provisions, had assets which, when taken together with all assets of
Subsidiaries at any earlier time when such Subsidiaries were deemed to be Minor
Subsidiaries pursuant to this clause (ii), did not exceed $250,000,000.
"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" has the meaning set forth in Section 2.02.
"PARENT" means, with respect to any Bank, any Person controlling
such Bank.
"PARTICIPANT" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Schedule attached hereto and identified
as such.
"PRIME RATE" means the rate of interest publicly announced by Xxxxxx
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.
"RESET DATE" means the first date on which (i) the Borrower's
ratings are not on creditwatch (or the equivalent) by any of S&P, Xxxxx'x and
Duff & Xxxxxx and (ii) the Borrower's senior unsecured long-term debt securities
guaranteed by the Company are rated at least (x) A- by S&P, A- by Duff & Xxxxxx
and Baa1 by Xxxxx'x, (y) A- by S&P, BBB+ by Duff & Xxxxxx and A3 by Xxxxx'x, or
(z) BBB+ by S&P, A- by Duff & Xxxxxx and A3 by Xxxxx'x. For purposes of this
definition, "S&P" and "Xxxxx'x" have the meanings set forth in the Pricing
Schedule, and "Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co., 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, "Duff & Xxxxxx" 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.
"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.
"TENDER OFFER" means the offer to purchase for cash 39,259,305 of
the outstanding shares of common stock of Global Crossing Ltd. (approximately
9.5% of the shares of common stock outstanding on the date of the offer) at
$62.75 per share, without interest, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated May 21, 1999 and the related Letter of
Transmittal, as filed on May 21, 1999 with the Securities and Exchange
Commission as exhibits to Schedule 14D-1 and Schedule 13D.
"TERMINATION DATE" means the earlier of (i) June 9, 2000 or (ii) the
date on which the Merger is consummated, or, if such day is not a Euro-Dollar
Business Day, the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATEs" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article 5 to eliminate
the effect of any change in such generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article 5 for such purpose), then compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles in effect in the United States immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
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 by reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans).
ARTICLE 2
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. 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 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 2.10, 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.
SECTION 2.02. NOTICE OF BORROWING. The Borrower shall give the Agent
notice (a "Notice of Borrowing"), which may be substantially in the form of
Exhibit E hereto, 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, provided that if the
date of such Borrowing occurs during the period from and including
December 15, 1999 to and including January 17, 2000, such Loans shall bear
interest at the Base Rate unless and until they are converted to
Euro-Dollar Loans on or after January 18, 2000, 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. 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 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 shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Agent at its address referred to
in Section 10.01. Unless any applicable condition specified in Article 3 has not
been satisfied, as determined by the Agent in accordance with Article 3, the
Agent will make the funds so received from the Banks immediately available to
the Borrower at the Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to the Borrower on a day
on which the Borrower is to repay all or any part of an outstanding Loan from
such Bank, such Bank shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed by the Borrower and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection (b) of this
Section, or remitted by the Borrower to the Agent as provided in Section 2.11,
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 2.03
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 2.06 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 2.04. NOTES. (a) The Loans of each Bank to the Borrower
shall be evidenced by a single Note of the Borrower payable to the order of such
Bank for the account of its Applicable Lending Office, unless such Bank requests
otherwise, in an amount equal to the aggregate unpaid principal amount of such
Bank's Loans to the Borrower.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type to the Borrower be evidenced by a separate
Note of the Borrower in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount and type of each Loan made by it to the Borrower and the date and amount
of each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of the
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to the
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS. Each Loan shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the Termination Date.
SECTION 2.06. INTEREST RATES. (a) Each Domestic Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on the
last day of each calendar quarter and, with respect to the principal amount of
any Domestic Loan converted to a Euro-Dollar Loan, on each date a Domestic Loan
is so converted. Any overdue principal of or interest on any Domestic Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Domestic Loans for
such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Euro-Dollar Margin plus the applicable
Adjusted London Interbank Offered Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six months as the Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Domestic Loans for such day) and (ii) the sum of the Euro-Dollar
Margin plus the Adjusted London Interbank Offered Rate applicable to such Loan
at the date such payment was due.
(d) 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.
(e) 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 2.07. FACILITY FEES. The Company shall pay to the Agent for
the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the Commitments in their
entirety), on the daily average aggregate amount of the Commitments (whether
used or unused) and (ii) from and including the Termination Date (or earlier
date of termination of the Commitments in their entirety) to but excluding the
date the Loans shall be repaid in their entirety, on the daily average aggregate
outstanding principal amount of the Loans. Accrued facility fees shall be
payable quarterly in arrears on the last day of each calendar quarter and upon
the date of termination of the Commitments in their entirety (and, if later, the
date the Loans shall be repaid in their entirety).
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
SECTION 2.08. 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 2.09. METHOD OF ELECTING INTEREST RATES. (a) The Loans
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of 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;
provided that if such conversion or continuation occurs during the period from
and including December 15, 1999 to and including January 17, 2000, such Loans
shall be converted into or continued as Domestic Loans unless and until they are
converted to Euro-Dollar Loans on or after January 18, 2000.
Each such election shall be made by delivering a notice (a "Notice
of Interest Rate Election") to the Agent at least three Euro-Dollar Business
Days before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $25,000,000 or any larger multiple
of $5,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Domestic Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.10. PREPAYMENTS.
(a) Subject in the case of any Euro-Dollar Loans to Section 2.12,
the Borrower may, upon at least one Domestic Business Day's notice to the Agent,
prepay the Group of Domestic Loans, or, upon three Euro-Dollar Business Days'
notice to the Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$25,000,000 or any larger multiple of $5,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
(b) 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 2.11. 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. 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 2.12. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Domestic Loan (pursuant to Article 2, 6 or 8 or otherwise) on any
day other than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.06(c), or if the
Borrower fails to borrow, convert, continue or prepay any Euro-Dollar Loans
after notice has been given to any Bank in accordance with Section 2.03(a),
2.09(c) or 2.10(b), 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 2.13. 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 2.14. 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, 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.
ARTICLE 3
CONDITIONS
SECTION 3.01. CLOSING. The closing hereunder shall occur upon
receipt by the Agent of the following (in the case of any document, dated the
Closing Date unless otherwise indicated):
(a) a duly executed Note of the Borrower for the account of each
Bank dated on or before the Closing Date complying with the provisions of
Section 2.04;
(b) an opinion of Xxxxxx X. XxXxxxxxx, Esq., counsel for the Company
and the Borrower, substantially in the form of Exhibit B hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(c) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Agent, substantially in the form of Exhibit C 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 of the payment of all fees
and other amounts payable to the Agent for the account of the Banks or the Agent
on or prior to the Closing Date, including, to the extent invoiced,
reimbursement of all out-of-pocket expenses (including, without limitation,
legal fees and expenses) required to be reimbursed or paid by the Borrower or
the Company hereunder;
(e) the aggregate amount of cash consideration payable pursuant to
the Tender Offer shall not have increased materially, in the reasonable judgment
of the Agent after consultation with the Company, above the amount offered on
the date hereof, and all conditions to the consummation of the Tender Offer
(other than the expiration or termination of the applicable waiting period under
the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act) shall have been satisfied; and
(f) all documents the Agent may reasonably request relating to the
existence of the Company and the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent.
The Agent shall promptly notify the Company and the Banks of the Closing Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. ALL BORROWINGS. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or prior
to July 30, 1999 and all conditions to the consummation of the Tender Offer
shall have been satisfied;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02;
(c) the fact that, immediately before and after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties contained in
this Agreement shall be true on and as of the date of such Borrowing (except, in
the case of the representations and warranties contained in Section 4.04(b), as
disclosed by the Borrower to the Banks in writing in the Notice of Borrowing
relating to such Borrowing).
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. Each of the Company and
the Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation, and has all corporate
powers and all material governmental licenses, authorizations, qualifications,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Company and the
Borrower of this Agreement and by the Borrower of the Notes are within such
Person's corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Person or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Person or any
Significant Subsidiary or result in the creation or imposition of any Lien on
any material asset of such Person or any Significant Subsidiary.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company and the Borrower, and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of December 31, 1998 and the related consolidated
statements of income and cash flows for the fiscal year then ended, reported on
by Xxxxxx Xxxxxxxx L.L.P. and set forth in the Company's 1998 Form 10-K, a copy
of which has been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such fiscal year.
(b) Since December 31, 1998 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
neither the execution of the Merger Agreement nor the consummation of the Tender
Offer shall constitute such a change).
SECTION 4.05. LITIGATION. Except as disclosed in the Company's 1998
Form 10-K and the Company's Form 10-Q for the quarter ended March 31, 1999, as
filed with the Securities and Exchange Commission, there is no action, suit or
proceeding pending against, or 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, there are
neither any conditions or circumstances known to the Company which may give rise
to any claims or liabilities respecting any Environmental Laws or Hazardous
Substances arising from the operations of the Company or its Subsidiaries
(including, without limitation, off-site liabilities), nor any additional costs
of compliance with Environmental Laws, which collectively have an aggregate
potential liability in excess of $50,000,000.
SECTION 4.08. TAXES. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended December 31, 1987. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except for taxes the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.09. SUBSIDIARIES. Each of the Company's corporate
Significant Subsidiaries (including, but not limited to, the Borrower) is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, qualifications, consents and
approvals required to carry on its business as now conducted.
SECTION 4.10. NOT AN INVESTMENT COMPANY. Neither the Company nor the
Borrower is an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
SECTION 4.11. FULL DISCLOSURE. All written information heretofore
furnished by the Company or the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company or the Borrower
to the Agent or any Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 95 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the Securities
and Exchange Commission by Xxxxxx Xxxxxxxx L.L.P. or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the
end of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer (or such officer's designee, designated in writing by such
officer) or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.06 to 5.08, inclusive, on the
date of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Company or the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer of the Company or the Borrower setting forth the details
thereof and the action which the Company or the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than any amendment on Form 8-K the sole purpose of which is
to file exhibits relating to existing Debt meeting the requirements of clause
(ii) of the definition of Debt) which the Company shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(h) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. (a) The Company
will keep, and will cause each Significant Subsidiary to keep, all property
useful 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.
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 (i) the Borrower which is Guaranteed by the
Company and (ii) a Consolidated Subsidiary to the Company or to a Wholly-Owned
Consolidated Subsidiary) as of the last day of any fiscal quarter of the Company
will not exceed 150% of Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ending on such date. 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 as of the last day of any fiscal quarter of the
Company will not exceed (i) prior to the Reset Date, 350%, and (ii) on and after
the Reset Date, 400%, of Consolidated EBITDA for the four consecutive fiscal
quarters of the Company ending on such date.
SECTION 5.08. NEGATIVE PLEDGE. Neither the Company nor the Borrower
will, and the Company will not permit any Subsidiary to, create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $265,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien on assets or capital stock of Minor Subsidiaries which
secures Debt of Persons which are not Consolidated Subsidiaries in which the
Company or any of its Subsidiaries has made investments ("Joint Ventures"), but
for the payment of which Debt no other recourse may be had to the Company or any
Subsidiaries ("Limited Recourse Debt"), or any Lien on equity interests in a
Joint Venture securing Limited Recourse Debt of such Joint Venture;
(g) any Lien arising out of the refinancing, replacement, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased and
is not secured by any additional assets;
(h) Liens arising in the ordinary course of business which (i) do
not secure Debt, (ii) o not secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its
business; and (vi) Liens not otherwise permitted by and in addition to the
foregoing clauses of this Section securing Debt in an aggregate principal amount
at any time outstanding not to exceed $750,000,000.
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Company will not (i) consolidate with or merge into any other Person or (ii)
sell, lease or otherwise transfer, directly or indirectly, all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, to any
other Person. The Company will retain ownership, directly or indirectly, of at
least 80% of the capital stock, and at least 80% of the voting power, of U S
WEST Communications, Inc.
SECTION 5.10. USE OF PROCEEDS. The proceeds of the Loans made under
this Agreement will be used by the Borrower for financing the Tender Offer or
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.
SECTION 5.11. YEAR 2000 COMPATIBILITY. The Company shall take all
reasonable action necessary to ensure that the computer based systems of the
Company and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000, except that such action shall not
be required to the extent that the failure to take such action would not have a
material adverse effect on the consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole. At the request of the Agent, the Company shall provide
assurance reasonably acceptable to the Agent of the year 2000 compatibility of
the Company and its Subsidiaries.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be paid
within five days of the due date thereof;
(b) the Company or the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Company or the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 10 days (or, in the case of Section 5.11, 30 days)
after written notice thereof has been given to the Company by the Agent at the
request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or the Borrower in this Agreement or in any certificate, 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 $50,000,000, 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 terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $100,000,000;
(j) a judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 10
days (it being understood that in any event an administrative order of a public
utility commission shall not constitute an "order" for purposes of this clause
(j) so long as (x) no one is seeking to enforce such order in an action, suit or
proceeding before a court and (y) reserves in the full amount of the cost of
such order are maintained on the books of the Company and its Subsidiaries); or
(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;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and/or (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company and the Borrower;
provided that in the case of any of the Events of Default specified in clause
(g) or (h) above with respect to the Company or the Borrower, without any notice
to the Company or the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and the Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Xxxxxx 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 Xxxxxx Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company, the Borrower or any Subsidiary or affiliate of the
Company or the Borrower as if it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for the Company or the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Company or the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Company or the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent (with the consent of the Company, such consent not to
be unreasonably withheld), which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $400,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. AGENT'S FEE. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE 8
CHANGES IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any
Euro-Dollar Loan:
(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) 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 Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Domestic Borrowing.
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
the date hereof, 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 Euro-Dollar Loans, its Note or its obligation to make Euro-Dollar
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 Euro-Dollar
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.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. TAXES. (a) Any and all payments by the Company or the
Borrower to or for the account of any Bank or the Agent hereunder or under any
Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Company or the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Bank or the Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Person shall make such deductions, (iii) such Person shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Person shall furnish to the Agent,
at its address referred to in Section 10.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Company agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04(a) imposed by the United States.
(e) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form required
hereunder, the Company shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes.
(f) If the Company or the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.04, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
SECTION 8.05. DOMESTIC LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans to the
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Company that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans to the Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Domestic Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to the Borrower has been
repaid (or converted to a Domestic Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Domestic Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Domestic Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other Banks.
SECTION 8.06. SUBSTITUTION OF BANK. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02, (ii)
any Bank has demanded compensation under Section 8.03 or (iii) any Bank has not
signed an amendment or waiver which must be signed by all the Banks to become
effective, and such amendment or waiver has been signed by the Super-Majority
Banks, the Company shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which may be one or more
of the Banks) to purchase the Notes and assume the Commitment of such Bank.
ARTICLE 9
GUARANTY
SECTION 9.01. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
SECTION 9.02. GUARANTY UNCONDITIONAL. The obligations of the Company
hereunder shall be unconditional, irrevocable and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this Agreement
or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under this
Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of the Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower or its assets or any resulting
release or discharge of any obligation of the Borrower contained in this
Agreement or any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against the Borrower, the Agent, any Bank or
any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Borrower of the principal of or interest on any Note or any other amount
payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
SECTION 9.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
the Borrower under this Agreement shall have been indefeasibly paid in full. If
at any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION 9.04. WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 9.05. SUBROGATION. The Company irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
the Borrower with respect to such payment or against any direct or indirect
security therefor, or otherwise to be reimbursed, indemnified or exonerated by
or for the account of the Borrower in respect thereof.
SECTION 9.06. STAY OF ACCELERATION. In the event that acceleration
of the time for payment of any amount payable by the Borrower under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of the Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the Company hereunder
forthwith on demand by the Agent made at the request of the Required Banks.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Company, the Borrower or the Agent, at its address
or facsimile number set forth on the signature pages hereof, (y) in the case of
any Bank, at its address or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified pursuant to this Section 10.01 and telephonic
confirmation of receipt thereof is received, or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 10.02. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. EXPENSES; INDEMNIFICATION. (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that (i) no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction and (ii)
the Company shall not be liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably withheld).
(c) Each Indemnitee agrees to give the Company prompt written notice
after it receives any notice of the commencement of any action, suit or
proceeding for which such Indemnitee may wish to claim indemnification pursuant
to subsection (b). The Company shall have the right, exercisable by giving
written notice within fifteen Domestic Business Days after the receipt of notice
from such Indemnitee of such commencement, to assume, at the Company's expense,
the defense of any such action, suit or proceeding; provided, that such
Indemnitee shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Indemnitee's expense unless
(1) the Company shall have agreed to pay such fees and expenses; (2) the Company
shall have failed to assume the defense of such action, suit or proceeding or
shall have failed to employ counsel reasonably satisfactory to such Indemnitee
in any such action, suit or proceeding; or (3) such Indemnitee shall have been
advised by independent counsel in writing (with a copy to the Company) that
there may be one or more defenses available to such Indemnitee which are in
conflict with those available to the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
Company's expense, the Company shall be obligated to assume the expense, it
being understood, however, that the Company shall not be liable for the fees or
expenses of more than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
SECTION 10.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a 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, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) amend or waive the provisions of Article
9 or (v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Agreement.
SECTION 10.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
the Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans, with (and subject to) the written consent of the
Company and the Agent, which consents shall not be unreasonably withheld;
provided that if a Participant is an affiliate of such grantor Bank or is
another Bank, no such consent shall be required. In the event of any such grant
by a Bank of a participating interest to a Participant, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Company,
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such 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 D hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent, which consents shall not be unreasonably
withheld; provided that (i) if an Assignee is an affiliate of such transferor
Bank or is another Bank, no such consent shall be required; and (ii) any
assignment shall not be less than $5,000,000, or, if less, shall constitute an
assignment of all of such Bank's rights and obligations under this Agreement and
the Notes. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Company and the Agent certification
as to exemption from deduction or withholding of any United States federal
income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 10.07. NO RELIANCE ON MARGIN STOCK. Each Lender represents
to the Agent and each of the other Lenders that it in good faith is not relying
upon any Margin Stock as collateral in the extension or maintenance of the
credit provided for in this Agreement.
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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
U S WEST CAPITAL FUNDING, INC.
By: ____________________________________
Name: Xxxx X. Xxxxx
Title: Assistant Treasurer
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile number: 000-000-0000
Telephone number: 000-000-0000
Attention: Xxxx X. Xxxxx
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 000-000-0000
Telephone number: 000-000-0000
Attention: Xxxxxx X. XxXxxxxxx
U S WEST, INC.
By: ____________________________________
Name: Xxxx X. Xxxxx
Title: Vice President - Treasurer
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile number: 000-000-0000
Telephone number: 000-000-0000
Attention: Xxxx X. Xxxxx
with a copy (other than of any notice
delivered pursuant to Article 2) to:
Facsimile number: 000-000-0000
Telephone number: 000-000-0000
Attention: Xxxxxx X. XxXxxxxxx
COMMITMENTS
$ 187,500,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: ____________________________________
Name:
Title:
$ 187,500,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: ____________________________________
Name:
Title:
$ 187,500,000 THE CHASE MANHATTAN BANK
By: ____________________________________
Name:
Title:
$ 187,500,000 CITIBANK, N.A.
By: ____________________________________
Name:
Title:
$ 150,000,000 ABN AMRO BANK N.V
By: ____________________________________
Name:
Title:
$ 150,000,000 THE BANK OF NEW YORK
By: ____________________________________
Name:
Title:
$ 150,000,000 COMMERZBANK AG LOS ANGELES
BRANCH
By: ____________________________________
Name:
Title:
$ 150,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By: ____________________________________
Name:
Title:
$ 150,000,000 MELLON BANK, N.A
By: ____________________________________
Name:
Title:
TOTAL COMMITMENTS:
-----------------
$1,500,000,000
==============
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By: ____________________________________
Name:
Title:
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile number: 000-000-0000
Telephone number: 000-000-0000
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:
Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxx I II III IV V VI VII
------ ----- ----- ----- ----- ----- ----- -----
Euro-Dollar .365% .430% .545% .650% .750% 1.100% 1.550%
Margin
Facility Fee .060% .070% .080% .100% .125% .150% .200%
Rate
For purposes of this Schedule, the following terms have the
following meanings:
"Creditwatch Expiration Date" is the first date on which the
Company's ratings have been removed from creditwatch (or the equivalent) by S&P
and Moody's.
"Level I Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Minimum Short-Term Credit
Ratings are in effect.
"Level II Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A or
higher by S&P or A2 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) Level I Status does not exist.
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A- or
higher by S&P or A3 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) neither Level I Status nor Level II Status
exists.
"Level IV Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) none of Level I Status, Level II Status or Level
III Status exists.
"Level V Status" exists at any date if, at such date, (i)(x) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB or higher by S&P and Baa2 or higher by Moody's and (y)
Minimum Short-Term Credit Ratings are in effect and (ii) none of Level I Status,
Level II Status, Level III or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Level VII Status" exists at any date if, at such date, none of
Level I Status, Level II Status, Level III Status, Level IV Status, Level V
Status or Level VI Status exists.
"Minimum Short-Term Credit Ratings" are in effect on any day on
which the Borrower's short-term debt is rated A-2 or higher by S&P and P-2 or
higher by Moody's.
"Moody's" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status, Level VI
Status or Level VII Status exists at any date.
For purposes of this Schedule, the credit ratings to be utilized for senior
unsecured long-term debt securities are those assigned to the senior unsecured
long-term debt securities of the Borrower guaranteed by the Company, the credit
ratings to be utilized for short-term debt are those assigned to the commercial
paper of the Borrower, 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.
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 Xxxxxx Guaranty Trust Company of New York, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx.
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 June 11, 1999 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 Xxxxxx 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:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
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EXHIBIT B
OPINION OF
COUNSEL FOR THE COMPANY AND THE BORROWER
To the Banks and the Administrative
Agent Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen and Ladies:
I have acted as counsel for U S WEST, Inc. (the "Company") and U S
WEST Capital Funding, Inc. (the "Borrower") in connection with the 364-Day
Credit Agreement (the "Credit Agreement") dated as of June 11, 1999, among them,
the lenders listed on the signature pages thereof, the other agents named
therein and Xxxxxx 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, in each case enforceable in accordance with its
terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
5. To my knowledge, and except as disclosed in the Company's 1998
Form 10-K (as amended by Form 10-K/A) and the Company's Form 10-Q for the
quarter ended March 31, 1999 as filed with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or to the
best of my knowledge threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or which in any manner draws
into question the validity of the Credit Agreement or the Notes.
6. Each of the Borrower and the Company's other corporate
Significant Subsidiaries is a corporation validly existing and in good standing
under the laws of their jurisdictions of incorporation, 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.
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 the State
of Colorado.
In rendering the opinions set forth herein, I have assumed that the
Credit Agreement and the Notes will conform to the specimens thereof examined by
me, that the signatures on all documents examined by me were genuine, and the
authenticity of all documents submitted to me as originals or as copies of
originals, assumptions which I have not independently verified. Further, this
opinion is governed by, and shall be interpreted in accordance with, the Legal
Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). This
opinion is subject to a number of qualifications (including the General
Qualification, as defined in the Accord), exceptions, definitions and
limitations on coverage, all as more particularly described in the Accord.
This opinion is furnished by me as counsel for the Company and the
Borrower and is solely for your benefit and the benefit of any Assignee under
the 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,
Xxxxxx X. XxXxxxxxx
EXHIBIT C
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
To the Banks and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the 364-Day Credit
Agreement(the "Credit Agreement") dated as of June 11, 1999 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 Xxxxxx 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,
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, __ 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), U S WEST, Inc. (the "Company") and
XXXXXX 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 June 11, 1999 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, 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 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 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 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 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.(1) 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.
____________________
(1) Amount should combine principal 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 fixed sum.
[SECTION 4. Consent of the Company and the Agent. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 10.06(c) the
Company agrees to cause the Borrower to execute and deliver a Note payable to
the order of the Assignee to evidence the assignment and assumption provided for
herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the Company
or the Borrower, or the validity and enforceability of the obligations of the
Company or the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company and
the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By: ____________________________________
Title:
[ASSIGNEE]
By: ____________________________________
Title:
[U S WEST, INC.
By: ____________________________________
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By: ____________________________________
Title:]
EXHIBIT E
NOTICE OF BORROWING
[Date]
To: Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent
From: U S WEST Capital Funding, Inc.
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of
June 11, 1999 among U S WEST Capital Funding, Inc., U S West,
Inc., the Banks party thereto and the Agent
We hereby give notice pursuant to Section 2.02 of the Credit
Agreement that we request the following [Domestic][Euro-Dollar] Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT(2) [INTEREST PERIOD](3)
---------------- ---------------
$
[You have previously received financial statements and other
information pursuant to Section 5.01 of the Credit Agreement; to the extent, if
any, that such information reflects a material adverse change of the kind
referred to in Section 4.04(b) of the Credit Agreement, we have satisfied the
disclosure requirement set forth in Section 3.02(e) of the Credit Agreement.]
[Without agreeing that a material adverse change of the kind referred to in
Section 4.04(b) of the Credit Agreement has occurred, we disclose that [describe
event].]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
U S WEST CAPITAL FUNDING, INC.
By: ____________________________________
Title:
____________________
(2) Amount must be $25,000,000 or a larger multiple of $5,000,000.
(3) Only for Euro-Dollar Borrowings; one, two, three or six months, at the
Borrower's option.
