EXHIBIT 10.45
CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT dated as of July 7, 2000 between QWEST CAPITAL
FUNDING, INC., a Colorado corporation (the "Company"), and THE BANK OF NEW YORK,
a New York banking corporation, as Calculation Agent (the "Calculation Agent").
WHEREAS, the Company proposes to issue and sell $300,000,000 aggregate
principal amount of its Floating Rate Notes due July 8, 2002 (the "Notes"). The
Notes will be offered by the Company through Xxxxxxx Xxxxx Xxxxxx Inc. (the
"Initial Purchaser"). The Notes are to be issued pursuant to an Indenture, dated
as of June 29, 1998, as supplemented by the First Supplemental Indenture, dated
as of June 30, 2000, and as further amended or supplemented from time to time
(the "Indenture"), among the Company, Qwest Communications International Inc.
(as successor to U S WEST, Inc.) (the "Guarantor") and Bank One Trust Company,
National Association, as trustee (the "Trustee"). The Notes are to be
distributed pursuant to the terms of a Purchase Agreement dated July 3, 2000
(the "Purchase Agreement"), among the Company, the Guarantor and the Initial
Purchaser. Terms used but not defined herein shall have the meanings assigned to
them in the Offering Memorandum, dated July 3, 2000, relating to the Notes.
WHEREAS, the Notes will bear interest at a per annum rate equal to
three-month LIBOR, reset quarterly, plus 45 basis points .45%.
WHEREAS, the purpose of this Agreement is to appoint an agent to calculate
the interest rate on the Notes.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereby agree as follows:
1. Agency. The Company hereby appoints The Bank of New York as Calculation
Agent for the purpose of calculating the interest rate on the Notes in the
manner and at the times provided in the Notes and the Offering Memorandum.
2. Duties of Calculation Agent. The Calculation Agent shall exercise due
care to determine the interest rate on the Notes, in accordance with the
procedures provided in the Notes and the Offering Memorandum, and shall
communicate the same to the Company, the Trustee, The Depository Trust Company
and any paying agent identified to it in writing as soon as practicable after
each determination. The Calculation Agent will, upon the request of the holder
of any Note, provide the interest rate then in effect with respect to the Notes
and, if determined, the interest rate which will become effective with respect
to the Notes on the next Interest Reset Date.
3. Terms and Conditions. The Calculation Agent accepts its obligations set
forth herein, upon the terms and subject to the conditions hereof, including the
following, to all of which the Company agrees:
(a) In acting under this Agreement and in connection with the Notes,
the Calculation Agent is acting solely as agent of the Company and does not
assume any obligations or relationship of agency or trust for or with any
of the owners or holders of the Notes.
(b) The Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon the terms of the Notes, any
notice, direction, certificate, affidavit, statement or other paper,
document or communication reasonably believed by it to be genuine and to
have been approved or signed by the proper party or parties.
(c) The Calculation Agent, its officers, directors, employees and
shareholders may become the owners of, or acquire any interest in, any
Notes, with the same rights that it or they would have if it were not the
Calculation Agent, and may engage or be interested in any financial or
other transaction with the Company as freely as if it were not the
Calculation Agent.
(d) Neither the Calculation Agent nor its officers, directors,
employees, agents or attorneys shall be liable to the Company for any act
or omission hereunder, or for any error of judgment made in good faith by
it or them, except in the case of its or their negligence or willful
misconduct.
(e) The Calculation Agent may consult with counsel of its selection
and the advice of such counsel or any opinion of counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The Calculation Agent shall be obligated to perform such duties
and only such duties as are herein specifically set forth, and no implied
duties or obligations shall be read into this Agreement against the
Calculation Agent.
(g) Unless herein otherwise specifically provided, any order,
certificate, notice, request, direction or other communication from the
Company made or given by it under any provision of this Agreement shall be
sufficient if signed by any officer of the Company.
(h) The Calculation Agent may, upon obtaining the prior written
consent of the Company, perform any duties hereunder either directly or by
or through agents or attorneys, and the Calculation Agent shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(i) The Company will not, without first obtaining the prior written
consent of the Calculation Agent, make any change to the Notes in the form
attached as Exhibit A hereto if such change would materially and adversely
affect the Calculation Agent's duties and obligations under this Agreement.
4. Compensation; Indemnification. The Calculation Agent shall be entitled
to such compensation as may be agreed upon with the Company for all services
rendered by the Calculation Agent, and the Company promises to pay such
compensation and to reimburse the Calculation Agent for the reasonable
out-of-pocket expenses (including reasonable attorney's and other professional's
fees and expenses) incurred by it in connection with the services rendered by it
hereunder upon receipt of such invoices as the Company shall reasonably require.
The Company also agrees to indemnify the Calculation Agent for, and to hold it
harmless against, any and all loss, liability, damage, claim or expense
(including the costs and expenses of defending against any claim of liability)
incurred by the Calculation Agent that arises out of or in connection with its
accepting appointment as, or acting as, Calculation Agent hereunder, except such
as may result from the negligence, willful misconduct or bad faith of the
Calculation Agent or any of its agents or employees. The Calculation Agent shall
incur no liability and shall be indemnified and held harmless by the Company
for, or in respect of, any actions taken, omitted to be taken or suffered to be
taken in good faith by the Calculation Agent in reliance upon (i) the opinion or
advice of legal or other professional advisors satisfactory to it or (ii)
written instructions from the Company. The Calculation Agent shall not be liable
for any error resulting from the use of or reliance on a source of information
used in good faith and with due care to calculate any interest rate hereunder.
The provisions of this Section shall survive the termination of this Agreement.
5. Resignation and Removal; Successors.
(a) The Calculation Agent may at any time resign as Calculation Agent
by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be earlier than 30
days after the receipt of such notice by the Company, unless the Company
agrees to accept less notice; provided, further, however, that such
resignation shall not be effective until acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the
Company and such successor Calculation Agent. The Calculation Agent may be
removed at any time by the filing with it of any instrument in writing
signed on behalf of the Company and specifying such removal and the date
when it is intended to become effective. Any resignation or removal shall
take effect upon the date of the acceptance by the successor Calculation
Agent, as provided in Section 5(b). If within 30 days after notice of
resignation or removal has been given, a successor Calculation Agent has
not been appointed, the Calculation Agent may, at the expense of the
Company, petition a court of competent jurisdiction to appoint a successor
Calculation Agent. A successor Calculation Agent shall be appointed by the
Company by an instrument in writing signed on behalf of the Company and the
successor Calculation Agent. Upon the appointment of a successor
Calculation Agent and acceptance by it of such appointment, the Calculation
Agent so succeeded shall cease to be such Calculation Agent hereunder. Upon
its resignation or removal, the Calculation Agent shall be entitled to the
payment by the Company of its compensation, if any is owed to it, for
services rendered hereunder and to the reimbursement of all reasonable
out-of-pocket expenses incurred in connection with the services rendered by
it hereunder.
(b) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor and the Company an instrument accepting such
appointment hereunder, and thereupon such successor Calculation Agent,
without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities and obligations of such
predecessor with like effect as if originally named as such Calculation
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation
Agent.
(c) Any corporation into which the Calculation Agent may be merged, or
any corporation with which the Calculation Agent may be consolidated, or
any corporation resulting from any merger or consolidation or to which the
Calculation Agent shall sell or otherwise transfer all or substantially all
of its corporate trust assets or business shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. Notice of any such merger, consolidation or
sale shall forthwith be given to the Company and the Trustee.
6. Notice. Any notice required to be given hereunder shall be delivered in
person, sent by letter or telecopy or communicated by telephone (subject, in the
case of communication by telephone, to confirmation dispatched within
twenty-four hours by letter or by telecopy), as follows:
if to the Company:
Qwest Capital Funding, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Calculation Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Trustee:
Bank One Trust Company, National Association
Xxx Xxxx Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
and, if to The Depository Trust Company:
The Depository Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager Announcements
Dividend Department
or to any other address of which any party shall have notified the others in
writing as herein provided. Any notice hereunder given by telephone, telecopy or
letter shall be deemed to be received when in the ordinary course of
transmission or post, as the case may be, it would be received.
7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflicts
of law principles thereof.
8. Miscellaneous.
(a) This Agreement may be executed by each of the parties hereto in
any number of counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same agreement.
(b) In the event of any conflict relating to the rights or obligations
of the Calculation Agent in connection with the calculation of the interest
rate on the Notes, the relevant terms of this Agreement shall govern such
rights and obligations.
(c) The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
QWEST CAPITAL FUNDING, INC.
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK,
as Calculation Agent
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF NOTE
EXHIBIT A-1
FORM OF REGULATION S GLOBAL NOTE
