January 17, 2001
To: Qwest Capital Funding, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Re: QWEST CAPITAL FUNDING, INC.: REGISTRATION RIGHTS AGREEMENT AND EXCHANGE
OFFER
Ladies and Gentlemen:
We have acted as special counsel with respect to the laws of the State of
Colorado to Qwest Capital Funding, Inc. (formerly known as U S WEST Capital
Funding, Inc.), a Colorado corporation (the "COMPANY"), in connection with
the Registration Rights Agreement, dated as of August 16, 2000 (the
"REGISTRATION RIGHTS AGREEMENT"), among the Company, Qwest Communications
International Inc., a Delaware corporation (the "GUARANTOR") and Xxxxxxx
Xxxxx Xxxxxx Inc. and Xxxxxx Brothers Inc., as representatives of the several
initial purchasers named in the Registration Rights Agreement (collectively,
the "INITIAL PURCHASERS"), which provides for an offer to exchange (the
"EXCHANGE OFFER") up to $1,250,000,000 aggregate principal amount of the
7.75% Notes of the Company due 2006, and $1,750,000,000 aggregate principal
amount of the 7.90% Notes of the Company due 2010 (collectively, the
"NOTES"), purchased by the Initial Purchasers pursuant to the Purchase
Agreement dated August 16, 2000 (the "PURCHASE AGREEMENT"), among the
Company, the Guarantor and the Initial Purchasers, in a transaction that we
have been advised is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), for new 7.75%
Notes of the Company due 2006 and 7.90% Notes of the Company due 2010 to be
registered under the Securities Act (the "NEW NOTES"), all in accordance with
the terms of the Registration Rights Agreement. Capitalized terms used but
not defined herein shall have the respective meanings ascribed thereto in the
Registration Rights Agreement.
MATERIAL EXAMINED
In connection with this opinion, we have examined the following documents:
Qwest Capital Funding, Inc.
January 17, 2001
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i. A copy of the Registration Rights Agreement.
ii. Photocopies of the applicable board resolutions of the Company
pertaining to the Exchange Offer and the issuance and sale of
the New Notes, certified as being complete, true and correct
by an officer of the Company (the "BOARD RESOLUTIONS").
iii. Certificate issued by the Colorado Secretary of State, dated
as of December 18, 2000, relating to the due organization and
good standing of the Company in the State of Colorado.
In addition, we have examined originals or photocopies of such other corporate
documents and records of the Company, certificates of public officials relating
to the Company and certificates of officers of the Company as we have deemed
necessary as a basis for the opinions expressed herein. As to all factual
matters material to the opinions expressed herein, we have (with your permission
and without any independent investigation) relied upon, and assumed the accuracy
and completeness of, such certificates and corporate records.
ASSUMPTIONS
In connection with this opinion, we have, with your consent and without
investigation or independent verification, assumed the following:
a. All signatures are genuine, all documents and instruments submitted
to us as originals are authentic and all documents and instruments submitted to
us as photocopies, telecopies or facsimiles conform to the original documents
and instruments.
b. All documents we have reviewed are enforceable in accordance with
their respective terms against the parties thereto.
OPINION
Based solely upon the foregoing and subject to the comments, qualifications and
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other matters set forth herein, we are of the opinion that:
1. The Company is a corporation duly incorporated, and is validly
existing and in good standing, under the laws of the State of Colorado, with
corporate power to consummate the Exchange Offer in accordance with the terms of
the Registration Rights Agreement.
2. The consummation of the Exchange Offer by the Company in accordance
with the terms of the Registration Rights Agreement has been duly authorized by
all necessary corporate action on the part of the Company, and the New Notes,
when duly executed by authorized officers of the Company as set forth in the
Board Resolutions and when duly executed and authenticated in the manner
contemplated in the Indenture, shall be duly executed by the Company.
COMMENTS AND QUALIFICATIONS
A. AT&T DIVESTITURE. We express no opinion on the impact on the
opinions contained herein of any litigation or ruling relating to the
divestiture by American Telephone and Telegraph Company of ownership of its
operating telephone companies.
B. EXISTENCE AND GOOD STANDING. The opinions expressed herein with
respect to the due incorporation, existence and good standing of the Company are
based solely upon the good standing certificate reviewed by us and described in
the Material Examined section above.
C. FCC/PUC MATTERS. We express no opinion with respect to matters
relating to the Federal Communications Commission or any state public utilities
commission or similar authority for the Company, including without limitation
whether any consents or approvals are required to be obtained from any such
entity.
D. FACTUAL MATTERS. As to various questions of fact relevant to this
opinion we have relied, without independent investigation, upon the certificates
of officers of the Company.
E. LAW LIMITATIONS. All the opinions expressed herein are limited to
the substantive laws of the State of Colorado.
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F. NON-PARTICIPATION IN NEGOTIATIONS. We have not participated in
negotiation of the Registration Rights Agreement, the Purchase Agreement or the
transactions contemplated thereby, nor have we participated in the preparation
of any documents or filings with respect to the Exchange Offer, including
without limitation, any registration statements or related prospectuses,
amendments or supplements relating thereto. Our undertaking has been limited to
a review of the form and content of the Registration Rights Agreement to the
extent we deem appropriate to render the opinions expressed herein. We have not
reviewed any other agreement or been informed of any other understanding and we
offer no opinion as to the effect of any such other agreement or understanding
on the opinions expressed herein. Without limiting the generality of the
foregoing, we express no opinion herein with respect to the legal, valid and
binding nature of or the enforceability of the New Notes, with respect to which
we understand that you have received a legal opinion from O'Melveny & Xxxxx LLP,
dated the date hereof.
The opinions expressed herein are rendered as of the date hereof. We do not
undertake to advise you of matters that come to our attention subsequent to
the date hereof and that may affect the opinions expressed herein, including
without limitation, future changes in applicable law. This letter is our
opinion as to certain legal conclusions as specifically set forth herein and
is not and should not be deemed to be a representation or opinion as to any
factual matters. The opinions expressed herein may be relied upon only in
connection with the Exchange Offer by the addressees hereof and by holders of
the Notes or the Exchange Notes; provided that O'Melveny & Xxxxx LLP may rely
on this opinion with respect to Colorado law for the purposes of delivering
its legal opinion dated the date hereof in connection with the Exchange
Offer. The opinions expressed herein may not be quoted in whole or in part or
otherwise used or referred to in connection with any other transactions and
may not be furnished to or filed with any governmental agency or other person
or entity without the prior written consent of this firm; provided that we
consent to the filing by the Company of this opinion as an exhibit to the
Registration Statement on Form S-4 (the "REGISTRATION STATEMENT") to be filed
contemporaneously herewith with the Securities and Exchange Commission in
connection with the Exchange Offer, and we further consent to the use of our
name under the caption "Legal Opinions" in the Prospectus forming a part of
the
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Registration Statement.
Very truly yours,
/s/ Xxxxx Xxxxxxx & Xxxx LLP
