\n BB- \/ Ba3 or lower 0.500% 1.500% 0.000%
\n—————————————————————————————<\/p>\nBB \/ Ba2 0.250% 1.250% 0.000%
\n—————————————————————————————<\/p>\n
BB+ \/ Ba1 0.000% 1.000% 0.000%
\n—————————————————————————————<\/p>\n
BBB- \/ Baa3 0.000% 0.750% 0.125%
\n—————————————————————————————
\nBBB \/ Baa2 or 0.000% 0.500% 0.125%
\n higher
\n—————————————————————————————
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
3<\/p>\n
* At all times that the Total Leverage Ratio is greater than
\n 4.00 to 1.00, the Applicable Margin Percentage set forth in
\n Column B above in each case shall be increased by .250%.<\/p>\n
** If the sum of (i) the aggregate amount of outstanding Loans
\n plus (ii) the aggregate amount of outstanding loans under the New
\n Credit Facility exceeds $667,000,000, then the Applicable Margins
\n set forth in Column B above for LIBOR Advances shall be increased
\n by the percentage amount set forth in Column C above.<\/p>\n
After the date which the Administrative Agent receives a Compliance Certificate
\nin accordance with the terms of Section 7.01 and Section 7.02 hereof, the
\nApplicable Margin payable by the Borrower shall be subject to reduction or
\nincrease, as applicable and as set forth in the table above, (a) three Business
\nDays after receipt by the Administrative Agent of each Notice of Change of
\nSenior Unsecured Debt Rating, and (b) on a quarterly basis according to the
\nperformance of the Borrower as tested by the Total Leverage Ratio. In the event
\nthat the Senior Unsecured Debt Rating of the Borrower has ratings differing (i)
\nby up to one level, the highest Senior Unsecured Debt Rating will apply and (ii)
\nby more than one level, the Applicable Margin for the level immediately below
\nthe highest Senior Unsecured Debt Rating will apply. Except as set forth in
\nthe following sentence, any such increase or reduction in the Applicable Margin
\nprovided for herein shall be effective (A) three Business Days after receipt by
\nAdministrative Agent of each Notice of Change of Senior Unsecured Debt Rating
\ndelivered in accordance with the terms of Section 7.02(c) hereof and (B) three
\nBusiness Days after receipt by the Administrative Agent of the applicable
\nfinancial statements and corresponding Compliance Certificate delivered in
\naccordance with Section 7.01(a) hereof. If financial statements, Compliance
\nCertificate and\/or a Notice of Change of Senior Unsecured Debt Rating of the
\nBorrower setting forth the Total Leverage Ratio and the Senior Unsecured Debt
\nRating are not received by the Administrative Agent by the dates required
\npursuant to Section 7.01 or 7.02 hereof (as such times may be extended by a
\nwaiver in accordance with the terms hereof), the Applicable Margin shall be
\ndetermined as if the Total Leverage Ratio exceeds 4.00 to 1.00 and the Senior
\nUnsecured Debt Rating is BB- \/ Ba3 or lower, during such time and until such
\ntime as such financial statements, Compliance Certificate and\/or Notice of
\nChange of Senior Unsecured Debt Rating are received. For the final quarter of
\nany fiscal year of the Borrower, at the Borrower’s option, the Borrower may
\nprovide the unaudited financial statements of the Borrower, subject only to
\nyear-end adjustments, for the purpose of determining the Total Leverage Ratio
\nand adjusting the Applicable Margin.<\/p>\n
“Applicable Specified Percentage” means with respect to any Lender, in the
\ncase of the Revolver A Loan, such Lender’s Revolver A Specified Percentage, in
\nthe case of the Revolver B Loan, such Lender’s Revolver B Specified Percentage
\nand in the case of the Working Line Loan, such Lender’s Working Line Loan
\nSpecified Percentage.<\/p>\n
“Application” means any stand-by letter of credit application delivered to
\nAdministrative Agent for or in connection with any stand-by Letter of Credit
\npursuant to Article III hereof, in Administrative Agent’s standard form for
\nstand-by letters of credit.<\/p>\n
“Arranging Agents” means Bank of America, N.A., The Bank of New York, First
\nUnion National Bank and CitiBank, N.A. and any other successor arranging agent
\nagreed to by the Borrower, the Administrative Agent and the other Arranging
\nAgents.<\/p>\n
4<\/p>\n
“Assignment and Acceptance” means an assignment and acceptance entered into
\nby a Lender and an assignee in accordance with the terms and conditions of
\nSection 11.04 hereof, and accepted by Administrative Agent, in the form of<\/p>\n
Exhibit H hereto.
\n——— <\/p>\n
“Auditor” means KPMG Peat Marwick, L.L.P., or other independent certified
\npublic accountants selected by the Borrower and reasonably acceptable to
\nArranging Agents.<\/p>\n
“Authorized Officer” means, with respect to the Borrower and its Restricted
\nSubsidiaries respectively, any of the Chief Executive Officer, the Chief
\nOperating Officer, the Chief Financial Officer, the General Counsel or the
\nTreasurer of the Borrower and any other officer designated as an Authorized
\nOfficer by an Authorized Officer to the Administrative Agent in writing.<\/p>\n
“Backbone” means that portion of the Original Borrower’s and the Original
\nRestricted Subsidiaries’ nationwide fiber optic communications network
\nidentified on Schedule 1.02 hereto, consisting of approximately 18,815 route
\n ————-
\nmiles of fiber optic cable (i) owned, constructed or acquired, or to be owned,
\nconstructed or acquired, by the Borrower and the Original Restricted
\nSubsidiaries or (ii) related to which the Borrower has been granted an IRU, as
\nsuch Backbone may be adjusted or redirected through changes to designated routes
\nby the Borrower and the Original Restricted Subsidiaries from time to time as
\nthe Borrower and the Original Restricted Subsidiaries may deem advisable in its
\nreasonable business judgment.<\/p>\n
“Bank Affiliate” means the holding company of any Lender, or any wholly
\nowned direct or indirect subsidiary of such holding company or of such Lender.<\/p>\n
“Base Advance” means an Advance under the Revolver A Loan, the Revolver B
\nLoan or the Working Line Loan, as applicable, bearing interest at the Base Rate.<\/p>\n
“Base Rate” means a per annum interest rate equal to the lesser of (a) the
\nHighest Lawful Rate, and (b) the sum of the Applicable Margin plus the higher of
\n(i) a fluctuating rate per annum as shall be in effect from time to time
\nannounced or published by Bank of America, N.A. as its prime rate, and which may
\nnot necessarily be the lowest interest rate charged by Bank of America, N.A.,
\nand (ii) the Federal Funds Rate in effect at such time plus .50%.<\/p>\n
“Board of Directors” means the Board of Directors of the Borrower or any
\ncommittee thereof duly authorized to act on behalf of such Board.<\/p>\n
“Borrowing” means a borrowing of the same Type made on the same day.<\/p>\n
“Borrowing Notice” has the meaning set forth in Section 2.02(a) hereof.<\/p>\n
“Business Day” means a day on which banks are open for the transaction of
\nbusiness as required by this Agreement in New York, New York, Denver, Colorado
\nand Dallas, Texas and, with respect to any LIBOR Advance, a domestic business
\nday in London, England and a day on which commercial banks are open for
\ninternational business in London, England (including dealings in United States
\ndollar deposits), and as otherwise relevant to the determination to be made or
\nthe action to be taken.<\/p>\n
5<\/p>\n
“Capital Expenditures” means capital expenditures, as defined in accordance
\nwith GAAP.
\n “Capital Leases” means capital leases and subleases, as defined in
\naccordance with GAAP.<\/p>\n
“Capital Stock” means, as to any Person, the equity interests in such
\nPerson, including, without limitation, the shares of each class of capital stock
\nof any Person that is a corporation, each class of partnership interests
\n(including without limitation, general, limited and preference units) in any
\nPerson that is a partnership, and each membership interest in any Person that is
\na limited liability company.<\/p>\n
“Change of Control” means the occurrence of any one or more of the
\nfollowing events: (i) any Person or group of Persons (within the meaning of
\nSection 13(d) of the Securities Exchange Act of 1934, as amended), other than
\nPhilip F. Anschutz or the Anschutz Company or any of their Affiliates, shall
\nobtain ownership or control in one or more series of transactions of more than
\nfifty percent (50%) of the common stock of the Borrower or fifty percent (50%)
\nof the voting power of the Borrower entitled to vote on the election of members
\nof the board of directors of the Borrower, or (ii) any event which results in
\nthe Borrower’s failure to own and control, directly or indirectly, 100% of the
\nCapital Stock of any Guarantor, so long as such Guarantor is obligated under the
\nConditional Early Release Unlimited Guaranty; provided that nothing in the U S
\n ————-
\nWEST Acquisition shall constitute a Change of Control.<\/p>\n
“Co-Arrangers” means First Union Securities, Inc., BNY Capital Markets,
\nInc. and Salomon Smith Barney Inc.<\/p>\n
“Co-Syndication Agents” means The Bank of New York, First Union Securities,
\nInc. and Salomon Smith Barney Inc.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended, and any
\nreference to any provision of the Code shall include all successor provisions
\nthereto.<\/p>\n
“Commitment” means the Revolver A Commitment, the Working Line Commitment
\nand the Revolver B Commitment.<\/p>\n
“Commitment Fee” means the Revolver A Commitment Fee, the Revolver B
\nCommitment Fee and the Working Line Commitment Fee.<\/p>\n
“Communications Act” means, collectively, the Communications Act of 1934,
\nas amended by the Telecommunications Act of 1996, and as further amended, and
\nthe rules and regulations promulgated thereunder, as from time to time in
\neffect.<\/p>\n
“Compliance Certificate” means a certificate of an Authorized Officer in
\nthe form of Exhibit E hereto, (a) certifying that such individual has no actual
\n ———
\nknowledge that a Default or Event of Default has occurred and is continuing, or
\nif a Default or Event of Default has occurred and is continuing, a statement as
\nto the nature thereof and the action being taken or proposed to be taken with
\nrespect thereto, (b) setting forth detailed calculations with respect to the
\ncovenants described in Section 8.01 hereof, (c) certifying to the appropriate
\nSenior Unsecured Debt Rating, Applicable Margin and Applicable Commitment Fee
\nPercentage, (d) certifying as to consummated Permitted Acquisitions described in
\nSection 8.18 (d)(ii) hereof, (e) prior to and during the Waiver Period,
\ncertifying as to any changes in Original Restricted Subsidiaries, Unrestricted
\nSubsidiaries that are<\/p>\n
6<\/p>\n
not U S WEST Companies and Qwest Material Subsidiaries and (f) after the Waiver
\nPeriod, certifying as to any changes in Original Restricted Subsidiaries,
\nUnrestricted Subsidiaries that are not U S WEST Companies and Consolidated
\nMaterial Subsidiaries.<\/p>\n
“Confidentiality Agreement” means a confidentiality agreement in favor of U
\nS WEST to be executed by Lenders wishing to receive confidential information
\nregarding U S WEST Companies prior to the Acquisition Date, substantially in the
\nform of Exhibit H attached hereto.
\n ——— <\/p>\n
“Conditional Early Release Unlimited Guaranty” means the Guaranty, executed
\nin substantially similar form by the Guarantor, guarantying payment and
\nperformance of the Obligations, substantially in the form of Exhibit I attached
\n ———
\nhereto, as such agreement may be amended, modified, renewed or extended from
\ntime to time, and each subsequent guaranty substantially (with or without the
\nconditional early release) in the form of Exhibit I hereto executed by any
\n ———
\nPerson, as each such agreement may be amended, modified, renewed or extended
\nfrom time to time.<\/p>\n
“Consequential Loss” with respect to (a) the Borrower’s payment of all or
\nany portion of the then-outstanding principal amount of a LIBOR Advance on a day
\nother than the last day of the related Interest Period, including, without
\nlimitation, payments made as a result of the acceleration of the maturity of a
\nNote, (b) subject to Administrative Agent’s prior consent, a LIBOR Advance made
\non a date other than the date on which the Advance is to be made according to
\nSection 2.02(a) or Section 2.09 hereof to the extent such Advance is made on
\nsuch other date at the request of the Borrower, or (c) any of the circumstances
\nspecified in Sections 2.04, 2.05, 2.06 and 2.11 hereof on which a LIBOR Advance
\nor a Letter of Credit may cause a Consequential Loss to be incurred, means any
\nactual out of pocket loss, cost or expense incurred by any Lender as a result of
\nthe timing of the payment or Advance or in liquidating, redepositing,
\nredeploying or reinvesting the principal amount so paid or affected by the
\ntiming of the Advance or the circumstances described in Sections 2.04, 2.05,
\n2.06 or 2.11 hereof, which amount shall be the sum of (i) the interest that, but
\nfor the payment or timing of Advance, such Lender would have earned in respect
\nof that principal amount, reduced, if such Lender is able to redeposit,
\nredeploy, or reinvest the principal amount, by the interest earned by such
\nLender as a result of redepositing, redeploying or reinvesting the principal
\namount plus (ii) any expense or penalty incurred by such Lender by reason of
\nliquidating, redepositing, redeploying or reinvesting the principal amount.
\nEach determination by each Lender of any Consequential Loss is, in the absence
\nof manifest error, presumptive evidence of the validity of such claim.<\/p>\n
“Consolidated Material Subsidiary” means on any date of determination after
\nthe Waiver Period, any Restricted Subsidiary that generated in the most recently
\ncompleted 12 month period in excess of 10% of the consolidated Operating Cash
\nFlow of the Borrower and its Restricted Subsidiaries and “Consolidated Material
\nSubsidiaries” means, on any date of determination after the Waiver Period, the
\nsmallest group of one or more Restricted Subsidiaries which in the aggregate
\ngenerated in the most recently completed 12 month period not less than 80% of
\nthe consolidated Operating Cash Flow of the Borrower and its Restricted
\nSubsidiaries.<\/p>\n
“Consolidated Net Income” means, with respect to the Borrower and the
\nRestricted Subsidiaries, the net income of the Borrower and the Restricted
\nSubsidiaries, on a consolidated basis, determined in accordance with GAAP.<\/p>\n
7<\/p>\n
“Consolidated Net Worth” means, with respect to the Borrower and the
\nRestricted Subsidiaries, the net worth of the Borrower and the Restricted
\nSubsidiaries, on a consolidated basis, determined in accordance with GAAP.<\/p>\n
“Contingent Liability” means, as to any Person, any obligation or Guaranty,
\ncontingent or otherwise, of such Person guaranteeing or having the economic
\neffect of guaranteeing any Debt or obligation of any other Person in any manner,
\nwhether directly or indirectly, including without limitation any obligation of
\nsuch Person, direct or indirect, (a) to purchase or pay (or advance or supply
\nfunds for the purchase or payment of) such Debt or to purchase (or to advance or
\nsupply funds for the purchase of) any security for the payment of such Debt, (b)
\nto purchase Property or services for the purpose of assuring the owner of such
\nDebt of its payment, or (c) to maintain the solvency, working capital, equity,
\ncash flow, fixed charge or other coverage ratio, or any other financial
\ncondition of the primary obligor so as to enable the primary obligor to pay any
\nDebt or to comply with any agreement relating to any Debt or obligation, but
\nexcluding endorsement of checks, drafts and other instruments in the ordinary
\ncourse of business, provided that this definition of “Contingent Liability”
\n ————-
\nshall not include Guaranties by the Borrower or any Restricted Subsidiary of the
\nBorrower of any obligations of the Borrower or any Wholly Owned Restricted
\nSubsidiary.<\/p>\n
“Continue,” “Continuation” and “Continued” each refer to the continuation
\npursuant to Section 2.09 hereof of a LIBOR Advance from one Interest Period to
\nthe next Interest Period.<\/p>\n
“Control” or “Controlled By” or “Under Common Control” mean possession,
\ndirect or indirect, of power to direct or cause the direction of management or
\npolicies (whether through ownership of voting securities, by contract or
\notherwise); provided that, in any event any Person which beneficially owns (a)
\n ——–
\n25% or more (in number of votes) of the securities having ordinary voting power
\nfor the election of directors of a corporation shall be conclusively presumed to
\ncontrol such corporation and (b) 25% or more of the interest in capital or
\nprofits of a partnership shall be conclusively presumed to control such
\npartnership.<\/p>\n
“Controlled Group” means all members of a controlled group of corporations
\nother than any U S WEST Company and all trades or businesses (whether or not
\nincorporated) other than any U S WEST Company which are under common control
\nwith the Borrower, any Obligor, any Original Restricted Subsidiary or any
\nUnrestricted Subsidiary that is not a U S WEST Company and which, together with
\nBorrower, any Obligor, any Original Restricted Subsidiary or any Unrestricted
\nSubsidiary that is not a U S WEST Company, are treated as a single employer
\nunder Section 414(b), (c), (m) or (o) of the Code.<\/p>\n
“Conversion Date” means, with respect to the Working Line Loan, the date
\nupon which the Working Line converts from a revolving loan to a term loan, in
\naccordance with the terms of Section 2.16(b) hereof.<\/p>\n
“Conversion or Continuance Notice” has the meaning set forth in Section
\n2.09(b) hereof.<\/p>\n
“Conversion Option” means, with respect to the Working Line Loan, that
\noption to be exercised by the Borrower on the Option Date or the Extension Final
\nMaturity in accordance with the terms of Section 2.16(b) hereof to convert the
\nWorking Line Loan to a term loan.<\/p>\n
“Debt” means all obligations, contingent or otherwise, which in accordance
\nwith GAAP are required to be classified on the balance sheet as liabilities, and
\nin any event including (without<\/p>\n
8<\/p>\n
duplication) (a) Capital Leases, (b) Contingent Liabilities that are required to
\nbe recorded in accordance with GAAP, (c) liabilities secured by any Lien on any
\nProperty, regardless of whether such secured liability is with or without
\nrecourse, and (d) installment payment non-compete agreements.<\/p>\n
“Debt for Borrowed Money” means, with respect to any Person or Persons at
\nany date, without duplication, all Debt of such Person or Persons that
\nconstitutes (a) all obligations of such Person or Persons for borrowed money,
\nletters of credit (or applications for letters of credit) or other similar
\ninstruments, (b) all obligations of such Person or Persons evidenced by bonds,
\ndebentures, notes or other similar instruments, excluding any surety or
\nperformance bonds, (c) all obligations of such Person or Persons to pay the
\ndeferred purchase price of property or services, but only if such deferral is in
\nexcess of 90 days, provided that, trade accounts payable and other accrued
\n ——– —-
\nliabilities arising in the ordinary course of business shall not be considered
\nDebt for Borrowed Money, (d) all obligations under Capital Leases of such Person
\nor Persons, (e) installment payment non-compete agreements for such Person or
\nPersons, provided that when this definition is applicable to the Borrower and
\nany of its Restricted Subsidiaries, only the amount by which all such non-
\ncompete agreements for the Borrower and the Restricted Subsidiaries when
\naggregated together exceed $5,000,000, and (f) all Contingent Liabilities
\nrelating to obligations of another Person (other than the Borrower or a Wholly
\nOwned Restricted Subsidiary of the Borrower with respect to Debt of another
\nWholly Owned Restricted Subsidiary or the Borrower) of the type described in (a)
\nthrough (e) above.<\/p>\n
“Debtor Relief Laws” means applicable bankruptcy, reorganization,
\nmoratorium, or similar Laws, or principles of equity affecting the enforcement
\nof creditors’ rights generally.<\/p>\n
“Default” means any event specified in Section 9.01 hereof, whether or not
\nany requirement in connection with such event for the giving of notice, lapse of
\ntime, or happening of any further condition has been satisfied.<\/p>\n
“Designated U S WEST Restricted Subsidiary” means U S WEST Communications,
\nInc.<\/p>\n
“Disposition” and “Disposed” means any sale, lease, abandonment, transfer,
\ndisposal, exchange or other transfer of ownership, leasehold interest or control
\nof any asset.<\/p>\n
“Distribution” means, as to any Person, (a) any declaration or payment of
\nany distribution or dividend (other than a common stock dividend or a dividend
\nin options, warrants or other rights to acquire common Capital Stock of a
\nPerson) on, or the making of any pro rata distribution, loan, advance, or
\ninvestment to or in any holder of, any partnership interest or shares of Capital
\nStock or other equity interest of such Person (or the establishment of a sinking
\nfund or otherwise setting aside of funds for any such purpose), or (b) any
\npurchase, redemption, or other acquisition or retirement for value of any shares
\nof partnership interest or Capital Stock or other equity interest of such Person
\n(or the establishment of a sinking fund or otherwise setting aside of funds for
\nany such purpose).<\/p>\n
“Environmental Claim” means any written notice by any Tribunal alleging
\nliability for damage to the environment, or by any Person alleging liability for
\npersonal injury (including sickness, disease or death), resulting from or based
\nupon (a) the presence or release (including sudden or non-sudden, accidental or
\nnon-accidental, leaks or spills) of any Hazardous Material at, in or from
\nproperty, whether or not owned by the Borrower or any of its Original Restricted<\/p>\n
9<\/p>\n
Subsidiaries, or (b) circumstances forming the basis of any violation, or
\nalleged violation, of any Environmental Law.<\/p>\n
“Environmental Laws” means the Comprehensive Environmental Response,
\nCompensation, and Liability Act (42 U.S.C. (S)9601 et seq.) (“CERCLA”), the
\nHazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.), the Resource
\nConservation and Recovery Act (42 U.S.C. (S)6901 et seq.) (“RCRA”), the Federal
\nWater Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air Act (42
\nU.S.C. (S)7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S)2601 et
\nseq.), and the Occupational Safety and Health Act (29 U.S.C. (S)651 et seq.)
\n(“OSHA”), as such laws have been or hereafter may be amended or supplemented,
\nand any and all analogous federal, or state or local, Laws in effect from time
\nto time.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended, and the rulings and regulations issued thereunder, as from time to time
\nin effect.<\/p>\n
“ERISA Affiliate” means any Person, other than a U S WEST Company, that for
\npurposes of Title IV of ERISA is a member of the Controlled Group of the
\nBorrower, any Obligor, any Original Restricted Subsidiary or any Unrestricted
\nSubsidiary that is not a U S WEST Company, or is under common control with
\nBorrower, any Obligor, any Original Restricted Subsidiary or any Unrestricted
\nSubsidiary that is not a U S WEST Company, within the meaning of Section 414(c)
\nof the Code, and the regulations and rulings issued thereunder.<\/p>\n
“ERISA Event” means (a) a reportable event, within the meaning of Section
\n4043 of ERISA, unless the 30-day notice requirement with respect thereto has
\nbeen waived by the PBGC with respect to a Plan, (b) the issuance by the
\nadministrator of any Plan of a notice of intent to terminate such Plan, pursuant
\nto Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
\namendment referred to in Section 4041(e) of ERISA), (c) the withdrawal by the
\nBorrower, any Original Restricted Subsidiary of the Borrower, or an ERISA
\nAffiliate from a Multiple Employer Plan during a Plan year for which it was a
\nsubstantial employer, as defined in Section 4001(a)(2) of ERISA, (d) the failure
\nby the Borrower, any Original Restricted Subsidiary, or any ERISA Affiliate to
\nmake a payment to a Plan required under Section 302 of ERISA, (e) the adoption
\nof an amendment to a Plan by the Borrower, an Original Restricted Subsidiary or
\nan ERISA Affiliate requiring the provision of security to such Plan, pursuant to
\nSection 307 of ERISA, or (f) the institution by the PBGC of proceedings to
\nterminate a Plan, pursuant to Section 4042 of ERISA, or the occurrence of any
\nevent or condition that constitutes grounds under Section 4042 of ERISA for the
\ntermination of, or the appointment of a trustee to administer, a Plan.<\/p>\n
“Event of Default” means any of the events specified in Section 9.01 of
\nthis Agreement, provided there has been satisfied any requirement in connection
\ntherewith for the giving of notice, lapse of time, or happening of any further
\ncondition.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended from
\ntime to time.<\/p>\n
“Existing Financing” means collectively, the Qwest 9.47% Senior Discount
\nNotes, the Qwest 10.875% Senior Notes, the Qwest 8.29% Senior Discount Notes,
\nthe Qwest 7.50% Senior Notes, the Qwest 7.25% Senior Notes, the LCI Notes and
\nthe Trol Transaction, in each case in effect on any relevant date of reference
\nand only to the extent that any indebtedness exists under any such documentation
\non such date.<\/p>\n
10<\/p>\n
“Existing Financing Documentation” means collectively, the Qwest 9.47%
\nSenior Discount Notes Documentation, the Qwest 10.875% Senior Notes
\nDocumentation, the Qwest 8.29% Senior Discount Notes Documentation, the Qwest
\n7.50% Senior Notes Documentation, the Qwest 7.25% Senior Notes Documentation,
\nthe LCI Notes Documentation and the Trol Transaction Documentation.<\/p>\n
“Existing Letter of Credit” means that certain stand-by Letter of Credit
\nNumber C000638, in the amount of $36,649,997.50, issued by Bank of America,
\nN.A., for the account of the Borrower, and for the benefit of American
\nCommunication Network, Inc.<\/p>\n
“Extension Final Maturity” means, with respect to the Working Line Loan in
\nthe event that the Borrower and the Lenders have agreed to an Extension Option,
\nthat date which is the earlier of (a) 364 days after the Option Date and (b) the
\nmaturity date of the New Credit Facility (it being understood that if the
\n“Maturity Date” as defined in the New Credit Facility is extended for all
\namounts outstanding thereunder by agreement of the parties in writing, such
\nextended date shall be the maturity date of the New Credit Facility as used in
\nthis definition).<\/p>\n
“Extension Option” means, with respect to the Working Line Loan, that
\noption to be exercised by the Borrower and agreed to by the SuperMajority
\nLenders in accordance with the terms of Section 2.16(a) hereof to extend the
\nWorking Line Loan an additional 364 day period beyond the Option Date.<\/p>\n
“FCC” means the Federal Communications Commission, or any governmental
\nagency succeeding to the functions thereof.<\/p>\n
“Federal Funds Rate” means, for any period, a fluctuating interest rate per
\nannum equal for each day during such period to the weighted average of the rates
\non overnight federal funds transactions with members of the Federal Reserve
\nSystem arranged by federal funds brokers, as published for such day (or, if such
\nday is not a Business Day, for the next preceding Business Day) by the Federal
\nReserve Bank of New York, or, if such rate is not so published for any day which
\nis a Business Day, the average of the quotations for such date on such
\ntransactions received by Administrative Agent from three federal funds brokers
\nof recognized standing selected by it.<\/p>\n
“Fee Letters” means those certain Fee Letters, dated March 31, 1999 and
\nFebruary 8, 2000, between the Borrower and the Administrative Agent, and all
\nother fee letters executed among the Borrower or any Lender[s] relating to this
\nAgreement and the Loans, as such letters may be amended, modified, substituted,
\nreplaced, or increased from time to time.<\/p>\n
“GAAP” means generally accepted accounting principles applied on a
\nconsistent basis. Application on a consistent basis shall mean that the
\naccounting principles observed in a current period are comparable in all
\nmaterial respects to those applied in a preceding period, except for new
\ndevelopments or statements promulgated by the Financial Accounting Standards
\nBoard and other changes in accounting methods permitted by generally accepted
\naccounting principles.<\/p>\n
“Guarantor” means LCI.<\/p>\n
11<\/p>\n
“Guaranty” means a guaranty executed by any Person of the obligations of
\nanother Person, or any agreement by which such Person assumes, guarantees,
\nendorses, contingently agrees to purchase or provide funds for the payment of,
\nor otherwise becomes liable upon, the obligation of any other Person, or agrees
\nto maintain the net worth or working capital or other financial condition of any
\nother Person, or otherwise assures any creditor or such other Person against
\nloss, including, without limitation, any comfort letter that has the effect of
\nassuring any such creditor against loss, or take-or-pay contract and shall
\ninclude without limitation, the contingent liability of such Person in
\nconnection with any application for a letter of credit.<\/p>\n
“Hazardous Materials” means all materials subject to regulation under any
\nEnvironmental Law, including without limitation materials listed in 49 C.F.R.
\n(S) 172.101, Hazardous Substances, explosive or radioactive materials, hazardous
\nor toxic wastes or substances, petroleum or petroleum distillates, asbestos, or
\nmaterial containing asbestos.<\/p>\n
“Hazardous Substances” means hazardous waste as defined in the Clean Water
\nAct, 33 U.S.C. (S) 1251 et seq., the Comprehensive Environmental Response
\nCompensation and Liability Act as amended by the Superfund Amendments and
\nReauthorization Act, 42 U.S.C. (S) 9601 et seq., the Resource Conservation
\nRecovery Act, 42 U.S.C. (S) 6901 et seq., and the Toxic Substances Control Act,
\n15 U.S.C. (S) 2601 et seq.<\/p>\n
“Highest Lawful Rate” means at the particular time in question the maximum
\nrate of interest which, under Applicable Law, any Lender is then permitted to
\ncharge on the Obligations. If the maximum rate of interest which, under
\nApplicable Law, any Lender is permitted to charge on the Obligations shall
\nchange after the date hereof, the Highest Lawful Rate shall be automatically
\nincreased or decreased, as the case may be, from time to time as of the
\neffective time of each change in the Highest Lawful Rate without notice to the
\nBorrower.<\/p>\n
“Income Tax Expense” means the aggregate income Taxes accrued by the
\nBorrower and the Restricted Subsidiaries for the relevant period of
\ndetermination.<\/p>\n
“Insufficiency” means, with respect to any Plan, the amount, if any, of its
\nunfunded benefit liabilities within the meaning of Section 4001(a)(18) of ERISA.<\/p>\n
“Interest Coverage Ratio” means, on any date of determination for the
\nBorrower and the Restricted Subsidiaries, the ratio of (a) Operating Cash Flow
\nfor the most recently completed 12 month period to (b) the aggregate amount of
\ncash Interest Expense actually paid during the most recently completed 12 month
\nperiod, provided that, for purposes of this calculation, Operating Cash Flow and
\n ————-
\nInterest Expense shall be calculated as if all assets (including the acquisition
\nof Capital Stock of Restricted Subsidiaries) acquired on any date during the
\nperiod of determination were acquired on the first day in such period of
\ndetermination, and all assets (including the acquisition of Capital Stock of
\nRestricted Subsidiaries) sold on any date during the period of determination
\nwere sold on the first day in such period of determination.<\/p>\n
“Interest Expense” means, for the Borrower and the Restricted Subsidiaries
\non a consolidated basis for any period of determination, the gross interest
\nexpense for any period on Total Debt, determined in accordance with GAAP, minus
\nthe sum of (a) interest income for such period, plus (b) to the extent not
\nincluded in the determination of such gross interest expense, upfront costs or<\/p>\n
12<\/p>\n
fees expended during such period in connection with the execution and delivery
\nof documentation relating to the Loan Papers.<\/p>\n
“Interest Period” means, with respect to any LIBOR Advance, the period
\nbeginning on the date the Advance is made or continued as a LIBOR Advance and
\nending one, two, three, six or, to the extent available as determined by
\nAdministrative Agent, twelve months thereafter (as the Borrower shall select),
\nprovided, however, that:
\n——– ——- <\/p>\n
(a) the Borrower may not select any Interest Period that ends after
\n any scheduled principal repayment date unless, after giving effect to such
\n selection, the aggregate principal amount of LIBOR Advances having Interest
\n Periods that end on or prior to such principal repayment date, shall be at
\n least equal to the principal amount of Advances due and payable on and
\n prior to such date;<\/p>\n
(b) whenever the last day of any Interest Period would otherwise occur
\n on a day other than a Business Day, the last day of such Interest Period
\n shall be extended to occur on the next succeeding Business Day, provided,
\n ——–
\n however, that if such extension would cause the last day of such Interest
\n ——-
\n Period to occur in the next following calendar month, the last day of such
\n Interest Period shall occur on the next preceding Business Day;<\/p>\n
(c) whenever the first day of any Interest Period occurs on a day of
\n an initial calendar month for which there is no numerically corresponding
\n day in the calendar month that succeeds such initial calendar month by the
\n number of months equal to the number of months in such Interest Period,
\n such Interest Period shall end on the last Business Day of such succeeding
\n calendar month; and<\/p>\n
(d) with respect to the Working Line Loan, Interest Periods for LIBOR
\n Advances must be six months or less.<\/p>\n
“Interest Rate Protection Agreement” means an interest rate swap, cap,
\ncollar or similar interest rate protection agreement between the Borrower, any
\nLender or any Bank Affiliate.<\/p>\n
“Investment” means any direct or indirect purchase or other acquisition of,
\nor a beneficial interest in, any Capital Stock or other securities of any other
\nPerson, or any direct or indirect loan, advance, or capital contribution to or
\ninvestment in any other Person, including without limitation the incurrence or
\nsufferance of Debt or accounts receivable of any other Person that are not
\ncurrent assets or do not arise from sales to that other Person in the ordinary
\ncourse of business.<\/p>\n
“IRU” means an indefeasible right to use fiber or telecommunications
\ncapacity, including the right to use the related transport and network
\nequipment.<\/p>\n
“IRU Agreement” means an agreement pursuant to which an interest in an IRU
\nis sold or leased or otherwise transferred.<\/p>\n
“KPNQwest Joint Venture” means the KPNQwest Joint Venture as described on
\nSchedule 5.01(q) hereto.
\n—————- <\/p>\n
13<\/p>\n
“Law” means any constitution, statute, law, ordinance, regulation, rule,
\norder, writ, injunction, or decree of any Tribunal.<\/p>\n
“LCI” means LCI International, Inc., a Delaware corporation.<\/p>\n
“LCI Notes” means those certain $350,000,000 7.25% Senior Notes Due 2007
\nissued by LCI.
\n “LCI Notes Documentation” means that certain Indenture related to the LCI
\nNotes and all other agreements and documentation relating to the LCI Notes.<\/p>\n
“Lead Arranger” means Banc of America Securities LLC.<\/p>\n
“Lenders” means the lenders listed on the signature pages of this
\nAgreement, and each transferee which hereafter becomes a party to this Agreement
\npursuant to Section 11.04 hereof or pursuant to an amendment to this Agreement
\nwho is owed any portion of the Obligations, and each Bank Affiliate that is owed
\nany portion of the Obligations pursuant to (i) an Interest Rate Protection
\nAgreement or (ii) Section 2.14 or Section 2.17 hereof, in each case for so long
\nas each such Person is owed any portion of the Obligations or is obligated to
\nmake any Advance or issue any Letter of Credit hereunder.<\/p>\n
“Lending Office” means, with respect to each Lender, its branch or
\naffiliate, (a) initially, the office of each Lender, branch or affiliate
\nidentified on each Lender’s signature page hereto, and (b) subsequently, such
\nother office of each Lender, branch or affiliate as each Lender may designate to
\nthe Borrower and Administrative Agent as the office from which the Advances of
\neach Lender will be made and maintained and for the account of which all
\npayments of principal and interest on the Advances and the Commitment Fee will
\nthereafter be made. Lenders may have more than one Lending Office for the
\npurpose of making Base Advances and LIBOR Advances.<\/p>\n
“Letter of Credit Commitment” means, on any date of determination, an
\namount equal to the lesser of (a) $80,000,000 and (b) the Revolver A Commitment
\nminus the sum of (i) all outstanding Revolver A Advances under the Revolver A
\nLoan and (ii) all Swingline Advances.<\/p>\n
“Letters of Credit” means the irrevocable standby letters of credit issued
\nby Administrative Agent under and pursuant to Article III hereof, as each may be
\namended, modified, substituted, increased, replaced, renewed or extended from
\ntime to time in accordance with the provisions of Article III hereof, and
\nspecifically including the Existing Letter of Credit, as it may be amended,
\nmodified, substituted, increased, replaced, renewed or extended from time to
\ntime in accordance with the provisions of Article III hereof.<\/p>\n
“LIBOR Advance” means an Advance under the Revolver A Loan, the Revolver B
\nLoan or the Working Line Loan bearing interest at the LIBOR Rate.<\/p>\n
“LIBOR Lending Office” means, with respect to each Lender, the office
\ndesignated as its “LIBOR Lending Office” on each Lender’s signature page hereto,
\nor such other office of Lender or any of its affiliates hereafter designated by
\nnotice to the Borrower and Administrative Agent.<\/p>\n
“LIBOR Rate” means, for any LIBOR Advance for any Interest Period
\ntherefore, a rate per annum equal to the lesser of (a) the Highest Lawful Rate
\nand (b) the sum of (i) the Applicable Margin, plus (ii) the rate per annum
\n(rounded upwards, if necessary, to the nearest one-one<\/p>\n
14<\/p>\n
hundredth (1\/100th) of one percent (1%)) appearing on Telerate Page 3750 (or any
\nsuccessor page) as the London interbank offered rate for deposits in United
\nStates dollars at approximately 11:00 a.m. (London time) two Business Days prior
\nto the first day of such Interest Period. If for any reason such rate is not
\navailable, the term “LIBOR Rate” shall mean, for any LIBOR Advance for any
\nInterest Period therefor, the rate per annum (rounded upwards, if necessary, to
\nthe nearest one-one hundredth (1\/100th) of one percent (1%)) appearing on
\nReuters Screen LIBO page as the London interbank offered rate for deposits in
\nUnited States dollars at approximately 11:00 a.m. (London time) two Business
\nDays prior to the first day of such Interest Period for a term comparable to
\nsuch Interest Period; provided, however, if more than one rate is
\n ——– ——-
\nspecified on Reuters Screen LIBO Page, the applicable rate shall be the
\narithmetic mean of all such rates.<\/p>\n
“License” means, as to the Borrower or any Restricted Subsidiary of the
\nBorrower, any license, permit, consent, certificate of need, authorization,
\ncertification, accreditation, franchise, approval, or grant of rights by, or any
\nfiling or registration with, any Tribunal or third Person (including without
\nlimitation, the FCC or any applicable PUC) necessary for such Person to own,
\nmaintain, or operate its business or Property.<\/p>\n
“Lien” means any mortgage, pledge, security interest, encumbrance, lien, or
\ncharge of any kind, any conditional sale or other title retention agreement, any
\nlease in the nature thereof, and the filing of or agreement to give any
\nfinancing statement or other similar form of public notice under the Laws of any
\njurisdiction (except for the filing of a financing statement or notice in
\nconnection with an (a) operating lease or (b) the true consignment of goods to
\nthe Borrower or any Restricted Subsidiary as consignee).<\/p>\n
“Litigation” means any proceeding, claim, lawsuit or arbitration, conducted
\nby or before any Tribunal or arbitrator, including without limitation
\nproceedings, claims, lawsuits, under or pursuant to any environmental,
\noccupational, safety and health, antitrust, unfair competition, securities, Tax,
\nor other Law, or under or pursuant to any contract, agreement, or other
\ninstrument.<\/p>\n
“Loans” means all three of the Revolver A Loan, the Revolver B Loan and the
\nWorking Line Loan, and “Loan” means any one of the Revolver A Loan, the Revolver
\nB Loan or the Working Line Loan, as applicable in the context used.<\/p>\n
“Loan Papers” means this Agreement, the Notes, the Conditional Early
\nRelease Unlimited Guaranty, the Fee Letters, financing statements, any Interest
\nRate Protection Agreement and related documents entered into by the Borrower
\nwith any Lender or any Bank Affiliate, all Letters of Credit, all Applications
\nand all other agreements between the Borrower or any Restricted Subsidiary and
\nthe Administrative Agent related to any Letter of Credit, other fee letters,
\nAssignment and Acceptances, post-closing letters, all security agreements,
\npledges, mortgages, deeds of trust, assignments, leasehold mortgages, leasehold
\ndeeds of trust, collateral assignments and other agreements and documentation
\nrelating to the Liens securing the Obligations, and all other documents,
\ninstruments, agreements, or certificates executed or delivered from time to time
\nby any Person in connection with this Agreement or as security for the
\nObligations hereunder, granting collateral or otherwise, as each such agreement
\nmay be amended, modified, substituted, replaced or extended from time to time.<\/p>\n
“Majority Lenders” means, on any date of determination, any combination of
\nLenders having collectively at least 51% of the aggregate amount of Advances
\nunder this Agreement; provided,<\/p>\n
15<\/p>\n
however, that if no Advances are outstanding under this Agreement, such term
\nmeans any combination of Lenders having Total Specified Percentages equal to at
\nleast 51% of the aggregate Commitment.<\/p>\n
“Managing Agents” means each of ABN AMRO Bank N.V., Banque Nationale de
\nParis, Dresdner Bank AG, New York and Grand Caymen Branches, Export Development
\nCorporation, Fleet National Bank, Royal Bank of Canada, The Bank of Nova Scotia,
\nBank One, N.A., U.S. Bank National Association, and Westdeutsche Landesbank
\nGirozentrale, New York Branch.<\/p>\n
“Mandatory Borrowing” has the meaning ascribed thereto in Section 2.02(h)
\nhereof.<\/p>\n
“Material Adverse Change” means any circumstance or event that (a) is
\nmaterial and adverse to the financial condition, business, results of operations
\nor Properties of the Borrower and the Restricted Subsidiaries taken as a whole,
\n(b) materially and adversely affects the validity or enforceability of any
\nMaterial Loan Document or (c) causes an Event of Default.<\/p>\n
“Material Adverse Effect” means any circumstance or event that (a)
\nmaterially and adversely affects the financial condition, business, results of
\noperations or Properties of the Borrower and the Restricted Subsidiaries taken
\nas a whole or (b) materially and adversely affects the validity or
\nenforceability of any Material Loan Document.<\/p>\n
“Material Licenses” means those Licenses of the Borrower and its Restricted
\nSubsidiaries (whether FCC, PUC or otherwise) without which a Substantial Portion
\nof the Backbone will not be permitted to operate. For purposes of this
\ndefinition of “Material Licenses”, “Substantial Portion” means any portion of
\nthe Backbone the failure of which to operate will have the effect of reducing
\nOperating Cash Flow for the Borrower and its Original Restricted Subsidiaries by
\nmore than ten percent (determined by the most recently completed 12 month
\nperiod).<\/p>\n
“Material Loan Document” means any of this Agreement, each Note, the
\nConditional Early Release Unlimited Guaranty, each Fee Letter, each Assignment
\nand Acceptance, each Application, each Letter of Credit, each Interest Rate
\nProtection Agreement entered into between any Lender or any Bank Affiliate and
\nthe Borrower or any Restricted Subsidiary, and any other written agreement
\nexecuted by and among the Borrower or any Restricted Subsidiary and the
\nAdministrative Agent and\/or the Lenders and\/or the Bank Affiliates, in each case
\nin connection with this Agreement and the other Loan Papers from time to time
\nduring the term of this Agreement, as each may be amended, modified,
\nsubstituted, replaced or extended from time to time.<\/p>\n
“Maturity Date” means the earlier of March 31, 2004, or such earlier date
\non which the total amount of outstanding Obligations are due and payable
\n(including, without limitation, whether by acceleration, scheduled reduction of
\nthe Commitment to zero, mandatory or voluntary commitment reduction of the
\nCommitment to zero, installment payments or otherwise) and after which the
\nCommitments have been reduced to zero.<\/p>\n
“Maximum Amount” means the maximum amount of interest which, under
\nApplicable Law, a Lender is permitted to charge on the Obligations.<\/p>\n
“Multiemployer Plan” means a multiemployer plan, as defined in Section
\n4001(a)(3) of ERISA, to which the Borrower, any Original Restricted Subsidiary
\nof the Borrower, or any ERISA<\/p>\n
16<\/p>\n
Affiliate is making or accruing an obligation to make contributions, or has
\nwithin any of the preceding five plan years made or accrued an obligation to
\nmake contributions, such plan being maintained pursuant to one or more
\ncollective bargaining agreements.<\/p>\n
“Multiple Employer Plan” means a single employer plan, as defined in
\nSection 4001(a)(15) of ERISA, that (a) is maintained for employees of the
\nBorrower, any Original Restricted Subsidiary of the Borrower, or any ERISA
\nAffiliate and at least one Person other than the Borrower, any Original
\nRestricted Subsidiary of the Borrower and any ERISA Affiliate, or (b) was so
\nmaintained and in respect of which the Borrower, any Original Restricted
\nSubsidiary of the Borrower, or any ERISA Affiliate could have liability under
\nSection 4064 or 4069 of ERISA in the event such plan has been or were to be
\nterminated.<\/p>\n
“Net Proceeds” means the gross cash proceeds received by the Borrower or
\nany Restricted Subsidiary in connection with, or as a result of, any Disposition
\nof any asset that is not a Permitted Asset Sale, minus (so long as each of the
\nfollowing are estimated in good faith and certified to the Administrative Agent
\nin reasonable detail by an Authorized Officer) (a) actual taxes (estimated in
\ngood faith by not less than three Responsible Officers) incurred as a result of
\nsuch Disposition (after giving effect to all tax benefits available to the
\nBorrower or such Restricted Subsidiary), (b) reasonable and customary
\ntransaction costs paid or payable by the Borrower or any Restricted Subsidiary
\nthat are related to such Disposition and payable to a Person other than an
\nUnrestricted Subsidiary or an Affiliate of the Borrower and its Subsidiaries,
\nand (c) any principal, interest, fees, expenses and other amounts paid or
\npayable within 30 days after the Disposition of any such assets in connection
\nwith the repayment of indebtedness owed to a third Person that is not an
\nAffiliate of the Borrower or an Unrestricted Subsidiary, which such indebtedness
\nis secured by Liens on such assets to the extent such Liens are permitted by
\nSection 8.02(g), Section 8.02(h) or not prohibited by Section 8.03 hereof.<\/p>\n
“New Credit Facility” means that certain credit facility in the amount of
\n$1,000,000,000 (which could under certain circumstances increase to
\n$2,000,000,000) available to the Borrower in accordance with the terms of the
\nNew Credit Facility Documentation.<\/p>\n
“New Credit Facility Documentation” means that certain Credit Agreement,
\ndated as of March 9, 2000, in the amount of $1,000,000,000 (which could under
\ncertain circumstances increase to $2,000,000,000), among the Borrower, Bank of
\nAmerica, N.A. as Administrative Agent and the other lenders defined therein and
\nall other agreements and documentation relating to the New Credit Facility, as
\namended from time to time.<\/p>\n
“Notes” means each of the Revolver A Notes, Working Line Notes, Revolver B
\nNotes and the Swingline Note, and “Note” means any of the Revolver A Note, the
\nWorking Line Note, the Revolver B Note or the Swingline Note, as applicable in
\nthe context used, and in each case, with any extension, renewal or amendment
\nthereof, or substitution therefor (in accordance with Sections 2.16, 11.04 or
\notherwise).<\/p>\n
“Notice of Change of Senior Unsecured Debt Rating” means that certain
\nNotice of Change in the Senior Unsecured Debt Rating in the form of Exhibit J
\n ———
\nhereto.<\/p>\n
“Obligations” means all present and future obligations, indebtedness and
\nliabilities, and all renewals and extensions of all or any part thereof, of the
\nBorrower and each other Obligor or<\/p>\n
17<\/p>\n
Restricted Subsidiary to Lenders, Administrative Agent arising from, by virtue
\nof, or pursuant to this Agreement, any of the other Loan Papers and any and all
\nrenewals and extensions thereof or any part thereof, or future amendments
\nthereto, all interest accruing on all or any part thereof and reasonable
\nattorneys’ fees incurred by the Administrative Agent and Arranging Agents for
\nthe preparation of this Agreement and consummation of this credit facility,
\nexecution of waivers, amendments and consents, and in connection with the
\nenforcement or the collection of all or any part thereof, and reasonable
\nattorneys’ fees incurred by the Lenders or any Bank Affiliate in connection with
\nthe enforcement or the collection of all or any part of the Obligations during
\nthe continuance of an Event of Default, in each case whether such obligations,
\nindebtedness and liabilities are direct, indirect, fixed, contingent, joint,
\nseveral or joint and several, provided that the definition of
\n ————-
\nObligations as used in this Agreement shall specifically include (i) all amounts
\nowed by any Obligor or any Restricted Subsidiary pursuant to the terms of any
\nInterest Rate Protection Agreement entered into by the Borrower or such
\nRestricted Subsidiary with the Administrative Agent, any Lender or any Bank
\nAffiliate, plus (ii) all amounts owed any Bank Affiliate in accordance with the
\nterms of Section 2.14 hereof or 2.17 hereof. Without limiting the generality of
\nthe foregoing, “Obligations” includes all amounts which would be owed by the
\nBorrower, each other Obligor or Restricted Subsidiary and any other Person
\n(other than Administrative Agent or Lenders) to Administrative Agent, Lenders or
\nany Bank Affiliate under any Loan Paper, but for the fact that they are
\nunenforceable or not allowable due to the existence of a bankruptcy,
\nreorganization or similar proceeding involving the Borrower, any other Obligor,
\nany Restricted Subsidiary or any other Person (including all such amounts which
\nwould become due or would be secured but for the filing of any petition in
\nbankruptcy, or the commencement of any insolvency, reorganization or like
\nproceeding of the Borrower, any other Obligor, any Restricted Subsidiary or any
\nother Person under any Debtor Relief Law).<\/p>\n
“Obligor” means (a) the Borrower, (b) the Guarantor so long as such
\nGuarantor is obligated under the Conditional Early Release Unlimited Guaranty,
\n(c) each other Person liable for performance of any of the Obligations and (d)
\neach other Person the Property of which secures the performance of any of the
\nObligations.<\/p>\n
“Offering Memorandum” means that certain Confidential Offering Memorandum
\ndated February 2000 prepared in connection with the syndication of the Loans.<\/p>\n
“Operating Cash Flow” means, for the Borrower and the Restricted
\nSubsidiaries, for any period, the consolidated net income (loss) for such period
\ntaken as a single accounting period, plus the sum of the following amounts for
\nsuch period to the extent included in the determination of such consolidated net
\nincome or loss, without duplication: (a) depreciation expense, (b) amortization
\nexpense and other non-cash charges, expenses or losses reducing income, (c)
\nInterest Expense, (d) Income Tax Expense and (e) extraordinary losses, minus the
\nsum of (i) extraordinary gains and (ii) non-cash income.<\/p>\n
“Option Date” means, with respect to the Working Line Loan only, March 9,
\n2000.<\/p>\n
“Original Borrower” means the Borrower as it existed immediately prior to
\nthe U S WEST Acquisition.<\/p>\n
“Original Closing Date” means March 31, 1999.<\/p>\n
18<\/p>\n
“Original Credit Agreement” means that certain Credit Agreement, dated as
\nof March 31, 1999, among Qwest Communications International Inc., a Delaware
\ncorporation (the “Borrower”), the Lenders (as defined therein), Bank of America,
\nN.A. (formerly NationsBank, N.A.). as a Lender and administrative agent, Banc of
\nAmerica Securities LLC (formerly NationsBanc Montgomery Securities LLC), as lead
\narranger and sole book running manager, First Union Securities, Inc. (formerly
\nFirst Union Capital Markets Corp.), BNY Capital Markets, Inc. and Salomon Smith
\nBarney Inc. as co-arrangers, First Union Securities, Inc. (formerly First Union
\nCapital Markets Corp.), The Bank of New York and Salomon Smith Barney Inc. as
\nco-syndication Agents and Bank of America, N.A. (formerly NationsBank, N.A.),
\nThe Bank of New York, First Union National Bank and CitiBank N.A. as arranging
\nagents, the managing agents and the Lenders (as defined therein).<\/p>\n
“Original Restricted Subsidiary” means any Restricted Subsidiary that is
\nnot a U S WEST Company.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor
\nagency or entity performing substantially the same functions.<\/p>\n
“Permitted Acquisition” means acquisitions made by the Borrower or any
\nOriginal Restricted Subsidiary of (a) assets (except Capital Stock) used in the
\nTelecommunications Business, including, without limitation, the internet,
\ninternet protocol, web hosting and electronic commerce or (b) the Capital Stock
\nof a Person operating in the Telecommunications Business, including, without
\nlimitation, the internet, internet protocol, web hosting and electronic
\ncommerce, so long as any such Person becomes a Wholly Owned Restricted
\nSubsidiary.<\/p>\n
“Permitted Asset Sales” means (a) Dispositions of assets in the ordinary
\ncourse of business and in accordance with the Borrower’s past practices and (b)
\nDispositions of equipment that is worn out, obsolete, damaged or otherwise
\nunsuitable for use in the business.<\/p>\n
“Permitted Investments” means, (a) so long as U S WEST has a Senior
\nUnsecured Debt Rating of BBB- or Baa3 or higher immediately prior to the
\nconsummation of such acquisition, the U S WEST Acquisition and (b) cash and non-
\ncash Investments made after November 29, 1999 (which such Investments are not
\notherwise permitted by subsections (a) through (f), or (h) through (n) of
\nSection 8.04 hereof), the sum of which in the aggregate for the Borrower and the
\nRestricted Subsidiaries under this definition does not exceed at any time
\noutstanding, $1,000,000,000. Notwithstanding the foregoing, to the extent and
\nat the time that any series of Investments permitted under Section 8.04 hereof
\nconstitutes an acquisition of the Capital Stock of a Person that becomes a
\nWholly Owned Restricted Subsidiary that is also permitted by the terms of
\nSection 8.18 hereof or is acquired by a U S WEST Restricted Subsidiary, such
\nseries of Investments shall no longer be included as an Investment in
\ndetermining the outstanding Investments for inclusion in the basket set forth
\nabove.<\/p>\n
“Permitted Liens” means, as applied to any Person:<\/p>\n
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;<\/p>\n
(b) (i) Liens on real estate for real estate Taxes not yet delinquent or
\nclaims being diligently contested in good faith, (ii) Liens created by lease
\nagreements, licenses or similar interests, or by statute or common law to secure
\nthe payments of rental, license amounts or similar amounts<\/p>\n
19<\/p>\n
and other sums not yet due thereunder, (iii) Liens on leasehold interests,
\nlicenses or similar interests created by the lessor, licensee or grantor
\nthereunder in favor of any mortgagee of the leased premises, and (iv) Liens for
\nTaxes, assessments, governmental charges, levies or claims that are not yet
\ndelinquent or remain payable without penalty or are being diligently contested
\nin good faith by appropriate proceedings and for which adequate reserves in
\naccordance with GAAP shall have been set aside on such Person’s books, but only
\nso long as no foreclosure, restraint, sale or similar proceedings have been
\ncommenced with respect thereto;<\/p>\n
(c) Liens of carriers, warehousemen, mechanics, laborers and materialmen
\nand other similar Liens incurred in the ordinary course of business for sums not
\nyet due or being contested in good faith, if such reserve or appropriate
\nprovision, if any, as shall be required by GAAP shall have been made therefor,
\nand in addition to the foregoing, Liens of carriers, warehousemen, mechanics,
\nlaborers and materialmen and other similar Liens incurred in the ordinary course
\nof business that in the aggregate do not secure liabilities in excess of
\n$10,000,000 outstanding at any one time;<\/p>\n
(d) Liens incurred in the ordinary course of business in connection with
\nworker’s compensation, unemployment insurance or similar legislation;<\/p>\n
(e) Easements, right-of-way, zoning restrictions, servitudes, matters of
\npublic record, restrictions and other similar encumbrances on the use of real
\nproperty which do not materially interfere with the ordinary conduct of the
\nbusiness of such Person as being conducted;<\/p>\n
(f) Liens in respect of judgments or awards for which appeals or
\nproceedings for review are being prosecuted and in respect of which a stay of
\nexecution upon any such appeal or proceeding for review shall have been secured,<\/p>\n
provided that (i) such Person shall have established adequate reserves for such
\n————-
\njudgments or awards, (ii) such judgments or awards shall be fully insured
\n(subject to deductibles) and the insurer shall not have denied coverage, or
\n(iii) such judgments or awards shall have been bonded to the satisfaction of the
\nMajority Lenders;<\/p>\n
(g) Any Liens existing on the Original Closing Date which are described on<\/p>\n
Schedule 8.03 hereto and not otherwise described elsewhere in the definition of
\n————-
\nPermitted Liens, and Liens resulting from the permitted refinancing of the
\nrelated Debt for Borrowed Money of the Borrower and its Restricted Subsidiaries,<\/p>\n
provided that the Debt for Borrowed Money of the Borrower and its Restricted
\n————-
\nSubsidiaries secured thereby shall not be increased and the Liens shall not
\ncover additional assets of the Borrower or any such Restricted Subsidiary;<\/p>\n
(h) Liens, deposits, or pledges to secure the performance of bids, tenders,
\ncontracts (other than contracts for the payment of money), leases, public or
\nstatutory obligations, surety, stay appeal, indemnity, performance or other
\nsimilar bonds, or other similar obligations arising in the ordinary course of
\nbusiness;<\/p>\n
(i) Liens arising solely by virtue of any statutory or common law provision
\nrelating to banker’s liens, rights of set-off or similar rights and remedies as
\nto deposit accounts or other funds maintained with a creditor or deposit
\naccounts or other funds maintained with a creditor depository institution;<\/p>\n
provided that (i) such deposit account is not a dedicated cash collateral
\n————-
\naccount and is not subject to restrictions against access by the Borrower in
\nexcess of those set forth by regulations promulgated by the Board of Governors
\nof the Federal Reserve System or any governmental<\/p>\n
20<\/p>\n
authority succeeding to any of its principal functions, and (ii) such deposit
\naccount is not intended by the Borrower to provide collateral to the depository
\ninstitution; and<\/p>\n
(j) any UCC-1 or UCC-3 filing against the Borrower or any Restricted
\nSubsidiary (i) which were filed in connection with Debt which has been repaid in
\nfull and extinguished, (ii) with respect to which an Authorized Officer of the
\nBorrower or such Restricted Subsidiary has not had actual knowledge of their
\nexistence for more than 30 days, (iii) with respect to which any commitment,
\nobligation or liability of the Borrower or any such Restricted Subsidiary and
\nany such lender or creditor has been terminated and (iv) with respect to which
\nall documentation creating any lien, hypothecation or security interest related
\nto such UCC filing has been terminated whether pursuant to its terms or
\notherwise.<\/p>\n
“Permitted Refinancing Indebtedness” means Debt of the applicable Obligor
\nor Original Restricted Subsidiary to the extent all of the net proceeds thereof
\nare used to refinance Debt of such Obligor or Original Restricted Subsidiary,<\/p>\n
provided that after giving effect to the incurrence of such Debt, the Borrower
\n————-
\nis in pro forma compliance with the terms of this Agreement, and provided
\nfurther that (i) the material terms of such new Debt are no more restrictive
\nthan the Existing Financing Documentation (including, without limitation, the
\nmaturity, financial covenants and restrictive covenants), (ii) the maturity of
\nsuch new Debt is no shorter than the Debt being refinanced, (iii) the priority
\nof any such new Debt shall remain unchanged (if such Debt to be refinanced is
\nSubordinated Indebtedness, the subordination provisions shall remain
\nsubstantially unchanged in the new refinanced Debt) and (iv) other than with
\nrespect to the LCI Notes in which case the Borrower may become obligated on such
\nLCI Notes and the Guarantor may be released, the parties obligated on (or with
\nrespect to) such Debt remain the same.<\/p>\n
“Person” means an individual, partnership, joint venture, corporation,
\nlimited liability company, trust, Tribunal, unincorporated organization, and
\ngovernment, or any department, agency, or political subdivision thereof.<\/p>\n
“Plan” means a Single Employer Plan or a Multiple Employer Plan.<\/p>\n
“Preferred Stock”, as applied to the Capital Stock of any Person, means
\nCapital Stock of any class or classes (however designated) which is preferred as
\nto the payment of dividends or distributions, or as to the distribution of
\nassets upon any voluntary or involuntary liquidation or dissolution of such
\nPerson, over shares of Capital Stock of any other class of such Person.<\/p>\n
“Prohibited Transaction” has the meaning specified in Section 4975 of the
\nCode or Section 406 of Title I of ERISA.<\/p>\n
“Property” means all types of real, personal, tangible, intangible, or
\nmixed property, whether owned or hereafter acquired in fee simple or leased by
\nthe Borrower and the Restricted Subsidiaries.<\/p>\n
“PUC” means any state regulatory agency or body that exercises jurisdiction
\nover the rates or services or the ownership, construction or operation of any
\nlong distance network facility or telecommunications systems or over Persons who
\nown, construct or operate a long distance network facility or telecommunications
\nsystems, in each case by reason of the nature or type of the business subject to
\nregulation and not pursuant to laws and regulations of general applicability to
\nPersons conducting business in such state.<\/p>\n
21<\/p>\n
“Quarterly Date” means the last Business Day of each March, June, September
\nand December during the term of this Agreement.<\/p>\n
“Qwest Material Subsidiary” means on any date of determination, any
\nOriginal Restricted Subsidiary that generated in the most recently completed 12
\nmonth period in excess of 10% of the Operating Cash Flow of the Original
\nBorrower and its Original Restricted Subsidiaries, and “Qwest Material
\nSubsidiaries” means the smallest group of one or more Original Restricted
\nSubsidiaries which in the aggregate generated in the most recently completed 12
\nmonth period not less than 80% of the Operating Cash Flow of the Original
\nBorrower and its Original Restricted Subsidiaries.<\/p>\n
“Qwest 8.29% Senior Discount Notes” means those certain 8.29% Senior
\nDiscount Notes Due 2008 issued by the Borrower.<\/p>\n
“Qwest 8.29% Senior Discount Notes Documentation” means that certain
\nIndenture dated January 29, 1998 related to the Qwest 8.29% Senior Discount
\nNotes and all other agreements and documentation relating to the Qwest 8.29%
\nSenior Discount Notes.<\/p>\n
“Qwest 9.47% Senior Discount Notes” means those certain 9.47% Senior
\nDiscount Notes Due 2007 issued by the Borrower.<\/p>\n
“Qwest 9.47% Senior Discount Notes Documentation” means that certain
\nIndenture dated October 15, 1997 related to the Qwest 9.47% Senior Discount
\nNotes and all other agreements and documentation relating to the Qwest 9.47%
\nSenior Discount Notes.<\/p>\n
“Qwest 7.50% Senior Notes” means those certain 7.50% Senior Notes Due 2008
\nissued by the Borrower.<\/p>\n
“Qwest 7.50% Senior Notes Documentation” means that certain Indenture dated
\nNovember 4, 1998 related to the Qwest 7.50% Senior Notes and all other
\nagreements and documentation relating to the Qwest 7.50% Senior Notes.<\/p>\n
“Qwest 10.875% Senior Notes” means those certain 10.875% Senior Notes Due
\n2007 issued by the Borrower.<\/p>\n
“Qwest 10.875% Senior Notes Documentation” means that certain Indenture
\ndated August 28, 1997 related to the Qwest 10.875% Senior Notes and all other
\nagreements and documentation relating to the Qwest 10.875% Senior Notes.<\/p>\n
“Qwest 7.25% Senior Notes” means those certain 7.25% Senior Notes Due 2008
\nissued by the Borrower.<\/p>\n
“Qwest 7.25% Senior Notes Documentation” means that certain Indenture dated
\nNovember 27, 1998 related to the Qwest 7.25% Senior Notes and all other
\nagreements and documentation relating to the Qwest 7.25% Senior Notes.<\/p>\n
22<\/p>\n
“Refinancing Advance” means any Advance which is used to pay the principal
\namount (or any portion thereof) of an Advance at the end of its Interest Period
\nand which, after giving effect to such application, does not result in an
\nincrease in the aggregate amount of outstanding Advances.<\/p>\n
“Release Date” means the date on which the Notes have been paid, all other
\nObligations due and owing have been paid and performed in full, and the
\nCommitment has been terminated.<\/p>\n
“Repayment Event” means (a) with respect to Debt for Borrowed Money of the
\nBorrower and the Original Restricted Subsidiaries, any event or circumstance
\nwhich meets any of the following criteria: (i) causes any mandatory redemption,
\nprepayment or other repayment in full (excluding any scheduled repayments) of
\nany Debt for Borrowed Money of the Borrower and its Original Restricted
\nSubsidiaries or (ii) permits the holders of any Debt for Borrowed Money of the
\nBorrower and its Original Restricted Subsidiaries to redeem in full, to demand
\nthe prepayment or repayment in full of such Debt for Borrowed Money and (b) with
\nrespect to Debt for Borrowed Money of the U S WEST Restricted Subsidiaries, any
\nevent or circumstance which meets any of the following criteria: (i) causes any
\nmandatory redemption, prepayment or other repayment in full (excluding any
\nscheduled repayments) of any Debt for Borrowed Money of any U S WEST Restricted
\nSubsidiary or (ii) permits the holders of any Debt for Borrowed Money of any U S
\nWEST Restricted Subsidiary to redeem in full, to demand the prepayment or
\nrepayment in full of any such Debt for Borrowed Money.<\/p>\n
“Responsible Officer” means with respect to the Borrower and its Restricted
\nSubsidiaries respectively, any Authorized Officer, any Executive Vice President
\nand any Senior Vice President.<\/p>\n
“Restricted Payments” means, for the Borrower and the Restricted
\nSubsidiaries of the Borrower, (a) any direct or indirect Distribution, dividend
\nor other payment on account of any equity interest in, or shares of, Capital
\nStock or other securities, of the Borrower and its Restricted Subsidiaries (or
\nthe establishment of any sinking fund or otherwise the setting aside of any
\nfunds with respect thereto), except such dividends that are paid with common
\nequity securities of the Borrower; (b) any management, consulting or other
\nsimilar fees, or any interest thereon, payable by the Borrower or any of the
\nRestricted Subsidiaries to any Unrestricted Subsidiary and\/or any other
\nAffiliate of the Borrower other than a Wholly Owned Restricted Subsidiary (or
\nthe establishment of any sinking fund or otherwise the setting aside of any
\nfunds with respect thereto), but specifically excluding any consulting fees
\npayable by the Borrower or any Restricted Subsidiary to a Person that is not an
\nUnrestricted Subsidiary or an Affiliate of the Borrower, (c) loans or advances
\nto employees and\/or shareholders of the Borrower and the Subsidiaries of the
\nBorrower; (d) payments of principal and\/or interest, or the setting aside of
\nfunds with respect thereto, of any Total Debt except the Obligations; (e)
\ndividends, distributions, redemptions, repurchases or defeasance of any
\npreferred stock issuance (or the setting aside of any funds to do so); and (f)
\npayments of any amounts, fees, advances, loans, investments or otherwise to any
\nUnrestricted Subsidiary, except Permitted Investments, except that payments by
\nthe Borrower in lieu of the issuance of fractional shares as a result of the U S
\nWEST Acquisition shall not constitute a Restricted Payment.<\/p>\n
“Restricted Subsidiary” means, as of any date of determination, all those
\nSubsidiaries of the Borrower that are not Unrestricted Subsidiaries, provided
\n ——–
\nthat, notwithstanding the foregoing, (a) all Subsidiaries designated by the
\n—-
\nBorrower as Restricted Subsidiaries on the Original Closing Date shall remain
\nRestricted Subsidiaries until the earlier of either (i) the Obligations being
\nrepaid in full and the Commitments terminated or (ii) the re-designation of such
\nRestricted Subsidiary by the<\/p>\n
23<\/p>\n
Borrower with the written approval of Majority Lenders, and (b) this definition
\nshall, after the Acquisition Date but subject to Section 9.08 hereof, include
\nall U S WEST Restricted Subsidiaries.<\/p>\n
“Revolver A Advance” means any advance made under the Revolver A Loan.<\/p>\n
“Revolver A Commitment” means, with respect to the Revolver A Loan,
\n$250,000,000, as reduced from time to time pursuant to Section 2.11 hereof.<\/p>\n
“Revolver A Commitment Fee” means the fee described in Section 2.10(a)(i)
\nhereof.<\/p>\n
“Revolver A Loan” means the loan made by Lenders pursuant to Section
\n2.01(a) of this Agreement.<\/p>\n
“Revolver A Note” means each Note of the Borrower evidencing Revolver A
\nAdvances under the Revolver A Loan hereunder, substantially in the form of<\/p>\n
Exhibit A hereto, together in each case, with any extension, renewal or
\n———
\namendment thereof, or substitution therefor.<\/p>\n
“Revolver A Specified Percentage” means, as to any Lender, the percentage
\nindicated beside its name on the signature pages hereof designated as its
\nRevolver A Specified Percentage, or as adjusted or specified (i) in any
\nAssignment and Acceptance or (ii) in any amendment to this Agreement.<\/p>\n
“Revolver B Advance” means any advance made under the Revolver B Loan.<\/p>\n
“Revolver B Commitment” means, with respect to the Revolver B Loan,
\n$250,000,000, as reduced from time to time pursuant to Section 2.11 hereof.<\/p>\n
“Revolver B Commitment Fee” means the fee described in Section 2.10(a)(iii)
\nhereof.<\/p>\n
“Revolver B Loan” means the loan made by Lenders pursuant to Section
\n2.01(c) of this Agreement.<\/p>\n
“Revolver B Note” means each Note of the Borrower evidencing Revolver B
\nAdvances hereunder, substantially in the form of Exhibit C hereto, together in
\n ———
\neach case, with any extension, renewal or amendment thereof, or substitution
\ntherefor.<\/p>\n
“Revolver B Specified Percentage” means, as to any Lender, the percentage
\nindicated beside its name on the signature pages hereof designated as its
\nRevolver B Specified Percentage, or as adjusted or specified (i) in any
\nAssignment and Acceptance or (ii) in any amendment to this Agreement.<\/p>\n
“Rights” means rights, remedies, powers, and privileges.<\/p>\n
“Senior Unsecured Debt Rating” means the Borrower’s senior unsecured debt
\nrating as announced by Standard & Poor’s Ratings Group, a Division of McGraw-
\nHill, Inc. or Moody’s Investors Service, Inc.<\/p>\n
24<\/p>\n
“Single Employer Plan” means a single employer plan, as defined in Section
\n4001(a)(15) of ERISA, that is maintained for employees of the Borrower, any
\nOriginal Restricted Subsidiary or any ERISA Affiliate, other than a Multiple
\nEmployer Plan of the Borrower.<\/p>\n
“Sole Book Running Manager” means Banc of America Securities LLC.<\/p>\n
“Solvent” means, as of any date of determination, with respect to any
\nPerson, that on such date such Person is not “insolvent” (as that term is
\ndefined in section 101 of the Bankruptcy Reform Act of 1978, as amended from
\ntime to time and any successor statute), (b) such Person does not intend to, and
\ndoes not believe that it will, incur debts or liabilities beyond such Person’s
\nability to pay as such debts and liabilities mature, and (c) such Person is not
\nengaged in business or a transaction, and is not about to engage in business or
\na transaction, for which such Person’s Property would constitute an unreasonably
\nsmall capital.<\/p>\n
“Special Counsel” means the law firm of Donohoe, Jameson & Carroll, P.C.,
\nor such other individual or firm acting as special counsel to Administrative
\nAgent, as designated by Administrative Agent from time to time.<\/p>\n
“Specified Change of Control” means the occurrence of either of the
\nfollowing events: (a) with respect to Debt for Borrowed Money of the Borrower
\nand the Original Subsidiaries, any event which constitutes any “change of
\ncontrol” or “change in control” as defined in (i) any of the Existing Financing
\nDocumentation or (ii) any other instrument evidencing any then outstanding and
\nunpaid Debt for Borrowed Money of the Borrower and the Original Restricted
\nSubsidiaries in excess of $25,000,000, or (b) with respect to Debt for Borrowed
\nMoney of the U S WEST Restricted Subsidiaries, any event which constitutes any
\n“change of control” or “change in control” as defined in any of the U S WEST
\nFinancing Documentation evidencing any then outstanding and unpaid Debt for
\nBorrowed Money of the U S WEST Restricted Subsidiaries in excess of
\n$100,000,000.<\/p>\n
“Subordinated Indebtedness” means Debt of the Borrower that is unsecured
\nand subordinated to the Obligations, such Debt in each case (a) to be pursuant
\nto the terms and conditions set forth on Schedule 1.01 hereto and (b) to be
\n ————-
\npursuant to documentation containing material terms and conditions no more
\nonerous or restrictive than this Agreement and the Material Loan Documents.<\/p>\n
“Subsidiary” of any Person means any corporation, limited liability
\ncompany, partnership, joint venture, trust or estate of which (or in which) more
\nthan 50% of:<\/p>\n
(a) the outstanding Capital Stock having voting power to elect a
\n majority of the board of directors of such corporation (irrespective of
\n whether at the time Capital Stock of any other class or classes of such
\n corporation shall or might have voting power upon the occurrence of any
\n contingency),<\/p>\n
(b) the interest in the capital or profits of such partnership or
\n joint venture, or<\/p>\n
(c) the beneficial interest of such trust or estate,<\/p>\n
is at the time directly or indirectly owned by such Person, by such Person and
\none or more of its Subsidiaries or by one or more of such Person’s Subsidiaries.<\/p>\n
25<\/p>\n
“SuperMajority Lenders” means any combination of Lenders having at least
\n66.67% of the aggregate amount of Advances under this Agreement; provided,
\nhowever, that if no Advances are outstanding under this Agreement, such term
\nmeans any combination of Lenders having Total Specified Percentages equal to at
\nleast 66.67% of the aggregate Commitment.<\/p>\n
“Swingline Advance” means an Advance made pursuant to Section 2.01(a)(ii)
\nhereof.<\/p>\n
“Swingline Bank” means Bank of America, N.A. and any successor thereto
\nappointed in accordance with Section 10.06 hereof.<\/p>\n
“Swingline Commitment” means the lesser of (a) $25,000,000 and (b) the
\nRevolver A Commitment minus the sum of (i) all outstanding Swingline Advances,
\nplus (ii) all outstanding Revolver A Advances, plus (iii) the outstanding face
\namount of all Letters of Credit, plus (iv) without duplication, all
\nreimbursement obligations owed under Article III hereof.<\/p>\n
“Swingline Facility” means that certain swingline facility available to the
\nBorrower in accordance with the terms of Section 2.01(a)(ii) hereof.<\/p>\n
“Swingline Loans” means the loans made under the Swingline Facility from
\ntime to time.<\/p>\n
“Swingline Note” means the Swingline Note of the Borrower payable to the
\norder of the Swingline Bank, evidencing Swingline Advances hereunder,
\nsubstantially in the form of Exhibit D hereto, together with any extension,
\nrenewal or amendment thereof or substitution therefor.<\/p>\n
“Tangible Assets” means, with respect to any Person on any date of
\ndetermination, the tangible assets of such Person and the tangible assets of the
\nspecified Subsidiaries of such Person, in each case determined in accordance
\nwith GAAP on such date.<\/p>\n
“Taxes” means all taxes, assessments, imposts, fees, or other charges at
\nany time imposed by any Laws or Tribunal.<\/p>\n
“Telecommunications Business” means the business of (i) transmitting, or
\nproviding services relating to the transmission of, voice, data or video through
\nowned or leased transmission facilities, (ii) constructing, creating, developing
\nor marketing communications related network equipment, software and other
\ndevices for use in a telecommunications business, or (iii) evaluating,
\nparticipating in or pursuing any other activity or opportunity that is primarily
\nrelated to those identified in (i) or (ii) above, provided that the
\n ————-
\ndetermination of what constitutes a telecommunications business under this
\ndefinition shall be made in good faith by the Board of Directors.<\/p>\n
“Total Debt” means all Debt for Borrowed Money of the Borrower and its
\nRestricted Subsidiaries which would be shown on a consolidated balance sheet in
\naccordance with GAAP, including, without limitation for the Borrower and the
\nRestricted Subsidiaries, (a) Capital Lease obligations, (b) Debt of any other
\nPerson secured by a Lien on the property of the Borrower or any Restricted
\nSubsidiary in an amount equal to the lesser of (i) such Debt of such Person and
\n(ii) the value of such pledged property, (c) Contingent Liabilities to the
\nextent any such Contingent Liabilities constitute Debt for Borrowed Money of the
\nBorrower and its Restricted Subsidiaries, (d) Withdrawal Liability and (e)
\noverdue interest on any Debt for Borrowed Money of the Borrower and its
\nRestricted Subsidiaries (but not accrued interest that is not overdue).<\/p>\n
26<\/p>\n
“Total Leverage Ratio” means, on any date of determination, the ratio of
\n(a) Total Debt on such date to (b) Annualized Operating Cash Flow, provided that
\n ————-
\n(i) the calculation of Total Debt for purposes of the Total Leverage Ratio will
\nbe net of the sum of any cash balances in excess of $10,000,000 and (ii) for
\npurposes of this calculation, Operating Cash Flow shall be calculated as if all
\nassets (including the acquisition of Capital Stock of Restricted Subsidiaries)
\nacquired on any date during the period of determination were acquired on the
\nfirst day in such period of determination, and all assets (including the
\nacquisition of Capital Stock of Restricted Subsidiaries) sold on any date during
\nthe period of determination were sold on the first day in such period of
\ndetermination.<\/p>\n
“Total Specified Percentage” means, as to any Lender on any date of
\ndetermination, the percentage that such Lender’s outstanding Advances (all
\nRevolver A Advances, Revolver B Advances and Working Line Advances) bears to the
\naggregate outstanding amount of Advances (all Revolver A Advances, Revolver B
\nAdvances and Working Line Advances) made by all Lenders hereunder, provided
\n ——–
\nthat, if there are no outstanding Advances hereunder, “Total Specified
\nPercentage” shall mean for such Lender the percentage that the sum of its (a)
\nRevolver A Specified Percentage of the Revolver A Commitment plus (b) Revolver B
\nSpecified Percentage of the Revolver B Commitment, plus (c) Working Line
\nSpecified Percentage of the Working Line Commitment bears to the aggregate
\nCommitments of all Lenders on such date.<\/p>\n
“Tribunal” means any state, commonwealth, federal, foreign, territorial, or
\nother court or government body, subdivision, agency, department, commission,
\nboard, bureau, or instrumentality of a governmental body.<\/p>\n
“TROL Transaction” means that certain synthetic lease transaction pursuant
\nto the TROL Transaction Documentation.<\/p>\n
“TROL Transaction Documentation” means that certain (1) Trust Agreement,
\ndated as of November 15, 1996, between Bank of America, N.A. (formerly
\nNationsBank, N.A., successor by merger to NationsBank of Texas, N.A.), The
\nIndustrial Bank of Japan, Ltd., The Bank of New York, The Bank of Nova Scotia,
\nPNC Leasing Corp. and Bank One, N.A. (formerly The First National Bank of
\nChicago) each as holders, and First Security Bank, National Association, as the
\nOwner Trust, (2) that certain Participation Agreement, dated as of November 15,
\n1996, among LCI, as the Construction Agent and as the Lessee, First Security
\nBank, National Association, as the Owner Trustee, the various banks and lending
\ninstitutions which are parties thereto as holders, the various banks and lending
\ninstitutions which are parties thereto from time to time, as the lenders and
\nBank of America, N.A. (formerly NationsBank, N.A.) as the agent for the lenders,
\n(3) that certain Credit Agreement dated as of November 15, 1996 among First
\nSecurity Bank, National Association, as the owner trustee as the borrower the
\nseveral lenders from time to time party thereto and Bank of America, N.A.
\n(formerly NationsBank, N.A.), as the agent, (4) those certain Tranche A Notes,
\neach dated as of November 15, 1996, payable to the order of Bank of America,
\nN.A. (formerly NationsBank, N.A.), The Industrial Bank of Japan, Ltd., The Bank
\nof New York, The Bank of Nova Scotia, Bank One,<\/p>\n
27<\/p>\n
N.A. (formerly The First National Bank of Chicago) and PNC Leasing Corp.,
\nrespectively, (5) that certain Unconditional Guaranty Agreement dated as of
\nNovember 15, 1996 made by LCI as guarantor in favor of Bank of America, N.A.
\n(formerly NationsBank, N.A.), as agent for the ratable benefit of the Tranche A
\nlenders, (6) those certain Tranche B Notes, each dated as of November 15, 1996,
\npayable to the order of Bank of America, N.A. (formerly NationsBank, N.A.), The
\nIndustrial Bank of Japan, Ltd., The Bank of New York, The Bank of Nova Scotia,
\nBank One, N.A. (formerly The First National Bank of Chicago) and PNC Leasing
\nCorp., respectively, and (7) all such other documents, receipts, deeds of trust,
\nsecurity agreements and other agreements and certificates (including, without
\nlimitation, certificates of trust) executed in connection with the foregoing
\nagreements, in each case as each such agreement, receipt or other document or
\ncertificate has been or shall be amended, extended, waived or modified from time
\nto time as permitted by the terms of this Agreement.<\/p>\n
“Type” refers to the distinction between Advances bearing interest at the
\nBase Rate and LIBOR Rate.<\/p>\n
“UCC” means the Uniform Commercial Code as adopted in the State of New
\nYork.<\/p>\n
“Unrestricted Subsidiary” means those Subsidiaries of the Borrower that are
\ndesignated in writing to the Administrative Agent and each Lender by the
\nBorrower as Unrestricted Subsidiaries and all U S WEST Unrestricted
\nSubsidiaries, provided that no Restricted Subsidiary existing on the Original
\n ————-
\nClosing Date may be designated as an Unrestricted Subsidiary without the prior
\nwritten consent of Majority Lenders. Each newly formed or acquired Unrestricted
\nSubsidiary shall be effective as of the date of formation or acquisition,
\nrespectively.<\/p>\n
“U S WEST” means U S WEST, Inc., a Delaware corporation.<\/p>\n
“U S WEST Acquisition” means that certain acquisition and merger by the
\nBorrower of U S WEST in accordance with the terms of that certain Agreement and
\nPlan of Merger, dated as of July 18, 1999 between the Borrower and U S WEST, as
\nsuch agreement may be amended, modified, renewed or extended from time to time.<\/p>\n
“U S WEST Company” means any of U S WEST and its Subsidiaries.<\/p>\n
“U S WEST Debt” means all outstanding and unpaid Debt for Borrowed Money of
\nU S WEST and the U S WEST Restricted Subsidiaries from time to time, and any
\npermitted refinancings, extensions, modifications and renewals thereof,
\nprovided that, except for the U S WEST Guarantees, in no event shall the
\nBorrower or any Original Restricted Subsidiary be obligated on such Debt for
\nBorrowed Money.<\/p>\n
“U S WEST Default” means any breach, default, event of default or failure
\nto comply, under or as defined in, any of the U S WEST Financing Documentation,
\nin each case only so long as such breach, default, event of default or such
\nfailure shall continue after the applicable grace period and either (i) permits
\nthe holders thereof to accelerate such Debt evidenced thereby in a principal
\namount then outstanding and unpaid in excess of $100,000,000, or (ii) results in
\na Repayment Event with respect to Debt evidenced thereby in a principal amount
\nthen outstanding and unpaid in excess of $100,000,000.<\/p>\n
“U S WEST Financing Documentation” means all agreements, instruments and
\nother documentation evidencing and\/or in connection with all U S WEST Debt, as
\nsuch agreements, instruments and other documentation may be amended, modified,
\nwaived, refinanced, replaced, renewed or extended from time to time.<\/p>\n
28<\/p>\n
“U S WEST Guarantees” means all Guaranties of Debt of the U S WEST
\nRestricted Subsidiaries executed by U S WEST, as each such Guarantee may be
\namended, modified, renewed or extended from time to time. To the actual
\nknowledge of an Authorized Officer, all U S WEST Guarantees in effect on the
\nAmendment and Restatement Closing Date are listed on Schedule 1.03 hereto.
\n ————- <\/p>\n
“U S WEST Permitted Refinancing Indebtedness” means Debt of a U S WEST
\nRestricted Subsidiary to the extent all of the net proceeds thereof are used to
\nrefinance U S WEST Debt of a U S WEST Restricted Subsidiary, provided that after
\n ————-
\ngiving effect to the incurrence of such Debt, the Borrower is in pro forma
\ncompliance with the terms of this Agreement, and provided further that (i) the
\nparties obligated on (or with respect to) such Debt do not include the Borrower
\nor any Original Restricted Subsidiary and (ii) the collateral and\/or security
\nfor such Debt does not include any Properties or assets of the Borrower or any
\nof the Original Restricted Subsidiaries.<\/p>\n
“U S WEST Restricted Subsidiary” means, as of any date of determination
\nafter the date of the U S WEST Acquisition, U S WEST and all the Subsidiaries of
\nU S WEST that are not U S WEST Unrestricted Subsidiaries, provided that, on and
\n ————-
\nafter the Acquisition Date, the Designated U S WEST Restricted Subsidiary shall
\nremain a U S WEST Restricted Subsidiary until the earlier of either (i) the
\nObligations being repaid in full and the Commitments terminated or (ii) the re-
\ndesignation of such U S WEST Restricted Subsidiary by the Borrower with the
\nwritten approval of Majority Lenders.<\/p>\n
“U S WEST Unrestricted Subsidiary” means, those Subsidiaries of U S WEST
\nthat are designated in writing to the Administrative Agent and each Lender by
\nthe Borrower as U S WEST Unrestricted Subsidiaries from time to time, provided
\n ——–
\nthat the Designated U S WEST Restricted Subsidiary may not be designated as a U
\n—-
\nS WEST Unrestricted Subsidiary without the prior written consent of Majority
\nLenders. Each newly formed or acquired U S WEST Unrestricted Subsidiary shall
\nbe effective as of the date of formation or acquisition, respectively.<\/p>\n
“Voting Stock” of a Person means all classes of Capital Stock or other
\ninterests (including partnership interests) of such Person then outstanding and
\nnormally entitled (without regard to the occurrence of any contingency) to vote
\nin the election of directors, managers or trustees thereof.<\/p>\n
“Waiver Period” means the period beginning the Acquisition Date and
\ncontinuing until the end of the Borrower’s second full fiscal quarter that
\ncommences after such date.<\/p>\n
“Wholly Owned Restricted Subsidiary” means, as of any date of
\ndetermination, a Restricted Subsidiary that is owned 100%, directly or
\nindirectly, by the Borrower, provided that, with respect to foreign Subsidiaries
\n ————-
\nof the Borrower, “Wholly Owned Restricted Subsidiary” shall also include those
\nforeign Subsidiaries of the Borrower that are 99% or above owned directly or
\nindirectly by the Borrower.<\/p>\n
“Withdrawal Liability” has the meaning given such term under Part I of
\nSubtitle E of Title IV of ERISA.<\/p>\n
“Working Line Advance” means any advance made under the Working Line Loan.<\/p>\n
29<\/p>\n
“Working Line Commitment” means, with respect to the Working Line Loan
\nprior to the Conversion Date, $500,000,000, as reduced from time to time
\npursuant to Section 2.11 and Section 2.16 hereof, or as increased in accordance
\nwith the terms of Section 2.16 hereof, provided that, (a) on the Option Date, if
\n ————-
\nthe Borrower and the SuperMajority Lenders have not agreed to an Extension
\nOption or the Borrower has not exercised its Conversion Option in each case in
\naccordance with the terms of Section 2.16 hereof, the Working Line Commitment
\nshall mean $0.00 and (b) on and after the Extension Final Maturity, the Working
\nLine Commitment shall mean $0.00.<\/p>\n
“Working Line Commitment Fee” means the fee described in Section
\n2.10(a)(ii) hereof.<\/p>\n
“Working Line Loan” means the revolving 364 day short term revolving loan
\nmade by the Lenders pursuant to Section 2.01(b) of this Agreement.<\/p>\n
“Working Line Note” means each Note of the Borrower evidencing Working Line
\nAdvances hereunder, substantially in the form of Exhibit B hereto with respect
\n ———
\nto Working Line Advances made under the Working Line Loan, together with any
\nextension, renewal or amendment thereof, or substitution therefor, and each note
\nevidencing the Working Line Loan after the Conversion Date, in accordance with
\nthe terms of Section 2.16 hereof, together with any extension, renewal or
\namendment thereof, or substitution therefor.<\/p>\n
“Working Line Specified Percentage” means, as to any Lender, the percentage
\nindicated beside its name on the signature pages hereof designated as its
\nWorking Line Specified Percentage, or as adjusted or specified (i) in accordance
\nwith the terms of Section 2.16 hereof, (ii) in any Assignment and Acceptance or
\n(iii) in any amendment to this Agreement.<\/p>\n
“Year 2000 Problem” means the risk that computer applications and devices
\ncontaining imbedded computer chips used by the Borrower or any of its
\nSubsidiaries (or their respective customers and vendors) may be unable to
\nrecognize and perform properly date-sensitive functions involving certain dates
\nprior to and any date after December 31, 1999.<\/p>\n
1.02. Accounting and Other Terms. All accounting terms used in this
\nAgreement which are not otherwise defined herein shall be construed in
\naccordance with GAAP on a consolidated basis for the Borrower and its
\nSubsidiaries, unless otherwise expressly stated herein (acknowledging that
\nexcluding the Unrestricted Subsidiaries is not in accordance with GAAP).
\nReferences herein to one gender shall be deemed to include all other genders.
\nExcept where the context otherwise requires, (a) definitions imparting the
\nsingular shall include the plural and vice versa and (b) all references to time
\nare deemed to refer to New York time. In any calculation made hereunder,
\nincluding, without limitation, calculations made under Section 8.01 hereof, to
\nthe extent that any such calculations are made in reliance upon financial
\ninformation supplied to the Administrative Agent and the Lenders in accordance
\nwith the terms hereof and such information is later corrected or changed in any
\nmanner (pursuant to an audited statement or otherwise), all such calculations
\nmade in accordance with the terms hereof shall be changed and effective
\nretroactively as if the correct information had been delivered originally.<\/p>\n
ARTICLE II. THE LOAN FACILITY<\/p>\n
2.01. Loans.<\/p>\n
30<\/p>\n
(a) Revolver A Loan.<\/p>\n
(i) Revolver A Advances. Each Lender severally agrees, on the
\n terms and subject to the conditions hereinafter set forth, to make
\n Revolver A Advances to the Borrower on a Business Day during the
\n period from the Original Closing Date to the Maturity Date, in an
\n aggregate principal amount not to exceed at any time outstanding such
\n Lender’s Revolver A Specified Percentage of the difference between the
\n Revolver A Commitment and the sum of (without duplication) (i) the
\n undrawn face amount of all outstanding Letters of Credit, plus (ii)
\n reimbursement obligations under Article III hereof, plus (iii)
\n Swingline Advances then outstanding, plus (iv) Revolver A Advances
\n then outstanding. Subject to the terms and conditions of this
\n Agreement, the Borrower may borrow, repay and reborrow the Revolver A
\n Advances; provided, however, that at no time shall the sum of (without
\n ——– ——-
\n duplication) (A) all outstanding Revolver A Advances, plus (B) the
\n undrawn face amount of all outstanding Letters of Credit, plus (C)
\n reimbursement obligations under Article III hereof, plus (D) Swingline
\n Advances then outstanding, exceed the Revolver A Commitment.<\/p>\n
(ii) Swingline Advances. The Borrower may request the Swingline
\n Bank to make, and the Swingline Bank shall make, on the terms and
\n conditions hereinafter set forth, advances to the Borrower from time
\n to time on any Business Day during the period from the Original
\n Closing Date to the Maturity Date in an aggregate principal amount not
\n to exceed at any time the Swingline Commitment. Each Swingline
\n Advance shall be in an amount not less than $100,000 and shall bear
\n interest at a money market rate quoted by the Swingline Bank. Within
\n the limits of the Swingline Facility and subject to the terms hereof,
\n Swingline Advances may be repaid and then reborrowed; provided, that
\n each Swingline Advance must be repaid no later than 14 calendar days
\n after the date of such Swingline Advance.<\/p>\n
(b) Working Line Loan. Each Lender severally agrees, on the terms and
\n subject to the conditions hereinafter set forth, to make revolving Working
\n Line Advances available to the Borrower on a Business Day during the period
\n from the Original Closing Date to the Option Date (or the Extension Final
\n Maturity if the Borrower exercised its Extension Option in accordance with
\n the terms of Section 2.16(a) hereof), in an aggregate principal amount not
\n to exceed at any time outstanding such Lender’s Working Line Specified
\n Percentage of the difference between the Working Line Commitment and the
\n sum of Working Line Advances then outstanding. On the Conversion Date all
\n outstanding Working Line Advances shall convert to a term loan in the
\n amount of the outstanding Working Line Advances outstanding on the
\n Conversion Date and such term loan shall be due and payable in one payment
\n on the Maturity Date. Subject to the terms and conditions of this
\n Agreement, until the earlier of the (x) Option Date (or the Extension Final
\n Maturity if the Borrower exercised its Extension Option in accordance with
\n the terms of Section 2.16(a) hereof) and (y) Conversion Date, the Borrower
\n may borrow, repay and reborrow the Working Line Advances; provided,
\n ——–
\n however, that at no time shall the sum of all outstanding Working Line
\n ——-
\n Advances exceed the Working Line Commitment. After the Conversion Date, no
\n Advances will be available under the Working Line Loan except Refinancing
\n Advances.<\/p>\n
31<\/p>\n
(c) Revolver B Loan. Each Lender severally agrees, on the terms and
\n subject to the conditions hereinafter set forth, to make Revolver B
\n Advances to the Borrower on any Business Day during the period from the
\n Original Closing Date to the Maturity Date, in an aggregate principal
\n amount not to exceed at any time outstanding such Lender’s Revolver B
\n Specified Percentage of the difference between the Revolver B Commitment
\n and the sum of Revolver B Advances then outstanding. Subject to the terms
\n and conditions of this Agreement, the Borrower may borrow, repay and
\n reborrow the Revolver B Advances; provided, however, that at no time shall
\n ——– ——-
\n the sum of all outstanding Revolver B Advances exceed the Revolver B
\n Commitment.<\/p>\n
2.02. Making Advances.<\/p>\n
(a Working Line Advances Prior to the Conversion Date, Revolver A
\nAdvances and Revolver B Advances. Each Borrowing of Working Line Advances Prior
\nto the Conversion Date, Revolver A Advances and Revolver B Advances shall be
\nmade upon the written notice of the Borrower, received by Administrative Agent
\nnot later than (i) 12:00 p.m. central standard time three Business Days prior to
\nthe date of the proposed Borrowing, in the case of Advances which are LIBOR
\nAdvances and (ii) 12:00 p.m. central standard time on the date of such
\nBorrowing, in the case of Advances which are Base Advances. Each such notice of
\na Borrowing (a “Borrowing Notice”) shall be by telecopy or telephone, promptly
\nconfirmed by letter, in substantially the form of Exhibit F hereto specifying
\n ———
\ntherein:<\/p>\n
(i) the date of such proposed Borrowing, which shall be a
\n Business Day, and whether such Borrowing will be under the Revolver A Loan,
\n the Revolver B Loan, or, prior to the Conversion Date, the Working Line
\n Loan;<\/p>\n
(ii) the Type of Advances of which the Borrowing is to be
\n comprised;<\/p>\n
(iii) the amount of such proposed Borrowing which, (A) with
\n respect to Advances drawn under (I) the Revolver A Loan, shall not exceed
\n the unused portion of the Revolver A Commitment, (II) the Revolver B Loan,
\n shall not exceed the unused portion of the Revolver B Commitment, and (III)
\n prior to the Conversion Date, the Working Line Loan, shall not exceed the
\n unused portion of the Working Line Commitment and (B) shall (I) in the case
\n of a Borrowing of Base Advances, be in an amount of not less than
\n $2,000,000 or an integral multiple of $1,000,000 in excess thereof (or any
\n lesser amount if such amount is the remaining undrawn portion under the
\n Revolver A Commitment, Revolver B Commitment or Working Line Commitment,
\n respectively), and (II) in the case of a Borrowing of LIBOR Advances, be in
\n an amount of not less than $5,000,000 or an integral multiple of $1,000,000
\n in excess thereof; and<\/p>\n
(iv) if the Borrowing is to be comprised of LIBOR Advances, the
\n duration of the initial Interest Period applicable to such Advances.<\/p>\n
If the Borrowing Notice fails to specify (a) whether such Borrowing is under the
\nRevolver A Loan, the Revolver B Loan or the Working Line Loan, then such
\nBorrowing shall be deemed to be made under the Revolver A Loan or (b) the
\nduration of the initial Interest Period for any Borrowing or Refinancing
\nAdvance, as applicable, comprised of LIBOR Advances, such Interest Period shall
\nbe one month. Administrative Agent shall promptly notify Lenders of each such
\nnotice. Each Lender<\/p>\n
32<\/p>\n
shall, before 1:00 p.m. on the date of each Advance under the Revolver A Loan,
\nthe Revolver B Loan and the Working Line Loan hereunder (other than a
\nRefinancing Advance), make available to Administrative Agent, at its office at
\nBank of America Plaza, 901 Main Street, Dallas, Texas 75202, such Lender’s
\nApplicable Specified Percentage of the aggregate Advances under the respective
\nLoan requested, to be made on that day in immediately available funds.<\/p>\n
(b Swingline Advances. In the case of Swingline Advances, the Borrower
\nshall give the Swingline Bank and the Administrative Agent irrevocable
\ntelephonic notice prior to 12:00 noon, Dallas, Texas time, on the date of any
\nproposed Swingline Advance, provided, however, (i) the Borrower shall deliver
\nwritten notice at least once a week confirming the telephonic notices given by
\nthe Borrower with respect to Swingline Advances during the immediately preceding
\nweek and (ii) that the Borrower’s failure to confirm any telephonic notice in
\nwriting shall not invalidate any notice so given) of its intention to borrow or
\nreborrow a Swingline Advance. Such notice of borrowing shall specify (i) the
\nrequested funding date, which shall be a Business Day, (ii) the amount of the
\nproposed Swingline Advance and (iii) the maturity date of the proposed Swingline
\nAdvance, which shall be no longer than 14 calendar days after the date of the
\nproposed Swingline Advance.<\/p>\n
(c Availability of Funds. Unless any applicable condition specified in
\nArticle IV has not been satisfied, Administrative Agent will make the funds
\npromptly available to the Borrower (other than with respect to a Refinancing
\nAdvance) by either (i) wiring such amounts pursuant to any wiring instructions,
\nor (ii) depositing such amount in the account of the Borrower at the
\nAdministrative Agent, in each case as specified by the Borrower to the
\nAdministrative Agent in writing.<\/p>\n
(d Number of Interest Periods and Maximum Borrowings. After giving
\neffect to any Borrowing, (i) there shall not be more than seven different
\nInterest Periods in effect and (ii) the aggregate principal amount of
\noutstanding Advances under (A) the Revolver A Loan and the Swingline Loan, plus
\nthe sum of the outstanding face amount of the Letters of Credit, and (without
\nduplication) reimbursement obligations under Article III shall not exceed the
\nRevolver A Commitment, (B) the Revolver B Loan shall not exceed the Revolver B
\nCommitment, (C) the Working Line Loan shall not exceed the Working Line
\nCommitment and (D) the Swingline Loan shall not exceed the Swingline Commitment.<\/p>\n
(e Interest Period Limitations. No Interest Period applicable to any
\nAdvance shall extend beyond the Maturity Date. Prior to the Conversion Date, no
\nInterest Period for any Working Line Advance shall extend beyond the Conversion
\nDate, unless the Borrower has elected to exercise its Conversion Option.<\/p>\n
(f Reliance by Administrative Agent. Unless a Lender shall have notified
\nAdministrative Agent prior to the date of any Advance that it will not make
\navailable its Applicable Specified Percentage of any Advance, Administrative
\nAgent may assume that such Lender has made the appropriate amount available in
\naccordance with Section 2.02(a) hereof, and Administrative Agent may, in
\nreliance upon such assumption, make available to the Borrower a corresponding
\namount. If and to the extent any Lender shall not have made such amount
\navailable to Administrative Agent, such Lender and the Borrower severally agree
\nto repay to Administrative Agent immediately on demand such corresponding amount
\ntogether with interest thereon, from the date such amount is<\/p>\n
33<\/p>\n
made available to the Borrower until the date such amount is repaid to
\nAdministrative Agent, at (i) in the case of the Borrower, the Base Rate, and
\n(ii) in the case of such Lender, the Federal Funds Rate.<\/p>\n
(g Failure by Lender to Make Advance. The failure by any Lender to make
\navailable its Applicable Specified Percentage of any Advance hereunder shall not
\nrelieve any other Lender of its obligation, if any, to make available its
\nApplicable Specified Percentage of any Advance. In no event, however, shall any
\nLender be responsible for the failure of any other Lender to make available any
\nportion of any Advance.<\/p>\n
(h Swingline Advances and Facility; Repayment of Swingline Advances with
\nthe Proceeds of Revolver A Advances. The Swingline Bank shall, not later than
\n2:00 p.m., Dallas, Texas time, on the date of any Swingline Advance, deliver to
\nthe Administrative Agent at its address set forth herein, the amount of such
\nSwingline Advance in immediately available funds in accordance with the
\nAdministrative Agent’s instructions. Prior to 2:30 p.m., Dallas, Texas time, on
\nthe date of any Swingline Advance, the Administrative Agent shall, subject to
\nthe conditions set forth in Article IV hereof, disburse the amount made
\navailable to the Administrative Agent by the Swingline Bank by (i) transferring
\nsuch amounts by wire transfer pursuant to the Borrower’s instruction or (ii) in
\nthe absence of such instructions, crediting such amounts to the account of the
\nBorrower maintained with the Administrative Agent. Forthwith upon demand by the
\nSwingline Bank at any time, including after a Default or Event of Default, and
\nin any event upon the making of the direction specified by Section 9.02 hereof
\nto authorize the Administrative Agent to declare the Obligations due and payable
\npursuant to the provisions of Section 9.02 hereof, each Lender, notwithstanding
\n(i) the failure of the Borrower at such time to satisfy each condition specified
\nin Article IV hereof or (ii) any reduction in the Revolver A Commitment, shall
\nmake by 12:00 noon (Dallas, Texas time) on the first Business Day following
\nreceipt by such Lender of notice from the Swingline Bank, a Revolver A Advance
\nwhich is a Base Rate Advance in an amount equal to the product of (i) the
\nRevolver A Specified Percentage of such Lender times (ii) the aggregate
\noutstanding principal amount of the Swingline Advances (a “Mandatory
\nBorrowing”). The proceeds of such Revolver A Advances shall be applied by the
\nAdministrative Agent to repay the outstanding Swingline Advances. Each Lender
\nhereby irrevocably agrees to make a Revolver A Advance pursuant to each
\nMandatory Borrowing in the amount and in the manner specified in the preceding
\nsentence and on the date specified in writing by the Swingline Bank
\nnotwithstanding (i) that the amount of the Mandatory Borrowing may not comply
\nwith any minimum amount for Borrowings otherwise required hereunder, (ii)
\nwhether any conditions specified in Article IV hereof are then satisfied, (iii)
\nwhether a Default or an Event of Default then exists, (iv) the date of such
\nMandatory Borrowing and (v) the aggregate amount of the Revolver A Commitment at
\nsuch time.<\/p>\n
If any Mandatory Borrowing cannot for any reason be made on the date
\notherwise required above (including, without limitation, as a result of the
\ncommencement of a proceeding under the Bankruptcy Code with respect to the
\nBorrower), each Lender hereby agrees that it shall forthwith purchase (as of the
\ndate on which the Mandatory Borrowing would otherwise have occurred, but
\nadjusted for any payments received from the Borrower on or after such date and
\nprior to such purchase) from the Swingline Bank such participations in the
\noutstanding Swingline Advances as shall be necessary to cause the Lenders to
\nshare in such Swingline Advances ratably based upon its Revolver A Specified
\nPercentage of the Revolver A Commitment (determined before giving effect to any
\ntermination of the Revolver A Commitment); provided that (i) all interest
\n ————-
\npayable on the Swingline Advance shall be for the account of the Swingline Bank
\nuntil the date as of which the respective participation is required to be
\npurchased and, to the extent attributable to the purchased<\/p>\n
34<\/p>\n
participation, shall be payable to the participating Lender from and after such
\ndate and (ii) at the time any purchase of participations pursuant to this
\nsentence is actually made, the purchasing Lender shall be required to pay the
\nSwingline Bank interest on the principal amount of the participation purchased
\nfor each day from and including the day upon which the Mandatory Borrowing would
\notherwise have occurred to but excluding the date of payment for such
\nparticipation, at the overnight Federal Funds Rate for the first five days and
\nat the rate otherwise applicable to Revolver A Advances hereunder for each day
\nthereafter.<\/p>\n
(i) Indemnification. The Borrower shall indemnify each Lender against any
\nConsequential Loss incurred by each Lender as a result of (i) any failure to
\nfulfill, on or before the date specified for an Advance, the conditions to the
\nAdvance set forth herein (including a Refinancing Advance) or (ii) the
\nBorrower’s requesting that an Advance (including a Refinancing Advance) not be
\nmade on the date specified in the Borrowing Notice.<\/p>\n
2.03. Evidence of Debt for Borrowed Money.
\n (a) The Advances made by each Lender under the Revolver A Loan shall be
\nevidenced by a Revolver A Note in the amount of such Lender’s Revolver A
\nSpecified Percentage of the Revolver A Commitment.<\/p>\n
(b) The Advances made by each Lender under the Revolver B Loan shall be
\nevidenced by a Revolver B Note in the amount of such Lender’s Revolver B
\nSpecified Percentage of the Revolver B Commitment.<\/p>\n
(c) The Advances made by each Lender under the Working Line Loan shall be
\nevidenced by a Working Line Note in the amount of such Lender’s Working Line
\nSpecified Percentage of the Working Line Commitment.<\/p>\n
(d) The Swingline Advances made by the Swingline Bank shall be evidenced by
\na Swingline Note in the amount of $25,000,000.<\/p>\n
(e) Administrative Agent’s and each Lender’s records shall be presumptive
\nevidence as to amounts owed Administrative Agent and such Lender under the Notes
\nand this Agreement.<\/p>\n
2.04. Optional Prepayments.<\/p>\n
(a) The Borrower may, upon at least two Business Days prior written notice
\nto Administrative Agent stating the proposed date and aggregate principal amount
\nof the prepayment, prepay the outstanding principal amount of any Advances in
\nwhole or in part, together with accrued interest to the date of such prepayment
\non the principal amount of LIBOR Advances prepaid without premium or penalty
\nother than any Consequential Loss; provided, however, that in the case of a
\n ——– ——-
\nprepayment of a Base Advance, the notice of prepayment may be given by telephone
\nby 12:00 p.m. central standard time on the date of prepayment. Each partial
\nprepayment shall, in the case of Base Advances under the Loans, be in an
\naggregate principal amount of not less than $100,000 or a larger integral
\nmultiple of $50,000 in excess thereof and, in the case of LIBOR Advances under
\nthe Loans, be in an aggregate principal amount of not less than $500,000 or a
\nlarger integral multiple of $100,000 in excess thereof. If any notice of
\nprepayment is given, the principal amount stated therein, together with accrued
\ninterest on the amount of LIBOR Advances prepaid and the amount, if any, due
\nunder Section 2.12 and Section 2.14 hereof, shall be due and payable on the date<\/p>\n
35<\/p>\n
specified in such notice unless the Borrower revokes its notice, provided that,
\n ————-
\nif the Borrower revokes its notice of prepayment prior to such date specified,
\nthe Borrower shall reimburse the Administrative Agent for the account of all
\nLenders for all Consequential Losses suffered by each Lender as a result of the
\nBorrower’s failure to prepay. A certificate of each Lender claiming
\ncompensation under this Section 2.04(a), setting forth in reasonable detail the
\ncalculation of the additional amount or amounts to be paid to it hereunder shall
\nbe presumptive evidence of the validity of such claim.<\/p>\n
(b) The application of prepayments made under this Section 2.04 as between
\nthe Swingline Loan, the Revolver A Loan, the Revolver B Loan and the Working
\nLine Loan shall be determined in accordance with the provisions of Section
\n2.13(f) hereof. All prepayments made pursuant to this Section 2.04 (other than
\nto the Swingline Loan) shall be first applied to Base Advances then to LIBOR
\nAdvances, all without premium or penalty, except the Borrower must pay together
\nwith any such prepayments, any Consequential Losses. After (i) the Conversion
\nDate, and (ii) the Option Date (if the Borrower and the SuperMajority Lenders
\ndid not agree to an Extension Option), Working Line Advances prepaid hereunder
\nmay not be reborrowed.<\/p>\n
2.05. Mandatory Prepayments.<\/p>\n
(a) Asset Sales and Investments. To the extent that the Borrower or any of
\nthe Restricted Subsidiaries consummates any Disposition of any asset or any of
\nits Properties except (i) Dispositions consummated in accordance with the terms
\nof Section 8.05(a)(i) hereof and (ii) if there exists no Default or Event of
\nDefault both before and after giving effect to any such Disposition,
\nDispositions consummated in accordance with the other terms and provisions of
\nSection 8.05(a) hereof (other than Section 8.05(a)(i) hereof), then the Borrower
\nshall immediately use or cause to be used 100% of the Net Proceeds of any such
\ntransaction received by or allocated to the Borrower or such Restricted
\nSubsidiary as the case may be, to repay the Obligations under the Loans except
\nto the extent that such Net Proceeds are ultimately reinvested within a 12 month
\nperiod after any such asset Disposition, in assets used in the
\nTelecommunications Business, including, without limitation, the internet,
\ninternet protocol, web hosting or electronic commerce of the Borrower or any of
\nthe Wholly Owned Restricted Subsidiaries, acquisitions permitted under Section
\n8.18 hereof or Investments permitted under Section 8.04 hereof.<\/p>\n
(b) Mandatory Prepayments, Generally. The application of prepayments made
\nunder this Section 2.05 as between the Swingline Loan, the Revolver A Loan, the
\nRevolver B Loan and the Working Line Loan shall be determined in accordance with
\nthe provisions of Section 2.13(f) hereof. All prepayments made pursuant to this
\nSection 2.05 (other than to the Swingline Loan) shall be first applied to Base
\nAdvances then to LIBOR Advances, all without premium or penalty, except the
\nBorrower must pay together with such prepayments, any accrued interest on LIBOR
\nAdvances repaid by such prepayments and any Consequential Losses. After (i) the
\nConversion Date, and (ii) the Option Date (if the Borrower and the SuperMajority
\nLenders did not agree to an Extension Option), Working Line Advances prepaid
\nhereunder may not be reborrowed.<\/p>\n
2.06. Repayment.<\/p>\n
(a) LIBOR Advances. The principal amount of each LIBOR Advance is due and
\npayable on the last day of the applicable Interest Period, which principal
\npayment may be made by means of a Refinancing Advance in accordance with the
\nterms of Section 2.09 hereof (and subject to the other provisions of this
\nAgreement).<\/p>\n
36<\/p>\n
(b) Commitment Reduction. On the date of a reduction of any of the
\nCommitments pursuant to Section 2.11 hereof, the aggregate amount of outstanding
\n(i) Revolver A Advances in excess of the Revolver A Commitment as reduced, (ii)
\nRevolver B Advances in excess of the Revolver B Commitment as reduced, and (iii)
\nprior to the Conversion Date, Working Line Advances in excess of the Working
\nLine Commitment shall in each case be immediately due and payable. Each such
\nprincipal repayments may not be made by means of Refinancing Advances.<\/p>\n
(c) Option Date and Extension Final Maturity. The aggregate outstanding
\namount of the Working Line Advances shall be due and payable in full on the
\nOption Date, provided that, notwithstanding the foregoing, on the Option Date if
\n ————-
\nthe Borrower and the SuperMajority Lenders have agreed to an Extension Option in
\naccordance with the terms of Section 2.16 hereof, then such extended portion of
\nthe Working Line Loan shall be due and payable in full on the Extension Final
\nMaturity. Any portion of the Working Line Loan not extended in accordance with
\nthe terms of Section 2.16(a) hereof shall be due and payable on the Option Date.<\/p>\n
(d) Conversion Date. If the Borrower and the Lenders have agreed to an
\nExtension Option, the aggregate outstanding amount of the Working Line Advances
\nshall be due and payable in full on the Extension Final Maturity, provided that,
\n ————-
\nnotwithstanding the foregoing, on the Extension Final Maturity, if the Borrower
\nand the Lenders have agreed to a Conversion Option, then the Working Line Loan
\nshall be due and payable in full on the Maturity Date.<\/p>\n
(e) Maturity Date. All outstanding Advances under the Loans (other than
\nthe Working Line Loan) and all other Obligations shall be due and payable in
\nfull on the Maturity Date.<\/p>\n
(f) Repayments, Generally. All outstanding Advances (other than Advances
\nunder the Working Line Loan) and other Obligations shall be due and payable in
\nfull on the Maturity Date. Any repayments made pursuant to this Section shall
\nbe without premium or penalty, except the Borrower must pay together with any
\nsuch prepayments, any Consequential Losses. The application of all repayments
\nas between Loans under this Section 2.06 shall be determined in accordance with
\nthe terms of Section 2.13(f). Except for the Swingline Loan, repayment of
\nAdvances shall be applied to Base Advances first, and then to LIBOR Advances.
\nAfter (i) the Conversion Date, and (ii) the Option Date (if the Borrower and the
\nSuperMajority Lenders did not agree to an Extension Option), Working Line
\nAdvances prepaid hereunder may not be reborrowed.<\/p>\n
2.07. Interest.<\/p>\n
(a) Revolver A Advances, Working Line Advances and Revolver B Advances.
\nSubject to Section 2.08 and Section 11.08 hereof, the Borrower shall pay
\ninterest on the unpaid principal amount of each Advance except Swingline
\nAdvances from the date of such Advance until such principal shall be paid in
\nfull, at either the Base Rate or the LIBOR Rate, as set forth in subsection (i)
\nor (ii) below, as selected by the Borrower in accordance with Section 2.02
\nhereof and as follows:<\/p>\n
(i) Base Advances. Base Advances shall bear interest at a rate per
\n annum equal to the Base Rate as in effect from time to time. If the amount
\n of interest payable in respect of any interest computation period is
\n reduced to the Highest Lawful Rate and the amount of interest payable in
\n respect of any subsequent interest computation period would be less than
\n the Maximum Amount, then the amount of interest payable in respect of such
\n subsequent<\/p>\n
37<\/p>\n
interest computation period shall be automatically increased to
\n the Maximum Amount; provided that at no time shall the aggregate amount by
\n ————-
\n which interest paid has been increased pursuant to this sentence exceed the
\n aggregate amount by which interest has been reduced pursuant to this
\n sentence.<\/p>\n
(ii) LIBOR Advances. LIBOR Advances shall bear interest at the rate
\n per annum equal to the LIBOR Rate applicable to such Advance.<\/p>\n
(iii) Payment Dates. Accrued and unpaid interest on Base Advances
\n shall be paid quarterly in arrears on each Quarterly Date and on the
\n Maturity Date. Accrued and unpaid interest in respect of each LIBOR
\n Advance shall be paid on the last day of the appropriate Interest Period,
\n on the Maturity Date and on the date of any prepayment or repayment of such
\n Advance; provided, however, that if any Interest Period for a LIBOR Advance
\n ——– ——-
\n exceeds three months, interest shall also be paid on the date which falls
\n three months after the beginning of such Interest Period and each three
\n months thereafter until such Interest Period expires.<\/p>\n
(b) Swingline Advances. The Borrower shall pay interest on the outstanding
\nprincipal amount of such Swingline Advance, from the date such Swingline Advance
\nis made until it is due (whether at maturity, by reason of acceleration or
\notherwise) and repaid, at an interest rate per annum equal to a fixed money
\nmarket interest rate (plus the Applicable Margin for LIBOR Advances) quoted by
\nthe Swingline Bank and agreed to by the Borrower for such Swingline Advance, but
\nin no event higher than the Highest Lawful Rate. Accrued and unpaid interest
\non Swingline Advances shall be paid quarterly in arrears on each Quarterly Date
\nand on the Maturity Date.<\/p>\n
2.08. Default Interest. During the continuation of any Event of
\nDefault, the Borrower shall pay, on demand, interest (after as well as before
\njudgment to the extent permitted by Law) on the principal amount of all Advances
\noutstanding and on all other Obligations due and unpaid hereunder at a per annum
\nrate equal to (a) until, for each LIBOR Advance in existence at such time, the
\nexpiration of the applicable Interest Period relating to such LIBOR Advance, the
\nlesser of (i) the Highest Lawful Rate and (ii) the applicable LIBOR Rate for
\nsuch LIBOR Advance plus 2% and (b) for each Base Advance, the lesser of the (i)
\nthe Highest Lawful Rate and (ii) the Base Rate plus 2%. LIBOR Advances shall
\nnot be available for selection by the Borrower during the continuance of an
\nEvent of Default.<\/p>\n
2.09. Continuation and Conversion Elections.<\/p>\n
(a) The Borrower may upon irrevocable written notice to Administrative
\nAgent and subject to the terms of this Agreement:<\/p>\n
(i) elect to convert, on any Business Day, all or any portion of
\n outstanding Advances which are Base Advances (in an aggregate amount not
\n less than $500,000 or an integral multiple of $100,000 in excess thereof)
\n into LIBOR Advances; or<\/p>\n
(ii) elect to convert at the end of any Interest Period therefor,
\n all or any portion of outstanding Advances which are LIBOR Advances
\n comprised in the same Borrowing (in an aggregate amount not less than
\n $100,000 or an integral multiple of $50,000 in excess thereof) into Base
\n Advances; or<\/p>\n
38<\/p>\n
(iii) elect to continue, at the end of any Interest Period
\n therefor, any Advances which are LIBOR Advances;<\/p>\n
provided, however, that if the aggregate amount of outstanding LIBOR Advances
\n——– ——-
\ncomprised in the same Borrowing shall have been reduced as a result of any
\npayment, prepayment or conversion of part thereof to an amount less than
\n$500,000, the LIBOR Advances comprised in such Borrowing shall automatically
\nconvert into Base Advances at the end of each respective Interest Period.<\/p>\n
(b) The Borrower shall deliver a notice of conversion or continuation (a
\n“Conversion or Continuation Notice”), in substantially the form of Exhibit G
\n ———
\nhereto, to Administrative Agent not later than (i) 12:00 p.m. central standard
\ntime three Business Days prior to the proposed date of conversion or
\ncontinuation, if the Advances (or any portion of either thereof) are to be
\nconverted into or continued as LIBOR Advances; and (ii) 12:00 p.m. central
\nstandard time on the Business Day of the proposed conversion, if the Advances
\n(or any portion thereof) are to be converted into Base Advances.<\/p>\n
Each such Conversion or Continuation Notice shall be by telecopy or
\ntelephone, promptly confirmed by letter, specifying therein:<\/p>\n
(i) the proposed date of conversion or continuation;<\/p>\n
(ii) the aggregate amount of Advances to be converted or
\n continued, and whether the Advances are Revolver A Advances, Revolver B
\n Advances or Working Line Advances;<\/p>\n
(iii) the nature of the proposed conversion or continuation; and<\/p>\n
(iv) the duration of the applicable Interest Period.<\/p>\n
(c) If, upon the expiration of any Interest Period applicable to LIBOR
\nAdvances, the Borrower shall have failed to select a new Interest Period to be
\napplicable to such LIBOR Advances or if an Event of Default shall then have
\noccurred and be continuing, the Borrower shall be deemed to have elected to
\nconvert such LIBOR Advances into Base Advances effective as of the expiration
\ndate of such current Interest Period.<\/p>\n
(d) Notwithstanding any other provision contained in this Agreement, after
\ngiving effect to any conversion or continuation of any Advances, there shall not
\nbe outstanding Advances with more than seven different Interest Periods.<\/p>\n
2.10. Fees.<\/p>\n
(a) Commitment Fees.<\/p>\n
(i) Revolver A Commitment Fee. Subject to Section 11.08 hereof, the
\n Borrower shall pay to Administrative Agent for the account of Lenders pro
\n rata in accordance with each Lender’s Revolver A Specified Percentage, a
\n commitment fee equal to the sum of the Applicable Commitment Fee Percentage
\n per annum on the average daily amount of the<\/p>\n
39<\/p>\n
difference between the Revolver A Commitment and the sum of (A) all
\n outstanding Revolver A Advances and all outstanding Swingline Advances and
\n (B) the face amount of all outstanding Letters of Credit (the “Revolver A
\n Commitment Fee”).<\/p>\n
(ii) Working Line Commitment Fee. Subject to Section 11.08 hereof,
\n the Borrower shall pay to Administrative Agent for the account of Lenders
\n pro rata in accordance with each Lender’s Working Line Specified
\n Percentage, a commitment fee equal to the sum of the Applicable Commitment
\n Fee Percentage per annum on the average daily amount of the difference
\n between the Working Line Commitment and the sum of all outstanding Working
\n Line Advances (the “Working Line Commitment Fee”).<\/p>\n
(iii) Revolver B Commitment Fee. Subject to Section 11.08 hereof,
\n the Borrower shall pay to Administrative Agent for the account of Lenders
\n pro rata in accordance with each Lender’s Revolver B Specified Percentage,
\n a commitment fee equal to the sum of the Applicable Commitment Fee
\n Percentage per annum on the average daily amount of the difference between
\n the Revolver B Commitment and the sum of all outstanding Revolver B
\n Advances (the “Revolver B Commitment Fee”).<\/p>\n
(iv) Commitment Fees, Generally. Each Commitment Fee set forth in
\n subsections (i) through (iii) above shall be payable in arrears on each
\n Quarterly Date commencing with the first Quarterly Date after the Original
\n Closing Date, and continuing until the Maturity Date.<\/p>\n
(b) Other Fees. Borrower shall pay to Administrative Agent and the Lenders
\nsuch other fees as set forth in any Fee Letter addressed to the Administrative
\nAgent or any Lender.<\/p>\n
2.11. Reduction of Commitments.<\/p>\n
(a) Mandatory Termination of the Revolver A Commitment and the Revolver B
\nCommitment. The Revolver A Commitment and the Revolver B Commitment shall both
\nautomatically be reduced to zero and terminate on the Maturity Date.<\/p>\n
(b) Mandatory Reduction of Commitment Due to Asset Sales. The Commitment
\nshall be reduced immediately and automatically in an amount equal to any amount
\nthat would be required by Section 2.05(a) hereof to prepay the Loans (regardless
\nof whether there are any outstanding Obligations under the Loans) as a result
\nof any Dispositions of assets and Properties of the Borrower or any of the
\nRestricted Subsidiaries (this provision in and of itself not constituting
\npermission to effectuate any asset Dispositions), provided that (i) so long as
\n ————-
\nthere exists no Event of Default both immediately before and after giving effect
\nto such asset Dispositions and both immediately before and after any permitted
\nreinvestment and (ii) if a Default exists after giving effect to any such
\nDisposition, so long as such Default does not ultimately become an Event of
\nDefault, the Commitment shall not be automatically and immediately reduced if
\nthe Borrower in good faith intends to reinvest, and such proceeds are ultimately
\nreinvested within a 12 month period after any such asset Disposition, in assets
\nused in the Telecommunications Business, including, without limitation, the
\ninternet, internet protocol, web hosting or electronic commerce of the Borrower
\nor any of the Wholly Owned Restricted Subsidiaries, acquisitions permitted under
\nSection 8.18 hereof or Investments permitted under Section 8.04 hereof.<\/p>\n
40<\/p>\n
(c) Option Date or Extension Final Maturity. (i) If the Borrower and the
\nSuperMajority Lenders have not agreed to extend the Working Line Loan final
\nmaturity in accordance with the Extension Option and the Borrower has not
\nexercised the Conversion Option in accordance with the terms of Section 2.16,
\nthen the Working Line Commitment shall automatically be reduced to zero on the
\nOption Date. (ii) If the Borrower and the SuperMajority Lenders exercised the
\nExtension Option, then the Working Line Commitment shall automatically be
\nreduced to zero on the Extension Final Maturity.<\/p>\n
(d) Specified Change of Control. If any Specified Change of Control shall
\nhave occurred and such Specified Change of Control has caused a Repayment Event,
\neach of the Revolver A Commitment, the Revolver B Commitment, the Swingline
\nCommitment and the Working Line Commitment shall immediately and automatically
\nbe reduced to zero.<\/p>\n
(e) Voluntary Commitment Reductions. The Borrower may from time to time,
\nupon notice to Administrative Agent not later than 1:00 p.m., three Business
\nDays in advance, terminate in whole or reduce in part the Commitment, as
\ndesignated by the Borrower; provided, however, that the Borrower shall pay the
\n ——– ——-
\naccrued interest and the applicable accrued Commitment Fee on the amount of such
\nreduction and all amounts due, and any partial reduction shall be in an
\naggregate amount which is an integral multiple of $5,000,000.<\/p>\n
(f) Commitment Reduction and Repayments, Generally. Application of both
\nvoluntary and mandatory reductions of the Commitments as between the Revolver A
\nCommitment, the Working Line Commitment and the Revolver B Commitment shall be
\ndetermined in accordance with the terms of Section 2.13(f) hereof. To the extent
\noutstanding Revolver A Advances exceed the Revolver A Commitment after any
\nreduction thereof, the Borrower shall repay, on the date of such reduction, any
\nsuch excess amount and all accrued interest thereon, the applicable Revolver A
\nCommitment Fee on the amount of such reduction and all amounts due. To the
\nextent outstanding Revolver B Advances exceed the Revolver B Commitment after
\nany reduction thereof, the Borrower shall repay, on the date of such reduction,
\nany such excess amount and all accrued interest thereon, the applicable Revolver
\nB Commitment Fee on the amount of such reduction and all amounts due. Prior to
\nthe Conversion Date, to the extent outstanding Working Line Advances exceed the
\nWorking Line Commitment after any reduction thereof, the Borrower shall repay,
\non the date of such reduction, any such excess amount and all accrued interest
\nthereon, the applicable Working Line Commitment Fee on the amount of such
\nreduction and all amounts due. Once reduced or terminated, none of the Revolver
\nA Commitment, the Working Line Commitment or the Revolver B Commitment may be
\nincreased or reinstated. No reduction of the Commitment, either voluntary or
\nmandatory shall relieve or alter the mandatory reduction and termination of the
\nRevolver A Commitment, the Working Line Commitment and the Revolver B Commitment
\npursuant to this Section 2.11.<\/p>\n
2.12. Funding Losses. The Borrower may prepay the outstanding principal
\nbalance of any Advance, in full at any time or in part from time to time in
\naccordance with the terms of Section 2.04 hereof, provided, that as a condition
\n ——–
\nprecedent to the Borrower’s right to make, and any Lender’s obligation to
\naccept, any such prepayment, each such prepayment shall be in the amount of 100%
\nof the principal amount to be prepaid, plus, with respect to LIBOR Advances,
\naccrued unpaid interest thereon to the date of prepayment, plus any other sums
\nwhich have become due to Administrative Agent and Lenders under the Loan Papers
\non or before the prepayment date but have not been paid, plus (subject to
\nSection 11.08 hereof) any Consequential Loss.<\/p>\n
41<\/p>\n
The Borrower agrees that each Lender is not obligated to actually reinvest
\nthe amount prepaid in any specific obligation as a condition to receiving any
\nConsequential Loss, or otherwise.<\/p>\n
2.13. Computations and Manner of Payments.<\/p>\n
(a) The Borrower shall make each payment hereunder and under the other Loan
\nPapers not later than 1:00 p.m. on the day when due in same day funds (by wire
\ntransfer or otherwise) to Administrative Agent, for the account of Lenders
\nunless otherwise specifically provided herein, at Administrative Agent’s office
\nat Bank of America Plaza, 901 Main Street, Dallas, Texas 75202, referencing
\nQwest Communications International Inc. No later than the end of each day when
\neach payment hereunder is made, the Borrower shall notify Loan Operations at
\n(214) 508-9192 or such other Person as Administrative Agent may from time to
\ntime specify.<\/p>\n
(b) Unless Administrative Agent shall have received notice from the
\nBorrower prior to the date on which any payment is due hereunder that the
\nBorrower will not make payment in full, Administrative Agent may assume that
\nsuch payment is so made on such date and may, in reliance upon such assumption,
\nmake distributions to Lenders. If and to the extent the Borrower shall not have
\nmade such payment in full, each Lender shall repay to Administrative Agent
\nforthwith on demand the applicable amount distributed, together with interest
\nthereon at the Federal Funds Rate, from the date of distribution until the date
\nof repayment. The Borrower hereby authorizes each Lender, if and to the extent
\npayment is not made when due hereunder, to charge the amount so due against any
\naccount of the Borrower with such Lender.<\/p>\n
(c) Subject to Section 11.08 hereof, interest on LIBOR Advances under the
\nLoan Papers shall be calculated on the basis of actual days elapsed but computed
\nas if each year consisted of 360 days. Subject to Section 11.08 hereof,
\ninterest on Base Advances, the Commitment Fee and other amounts due under the
\nLoan Papers shall be calculated on the basis of actual days elapsed but computed
\nas if each year consisted of 365 or 366 days, as applicable. Such computations
\nshall be made including the first day but excluding the last day occurring in
\nthe period for which such interest, payment or Commitment Fee is payable. Each
\ndetermination by Administrative Agent or a Lender of an interest rate, fee or
\ncommission hereunder shall be presumptive evidence of the validity of such
\nclaim. All payments under the Loan Papers shall be made in United States
\ndollars, and without setoff, counterclaim, or other defense.<\/p>\n
(d) Whenever any payment to be made hereunder or under any other Loan
\nPapers shall be stated to be due on a day other than a Business Day, such
\npayment shall be made on the next succeeding Business Day, and such extension of
\ntime shall be included in the computation of interest or fees, if applicable;<\/p>\n
provided, however, if such extension would cause payment of interest on or
\n——– ——-
\nprincipal of LIBOR Advances to be made in the next following calendar month,
\nsuch payment shall be made on the next preceding Business Day.<\/p>\n
(e) Reference to any particular index or reference rate for determining any
\napplicable interest rate under this Agreement is for purposes of calculating the
\ninterest due and is not intended as and shall not be construed as requiring any
\nLender to actually obtain funds for any Advance at any particular index or
\nreference rate.<\/p>\n
42<\/p>\n
(f) Notwithstanding anything to the contrary herein or in any Loan Paper,
\nto the extent the Borrower makes any voluntary prepayment, or voluntary
\nreduction of the Commitment under Section 2.04 or 2.11 hereof, or any mandatory
\nprepayment, or mandatory reduction of the Commitment under Section 2.05 or 2.11
\nhereof, then such reduction of Commitment or such prepayment shall be applied as
\nfollows:<\/p>\n
(i) So Long as there Exists No Payment Default or Event of Default.<\/p>\n
(A) Repayments and Prepayments. So long as there exists no
\n Default under Section 9.01(a) hereof or any Event of Default, all
\n voluntary and mandatory repayments and prepayments shall be applied as
\n directed by the Borrower, and in the absence of direction by the
\n Borrower, shall be deemed to repay and prepay (1) the Swingline
\n Advances until all the outstandings under the Swingline Loan have been
\n paid in full, (2) the Revolver B Advances until all the outstandings
\n under the Revolver B Loan have been repaid in full, then (3) (only if
\n the date such payment is received is prior to the Conversion Date),
\n the Working Line Loan until all the outstandings under the Working
\n Line Loan have been repaid in full, then (4) the Revolver A Loan until
\n all the outstandings under the Revolver A Loan have been repaid in
\n full, then (5) (only is the date such payment is received is after the
\n Conversion Date), the Working Line Loan, until all outstandings under
\n the Working Line loan have been repaid in full, and then (6) all
\n remaining outstanding and unpaid Obligations; and<\/p>\n
(B) Commitment Reductions. So long as there exists no Default
\n under Section 9.01(a) hereof or any Event of Default, all voluntary
\n and mandatory Commitment reductions shall be applied as directed by
\n the Borrower, and in the absence of direction by the Borrower, shall
\n be deemed to reduce, respectively, (1) the Revolver B Commitment until
\n the Revolver B Commitment has been reduced to zero, then (2) if prior
\n to the Conversion Date, the Working Line Commitment until the Working
\n Line Commitment has been reduced to zero, then (3) the Revolver A
\n Commitment until the Revolver A Commitment has been reduced to zero.<\/p>\n
(ii) During the Existence of a Payment Default or Event of Default.<\/p>\n
(A) Repayments and Prepayments. So long as there exists a
\n Default under Section 9.01(a) hereof or any Event of Default, all
\n mandatory and voluntary prepayments shall be applied to first to
\n Advances outstanding under the Swingline Loan, and secondly to the
\n Revolver B Loan, the Revolver A Loan and the Working Line Loan, pro
\n rata, until the Advances outstanding under each of the Revolver B
\n Loan, the Revolver A Loan and the Working Line Loan have been repaid
\n in full, and then to all remaining outstanding Obligations.<\/p>\n
(B) Commitment Reductions. So long as there exists a Default
\n under Section 9.01(a) hereof or any Event of Default, all mandatory
\n and voluntary Commitment reductions shall be applied to the Revolver A
\n Commitment, the Revolver B Commitment and, if prior to the Conversion
\n Date to the Working Line Commitment, pro rata.<\/p>\n
43<\/p>\n
(g) At all times prior to the Lenders making a Revolver A Advance pursuant
\nto Section 2.02(h) hereof, the Administrative Agent shall distribute all
\npayments in respect of the Swingline Advances to the Swingline Bank. At such
\ntime, if any, that the Lenders make a Revolver A Advance pursuant to Section
\n2.02(h) hereof, the Administrative Agent shall distribute all payments in
\nrespect of the Swingline Advances to the Lenders in accordance with the
\nrespective Revolver A Specified Percentages.<\/p>\n
2.14. Yield Protection; Changed Circumstances.<\/p>\n
(a) If any Lender determines that either (i) the adoption of any Applicable
\nLaw, rule, regulation or guideline regarding capital adequacy and applicable to
\ncommercial banks or financial institutions generally or any change therein, or
\nany change, after the date hereof, in the interpretation or administration
\nthereof by any Tribunal, central bank or comparable agency charged with the
\ninterpretation or administration thereof, or (ii) compliance by any Lender (or
\nLending Office of any Lender) with any request or directive applicable to
\ncommercial banks or financial institutions generally regarding capital adequacy
\n(whether or not having the force of law) of any such authority, central bank or
\ncomparable agency has the effect of reducing the rate of return on such Lender’s
\ncapital as a consequence of its obligations hereunder to a level below that
\nwhich such Lender could have achieved but for such adoption, change or
\ncompliance (taking into consideration such Lender’s policies with respect to
\ncapital adequacy) by an amount reasonably deemed by such Lender to be material,
\nthen from time to time, within fifteen days after demand by such Lender, the
\nBorrower shall pay to such Lender such additional amount or amounts as will
\nadequately compensate such Lender for such reduction. Each Lender will notify
\nthe Borrower of any event occurring after the date of this Agreement which will
\nentitle such Lender to compensation pursuant to this Section 2.14(a) as promptly
\nas practicable after such Lender obtains actual knowledge of such event;
\nprovided, no Lender shall be liable for its failure or the failure of any other
\n——–
\nLender to provide such notification. A certificate of such Lender claiming
\ncompensation under this Section 2.14(a), setting forth in reasonable detail the
\ncalculation of the additional amount or amounts to be paid to it hereunder shall
\nbe presumptive evidence of the validity of such claim. If such Lender demands
\ncompensation under this Section 2.14(a), the Borrower may at any time, on at
\nleast five Business Days’ prior notice to such Lender (i) repay in full the then
\noutstanding principal amount of LIBOR Advances, of such Lender, together with
\naccrued interest thereon, or (ii) convert the LIBOR Advances to Base Advances in
\naccordance with the provisions of this Agreement; provided, however, that the
\n ——– ——-
\nBorrower shall be liable for the Consequential Loss arising pursuant to those
\nactions.<\/p>\n
(b) If, after the date hereof, any Tribunal, central bank or other
\ncomparable authority, at any time imposes, modifies or deems applicable any
\nreserve (including, without limitation, any imposed by the Board of Governors of
\nthe Federal Reserve System), special deposit or similar requirement against
\nassets of, deposits with or for the amount of, or credit extended by, any
\nLender, or imposes on any Lender any other condition affecting a LIBOR Advance,
\nthe Notes, or its obligation to make a LIBOR Advance, or imposes on any Lender
\nany other condition affecting a Letter of Credit; and the result of any of the
\nforegoing is to increase the cost to such Lender of making or maintaining its
\nLetter of Credit, LIBOR Advances, or to reduce the amount of any sum received or
\nreceivable by such Lender under this Agreement or under the Notes, the Letters
\nof Credit or reimbursement obligations by an amount deemed by such Lender, to be
\nmaterial, then, within five days after demand by such Lender, the Borrower shall
\n —-
\npay to such Lender such additional amount or amounts as will compensate such
\nLender for such increased cost or reduction. Each Lender will<\/p>\n
44<\/p>\n
(i) notify the Borrower of any event occurring after the date of this Agreement
\nthat entitles such Lender to compensation pursuant to this Section 2.14(b), as
\npromptly as practicable after such Lender obtains actual knowledge of the event;
\nprovided, no Lender shall be liable for its failure or the failure of any other
\n——–
\nLender to provide such notification and (ii) use good faith and reasonable
\nefforts to designate a different Lending Office for LIBOR Advances, of such
\nLender if the designation will avoid the need for, or reduce the amount of, the
\ncompensation and will not, in the sole opinion of such Lender, be
\ndisadvantageous to such Lender. A certificate of such Lender claiming
\ncompensation under this Section 2.14(b), setting forth in reasonable detail the
\ncomputation of the additional amount or amounts to be paid to it hereunder shall
\nbe presumptive evidence of the validity of such claim. If such Lender demands
\ncompensation under this Section 2.14(b), the Borrower may at any time, on at
\nleast five Business Days’ prior notice to such Lender (i) repay in full the then
\noutstanding principal amount of LIBOR Advances, of such Lender, together with
\naccrued interest thereon, or (ii) convert the LIBOR Advances to Base Advances in
\naccordance with the provisions of this Agreement; provided, however, that the
\n ——– ——-
\nBorrower shall be liable for the Consequential Loss arising pursuant to those
\nactions.<\/p>\n
(c) Notwithstanding any other provision of this Agreement, if the
\nintroduction of or any change in or in the interpretation or administration of
\nany Law shall make it unlawful, or any central bank or other Tribunal shall
\nassert that it is unlawful, for a Lender to perform its obligations hereunder to
\nissue or maintain Letters of Credit, make LIBOR Advances or to continue to fund
\nor maintain LIBOR Advances hereunder, then, on notice thereof and demand
\ntherefor by such Lender to the Borrower, (i) each LIBOR Advance will
\nautomatically, upon such demand, convert into a Base Advance, (ii) the
\nobligation of such Lender to make, or to convert Advances into, LIBOR Advances
\nshall be suspended until such Lender notifies Administrative Agent and the
\nBorrower that such Lender has determined that the circumstances causing such
\nsuspension no longer exist, and (iii) the obligation of such Lender to make or
\nmaintain Letters of Credit shall be suspended until such Lender notifies
\nAdministrative Agent and the Borrower that such Lender has determined that the
\ncircumstances causing such suspension no longer exist.<\/p>\n
(d) Upon the occurrence and during the continuance of any Default or Event
\nof Default, (i) each LIBOR Advance will automatically, on the last day of the
\nthen existing Interest Period therefor, convert into a Base Advance and (ii) the
\nobligation of each Lender to make, or to convert Advances into, LIBOR Advances
\nshall be suspended.<\/p>\n
(e) If any Lender notifies Administrative Agent that the LIBOR Rate for any
\nInterest Period for any LIBOR Advances will not adequately reflect the cost to
\nsuch Lender of making, funding or maintaining LIBOR Advances for such Interest
\nPeriod, Administrative Agent shall promptly so notify the Borrower, whereupon
\n(i) each such LIBOR Advance will automatically, on the last day of the then
\nexisting Interest Period therefor, convert into a Base Advance and (ii) the
\nobligation of such Lender to make, or to convert Advances into, LIBOR Advances
\nshall be suspended until such Lender notifies Administrative Agent that such
\nLender has determined that the circumstances causing such suspension no longer
\nexist and Administrative Agent notifies the Borrower of such fact.<\/p>\n
(f) Failure on the part of any Lender to demand compensation for any
\nincreased costs, increased capital or reduction in amounts received or
\nreceivable or reduction in return on capital pursuant to this Section 2.14 with
\nrespect to any period shall not constitute a waiver of any Lender’s<\/p>\n
45<\/p>\n
right to demand compensation with respect to such period or any other period,
\nsubject, however, to the limitations set forth in this Section 2.14.<\/p>\n
(g) The obligations of the Borrower under this Section 2.14 shall survive
\nany termination of this Agreement, provided that, in no event shall the Borrower
\n ————-
\nbe required to make a payment under this Section 2.14 with respect to any event
\nof which the Lender making such claim had knowledge more than 12 months prior to
\ndemand for such payment.<\/p>\n
(h) Determinations by Lenders for purposes of this Section 2.14 shall be
\npresumptively correct. Any certificate delivered to the Borrower by a Lender
\npursuant to this Section 2.14 shall include in reasonable detail the basis for
\nsuch Lender’s demand for additional compensation and a certification that the
\nclaim for compensation is consistent with such Lender’s treatment of similar
\ncustomers having similar provisions generally in their agreements with such
\nLender.<\/p>\n
(i) Notwithstanding any other provision of this Agreement, no Lender not
\norganized under the Laws of the United States or any State (or which has a Bank
\nAffiliate not organized under the Laws of the United States or any State) shall
\nbe entitled to compensation pursuant to this Section 2.14 with respect to any
\namount which would otherwise be due under this Section 2.14 but which is the
\nresult of an act of a Tribunal of the country in which such Lender or Bank
\nAffiliate is organized.<\/p>\n
2.15. Use of Proceeds.
\n (a) Revolver A Advances and Swingline Advances. The Borrower agrees to use
\nthe proceeds of the Revolver A Loan and the Swingline Facility exclusively to
\n(i) finance working capital, (ii) refinance certain permitted indebtedness on
\nthe Original Closing Date, (iii) finance acquisitions permitted under Section
\n8.18 hereof, (iv) finance Capital Expenditures and (v) for other general
\ncorporate purposes of the Borrower.<\/p>\n
(b) Working Line Advances and Revolver B Advances. The Borrower agrees to
\nuse the proceeds of the Working Line Loan and the Revolver B Loan exclusively
\nto:<\/p>\n
(i) Prior to such time as the Senior Unsecured Debt Rating is BBB- or
\n Baa3 or better and the Conditional Early Release Unlimited Guaranty
\n has been released in accordance with the terms of Section 11.14
\n hereof:<\/p>\n
In accordance with certain of the Existing Financing
\n Documentation, finance or refinance all or any part of the cost of,
\n the construction, installation, acquisition or improvement by the
\n Borrower or any Restricted Subsidiary (as defined in the Existing
\n Financing Documentation) of the Borrower of any new
\n “Telecommunications Assets” (as defined below) constructed, installed,
\n acquired or improved after March 31, 1997, provided that (i) the
\n ————-
\n proceeds of such debt are expended for such purposes within a 270 day
\n period of making such construction, installation, acquisition or
\n improvement, and (ii) the amount of such debt does not exceed 100% of
\n the cost of the construction, installation, acquisition or improvement
\n of the applicable Telecommunications Assets. For purposes of this
\n paragraph, “Telecommunications Assets” means all assets, rights
\n (contractual or otherwise) and properties, whether tangible or
\n intangible, used or intended for use in connection with the business
\n of (A) transmitting or providing services relating to the<\/p>\n
46<\/p>\n
transmission of, voice, data or video through owned or leased
\n transmission facilities, (B) constructing, creating, developing or
\n marketing communications related network equipment, software and other
\n devices for use in a telecommunications business, or (C) evaluating,
\n participating or pursuing any other activity or opportunity that is
\n primarily related to those identified in (A) or (B) above, provided
\n ——–
\n that the determination of what constitutes such businesses shall be
\n —-
\n made in good faith by the Board of Directors.<\/p>\n
(ii) After the Senior Unsecured Debt Rating is BBB- or Baa3 or better
\n and the Conditional Early Release Unlimited Guaranty has been released
\n in accordance with the terms of Section 11.14 hereof:<\/p>\n
(A) finance working capital, (B) refinance certain permitted
\n indebtedness on the Original Closing Date, (C) finance acquisitions
\n permitted under Section 8.18 hereof, (D) finance Capital Expenditures
\n and (E) for other general corporate purposes of the Borrower.<\/p>\n
2.16. Extension Option and Conversion Option Relating to the Working Line
\nLoan .<\/p>\n
(a) Extension Option. On the Option Date, the Borrower, with the
\n prior written consent of the SuperMajority Lenders and so long as there
\n exists no Default or Event of Default, may elect to extend the maturity of
\n the Working Line Loan for an additional 364 day period until the Extension
\n Final Maturity. Such election must be made no sooner than 60 days prior to
\n the Option Date and no later than 3 days prior to the Option Date by
\n written notice in accordance with the terms of Section 11.02 hereof to each
\n Lender of its request to extend the final maturity of the Working Line
\n Loan. Each Lender shall, no later than 10 Business Days after receipt of
\n such notice, give written notice to the Borrower and the Administrative
\n Agent of its approval or disapproval of such extension. Any Lender failing
\n to give such notice shall be deemed to have approved such extension; but,
\n upon the Option Date, its Working Line Specified Percentage shall be zero
\n and such Lender shall not be participating in the Working Line Loan
\n thereafter. Notwithstanding anything herein to the contrary, no Lender
\n shall be obligated to consent to such extension. If the Borrower fails to
\n receive the consent of Lenders having Working Line Specified Percentages
\n totaling 100%, then, if SuperMajority Lenders have consented to such
\n extension (i) only those consenting Lenders will have Working Line
\n Specified Percentages in excess of zero, (ii) subject to the terms of
\n Section 2.18 hereof, the Working Line Commitment shall be reduced by a
\n dollar amount equal to the product of the non-consenting Lenders’ Working
\n Line Specified Percentages times the Working Line Commitment in effect on
\n the day before the Option Date, (iii) subject to the terms of Section 2.18
\n hereof, the Administrative Agent will notify each Lender of its reallocated
\n Working Line Specified Percentage, the new Working Line Commitment and the
\n reallocated Total Specified Percentage, (iv) the Borrower will pay all
\n Consequential Costs incurred as a result of any such reallocation of
\n Working Line Specified Percentages, (v) subject to the terms of Section
\n 2.18 hereof, the Borrower shall repay in full all portions of the
\n Obligations representing such non-consenting Lenders’ Working Line
\n Specified Percentages of all outstanding Working Line Advances to such non-
\n consenting Lenders, (vi) the Borrower shall execute and deliver new
\n promissory notes to each extending Lender in the form required by the
\n Administrative Agent and (vii) subject to satisfaction of each of the
\n foregoing requirements, the Working Line Loan final maturity shall be<\/p>\n
47<\/p>\n
automatically extended on the Option Date to the Extension Final Maturity.
\n If the Borrower receives the consent of Lenders having Working Line
\n Specified Percentages totaling 100%, then the Working Line Loan final
\n maturity shall be automatically extended on the Option Date to the
\n Extension Final Maturity, and each Lender will retain its Working Line
\n Specified Percentage and the Working Line Commitment shall remain the same.<\/p>\n
(b) Conversion Option. On the Option Date, or, if the Borrower and
\n the Lenders have agreed to extend the Working Line Loan until the Extension
\n Final Maturity, then the Extension Final Maturity, the Borrower, so long as
\n there exists no Default or Event of Default on such date of conversion,
\n shall have the option (which shall not require the consent of any Lender)
\n to convert the Working Line Loan to a term loan. Such election must be
\n made no sooner than 60 days prior to the Option Date or Extension Final
\n Maturity, as applicable, and no later than 30 days prior to the Option Date
\n or Extension Final Maturity, as applicable, by written notice in accordance
\n with the terms of Section 11.02 hereof to each Lender of such conversion.
\n Prior to such conversion, the Borrower shall execute and deliver new
\n promissory notes to each Lender in the form required by the Administrative
\n Agent. Upon such notice and receipt by the Lenders of the new promissory
\n notes, the Working Line Loan shall automatically convert to a term loan on
\n the Option Date or the Extension Final Maturity, as applicable.<\/p>\n
2.17. Rights of Borrower in Respect of Consequential Losses.<\/p>\n
(a) Duty to Mitigate. If (i) any Lender shall request compensation under
\nSection 2.14(a) or (b) hereof or (ii) any Lender delivers a notice described in
\nSection 2.14(c) or (e) hereof then such Lender shall use reasonable efforts
\n(which shall not require such Lender to suffer any disadvantage or burden
\nreasonably deemed by it (in good faith) to be significant, including without
\nlimitation, to incur an unreimbursed loss or unreimbursed cost or expense or
\notherwise take any action inconsistent with its internal policies or legal or
\nregulatory restrictions), promptly thereafter, (x) to file any certificate or
\ndocument reasonably requested in writing by the Borrower or (y) to assign its
\nRights and delegate and transfer its obligations hereunder to another of its
\noffices, branches or Bank Affiliates, if such filing or assignment would reduce
\nits claims for compensation under Section 2.14(a) or (b) hereof or enable it to
\nwithdraw its notice pursuant to Section 2.14(c) or (e) hereof, as the case may
\nbe, in the future. The Borrower hereby agrees to pay all reasonable costs and
\nexpenses incurred by any Lender in connection with any such filing or
\nassignment, delegation and transfer.<\/p>\n
(b) Replacement of a Lender Upon Request for Compensation. If any Lender
\nhas requested compensation or reimbursement in accordance with the terms of
\nSection 2.14 hereof and (i) such request is not the result of any uniform
\nchanges in the statutes or regulations for capital adequacy, and (ii) the
\nBorrower and such Lender are unable to reach a written agreement regarding such
\nrequest within 30 days following written notice by such Lender to the Borrower
\nand the Administrative Agent of such request, then after the expiration of 30
\ndays following the delivery of the notice under Section 2.14 hereof, the
\nBorrower may replace such Lender in whole with another Lender acceptable to the
\nArranging Agents pursuant to an Assignment and Acceptance and in accordance with
\nSection 11.04 hereof, provided that, such Lender is replaced at par value of all
\n ————-
\nObligations owing such Lender plus all accrued interest and fees, provided
\nfurther, that Borrower pays the assignment and acceptance fee set forth in
\nSection 11.04(a) hereof for such replacement. <\/p>\n
48<\/p>\n
Until such time as any Lender is replaced by the Borrower, the Borrower shall
\nreimburse or compensate such Lender in accordance with the terms of Section 2.14
\nhereof.<\/p>\n
2.18. Rights of Borrower in Respect of Failure of any Lender to Fund or
\nExtend the Option Date. If any Lender shall either (a) breach its agreement
\nto make any Advance available in accordance with the terms of this Agreement
\n(and each other Lender shall have made its portion of the Advance available to
\nthe Borrower), or (b) on the Option Date, shall fail to extend the Working Line
\nLoan for an additional 364 day period in accordance with the terms of Section
\n2.16(a) hereof when all such other Lenders have extended, then, in each case,
\nsuch Lender shall, promptly upon the written request of the Borrower to such
\nLender and the Administrative Agent, assign all of its Rights and duties
\nhereunder and under the other Loan Papers pursuant to an Assignment and
\nAcceptance in accordance with the terms of Section 11.04 hereof to another
\nfinancial institution or lender designated by the Borrower and acceptable to the
\nArranging Agents in accordance with the terms of Section 11.04 hereof, provided
\n ——–
\nthat, notwithstanding the foregoing, in no event shall any Lender be required to
\n—-
\ntake any such action if (a) such Lender is owed any payments by the Borrower
\npursuant to this Agreement or the other Loan Papers, (b) there exists any
\nDefault or Event of Default.<\/p>\n
ARTICLE III. LETTERS OF CREDIT<\/p>\n
3.01. Issuance of Letters of Credit. The Borrower shall give the
\nAdministrative Agent not less than three Business Days prior written notice of a
\nrequest for the issuance of a Letter of Credit, and the Administrative Agent
\nshall promptly notify each Lender of such request. Upon receipt of the
\nBorrower’s properly completed and duly executed Applications, and subject to the
\nterms of such Applications and to the terms of this Agreement, including,
\nwithout limitation, the satisfaction of the conditions set forth in Section 4.02
\nhereof, the Administrative Agent agrees to issue Letters of Credit on behalf of
\nthe Borrower in an aggregate face amount not in excess of the Letter of Credit
\nCommitment. No Letter of Credit shall have a maturity extending beyond the
\nearliest of (i) the Maturity Date, or (ii) one year from the date of its
\nissuance, or (iii) such earlier date as may be required to enable the Borrower
\nto satisfy its repayment obligations under Section 2.06 hereof. Subject to such
\nmaturity limitations and so long as no Default or Event of Default has occurred
\nand is continuing or would result from the renewal of a Letter of Credit, the
\nLetters of Credit may be renewed by the Administrative Agent in its discretion.
\nThe Lenders shall participate ratably in any liability under the Letters of
\nCredit (including, without limitation, the Existing Letter of Credit) and in
\nany unpaid reimbursement obligations of the Borrower with respect to any Letter
\nof Credit in their Revolver A Specified Percentages. The amount of the Letters
\nof Credit issued and outstanding and the unpaid reimbursement obligations of the
\nBorrower for such Letters of Credit shall reduce the amount of Revolver A
\nCommitment available, so that at no time shall the sum of (i) all outstanding
\nRevolver A Advances in the aggregate, plus (ii) all outstanding Swingline
\nAdvances in the aggregate, plus (iii) the aggregate face amount of all
\noutstanding Letters of Credit, plus (iv) (without duplication) all outstanding
\nreimbursement obligations related to Letters of Credit, exceed the Revolver A
\nCommitment, and at no time shall the sum of all Revolver A Advances by any
\nLender made plus its ratable share of Swingline Advances and amounts available
\nto be drawn under the Letters of Credit and the unpaid reimbursement obligations
\nof the Borrower in respect of such Letters of Credit exceed its Revolver A
\nSpecified Percentage of the Revolver A Commitment.<\/p>\n
3.02. Letters of Credit Fee. In consideration for the issuance of each
\nLetter of Credit, the Borrower shall pay to (a) the Administrative Agent for its
\nsole account, an application and<\/p>\n
49<\/p>\n
processing fee in the amount of the higher of (i) $350.00 and (ii) the product
\nof 1\/8th of 1% multiplied by the face amount of such Letter of Credit on each
\nLetter of Credit, due and payable on the date of issuance of each Letter of
\nCredit, and (b) the Administrative Agent for the account of the Administrative
\nAgent and the Lenders in accordance with their Revolver A Specified Percentages,
\na per annum fee for each Letter of Credit equal to the higher of (i) $350.00 and
\n(ii) the product of the Applicable Margin for a LIBOR Advance in effect on the
\ndate of calculation multiplied by the face amount of each such Letter of Credit.
\nEach fee for each Letter of Credit under subsection (b) above shall be due and
\npayable to the Administrative Agent quarterly as it accrues, on each Quarterly
\nDate during the term of the Letter of Credit and on the expiration or renewal
\nand\/or extension of each such Letter of Credit, beginning with the first such
\nQuarterly Date after the issuance of each Letter of Credit and ending on the
\nexpiration date of each such Letter of Credit.<\/p>\n
3.03. Reimbursement Obligations.<\/p>\n
(a) The Borrower hereby agrees to reimburse Administrative Agent
\nimmediately upon demand by Administrative Agent, and in immediately available
\nfunds, for any payment or disbursement made by Administrative Agent under any
\nLetter of Credit. Payment shall be made by the Borrower with interest on the
\namount so paid or disbursed by Administrative Agent from and including the date
\npayment is made under any Letter of Credit to and including the date of payment,
\nat the lesser of (i) the Highest Lawful Rate, and (ii) the sum of the Base Rate
\nin effect from time to time plus 2% per annum; provided, however, that if the
\n ——– ——-
\nBorrower would be permitted under the terms of Section 2.01, Section 2.02 and
\nSection 4.02 to borrow Revolver A Advances in amounts at least equal to their
\nreimbursement obligation for a drawing under any Letter of Credit, a Base
\nAdvance by each Lender, in an amount equal to such Lender’s Revolver A Specified
\nPercentage, shall automatically be deemed made on the date of any such payment
\nor disbursement made by Administrative Agent in the amount of such obligation
\nand subject to the terms of this Agreement.<\/p>\n
(b) The Borrower hereby also agrees to pay to Administrative Agent
\nimmediately upon demand by Administrative Agent and in immediately available
\nfunds, as security for their reimbursement obligations in respect of the Letters
\nof Credit under Section 3.03(a) hereof and any other amounts payable hereunder
\nand under the Notes, an amount equal to the aggregate amount available to be
\ndrawn under Letters of Credit then outstanding, irrespective of whether the
\nLetters of Credit have been drawn upon, upon an Event of Default. Any such
\npayments shall be deposited in a separate account designated “Qwest
\nCommunications International Inc. Special Account” or such other designation as
\nAdministrative Agent shall elect. All such amounts deposited with
\nAdministrative Agent shall be and shall remain funds of the Borrower on deposit
\nwith Administrative Agent and may be invested by Administrative Agent as
\nAdministrative Agent shall determine. Such amounts may not be used by
\nAdministrative Agent to pay the drawings under the Letters of Credit; however,
\nsuch amounts may be used by Administrative Agent as reimbursement for Letter of
\nCredit drawings which Administrative Agent has paid. During the existence of an
\nEvent of Default but after the expiration of any Letter of Credit that was not
\ndrawn upon, the Borrower may direct the Administrative Agent to use any cash
\ncollateral for any such expired Letter of Credit, if any, to reduce the amount
\nof the Obligations. Any amounts remaining in the Qwest Communications
\nInternational Inc. Special Account, after the date of the expiration of all
\nLetters of Credit and after all Obligations have been paid in full, shall be
\nrepaid to the Borrower promptly after such expiration and such payment in full.<\/p>\n
50<\/p>\n
(c) The obligations of the Borrower under this Section 3.03 will continue
\nuntil all Letters of Credit have expired and all reimbursement obligations with
\nrespect thereto have been paid in full by the Borrower and until all other
\nObligations shall have been paid in full.<\/p>\n
(d) The Borrower shall be obligated to reimburse Administrative Agent upon
\ndemand for all amounts paid under the Letters of Credit as set forth in Section
\n3.03(a) hereof; provided, however, if the Borrower for any reason fails to
\nreimburse Administrative Agent in full upon demand, whether by borrowing
\nRevolver A Advances to pay such reimbursement obligations or otherwise, the
\nLenders shall reimburse Administrative Agent in accordance with each Lender’s
\nRevolver A Specified Percentage for amounts due and unpaid from the Borrower as
\nset forth in Section 3.04 hereof; provided, however, that no such reimbursement
\nmade by the Lenders shall discharge the Borrower’s obligations to reimburse
\nAdministrative Agent.<\/p>\n
(e) The Borrower, as to Letters of Credit issued for its account, shall
\nindemnify and hold harmless the Administrative Agent, the Lead Arranger, each
\nLender and their respective affiliates, officers, directors, employees, agents
\nand advisors (each, an “Indemnified Party”) from and against any and all claims,
\ndamages, losses, liabilities and expenses (including, without limitation,
\nreasonable fees and disbursements of counsel) which may be incurred by or
\nasserted or awarded against any Indemnified Party, in each case arising out of
\nor in connection with or by reason of, or in connection with the preparation for
\na defense of, any investigation, litigation or proceeding arising out of,
\nrelated to or in connection with the Letters of Credit, including without
\nlimitation, any transaction in which any Letter of Credit is being issued and in
\nconnection with actions taken under the Letters of Credit or in connection
\ntherewith, whether or not an Indemnified Party is a party thereto, whether or
\nnot the transactions contemplated herein are consummated, and whether or not
\nsuch claim, damage, loss, liability or expense results from the negligence of
\nsuch Indemnified Party and except only to the extent such claim, damage, loss,
\nliability or expense is found in a final, non-appealable judgment by a court of
\ncompetent jurisdiction to have resulted from such Indemnified Party’s gross
\nnegligence or willful misconduct. Borrower will not settle or consent to
\njudgment with respect to any investigation, litigation, or proceeding without
\nthe prior written consent of the Administrative Agent and any affected
\nIndemnified Party, unless such settlement or consent includes an unconditional
\nrelease of each such Indemnified Party or unless each Indemnified Party is
\nentitled to be indemnified under this Section 3.03(e) (which entitlement the
\nBorrower will confirm to such Indemnified Party in writing, if requested). The
\nBorrower shall periodically, upon request, reimburse each Indemnified Party for
\nits reasonable legal and other actual expenses (including the cost of any
\ninvestigation and preparation) incurred in connection with any indemnified
\nmatter. The reimbursement, indemnity and contribution obligations under this
\nSection shall be in addition to any liability which the Borrower may otherwise
\nhave, shall extend upon the same terms and conditions to each Indemnified Party,
\nand shall be binding upon and inure to the benefit of any successors, assigns,
\nheirs and personal representatives of the Borrower, the Administrative Agent,
\nthe Lenders and all other Indemnified Party. This Section shall survive any
\ntermination of this Agreement and repayment of the Obligations. If the Borrower
\nfor any reason fails to indemnify or pay Administrative Agent or such
\nIndemnified Party as set forth herein in full, the Lenders shall indemnify and
\npay Administrative Agent upon demand, in accordance with each Lender’s Revolver
\nA Specified Percentage, such amounts due and unpaid from the Borrower. The
\nprovisions of this Section 3.03(e) shall survive the termination of this
\nAgreement.<\/p>\n
3.04. Lenders’ Obligations. Each Lender agrees, unconditionally and
\nirrevocably to reimburse Administrative Agent on demand for such Lender’s
\nRevolver A Specified Percentage of<\/p>\n
51<\/p>\n
each draw paid by Administrative Agent under any Letter of Credit that is not
\nreimbursed by the Borrower in accordance with Section 3.03 hereof. Each Lender
\nspecifically acknowledges that the Existing Letter of Credit which was issued
\nprior to the Original Closing Date shall be included in the definition of
\nLetters of Credit and each Lender shall be obligated to the Administrative Agent
\nwith respect thereto on the identical terms and conditions it is obligated to
\nthe Administrative Agent with respect to all of the other Letters of Credit,
\nprovided that Administrative Agent was not aware of any payment default or event
\n————-
\nof default under the Existing Letter of Credit on the Original Closing Date. All
\namounts payable by any Lender under this subsection shall include interest
\nthereon at the Federal Funds Rate, from the date of the applicable draw to the
\ndate of reimbursement by such Lender. No Lender shall be liable for the
\nperformance or nonperformance of the obligations of any other Lender under this
\nSection. The obligations of the Lenders under this Section shall continue after
\nthe Maturity Date and shall survive termination of any Loan Papers.<\/p>\n
3.05. Administrative Agent’s Obligations.<\/p>\n
(a) Administrative Agent makes no representation or warranty, and assumes
\nno responsibility with respect to the validity, legality, sufficiency or
\nenforceability of any Application or any document relative thereto or to the
\ncollectibility thereunder. Administrative Agent assumes no responsibility for
\nthe financial condition of the Borrower and its Subsidiaries or for the
\nperformance of any obligation of the Borrower. Administrative Agent may use its
\ndiscretion with respect to exercising or refraining from exercising any rights,
\nor taking or refraining from taking any action which may be vested in it or
\nwhich it may be entitled to take or assert with respect to any Letter of Credit
\nor any Application.<\/p>\n
(b) Administrative Agent shall be under no liability to any Lender, with
\nrespect to anything the Administrative Agent may do or refrain from doing in the
\nexercise of its judgment, the sole liability and responsibility of
\nAdministrative Agent (except as otherwise provided in (c) below) being to handle
\neach Lender’s share on as favorable a basis as Administrative Agent handles its
\nown share and to promptly remit to each Lender its share of any sums received by
\nAdministrative Agent under any Application. Administrative Agent shall have no
\nduties or responsibilities except those expressly set forth herein and those
\nduties and liabilities shall be subject to the limitations and qualifications
\nset forth herein.<\/p>\n
(c) Neither Administrative Agent nor any of its directors, officers, or
\nemployees shall be liable for any action taken or omitted (whether or not such
\naction taken or omitted is expressly set forth herein) under or in connection
\nherewith or any other instrument or document in connection herewith, except for
\ngross negligence or willful misconduct, and no Lender waives its right to
\ninstitute legal action against Administrative Agent for wrongful payment of any
\nLetter of Credit due to Administrative Agent’s gross negligence or willful
\nmisconduct. Administrative Agent shall incur no liability to any Lender, the
\nBorrower or any Affiliate of the Borrower or Lender in acting upon any notice,
\ndocument, order, consent, certificate, warrant or other instrument reasonably
\nbelieved by Administrative Agent to be genuine or authentic and to be signed by
\nthe proper party.<\/p>\n
52<\/p>\n
ARTICLE IV. CONDITIONS PRECEDENT<\/p>\n
4.01. Conditions Precedent to the Initial Advance and the Issuance of the
\nInitial Letter of Credit. The obligation of each Lender to make the initial
\nAdvance under the Loans, or issue the initial Letter of Credit, is subject to
\nreceipt by the Administrative Agent of each of the following, in form and
\nsubstance satisfactory to the Administrative Agent, with a copy (except for the
\nNotes) for each Lender:<\/p>\n
(a) a loan certificate of the Borrower certifying as to the accuracy of its
\nrepresentations and warranties in the Loan Papers, certifying that no Default or
\nEvent of Default has occurred under the terms of this Agreement, and including a
\ncertificate of incumbency with respect to each Authorized Officer, and
\ncontaining a representation that either the following items are attached thereto
\nor have not been changed or amended since the certificate delivered on the
\nOriginal Closing Date in connection with the Original Credit Agreement, and that
\neach of such items remains unchanged and valid, except as shown on any
\nattachments: (i) copies of the Articles of Incorporation of the Borrower and
\neach of the Qwest Material Subsidiaries, certified to be true, complete and
\ncorrect by the secretary of state of each such Person’s respective state of
\nincorporation, (ii) copies of the By-Laws of the Borrower and each of the Qwest
\nMaterial Subsidiaries and (iii) copies of a certificate of good standing and a
\ncertificate of existence for the Borrower in Delaware and each of the Qwest
\nMaterial Subsidiaries’ state of incorporation, and other material states
\ndetermined by the Borrower;<\/p>\n
(b) in form and substance acceptable to the Administrative Agent, a duly
\nexecuted and completed acknowledgment and affirmation of the Conditional Early
\nRelease Unlimited Guaranty of the Obligations by the Guarantor;<\/p>\n
(c) a loan certificate of the Borrower certifying that a copy of the
\nresolutions of the Borrower and the Guarantor, authorizing them to execute,
\ndeliver and perform this Agreement, the Notes and the other Loan Papers to which
\neach of them is a party is attached and is a true and accurate copy;<\/p>\n
(d) copies of all amendments, if any, with respect to the Existing
\nFinancing Documentation entered into prior to the Amendment and Restatement
\nClosing Date but after the date of the Original Credit Agreement, with a
\ncertificate attached thereto executed by an Authorized Officer of the Borrower
\ncertifying that the attached copies are true and accurate and have not been
\namended, waived or consented to except as set forth therein;<\/p>\n
(e) all other Loan Papers to be delivered on the Amendment and Restatement
\nClosing Date duly executed and completed, dated the Amendment and Restatement
\nClosing Date;<\/p>\n
(f) opinions addressed to Administrative Agent on behalf of the Lenders
\ndated the Amendment and Restatement Closing Date of (i) corporate counsel to the
\nBorrower and each Restricted Subsidiary, to the extent applicable, with respect
\nto organizational matters, authorization, execution, etc., (ii) special FCC
\ncounsel and\/or PUC counsel to the Borrower and the Restricted Subsidiaries, as
\napplicable, in form reasonably acceptable to the Arranging Agents, and (iii)
\ncorporate counsel to the Borrower and each Restricted Subsidiary, to the extent
\napplicable, that the execution of this Agreement and the Loan Papers, the
\nborrowing by the Borrower of the Loans (including, without limitation, the use
\nof the proceeds of the Loans) and the performance of all its<\/p>\n
53<\/p>\n
obligations under the Loan Papers are permitted by the Existing Financing
\nDocumentation and that the Loans are pari passu with the Existing Financing;<\/p>\n
(g) a certificate from the Borrower stating that there has been no material
\nadverse change in the financial condition, business or operations of the
\nBorrower and its Subsidiaries since December 31, 1998;<\/p>\n
(h) payment to the Administrative Agent, Arranging Agents and Lenders of
\nall fees due and payable as required in accordance with the terms of any Fee
\nLetter or other written agreement among the parties; and<\/p>\n
(i) in form and substance satisfactory to the Arranging Agents, such other
\ndocuments, instruments and certificates as the Administrative Agent or any
\nArranging Agent may reasonably require in connection with the transactions
\ncontemplated hereby, including without limitation the status, organization or
\nauthority of the Borrower or any Restricted Subsidiary.<\/p>\n
4.02. Conditions Precedent to All Advances and Letters of Credit. The
\nobligation of each Lender to make each Advance hereunder (excluding each
\nRefinancing Advance), and the obligation of the Administrative Agent to issue
\nany Letter of Credit shall be subject to the further conditions precedent that
\non the date of such Advance or such issuance of such Letter of Credit reasonably
\nsatisfactory to the Arranging Agents:<\/p>\n
(a) (i) Prior to the Acquisition Date, all of the representations and
\nwarranties of the Borrower under this Agreement shall be true and correct at
\nsuch time in all material respects, both before and after giving effect to the
\napplication of the proceeds of the Advance or the issuance of the Letter of
\nCredit, except those representations and warranties that specifically speak as
\nof a particular date, and (ii) on and after the Acquisition Date (A) all of the
\nrepresentations and warranties of the Original Borrower and the Original
\nRestricted Subsidiaries under this Agreement shall be true and correct at such
\ntime in all material respects, both before and after giving effect to the
\napplication of the proceeds of the Advance or the issuance of the Letter of
\nCredit, except those representations and warranties that specifically speak as
\nof a particular date and (B) there shall exist no U S WEST Default;<\/p>\n
(b) The incumbency of the Authorized Officers shall be as stated in the
\ncertificate of incumbency delivered in the Borrower’s loan certificate pursuant
\nto Section 4.01(a) or as subsequently modified and reflected in a certificate of
\nincumbency delivered to the Administrative Agent. The Administrative Agent may,
\nwithout waiving this condition, consider it fulfilled and a representation by
\nthe Borrower made to such effect if no written notice to the contrary, dated on
\nor before the date of such Advance or the issuance of such Letter of Credit, is
\nreceived by the Administrative Agent from the Borrower prior to the making of
\nsuch Advance or such Letter of Credit;<\/p>\n
(c) There shall not exist a Default or an Event of Default hereunder and
\nnone shall exist as a result of making any such Advance or issuing such Letter
\nof Credit, and the Administrative Agent shall have received written or
\ntelephonic certification thereof by an Authorized Officer of the Borrower (which
\ncertification, if telephonic, shall be followed promptly by written
\ncertification);<\/p>\n
54<\/p>\n
(d) (i) Prior to the Acquisition Date, no event attributable to the
\nBorrower or any Restricted Subsidiary shall have occurred that is, or would
\nreasonably be expected to cause, a Material Adverse Change since December 31,
\n1998, and (ii) on and after the Acquisition Date (A) no event attributable to
\nthe Original Borrower or any Original Restricted Subsidiary shall have occurred
\nthat is, or would reasonably be expected to cause, a Material Adverse Change
\nsince December 31, 1998; and (B) since the Acquisition Date, no event
\nattributable to the assets or liabilities of any U S WEST Restricted Subsidiary
\nshall have occurred that has had a Material Adverse Effect;<\/p>\n
(e) In the case of each Letter of Credit, Borrower shall have delivered to
\nthe Administrative Agent a duly executed and complete Application acceptable to
\nAdministrative Agent;<\/p>\n
(f) In the case of any Revolver A Advance or Swingline Advance, the sum of
\nthe aggregate outstanding (i) Revolver A Advances plus (ii) Swingline Advances,
\nin each case after giving effect to such proposed Revolver A Advance or
\nSwingline Advance, plus (iii) the sum of the face amount of all outstanding
\nLetters of Credit plus (without duplication) (iv) all reimbursement obligations
\nunder Article III hereof, shall not exceed the Revolver A Commitment;<\/p>\n
(g) In the case of any Revolver B Advance, (i) the aggregate outstanding
\nRevolver B Advances after giving effect to such proposed Revolver B Advance
\nshall not exceed the Revolver B Commitment, (ii) the Borrower shall represent
\nand warrant that the use of the proceeds of the Revolver B Advance complies with
\nSection 2.15(b) hereof (and the delivery of a Borrowing Notice shall constitute
\nsuch representation) and (iii) such Revolver B Advance is permitted Debt under
\nthe Existing Financing Documentation, including, without limitation, (I) prior
\nto the time that the Senior Unsecured Debt Rating is BBB- or Baa3 or better,
\nSection 1011(b)(iii) of the Indentures relating to the Qwest 8.29% Senior
\nDiscount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50% Senior Notes and
\nthe Qwest 10.875 Senior Notes and (II) after the Senior Unsecured Debt Rating is
\nBBB- or Baa3 or better, Section 1011(a) of the Indentures relating to the Qwest
\n8.29% Senior Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50%
\nSenior Notes and the Qwest 10.875 Senior Notes ; and<\/p>\n
(h) In the case of any Working Line Advance , (i) the aggregate outstanding
\nWorking Line Advances after giving effect to such proposed Working Line Advance
\nshall not exceed the Working Line Commitment, (ii) the Borrower shall represent
\nand warrant that the use of the proceeds of the Working Line Advance complies
\nwith Section 2.15(b) hereof (and the delivery of a Borrowing Notice shall
\nconstitute such representation) and (iii) such Working Line Advance is permitted
\nDebt under the Existing Financing Documentation, including, without limitation,
\n(I) prior to the time that the Senior Unsecured Debt Rating is BBB- or Baa3 or
\nbetter, Section 1011(b)(iii) of the Indentures relating to the Qwest 8.29%
\nSenior Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest 7.50% Senior
\nNotes and the Qwest 10.875 Senior Notes and (II) after the Senior Unsecured Debt
\nRating is BBB- or Baa3 or better, Section 1011(a) of the Indentures relating to
\nthe Qwest 8.29% Senior Discount Notes, Qwest 9.47% Senior Discount Notes, Qwest
\n7.50% Senior Notes and the Qwest 10.875 Senior Notes.<\/p>\n
55<\/p>\n
ARTICLE V. REPRESENTATIONS AND WARRANTIES<\/p>\n
5.01. Representations and Warranties. The Borrower hereby represents
\nand warrants to each Lender as follows, subject to the terms of Section 9.08
\nhereof:<\/p>\n
(a) Incorporation, Good Standing, Etc. The respective jurisdictions of
\n ———————————
\nincorporation and percentage ownership of the Restricted Subsidiaries of the
\nBorrower on the Original Closing Date that are listed on Schedule 5.01(a) hereto
\n —————-
\nare true and correct. Each of the Borrower and the Qwest Material Subsidiaries
\nis a corporation duly organized, validly existing and in good standing under the
\nlaws of its state of organization. Each of the Borrower and the Qwest Material
\nSubsidiaries has the corporate power and authority to own or lease its
\nproperties and to carry on its business as now being conducted. Each of the
\nBorrower and the Restricted Subsidiaries is duly qualified, in good standing and
\nauthorized to do business in each jurisdiction in which the character of its
\nProperties or the nature of its business requires such qualification or
\nauthorization, except where the failure to so qualify is not, and would not
\nreasonably be expected to cause, a Material Adverse Change.<\/p>\n
(b) Authority, Execution, Enforceability, Etc. The Borrower has corporate
\n —————————————–
\npower and has taken all necessary corporate action to authorize it to borrow
\nhereunder. Each of the Borrower and the Qwest Material Subsidiaries has the
\ncorporate power and has taken all necessary corporate action to execute, deliver
\nand perform the Loan Papers to which it is party, if any, in accordance with the
\nterms thereof, and to consummate the transactions contemplated thereby. Each
\nLoan Paper has been duly executed and delivered by the Borrower or such
\nRestricted Subsidiary executing it. Each of the Material Loan Documents to
\nwhich the Borrower or any of the Restricted Subsidiaries is a party is a legal,
\nvalid and binding obligation of the Borrower or such Restricted Subsidiary, as
\napplicable, enforceable against the Borrower or such Restricted Subsidiary in
\naccordance with its terms, subject, to the following qualifications: (i)
\nequitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
\nreorganization, moratorium, fraudulent conveyance, reconstruction or other
\nsimilar laws affecting enforcement of creditors’ rights generally (insofar as
\nany such law relates to the bankruptcy, insolvency or similar event of the
\nBorrower or any Subsidiary of the Borrower).<\/p>\n
(c) No Conflicts. The execution, delivery and performance by each of the
\n ————
\nBorrower and the Restricted Subsidiaries of the Material Loan Documents to which
\nthey are a party, and the consummation of the transactions contemplated thereby,
\nincluding, without limitation, borrowings under the Loan Papers, do not (i)
\nrequire any material consent or material approval not already obtained,
\nincluding, without limitation, any material consent or material approval
\nrequired with respect to any Material License, or otherwise required by the FCC,
\nany PUC, or any other federal, state or local regulatory authority, (ii) violate
\nany other material Applicable Law, (iii) conflict with, result in a breach of,
\nor constitute a default under the articles of incorporation or by-laws of the
\nBorrower or any Qwest Material Subsidiary, or under any Material License,
\nExisting Financing Documentation, other material agreement or other material
\ninstrument, to which the Borrower or any Qwest Material Subsidiary is a party or
\nbeneficiary of, or by which they or their respective Properties may be bound, or
\n(iv) result in or require the creation or imposition of any Lien upon or with
\nrespect to any property now owned or hereafter acquired by the Borrower or any
\nQwest Material Subsidiary, except Liens permitted under Section 8.03 hereof.<\/p>\n
(d) Business. The Borrower and the Restricted Subsidiaries are primarily
\n ——–
\nengaged in the Telecommunications Business, including, without limitation, the
\ninternet, internet protocol, web hosting and electronic commerce.<\/p>\n
56<\/p>\n
(e) Licenses. On the Original Closing Date, all Material Licenses of the
\n ——–
\nBorrower and the Restricted Subsidiaries have been obtained, and are in full
\nforce and effect. On the Original Closing Date, the Borrower and the Restricted
\nSubsidiaries are in compliance in all material respects with the provisions of
\neach Material License. On each date after the Original Closing Date on which
\nthis representation is deemed to be made, the Borrower and the Restricted
\nSubsidiaries are in compliance with the provisions of each License, except to
\nthe extent that any such non-compliance is not, or would not reasonably be
\nexpected to cause, a Material Adverse Change. On the Original Closing Date, no
\nMaterial License is the subject of any pending or, to the actual knowledge of an
\nAuthorized Officer, threatened proceeding that would reasonably be expected to
\nresult in a revocation of such Material License. On each date after the
\nOriginal Closing Date on which this representation is deemed to be made, no
\nLicense is the subject of any pending or, to the actual knowledge of an
\nAuthorized Officer, threatened, proceeding that would reasonably be expected to
\nresult in a revocation of such Material License, except any such event that is
\nnot, and would not reasonably be expected to cause, a Material Adverse Change.
\nAs of the Original Closing Date, the Borrower and the Restricted Subsidiaries
\nhave obtained all Licenses from each applicable PUC that are necessary for the
\noperation of their respective businesses as currently conducted, which Licenses
\nhave been maintained in full force and effect, and the Borrower and the
\nRestricted Subsidiaries are operating in compliance in all material respects
\nwith all provisions of such Licenses, except to the extent that any failure to
\nobtain or maintain any one or more Licenses, or any non-compliance, is not, and
\nwould not reasonably be expected to cause, a Material Adverse Change.<\/p>\n
(f) Compliance with Laws. The Borrower and the Qwest Material Subsidiaries
\n ——————–
\nare in compliance in all material respects with all material Applicable Laws,
\nother than regulations and laws of the PUC or FCC. The Borrower and the Qwest
\nMaterial Subsidiaries have duly and timely filed all material reports,
\nstatements and filings that are required to be filed by any of them with respect
\nto Material Licenses under the Communications Act, and are in all material
\nrespects in compliance therewith, including without limitation the material
\nrules and regulations of the FCC. The Borrower and the Restricted Subsidiaries
\nare in all respects in compliance with all PUC Licenses and the rules and
\nregulations of each applicable PUC, except any such failure or compliance which
\nis not, and would not reasonably be expected to cause, a Material Adverse
\nChange. Except as set forth on Schedule 5.01(f) hereto, as of the Original
\n —————-
\nClosing Date, the Borrower has no actual knowledge of any event or circumstance
\nconstituting (i) material noncompliance (or any Person alleging material
\nnoncompliance) with any material rule or regulation of the FCC and (ii)
\nnoncompliance (or any Person alleging noncompliance) with any rule or regulation
\nof any applicable PUC, except any noncompliance which is not, or would not
\nreasonably be expected to cause, a Material Adverse Change. On each date after
\nthe Original Closing Date on which this representation is deemed to be made, the
\nBorrower has no actual knowledge of any event or circumstance constituting
\nnoncompliance (or any Person alleging noncompliance) with any rule or regulation
\nof the FCC or any applicable PUC, except any such event or circumstance which is
\nnot, and would not reasonably be expected to cause, a Material Adverse Change.<\/p>\n
(g) Title to Properties. On the Original Closing Date, the Borrower and
\n ——————-
\nthe Qwest Material Subsidiaries have good title to, valid leasehold interest in
\nor a valid right to use their material assets and material Properties. On each
\ndate after the Original Closing Date on which this representation is deemed to
\nbe made, the Borrower and the Restricted Subsidiaries have good title to, valid
\nleasehold interest in or valid right to use their assets and Properties, except
\nany such failure which is not, and which would not reasonably be expected to
\ncause, a Material Adverse Change. <\/p>\n
57<\/p>\n
None of the material assets of the Borrower and the Qwest Material Subsidiaries
\nis subject to any Liens, except Liens permitted under Section 8.03 hereof.<\/p>\n
(h) Litigation. On the Original Closing Date, except as reflected on
\n ———-
\nSchedule 5.01(h) hereto, there is no action, suit, proceeding or any other
\n—————-
\nLitigation pending against, or, to the actual knowledge of an Authorized
\nOfficer, threatened against the Borrower or any of its Restricted Subsidiaries,
\nor any of their material Properties, in any court or before any arbitrator of
\nany kind or before or by any governmental body, with respect to which the amount
\nat dispute is above $25,000,000. On each date after the Original Closing Date
\non which this representation is deemed to be made, there is no action, suit,
\nproceeding or any other Litigation pending against, or, to the actual knowledge
\nof an Authorized Officer, threatened against the Borrower or any of its
\nRestricted Subsidiaries, or any of their Properties, in any court or before any
\narbitrator of any kind or before or by any governmental body, except any such
\naction, suit, proceeding or any other Litigation which is not, and which would
\nnot reasonably be expected to cause, a Material Adverse Change.<\/p>\n
(i) Taxes. All federal, material state and other material Tax returns of
\n —–
\nthe Borrower and its Restricted Subsidiaries required by law to be filed have
\nbeen duly filed and all federal, material state and other material Taxes,
\nmaterial assessments and other material governmental charges or levies upon the
\nBorrower, its Restricted Subsidiaries or any of their Properties, income,
\nprofits and assets, which are shown on such returns to be due and payable, have
\nbeen paid, except those that are diligently contested in good faith by the
\nBorrower and for which a reserve has been established in accordance with GAAP,
\nand with respect to which no foreclosure, distraint, sale or similar proceedings
\nhave been commenced.<\/p>\n
(j) Financial Statements. The Borrower has furnished or caused to be
\n ——————–
\nfurnished to the Lenders copies of its annual audited financial statements dated
\nDecember 31,1998. Each such statement presents fairly in all material respects
\nand in accordance with GAAP, the financial position of the Borrower, its
\nconsolidated Subsidiaries as at such dates, and the results of operations for
\nthe periods then ended. As of the Original Closing Date, the Borrower and the
\nRestricted Subsidiaries have no material liabilities, contingent or otherwise
\n(determined in accordance with GAAP), nor material losses, except as disclosed
\nin writing to the Lenders prior to the Original Closing Date or as disclosed on
\nany subsequent financial statements. On the Original Closing Date after giving
\neffect to the Advances made on such date, the Borrower and each of the Qwest
\nMaterial Subsidiaries is Solvent.<\/p>\n
(k) Material Adverse Change. On the Original Closing Date, no event or
\n ———————–
\ncircumstance has occurred or arisen since December 31, 1998 that is, or would
\nreasonably be expected to cause, a Material Adverse Change.<\/p>\n
(l) ERISA. None of the Borrower, or its Controlled Group maintains or
\n —–
\ncontributes to any Plan other than those disclosed to the Administrative Agent
\nin writing from time to time. On the Original Closing Date, each such Plan is
\nin compliance in all material respects with the applicable provisions of ERISA,
\nthe Code, and any other applicable Federal or state law, rule or regulation. On
\neach date after the Original Closing Date on which this representation is deemed
\nto be made, each such Plan is in compliance in all material respects with the
\napplicable provisions of ERISA, the Code, and any other applicable Federal or
\nstate law, rule or regulation, except such non-compliance which is not, and
\nwould not reasonably be expected to cause, a Material Adverse Change. With
\nrespect to each Plan of the Borrower and each member of its Controlled Group
\n(other<\/p>\n
58<\/p>\n
than a Multiemployer Plan), all reports required under ERISA or any other
\nApplicable Law to be filed with any governmental authority, the failure of which
\nto file would reasonably result in liability of the Borrower, or any member of
\nits Controlled Group in excess of $10,000,000, have been duly filed. All such
\nreports are true and correct in all material respects as of the date given. On
\nthe Original Closing Date other than as disclosed to the Administrative Agent in
\nwriting, no such Plan of the Borrower, or any member of its Controlled Group has
\nany accumulated funding deficiency (as defined in Section 412(a) of the Code)
\n(without regard to any waiver granted under Section 412 of the Code), nor has
\nany funding waiver from the Internal Revenue Service been received or requested.
\nOn each date after the Original Closing Date on which this representation is
\ndeemed to be made, no such Plan of the Borrower, or any member of its Controlled
\nGroup has any accumulated funding deficiency (as defined in Section 412(a) of
\nthe Code) (without regard to any waiver granted under Section 412 of the Code),
\nnor has any funding waiver from the Internal Revenue Service been received or
\nrequested which is, or would reasonably be expected to cause, a Material Adverse
\nChange. None of the Borrower, or any member of its Controlled Group has failed
\nto make any contribution or pay any amount due or owing as required by Section
\n412 of the Code or Section 302 of ERISA or the terms of any such Plan prior to
\nthe due date under Section 412 of the Code and Section 302 of ERISA in excess of
\n$10,000,000. There has been no ERISA Event or any event requiring disclosure
\nunder Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA with respect
\nto any Plan or trust of the Borrower, or any member of its Controlled Group
\nwithin 60 months prior to the Original Closing Date or thereafter, except as
\ndisclosed to the Administrative Agent in writing. The value of the assets of
\neach Plan (other than a Multiemployer Plan) of the Borrower and each member of
\nits Controlled Group equaled or exceeded the present value of the benefit
\nliabilities, determined on an on-going Plan basis, as defined in Title IV of
\nERISA, of each such Plan as of the most recent valuation date using Plan
\nactuarial assumptions at such date. There are no pending or, to the actual
\nknowledge of an Authorized Officer, threatened claims, lawsuits or actions
\n(other than routine claims for benefits in the ordinary course) asserted or
\ninstituted against (i) the assets of any Plan or trust or against any fiduciary
\nof a Plan with respect to the operation of such Plan, or (ii) the assets of any
\nemployee welfare benefit plan within the meaning of Section 3(1) or ERISA, or
\nagainst any fiduciary thereof with respect to the operation of any such plan,
\nexcept any such claims, lawsuits or actions that are not, and would not
\nreasonably be expected to cause, a Material Adverse Change. None of the
\nBorrower, or any member of its Controlled Group has engaged in any non-exempt
\nprohibited transactions, within the meaning of Section 406 of ERISA or Section
\n4975 of the Code, in connection with any Plan, except such transactions which
\nare not, or would not in the aggregate reasonably be expected to cause, a
\nMaterial Adverse Change. None of the Borrower or any member of its Controlled
\nGroup has incurred or reasonably expects to incur any liability under Title IV
\nof ERISA (other than premiums due under Section 4007 of ERISA to the PBGC) in
\nexcess of $10,000,000. None of the Borrower any member of its Controlled Group,
\nor, to the actual knowledge of any Authorized Officer, any organization to which
\nthe Borrower or any member of its Controlled Group is a successor or parent
\ncorporation within the meaning of ERISA Section 4069(b), has engaged in a
\ntransaction within the meaning of ERISA Section 4069. None of the Borrower or
\nany member of its Controlled Group maintains or has established any welfare
\nbenefit plan within the meaning of Section 3(1) of ERISA which provides for
\ncontinuing benefits or coverage for any participant or any beneficiary of any
\nparticipant after such participant’s termination of employment except as may be
\nrequired by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
\namended (“COBRA”) and the regulations thereunder, and at the expense of the
\nparticipant or the beneficiary of the participant, or retiree medical
\nliabilities, except any such plan that would not reasonably be expected to
\nresult in material liability to the Borrower or any Qwest Material Subsidiary.
\nEach of the Borrower and its Controlled Group which maintains a welfare<\/p>\n
59<\/p>\n
benefit plan within the meaning of Section 3(1) of ERISA has complied in all
\nmaterial respects with any applicable notice and continuation requirements of
\nCOBRA and the regulations thereunder, except where any such noncompliance has
\nnot caused, or would not reasonably be expected to cause, liability to the
\nBorrower or any Qwest Material Subsidiary in excess of $10,000,000.<\/p>\n
(m) Margin Stock. The Borrower is not, nor are any of the Restricted
\n ————
\nSubsidiaries, engaged principally or as one of its important activities in the
\nbusiness of extending credit for the purpose of purchasing or carrying any
\nmargin stock within the meaning of Regulations T, U and X of the Board of
\nGovernors of the Federal Reserve System, and no part of the proceeds of the
\nAdvances will be used to purchase or carry any margin stock (as defined by
\nRegulation U) or to extend credit to others for the purpose of purchasing or
\ncarrying any margin stock. Not more than 25% of the assets of any of the
\nBorrower or any of its Subsidiaries are margin stock (as defined by Regulation
\nU). None of the Borrower and its Subsidiaries, nor any agent acting on their
\nbehalf, has taken any action which might cause this Agreement or any Loan Papers
\nto violate any regulation of the Board of Governors of the Federal Reserve
\nSystem or to violate the Exchange Act, in each case as in effect now or as the
\nsame may hereafter be in effect from time to time.<\/p>\n
(n) Event of Default. The Borrower and the Qwest Material Subsidiaries are
\n —————-
\nin compliance with all of the provisions of their articles of incorporation.
\nThe Borrower and the Qwest Material Subsidiaries are in material compliance with
\nall of the provisions of their by-laws. No event has occurred or failed to
\noccur, which has not been remedied or waived, the occurrence or non-occurrence
\nof which constitutes, or which with the passage of time or giving of notice or
\nboth would constitute, an Event of Default.<\/p>\n
(o) Investment Company Act of 1940. The Borrower is not, nor are any of
\n ——————————
\nits Subsidiaries, required to register under the provisions of the Investment
\nCompany Act of 1940, as amended (the “ICA”). Neither the entering into or
\nperformance by the Borrower of this Agreement nor the issuance of the Notes, nor
\nthe execution, delivery and performance of the obligations by the Borrower and
\nits Restricted Subsidiaries under the Loan Papers, violates any provision of the
\nICA or requires any consent, approval, or authorization of, or registration
\nwith, the Securities and Exchange Commission or any other governmental or public
\nbody of authority pursuant to any provisions of the ICA.<\/p>\n
(p) Environmental. On the Original Closing Date, no Authorized Officer has
\n ————-
\nany actual knowledge that any Hazardous Substance has been installed on any real
\nproperty now owned by the Borrower or any of its Restricted Subsidiaries, except
\n(i) for Hazardous Substances the presence of which is not in violation of
\nEnvironmental Law in an amount which is not or would not reasonably be expected
\nto cause, liability to the Borrower or any Restricted Subsidiary in the
\naggregate in excess of $5,000,000 or (ii) as set forth on Schedule 5.01(p)
\n —————-
\nhereto. On each date after the Original Closing Date on which this
\nrepresentation is deemed to be made, no Authorized Officer of the Borrower or
\nany Restricted Subsidiary has any actual knowledge that any Hazardous Substance
\nhas been installed in violation of law on any real property now owned by the
\nBorrower or any of the Restricted Subsidiaries except those installations which
\nare not, and would not reasonably be expected to cause, a Material Adverse
\nChange. As of the Original Closing Date, except as disclosed on Schedule
\n ——–
\n5.01(p) hereto, to the actual knowledge of an Authorized Officer, the Borrower
\n——-
\nand the Restricted Subsidiaries are not in material violation of or subject to
\nany existing, pending or material threatened formal investigation or formal
\ninquiry by any governmental authority, or subject to any material remedial
\nobligations under any applicable Environmental Laws. On each date after the
\nOriginal<\/p>\n
60<\/p>\n
Closing Date on which this representation is deemed to be made, to the
\nactual knowledge of an Authorized Officer, the Borrower and the Restricted
\nSubsidiaries are not in violation of or subject to any existing, pending or
\nthreatened formal investigation or inquiry by any governmental authority or to
\nany remedial obligations under any applicable Environmental Laws which in each
\ncase is, or would reasonably be expected to cause, a Material Adverse Change.
\nTo the actual knowledge of an Authorized Officer, the Borrower and the
\nRestricted Subsidiaries are not required to obtain any material permits,
\nLicenses or similar authorizations to construct, occupy, operate or use any
\nbuildings, improvements, fixtures, and equipment forming a part of any real
\nproperty of the Borrower or any Restricted Subsidiary by reason of any
\napplicable Environmental Laws, except those that have been obtained, or which
\nthe failure to obtain has not, and would not reasonably be expected to cause, a
\nMaterial Adverse Change. As of the Original Closing Date, except as set forth
\nin Schedule 5.01(p) hereto, no Authorized Officer has actual knowledge that any
\n —————-
\nHazardous Substances or solid wastes have been disposed of on the real property
\nof the Borrower or any of its Restricted Subsidiaries in violation of any
\napplicable Environmental Law, except such violations which are not, and would
\nnot reasonably be expected to cause, liability to the Borrower and\/or the
\nRestricted Subsidiaries in the aggregate in excess of $5,000,000. As of the
\nOriginal Closing Date, except as set forth in Schedule 5.01(p) hereto, no
\n —————-
\nAuthorized Officer has actual knowledge that any Hazardous Substances or solid
\nwastes have been released on or to the real property of the Borrower or any of
\nits Restricted Subsidiaries in violation of any applicable Environmental Law,
\nexcept such violations which are not, and would not reasonably be expected to
\ncause, liability to the Borrower and\/or the Restricted Subsidiaries in the
\naggregate in excess of $10,000,000. On each date after the Original Closing
\nDate on which this representation is deemed to be made, no Authorized Officer of
\nthe Borrower and the Restricted Subsidiaries has actual knowledge that any
\nHazardous Substances or solid wastes have been disposed of or otherwise released
\non or to the real property of the Borrower or any of the Restricted
\nSubsidiaries, in violation of the applicable Environmental Laws, except any such
\ndisposal or release which is not, and would not reasonably be expected to cause,
\na Material Adverse Change.<\/p>\n
(q) Subsidiaries. As of the Original Closing Date,, the Borrower has no
\n ————
\nSubsidiaries other than those Subsidiaries specifically disclosed in part (a) of<\/p>\n
Schedule 5.01(q) hereto and has no equity investments in any other Person other
\n—————-
\nthan those specifically disclosed in part (b) of Schedule 5.01(q) hereto.
\n —————- <\/p>\n
(r) Broker’s Fees. No broker’s, finder’s or other similar fee or
\n ————-
\ncommission will be payable by the Borrower (other than to the Agents and the
\nLenders hereunder) with respect to the making of the Commitment or the Advances
\nhereunder.<\/p>\n
(s) Intellectual Property. To the actual knowledge of the Authorized
\n ———————
\nOfficers as of the Original Closing Date, the Borrower and its Restricted
\nSubsidiaries have obtained all licenses of material patents, trademarks,
\nservice-marks, trade names, copyrights, and other rights from third parties that
\nare necessary for the operation of their business as presently conducted. On
\neach date after the Original Closing Date on which this representation is deemed
\nto be made, the Borrower and the Restricted Subsidiaries have obtained all
\nLicenses of patents, trademarks, service-marks, trade names, copyrights and
\nother similar rights that are necessary for the operation of their business as
\npresently conducted, except those, the failure of which to obtain has not
\ncaused, and would not reasonably be expected to cause, a Material Adverse
\nChange. Nothing has come to the attention of the Borrower or any of the
\nRestricted Subsidiaries to the effect that (i) any process, method, part or
\nother material presently contemplated to be employed by the Borrower or any
\nQwest Material Subsidiary may infringe any patent, trademark, service-mark,
\ntrade name, copyright, or other right<\/p>\n
61<\/p>\n
owned by any other Person except to the extent Borrower or any of the Restricted
\nSubsidiaries has obtained a License therefor, or (ii) there is pending or
\novertly threatened any claim or Litigation against or affecting the Borrower or
\nany Qwest Material Subsidiary contesting its right to sell or use any such
\nprocess, method, part or other material, except in the case of clause (i) and
\n(ii) above, any such event or circumstance which has not caused, and would not
\nreasonably be expected to cause, a Material Adverse Change.<\/p>\n
(t) Accuracy of Borrower Information. On the Original Closing Date,
\n ——————————–
\nneither this Agreement nor any other document, certificate or statement (in each
\ncase, taken as a whole but excluding the Offering Memorandum) which has been
\nfurnished to any Lender by or on behalf of the Borrower or any of its
\nSubsidiaries in connection herewith contained any materially untrue statement of
\na material fact or omitted to state a material fact necessary in order to make
\nthe statement contained herein and therein not materially misleading at the time
\nit was furnished in light of the circumstances under which they were made,<\/p>\n
provided that notwithstanding anything to the contrary in this Agreement or in
\n————-
\nthe Loan Papers, the Borrower makes no representation, warranty or guaranty as
\nto any projections furnished to the Lenders except that they were prepared in
\ngood faith by the Borrower on the basis of assumptions which the Borrower
\nbelieved were reasonable as of the date of such projections. On each date after
\nthe Original Closing Date on which this representation is deemed to be made, the
\nBorrower represents that none of the regular or periodic reports, or any
\nregistration statement or prospectus filed by the Borrower or any Restricted
\nSubsidiary with the Securities and Exchange Commission (or any successor agency)
\ncontains any materially untrue statement of a material fact or omits to state a
\nmaterial fact necessary in order to make the statement contained therein not
\nmaterially misleading at the time of such filing in light of the circumstances
\nunder which they were made. The historical financial statements of the Borrower
\nand Guarantor contained in the Offering Memorandum present fairly in all
\nmaterial respects and in accordance with GAAP (subject to year end adjustments
\nand the absence of footnotes as to the Borrower’s unaudited financial statements
\ncontained therein) the financial position of the Borrower and the Guarantor,
\nrespectively, and their respective consolidated Subsidiaries as of the date of
\nsuch financial statements.<\/p>\n
(u) Year 2000 Compliance. The Year 2000 Problem has not resulted in, and
\n ——————–
\nthe Borrower reasonably believes that the Year 2000 Problem will not result in,
\na Material Adverse Change.<\/p>\n
(v) Existing Financing. The Loans and the Conditional Early Release
\n ——————
\nUnlimited Guaranty of the Loans and all Obligations are senior to or pari passu
\nwith all Existing Financing. Nothing in this Agreement and the other Loan
\nPapers violates any provision of the Existing Financing Documentation, and no
\nconsent is required in connection with any of the Existing Financing
\nDocumentation in order to execute, deliver and perform under this Agreement and
\nthe other Loan Papers. To the actual knowledge of the Authorized Officers,
\nthere exists no “Default” or “Event of Default” as defined in, and under any of
\nthe Existing Financing Documentation, or any other event or circumstance which
\ncauses a Repayment Event with respect to any of the Existing Financing. All
\nnotices required by any Existing Financing Documentation regarding the
\nexecution, delivery or performance by the Borrower or any Restricted Subsidiary
\nof the Loan Papers have been given in accordance with the terms of the Existing
\nFinancing Documentation.<\/p>\n
(w) Fibers and Fiber Capacity. As of the Original Closing Date, the
\n ————————-
\nBorrower and its Restricted Subsidiaries own or have the right to use through
\nthe Maturity Date not less than 24<\/p>\n
62<\/p>\n
optical fibers on a weighted average route mile basis on the Backbone (which
\nsuch fibers are not subject to any transfer, disposition or IRU Agreement
\ngranting an IRU to any Person other than the Borrower or any Restricted
\nSubsidiary), and such fiber capacity is sufficient, on a weighted average route
\nmile basis, to meet the business plan of the Borrower.<\/p>\n
(x) Sinking Funds and Defeasance. As of the Original Closing Date, no
\n —————————-
\ndocumentation relating to any Debt for Borrowed Money of the Borrower or any
\nRestricted Subsidiary has any provision granting any creditor a sinking fund or
\na right to require a defeasance of the obligations owing to it.<\/p>\n
5.02. Survival of Representations and Warranties. All representations
\nand warranties made under this Agreement and the other Loan Papers shall be
\ndeemed to be made at and as of the Original Closing Date and at and as of the
\ndate of each Advance (excluding each Refinancing Advance), and each shall be
\ntrue and correct in all material respects when made (except those
\nrepresentations and warranties that specifically speak as of a particular date).
\nAll such representations and warranties shall survive, and not be waived by, the
\nexecution hereof by any Lender, any investigation or inquiry by any Lender, or
\nby the making of any Advance under this Agreement.<\/p>\n
ARTICLE VI. GENERAL COVENANTS<\/p>\n
So long as any of the Obligations are outstanding and unpaid or the
\nCommitment or any Letter of Credit is outstanding (whether or not the conditions
\nto borrowing have been or can be fulfilled), and subject to the terms of Section
\n9.08 hereof:<\/p>\n
6.01. Preservation of Existence and Similar Matters.<\/p>\n
(a) The Borrower shall, and shall cause each Qwest Material Subsidiary to,
\npreserve and maintain, or timely obtain and thereafter preserve and maintain (i)
\nmaterial rights, franchises, authorizations, consents, privileges and all other
\nmaterial Licenses from federal, state and local governmental bodies and any
\nTribunal (regulatory or otherwise) which the Borrower or such Qwest Material
\nSubsidiary deems reasonably necessary or advisable to conduct its business in
\nthe ordinary course, and (ii) its existence (except as permitted by Section 8.05
\nhereof); and<\/p>\n
(b) The Borrower shall, and shall cause each Restricted Subsidiary to,
\nqualify and remain qualified and authorized to do business in each jurisdiction
\nin which the character of its Properties or the nature of its business requires
\nsuch qualification or authorization, except where the failure to do so is not,
\nand would not reasonably be expected to cause, a Material Adverse Change.<\/p>\n
6.02. Business; Compliance with Applicable Law. The Borrower shall, and
\nshall cause the Restricted Subsidiaries to (a) engage primarily in the
\nTelecommunications Business, including, without limitation, the internet,
\ninternet protocol, web hosting or electronic commerce, and (b) comply in all
\nmaterial respects with the requirements of all material Applicable Law.<\/p>\n
6.03. Maintenance of Properties. The Borrower shall, and shall cause
\neach Qwest Material Subsidiary to, maintain or cause to be maintained all their
\nmaterial Properties necessary to the conduct of their business (whether owned or
\nheld under lease) in reasonably good repair, working<\/p>\n
63<\/p>\n
order and condition, taken as a whole, and from time to time make or cause to be
\nmade all appropriate repairs, renewals, replacements, additions, betterments and
\nimprovements thereto.<\/p>\n
6.04. Accounting Methods and Financial Records. The Borrower shall, and
\nshall cause each Restricted Subsidiary to, maintain a system of accounting
\nestablished and administered in accordance with GAAP and keep adequate records
\nand books of account in which complete entries will be made and all transactions
\nreflected in accordance with GAAP. The Borrower shall, and shall cause each of
\nthe Restricted Subsidiaries to, maintain a fiscal year ending on December 31.<\/p>\n
6.05. Insurance. The Borrower shall, and shall cause each Restricted
\nSubsidiary to, maintain insurance from responsible companies in such amounts and
\nagainst such risks as shall be customary and usual in the industry for companies
\nof similar size and capability. The Borrower shall use commercially reasonable
\nefforts to cause each insurance policy to provide for at least 30 days’ prior
\nnotice to the Administrative Agent of any proposed termination or cancellation
\nof such policy, whether on account of default or otherwise.<\/p>\n
6.06. Payment of Taxes and Claims. The Borrower shall, and shall cause
\neach of its Restricted Subsidiaries to, pay and discharge all federal and other
\nmaterial Taxes, assessments and governmental charges or levies imposed upon it
\nor its income or Properties prior to the date on which penalties attach thereto
\nwhich are shown on such Person’s Tax returns to be due and payable, and all
\nlawful material claims for labor, materials and supplies which, if unpaid, might
\nbecome a Lien upon any of their Properties or assets, except those Taxes,
\nassessments and charges which are immaterial or contested by the Borrower
\ndiligently in good faith, and for which adequate reserves have been established
\nin accordance with GAAP. The Borrower shall, and shall cause each of its
\nRestricted Subsidiaries to, timely file all information returns required by
\nfederal Tax Authorities, and all material information returns required by state
\nor local Tax authorities.<\/p>\n
6.07. Visits and Inspections. The Borrower shall, and shall cause each
\nRestricted Subsidiary to, promptly, permit representatives of the Administrative
\nAgent and the Arranging Agents, or any Lender accompanied by the Administrative
\nAgent from time to time, upon prior notice reasonable under the circumstances,
\nto (a) visit and inspect the Properties of the Borrower and each Restricted
\nSubsidiary during normal business hours (unless there exists an Event of Default
\nin which case during such hours as is reasonable under the circumstances), (b)
\ninspect and make extracts from and copies of the Borrower’s and each Restricted
\nSubsidiary’s books and records, in each case as reasonable under the
\ncircumstances, (c) discuss with the Borrower’s and each Restricted Subsidiary’s
\nofficers (and during an Event of Default, with the Auditors together with an
\nAuthorized Officer of the Borrower), its business, assets, liabilities,
\nfinancial positions, results of operations and business prospects, and (d) make
\nreasonable informational requests of the Auditors from time to time, with
\nrespect to which the Borrower shall be obligated to procure such information
\nfrom the Auditors.<\/p>\n
6.08. Use of Proceeds. The Borrower agrees that the proceeds of the
\nLoans shall be used in accordance with the terms of Section 2.15 hereof.<\/p>\n
64<\/p>\n
6.09. Indemnity. The Borrower agrees to indemnify and hold harmless
\nthe Administrative Agent, the Lead Arranger, the Arranging Agents, the Co-
\nArrangers, the Co-Syndication Agents, each Lender and their respective
\naffiliates, officers, directors, employees, agents and advisors (each, an
\n“Indemnified Party”) from and against any and all claims, damages, losses,
\nliabilities and expenses (including, without limitation, the reasonable fees and
\nexpenses of counsel and the allocated cost of internal counsel) which may be
\nincurred by or asserted or awarded against any Indemnified Party, in each case
\narising out of or in connection with or by reason of, or in connection with the
\npreparation for a defense of, any investigation, litigation or proceeding
\narising out of, related to or in connection with the Loans, including without
\nlimitation, any transaction in which the proceeds of any borrowing are or are to
\nbe applied, whether or not an Indemnified Party is a party thereto, whether or
\nnot the transactions contemplated herein are consummated, and whether or not
\nsuch claim, damage, loss, liability or expense results from the negligence of
\nsuch Indemnified Party unless and only to the extent that as to any Indemnified
\nParty, it shall be determined in a final, non-appealable judgment by a court of
\ncompetent jurisdiction that such losses, claims, damages, liabilities, or
\nexpenses resulted from such Indemnified Party’s gross negligence or willful
\nmisconduct. Borrower will not settle or consent to judgment with respect to any
\ninvestigation, litigation, or proceeding without the prior written consent of
\nthe Administrative Agent and any affected Indemnified Party, unless such
\nsettlement or consent includes an unconditional release of each such Indemnified
\nParty or unless each Indemnified Party is entitled to be indemnified under this
\nSection 6.09 (which entitlement the Borrower will confirm to such Indemnified
\nParty in writing, if requested). The Borrower shall periodically, upon request,
\nreimburse each Indemnified Party for its reasonable legal and other actual
\nexpenses (including the costs of any investigation and preparation) incurred in
\nconnection with any indemnified matter. The Borrower agrees that no Indemnified
\nParty shall have any liability for any indirect or consequential damages in
\nconnection with its activities related to the Loans. The reimbursement,
\nindemnity and contribution obligations under this Section shall be in addition
\nto any liability which the Borrower may otherwise have, shall extend upon the
\nsame terms and conditions to each Indemnified Party, and shall be binding upon
\nand inure to the benefit of any successors, assigns, heirs and personal
\nrepresentatives of the Borrower, the Administrative Agent, the Lenders and all
\nother Indemnified Party. This Section shall survive any termination of this
\nAgreement and repayment of the Obligations.<\/p>\n
6.10. Environmental Law Compliance. The use which the Borrower or any
\nof its Restricted Subsidiaries intends to make of any real Property owned by it
\nwill not result in the disposal or other release of any Hazardous Substance or
\nsolid waste on or to such real Property in violation of any Environmental Law,
\nexcept any such violation which is not, and would not reasonably be expected to
\ncause, a Material Adverse Change. As used herein, the term “release” as used in
\nthis Section shall have the meanings specified in CERCLA (as defined in the
\ndefinition of applicable Environmental Laws), and the terms “solid waste” and
\n“disposal” shall have the meaning specified in RCRA (as defined in the
\ndefinition of applicable Environmental Laws); provided, however, that if CERCLA
\nor RCRA is amended so as to broaden or narrow the meaning of any term defined
\nthereby, such broader or narrower meaning shall apply subsequent to the
\neffective date of such amendment; and provided further, to the extent that any
\nother law applicable to the Borrower, any of its Restricted Subsidiaries or any
\nof their properties and assets establishes a meaning for “hazardous substance,”
\n“release,” “solid waste,” or “disposal” which is broader than that specified in
\neither CERCLA or RCRA, such broader meaning shall apply. The Borrower and each
\nRestricted Subsidiary agrees to indemnify and hold the Administrative Agent and
\neach Lender harmless from and against, and to reimburse them with respect to,
\nany and all claims, damages, losses, liabilities and expenses (including
\nreasonable attorneys’ fees and courts costs) asserted or awarded against or<\/p>\n
65<\/p>\n
incurred by any of them by reason of or arising out of transactions contemplated
\nby this Agreement and (a) the failure of the Borrower or any of its Restricted
\nSubsidiaries to perform any obligation hereunder regarding asbestos or
\napplicable Environmental Laws, (b) any violation by the Borrower or Restricted
\nSubsidiary on or before the Release Date of any applicable Environmental Law in
\neffect on or before the Release Date, and (c) any act, omission, event or
\ncircumstance existing or occurring on or prior to the Release Date, involving
\nthe presence on such real Property or release from such real Property of
\nHazardous Substances or solid wastes disposed of or otherwise released on or
\nprior to the Release Date, resulting from or in connection with the ownership by
\nthe Borrower or any Restricted Subsidiary of the real Property, regardless of
\nwhether the act, omission, event or circumstance constituted a violation of any
\napplicable Environmental Law at the time of its existence or occurrence, or
\nwhether the act, omission, event or circumstance is caused by or relates to the
\nnegligence of any indemnified Person; provided, that the Borrower shall not be
\nunder any obligation to indemnify the Administrative Agent or any Lender to the
\nextent that any such liability arises as the result of the gross negligence or
\nwillful misconduct of such Person, as finally judicially determined by a court
\nof competent jurisdiction. The provisions of this Section shall survive the
\nRelease Date and shall continue thereafter in full force and effect.<\/p>\n
6.11. Restricted Subsidiary Designation. The Borrower agrees that each
\nRestricted Subsidiary on the Original Closing Date will remain a Restricted
\nSubsidiary until the Obligations have been repaid in full and the Commitment has
\nbeen terminated, unless any such Restricted Subsidiary that is not a Qwest
\nMaterial Subsidiary has been Disposed of in accordance with the terms of Section
\n8.05(a)(ii)(A) hereof. The Borrower agrees that, without the consent of the
\nMajority Lenders, the Designated U S WEST Restricted Subsidiary will remain a
\nRestricted Subsidiary until the Obligations have been repaid in full and the
\nCommitment has been terminated.<\/p>\n
6.12. Fiber Capacity. The Borrower shall, and shall cause its Restricted
\nSubsidiaries to, at all times maintain ownership of or the right to use through
\nthe Maturity Date (or until all Obligations are paid in full) not less than 24
\noptical fibers on a weighted average route mile basis on the Backbone, which
\nsuch fibers may not be transferred, disposed of or made subject to an IRU
\nAgreement granting an IRU to any Person other than the Borrower or any
\nRestricted Subsidiary if such transfer, disposal or IRU Agreement would result
\nin the Borrower and its Restricted Subsidiaries owning or having the right to
\nuse less than 24 optical fibers on a weighted average route mile basis on the
\nBackbone through the Maturity Date (or until all Obligations are paid in full).<\/p>\n
6.13. UCC Filings. The Borrower shall, and shall cause its Restricted
\nSubsidiaries to, agree to file UCC-3 releases for all UCC filings recorded
\nagainst the Borrower and its Restricted Subsidiaries, which such UCC filings
\nevidence Debt that has been repaid in full and extinguished and do not evidence
\nLiens permitted under Section 8.03 hereof.<\/p>\n
6.14. Sinking Funds and Defeasance. To the extent that the Borrower or
\nany Restricted Subsidiary agrees in connection with the incurrence of any Debt
\nfor Borrowed Money to a sinking fund or defeasance, the Borrower shall, and
\nshall cause each of its Restricted Subsidiaries to, grant to the Administrative
\nAgent and the Lenders proportionately similar rights to a sinking fund or
\ndefeasance with respect to the Obligations.<\/p>\n
6.15. Reimbursement of Costs and Expenses. Within 30 days after the
\nAmendment and Restatement Closing Date, the Borrower shall reimburse the
\nAdministrative Agent for the reasonable costs, fees and expenses (including the
\nreasonable fees and expenses of Special Counsel)<\/p>\n
66<\/p>\n
incurred by the Administrative Agent in connection with the negotiation,
\npreparation and execution of this Agreement and the other Loan Papers.<\/p>\n
ARTICLE VII. INFORMATION COVENANTS<\/p>\n
So long as any of the Obligations are outstanding and unpaid or the
\nCommitment or any Letter of Credit is outstanding (whether or not the conditions
\nto borrowing have been or can be fulfilled), the Borrower shall, subject to
\nSection 9.08 hereof, furnish or cause to be furnished to the Administrative
\nAgent two copies of the following:<\/p>\n
7.01. Quarterly Financial Statements and Information. Within 60 days
\nafter the end of each fiscal quarter (except the fourth fiscal quarter), (a)
\nconsolidated balance sheets of the Borrower and the Restricted Subsidiaries, and
\n(b) either (i) a copy of the Form 10-Q (including all financial statements
\ncontained herein) filed by the Borrower or (ii) consolidated balance sheets of
\nthe Borrower and its Subsidiaries, each as at the end of such quarter, and the
\nrelated consolidated and consolidating statements of income and consolidated
\nstatements of changes in cash for such quarter and for the elapsed portion of
\nthe year ended with the last day of such quarter, all of which shall be
\ncertified by an Authorized Officer of the Borrower on behalf of the Borrower,
\nto, in his or her opinion, present fairly in all material respects, in
\naccordance with GAAP (except that such financial statements may be subject to
\nyear-end audit adjustments and do not have to contain footnotes), the financial
\nposition and results of operations of (A) the Borrower and the Restricted
\nSubsidiaries, and (B) the Borrower and its Subsidiaries, respectively, as at the
\nend of and for such period, and for the elapsed portion of the year ended with
\nthe last day of such period.<\/p>\n
7.02. Annual Financial Statements and Information.<\/p>\n
(a) Within 120 days after the end of each fiscal year, a copy of (i) the
\nconsolidated balance sheets of the Borrower and the Restricted Subsidiaries,
\n(ii) either (A) a copy of the Form 10-K (including all financial statements
\ncontained therein) filed by the Borrower, or (B) the consolidated balance sheets
\nof the Borrower and its Subsidiaries, each as of the end of such fiscal year,
\nand (iii) consolidated and consolidating statements of earnings, statements of
\nchanges in shareholders’ equity, and statements of changes in cash as of and
\nthrough the end of such fiscal year for the Borrower and the Restricted
\nSubsidiaries and the Borrower and its Subsidiaries, respectively, all of which
\nare prepared in accordance with GAAP, and certified by Auditors, whose opinion
\nshall be in scope and substance in accordance with generally accepted auditing
\nstandards and shall be unqualified.<\/p>\n
(b) As soon as available, but in any event within 90 days following the end
\nof each fiscal year, a copy of the annual consolidated operating budget of the
\nBorrower and the Restricted Subsidiaries for the succeeding fiscal year.<\/p>\n
(c) As soon as available, but in any event within three Business Days
\nfollowing any change in the Senior Unsecured Debt Rating, a Notice of Change of
\nSenior Unsecured Debt Rating.<\/p>\n
67<\/p>\n
7.03. Compliance Certificates. At the time financial statements are
\nfurnished pursuant to Section 7.01 and Section 7.02 hereof, a duly completed
\nCompliance Certificate certified by an Authorized Officer of the Borrower on
\nbehalf of the Borrower.<\/p>\n
7.04. Copies of Other Reports and Notices.<\/p>\n
(a) Promptly upon their becoming available, a copy of (i) all material
\nreports or material letters submitted to the Borrower or any Qwest Material
\nSubsidiary by accountants in connection with any annual, interim or special
\naudit, including without limitation any report prepared in connection with the
\nannual audit referred to in Section 7.02 hereof, and any other comment letter
\nsubmitted to management in connection with any such audit, (ii) each financial
\nstatement, report, notice or proxy statement sent by the Borrower or any
\nRestricted Subsidiary to stockholders generally and (iii) each regular or
\nperiodic report and any registration statement or prospectus (or material
\nwritten communication in respect of any thereof) filed by the Borrower or any
\nRestricted Subsidiary with any securities exchange, with the Securities and
\nExchange Commission or any successor agency.<\/p>\n
(b) Promptly upon becoming aware (i) that the holder(s) of any note(s) or
\nother evidence of indebtedness or other security of the Borrower or any Qwest
\nMaterial Subsidiary in excess of $25,000,000 in the aggregate has given notice
\nor taken any action with respect to a breach, failure to perform, claimed
\ndefault or event of default thereunder, (ii) of any occurrence or non-occurrence
\nof any event which constitutes or which with the passage of time or giving of
\nnotice or both would constitute either (A) a “Default” or “Event of Default” (as
\nsuch terms are defined in the Existing Financing Documentation) by the Borrower
\nor any Qwest Material Subsidiary under any Existing Financing or (B) a Repayment
\nEvent under any Existing Financing, or (iii) of the occurrence of any event,
\ncircumstance or condition which is, or would reasonably be expected to cause, a
\nMaterial Adverse Change, a written notice specifying the details thereof (or the
\nnature of any claimed default or event of default) and what action is being
\ntaken or is proposed to be taken with respect thereto;<\/p>\n
(c) (i) Promptly upon receipt thereof, copies of any notices received from
\nthe FCC, any applicable PUC or any other federal, state or local regulatory
\nagencies or any tribunal relating to any order, ruling, law, information or
\npolicy and information relating to material developments with respect thereto
\nthat both (A) relates to a breach of or noncompliance with the Communications
\nAct or any law, rule or regulation of any applicable PUC, and (B) would
\nreasonably be expected to result in the payment of money by the Borrower or any
\nRestricted Subsidiary in an amount of $25,000,000 or more in the aggregate, or
\notherwise is, or would reasonably be expected to cause, a Material Adverse
\nChange, or result in the loss or suspension of any Material License; and<\/p>\n
(ii) Within 10 Business Days after an Authorized Officer of the
\nBorrower has actual knowledge or notice thereof, notice of (A) the commencement
\nof any proceeding or investigation before any applicable PUC with respect to the
\noperations of the Borrower or any Restricted Subsidiary which would reasonably
\nbe expected to cause a Material Adverse Change, and (B) the commencement of all
\nproceedings or material formal investigations before the FCC with respect to the
\nBorrower and the Restricted Subsidiaries.<\/p>\n
(d) From time to time and promptly upon each request, such data, reports,
\ndocuments or further information regarding the assets, business, liabilities,
\nfinancial position, results of operations or business prospects of the Borrower
\nand the Restricted Subsidiaries, as the Administrative Agent<\/p>\n
68<\/p>\n
or any Lender through the Administrative Agent may reasonably request, and from
\ntime to time within a reasonable time period after each request during the
\ncontinuance of an Event of Default, such projections as may be reasonably
\nrequested by the Administrative Agent or any Lender through the Administrative
\nAgent. Notwithstanding the foregoing, prior to the Acquisition Date, no Lender
\nmay receive confidential information regarding any of the U S WEST Companies
\nunless and until it has executed a Confidentiality Agreement and delivered it to
\nthe Administrative Agent.<\/p>\n
7.05. Notice of Litigation, Default and Other Matters. Notice of the
\nfollowing events within 10 Business Days after an Authorized Officer of the
\nBorrower has actual knowledge or notice thereof:<\/p>\n
(a) Any action or proceedings in any court or before any arbitrator
\ninvolving claims for damages (including punitive damages) in excess of either
\n$25,000,000 for any one proceeding or investigation, or $50,000,000 in the
\naggregate for all such proceedings (after deducting the amount with respect to
\nwhich the Borrower or any of its Restricted Subsidiaries is insured), against
\nthe Borrower or any of its Restricted Subsidiaries, or any of their properties,
\nassets or businesses or with respect to which the Borrower or any Restricted
\nSubsidiary has liability; and<\/p>\n
(b) The happening of any condition or event which constitutes a Default or
\nEvent of Default. Such notice shall specify the nature and period of existence
\nthereof and what action is being taken or is proposed to be taken with respect
\nthereto.<\/p>\n
7.06. ERISA Reporting Requirements.<\/p>\n
(a) Promptly and in any event (i) within 30 days after the Borrower or any
\nmember of their Controlled Group has actual knowledge that any ERISA Event
\ndescribed in clause (a) of the definition of ERISA Event or any event described
\nin Section 4063(a) of ERISA with respect to any Plan of the Borrower or any
\nmember of its Controlled Group has occurred, and (ii) within 10 Business Days
\nafter the Borrower or any member of its Controlled Group has actual knowledge
\nthat any other ERISA Event with respect to any Plan of the Borrower or any
\nmember of its Controlled Group has occurred or a request for a minimum funding
\nwaiver under Section 412 of the Code with respect to any Plan of the Borrower or
\nany member of its Controlled Group, a written notice describing such event and
\ndescribing what action is being taken or is proposed to be taken with respect
\nthereto, together with a copy of any notice of event that is given to the PBGC;<\/p>\n
(b) Promptly and in any event within two Business Days after receipt
\nthereof by the Borrower or any member of its Controlled Group from the PBGC,
\ncopies of each notice received by the Borrower or any member of its Controlled
\nGroup of the PBGC’s intention to terminate any Plan or to have a trustee
\nappointed to administer any Plan;<\/p>\n
(c) Promptly and in any event within 30 days after the filing thereof by
\nthe Borrower or any member of its Controlled Group with the United States
\nDepartment of Labor, the Internal Revenue Service or the PBGC, copies of each
\nannual and other report (including Schedule B thereto) with respect to each
\nPlan;<\/p>\n
(d) Promptly and in any event within 30 days after receipt thereof, a copy
\nof any notice, determination letter, ruling or opinion the Borrower or any
\nmember of its Controlled Group receives from the PBGC, the United States
\nDepartment of Labor or the Internal Revenue Service with respect to any Plan;<\/p>\n
69<\/p>\n
(e) Promptly, and in any event within 10 Business Days after receipt
\nthereof, a copy of any correspondence the Borrower or any member of their
\nControlled Group receives from the Plan Sponsor (as defined by Section
\n4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
\npursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
\nfinancial officer of the Borrower or such member of its Controlled Group setting
\nforth details as to the events giving rise to such potential withdrawal
\nliability and the action which the Borrower or such member of its Controlled
\nGroup is taking or proposes to take with respect thereto;<\/p>\n
(f) Notification within 30 days of any material increases in the benefits
\nof any existing Plan which is not a Multiemployer Plan, or the establishment of
\nany new Plans, or the commencement of contributions to any Plan to which the
\nBorrower or any member of its Controlled Group was not previously contributing;<\/p>\n
(g) Notification within three Business Days after the Borrower or any
\nmember of its Controlled Group has actual knowledge that the Borrower or any
\nsuch member of its Controlled Group has or intends to file a notice of intent to
\nterminate any Plan under a distress termination within the meaning of Section
\n4041(c) of ERISA and a copy of such notice; and<\/p>\n
(h) Within 10 Business Days after receipt of written notice of commencement
\nthereof, notice of all actions, suits and proceedings before any court or
\ngovernmental department, commission, board, bureau, agency or instrumentality,
\ndomestic or foreign, affecting the Borrower or any member of its Controlled
\nGroup with respect to any Plan.<\/p>\n
7.07. Copies of Other Reports and Notices Regarding U S WEST Restricted
\nSubsidiaries.<\/p>\n
(a) Notice of the following events promptly after an Authorized Officer of
\nthe Borrower has actual knowledge or notice thereof:<\/p>\n
(i) notice of any FCC or PUC matter relating to a U S WEST Restricted
\n Subsidiary that has caused a Material Adverse Effect,<\/p>\n
(ii) if a Material Adverse Effect has occurred as a consequence
\n thereof, notice of any action or proceedings in any court or before any
\n arbitrator involving claims for damages (including punitive damages)
\n against any of the U S WEST Restricted Subsidiaries, or any of their
\n properties, assets or businesses or with respect to which any US WEST
\n Restricted Subsidiary has liability, and<\/p>\n
(iii) notice of a U S WEST Default; and.<\/p>\n
(b) At the same time as any of the U S WEST Restricted Subsidiaries
\ndelivers notice to any holder of any U S WEST Debt:<\/p>\n
(i) notice of any ERISA matter, a copy of such notice, and<\/p>\n
(ii) a copy of each regular or periodic report and any registration
\n statement or prospectus (or material written communication in respect of
\n any thereof) filed by any U S<\/p>\n
70<\/p>\n
WEST Restricted Subsidiary with any securities exchange, with the
\n Securities and Exchange Commission or any successor agency.<\/p>\n
ARTICLE VIII. NEGATIVE COVENANTS<\/p>\n
So long as any of the Obligations are outstanding and unpaid or the
\nCommitment or any Letter of Credit is outstanding (whether or not the conditions
\nto borrowing have been or can be fulfilled) and subject to Section 9.08 hereof:<\/p>\n
8.01. Financial Covenants.<\/p>\n
(a) Total Leverage Ratio. From the Original Closing Date and continuing
\nat all times until the Obligations have been repaid in full, the Borrower shall
\nnot permit the Total Leverage Ratio to be more than the following ratios during
\nthe following time periods:<\/p>\n
\n\n Period Ratio
\n —— —–
\n <\/p>\n From the Original Closing Date
\n through December 31, 2000 4.90 to 1.00
\n From January 1, 2001 through June 30, 2001 4.75 to 1.00
\n From July 1, 2001 through December 31, 2001 4.25 to 1.00
\n From January 1, 2002 and thereafter 3.75 to 1.00
\n<\/c><\/s><\/caption>\n<\/table>\n
(b) Interest Coverage Ratio. From the Original Closing Date and
\ncontinuing at all times until the Obligations have been repaid in full, the
\nBorrower shall not permit the Interest Coverage Ratio to be less than 2.75 to
\n1.00.<\/p>\n
(c) Minimum Consolidated Net Worth. From the Original Closing Date and
\ncontinuing at all times until the Obligations have been repaid in full, the
\nBorrower shall not permit the Consolidated Net Worth of the Borrower and the
\nRestricted Subsidiaries on any date of determination to be less than the sum of
\n(i) 75% of the Borrower’s Consolidated Net Worth at December 31, 1998, (ii) 50%
\nof Consolidated Net Income (with no deduction for losses) for the period
\ncommencing January 1, 1999 through any such date of determination, plus (iii)
\n75% of the net proceeds received by the Borrower from common Capital Stock
\nissuances of the Borrower during the period from the Original Closing Date
\nthrough any such date of determination. For purposes of compliance with the
\nforegoing Consolidated Net Worth test, one-time non-cash merger and
\nrestructuring charges relating to future acquisitions permitted to be
\nconsummated in accordance with the terms hereof may be added back to Net Income<\/p>\n
provided that (A) such charges may only be added back to the extent they were
\n————-
\ndeducted from Net Income and (B) the aggregate amount of all such add backs over
\nthe term of this Agreement shall not exceed $250,000,000.<\/p>\n
8.02. Debt for Borrowed Money. The Borrower shall not, and shall not
\npermit any Restricted Subsidiary to, create, assume, incur or otherwise become
\nor remain obligated in respect of, or permit to be outstanding, or suffer to
\nexist any Debt for Borrowed Money of the Borrower or any Restricted Subsidiary
\nor issue any Preferred Stock, except the following Debt for Borrowed Money and
\nPreferred Stock, provided that, any Debt for Borrowed Money or Preferred Stock
\n ————-
\nwhich<\/p>\n
71<\/p>\n
is permitted when incurred or issued (whether it is incurred by operation
\nof law or otherwise) shall always be permitted hereunder:<\/p>\n
(a) with respect to the Borrower and the Restricted Subsidiaries, Debt for
\nBorrowed Money of the Borrower and its Restricted Subsidiaries under the Loan
\nPapers and under the New Credit Facility;<\/p>\n
(b) with respect to the Borrower and its Restricted Subsidiaries Debt for
\nBorrowed Money in existence on the Original Closing Date described on Schedule
\n ——–
\n8.02 hereto and not otherwise permitted pursuant to the terms of this Section
\n—-
\n8.02, including without limitation, the Existing Financing and the TROL
\nTransaction, in each case only in the principal amounts and on the terms as such
\nDebt for Borrowed Money exists as of the Original Closing Date (subject to the
\nprovisions of subparagraph (e) below); provided that, in the case of existing
\n ————-
\naccreting Debt, principal amounts existing on the Original Closing Date shall
\ninclude all amounts by which any such debt accretes after the Original Closing
\nDate;<\/p>\n
(c) provided that no Default or Event of Default exists or would result
\nfrom the incurrence thereof, with respect to the Borrower and the Wholly Owned
\nRestricted Subsidiaries, Debt owed to each other incurred in the ordinary course
\nof business in accordance with past practices;<\/p>\n
(d) so long as there exists no Default or Event of Default both before and
\nafter giving effect thereto, in addition to all other Debt permitted to be
\nincurred pursuant to this Section 8.02, (i) unsecured Debt of the Borrower in
\nrespect to Interest Rate Protection Agreements, (ii) Subordinated Indebtedness
\nof the Borrower, so long as such Subordinated Indebtedness in the aggregate for
\nall outstanding principal amounts does not exceed $500,000,000, provided that,
\n ————-
\nif the Total Leverage Ratio is less than 4.00 to 1.00 both before and after
\ngiving effect to any such incurrence, the Borrower may incur Subordinated
\nIndebtedness in principal amounts in excess of $500,000,000 and (iii) in
\naddition to Debt for Borrowed Money permitted to be incurred in accordance with
\nthe terms of subsection (ii) immediately preceding, unsecured Debt (on a pari
\npassu basis with the Obligations), Preferred Stock or Subordinated Indebtedness
\nof the Borrower in an aggregate principal amount outstanding not to exceed the
\ndifference between $1,000,000,000 and the Additional New Credit Facility Debt,
\nif any, provided that (A) such unsecured Debt on a pari passu basis shall be
\n ————-
\notherwise on terms and conditions reasonably acceptable to the Arranging Agents
\nand (B) the material terms of all such Debt for Borrowed Money (including,
\nwithout limitation, Subordinated Indebtedness) and Preferred Stock shall be no
\nmore restrictive than any comparable terms of either this Agreement or any
\nExisting Financing Documentation (whichever is more restrictive), provided that,
\n ————-
\nif the Total Leverage ratio is less than 4.00 to 1.00 both before and after
\ngiving effect to any such incurrence, the Borrower may incur unlimited Debt for
\nBorrowed Money (including, without limitation, Subordinated Indebtedness) or
\nPreferred Stock meeting the requirements set forth in (A) and (B) above;<\/p>\n
(e) so long as there exists no Default or Event of Default both before and
\nafter giving effect thereto, Debt of the Borrower or any Original Restricted
\nSubsidiary in respect of Permitted Refinancing Indebtedness;<\/p>\n
72<\/p>\n
(f) in addition to all other Debt permitted to be incurred pursuant to this
\nSection 8.02, after the Acquisition Date, so long as there exists no Default or
\nEvent of Default both before and after giving effect thereto,<\/p>\n
(i) the Borrower may incur unsecured Debt for Borrowed Money
\n (including, without limitation, Subordinated Indebtedness) and\/or
\n issue Preferred Stock so long as the material terms are reasonably
\n acceptable to the Arranging Agents and no more restrictive than the
\n comparable terms of this Agreement or any of the Existing Financing
\n Documentation (whichever is more restrictive), and<\/p>\n
(ii) the Restricted Subsidiaries may incur Debt for Borrowed
\n Money (including, without limitation, Subordinated Indebtedness) not
\n otherwise permitted by this Section 8.02 that is unsecured and in an
\n aggregate amount not to exceed 10% of the Tangible Assets of the
\n Borrower and the Restricted Subsidiaries at any one time outstanding,<\/p>\n
(g) so long as there exists no Default or Event of Default both before and
\nafter giving effect to the incurrence thereof, Debt for Borrowed Money and\/or
\nPreferred Stock of the Borrower and the Restricted Subsidiaries meeting the
\nqualifications set forth below:<\/p>\n
(i) in an aggregate principal amount for the Borrower and the
\n Restricted Subsidiaries together not in excess of $50,000,000 outstanding
\n at any one time for both Debt for Borrowed Money and Preferred Stock, and<\/p>\n
(ii) in addition to amounts permitted under (b) and (g)(i) above, in
\n respect of Capital Leases and purchase money as defined in the UCC in an
\n aggregate amount for the Borrower and the Restricted Subsidiaries together
\n not in excess of $125,000,000 outstanding at any one time, and<\/p>\n
(iii) in addition to (g)(i) and (ii) above, any amount of Preferred
\n Stock, provided that the terms of such Preferred Stock shall (i) provide
\n ————-
\n for payment in kind dividends only, except to the extent declared by the
\n Board of Directors and approved by the Administrative Agent and the
\n Majority Lenders, (ii) contain no covenants of the Borrower or any
\n Restricted Subsidiary, (iii) contain no mandatory redemption, defeasance,
\n sinking fund or prepayment provisions, (iv) provide that the sole remedies
\n for breach or default of any provision of such Preferred Stock shall be
\n limited to additional board seats, so long as it does not cause a Change of
\n Control or Specified Change of Control, (v) not contain any voting rights
\n that could cause a Change of Control or a Specified Change of Control and
\n (vi) not contain any liquidation rights or conversion rights (other than
\n conversion rights into the common Capital Stock of the Borrower);<\/p>\n
(h) so long as there exists no Default or Event of Default both before and
\nafter giving effect to the incurrence thereof, the Borrower and the Restricted
\nSubsidiaries may incur other unsecured Debt for Borrowed Money and\/or Preferred
\nStock not described in (a) through (g) above, provided that the aggregate
\n ————-
\nprincipal amount of all such Debt and Preferred Stock for the Borrower and the
\nRestricted Subsidiaries together is never in excess of $50,000,000 outstanding
\nat any one time;<\/p>\n
73<\/p>\n
(i) so long as there exists no Default or Event of Default both before and
\nafter giving effect to incurrence thereof, the Borrower may acquire unsecured
\nDebt for Borrowed Money in connection with an acquisition permitted under
\nSection 8.18 hereof (the “Acquired Debt”) so long as in each case (i) such
\nAcquired Debt was not incurred in anticipation of the acquisition by the
\nBorrower, (ii) the Borrower deposits in cash at the Administrative Agent an
\namount equal to the principal amount of the Acquired Debt as collateral to
\nsecure the Obligations hereunder (the “Cash Collateral”), (iii) the Borrower
\nexecutes a security agreement in form and substance reasonably acceptable to the
\nAdministrative Agent and the Arranging Agents granting a lien and security
\ninterest in the Cash Collateral to secure the Obligations of the Lenders
\nhereunder together with such other documentation, including, without limitation,
\nUCC-1 filings, as deemed reasonable by the Administrative Agent, (iv) the
\nAcquired Debt must remain the sole obligation of the acquired person and the
\nBorrower shall not, nor shall it permit any Restricted Subsidiary to, execute
\nany Guaranty of the Acquired Debt or otherwise become obligated in any manner
\nwith respect to the Acquired Debt (pursuant to assumption, merger,
\nconsolidation, operation of law or otherwise). Each Lender hereby authorizes
\nthe Administrative Agent to release and return to the Borrower such portion of
\nany Cash Collateral upon the extinguishment of the related Acquired Debt;<\/p>\n
(j) on and after the Acquisition Date, so long as there exists no Default
\nunder Section 9.01(a) hereof or Event of Default both before and after giving
\neffect to such transaction, in connection with the U S WEST Acquisition and only
\nupon consummation of the U S WEST Acquisition, the U S WEST Debt and U S WEST
\nPermitted Refinancing Indebtedness shall be permitted to exist, provided that,
\n ————-
\nnotwithstanding the foregoing, (i) except with respect to the U S WEST
\nGuarantees, the Persons obligated on (or with respect to) any such Debt shall
\nnot include the Borrower or any of the Original Restricted Subsidiaries (unless
\nthe Borrower and\/or the Original Restricted Subsidiaries, as applicable, are
\nentitled to incur such Debt under another provision of this Section 8.02) and
\n(ii) any collateral, credit support or other surety for any such Debt shall not
\nbe expanded to include any new Properties or assets of the Borrower or any
\nOriginal Restricted Subsidiary; and<\/p>\n
(k) on and after the Acquisition Date (i) the U S WEST Guarantees shall be
\npermitted to exist and (ii) so long as (A) there exists no Default under Section
\n9.01(a) hereof or Event of Default both before and after giving effect to such
\ntransaction and (B) the aggregate amount of the U S WEST Guarantees does not
\nexceed the sum of (I) the aggregate amount of such U S WEST Guarantees described
\non Schedule 1.03 hereto, plus (II) an aggregate amount of additional U S WEST
\n ————-
\nGuarantees not to exceed $2,500,000,000, the Borrower shall be permitted to
\nassume the obligations under the U S WEST Guarantees, provided that,
\n ————-
\nnotwithstanding the foregoing, in all respects other than the Borrower becoming
\nan obligor thereunder, any collateral, credit support or other surety for any
\nsuch Debt shall remain in the U S WEST Companies, and none of the Original
\nRestricted Subsidiaries, or any of the Properties or assets of the Borrower or
\nthe Original Restricted Subsidiaries shall secure, guaranty or otherwise be
\nobligated thereon (unless the Borrower and\/or the Original Restricted
\nSubsidiaries, as applicable, are entitled to incur such Debt under another
\nprovision of this Section 8.02).<\/p>\n
Notwithstanding any other provision contained in Section 8.02 hereof and
\nprovided such Debt for Borrowed Money is otherwise permitted to be incurred
\nunder this Section 8.02, the Borrower and the Restricted Subsidiaries may incur
\nup to $1,000,000,000 (but not in excess of) in the aggregate outstanding at any
\none time of Debt for Borrowed Money (including, without<\/p>\n
74<\/p>\n
limitation, Subordinated Indebtedness) and Preferred Stock with a maturity prior
\nto the Extension Final Maturity provided, that (x) Debt for Borrowed Money of
\n ————–
\nBorrower or any Restricted Subsidiary with a maturity prior to the Extension
\nFinal Maturity in existence on the Amendment and Restatement Closing Date, (y) U
\nS WEST Debt with a maturity prior to the Extension Final Maturity in existence
\nprior to the Acquisition Date and (z) any Debt for Borrowed Money incurred at
\nany time pursuant to Section 8.02(c) hereof, Section 8.02(e) hereof and Section
\n8.02(g) hereof with a maturity date prior to the Extension Final Maturity shall
\nbe excluded from such $1,000,000,000 aggregate limitation contained in this
\nparagraph.<\/p>\n
8.03. Liens. The Borrower shall not, and shall not permit any
\nRestricted Subsidiary to, create, assume, incur, permit or suffer to exist,
\ndirectly or indirectly, any Lien on any of its assets or Properties, whether now
\nowned or hereafter acquired, except (a) Permitted Liens, (b) so long as no
\nDefault or Event of Default exists or would result from the incurrence of such
\nLien, Liens securing Debt permitted to be incurred by Section 8.02(g) hereof
\n(and any Permitted Refinancing Indebtedness of such Debt), but only so long as
\nsuch Debt secured thereby shall not be increased and the Liens shall cover
\nProperties of the Borrower purchased with the proceeds of such Debt and shall
\nnot cover additional assets of the Borrower or any such Restricted Subsidiary
\nand (c) pre-existing Liens acquired by the Borrower or any Restricted Subsidiary
\nin connection with an acquisition permitted by Section 8.18 hereof and securing
\nDebt permitted to be incurred by Section 8.02(g) hereof. Except to the extent
\nthat any such provision is contained in any of the Existing Financing
\nDocumentation as of the Original Closing Date, the Borrower shall not, and shall
\nnot permit any Restricted Subsidiary of the Borrower to, agree with any other
\nPerson that it shall not create, assume, incur, permit or suffer to exist or to
\nbe created, assumed, incurred or permitted to exist, directly or indirectly, any
\nLien on any of its assets or Properties, provided that, with respect to Sections
\n ————-
\n8.02 (f) and (g) hereof, the Borrower (or in the case of (g), any Restricted
\nSubsidiary) may agree with any such creditor to the prohibition of Liens on all
\nDebt other than Liens securing the Obligations (and any increase in the
\nObligations).<\/p>\n
8.04. Investments. The Borrower shall not, and shall not permit any
\nRestricted Subsidiary to, make any Investment, except that the Borrower and its
\nRestricted Subsidiaries may purchase or otherwise acquire and own:<\/p>\n
(a) Marketable, direct obligations of, or guaranteed by, the United States
\nof America and maturing within 365 days of the date of purchase;<\/p>\n
(b) Commercial paper maturing not more than 90 days after the date of
\nacquisition, issued by U.S. corporations (other than Affiliates of the Borrower)
\nthat have a rating of A-2\/P-1 or A-1\/P-2 or better by Standard & Poor’s Ratings
\nGroup, a Division of McGraw-Hill, Inc. or Moody’s Investors Service, Inc.;<\/p>\n
(c) time deposit accounts, certificates of deposit and money market
\ndeposits maturing within 180 days of the date of acquisition thereof issued by a
\nbank or trust company which is organized under the laws of the United States of
\nAmerica, any state thereof or any foreign country recognized by the United
\nStates of America, and which bank or trust company has a capital surplus and
\nundivided profits aggregating in excess of $50,000,000 (or the foreign currency
\nequivalent thereof) and has outstanding debt which is rated “A” (or such similar
\nequivalent rating) or higher by at least one nationally recognized statistical
\nrating organization (as defined in Rule 436 under the Exchange Act);<\/p>\n
75<\/p>\n
(d) securities with maturities of six months or less from the date of
\nacquisition, issued or fully guaranteed by any state, commonwealth or territory
\nof the United States of America, or by an political subdivision or taxing
\nauthority thereof, and rated at least “A” by Standard & Poor’s Ratings Group, a
\nDivision of McGraw-Hill, Inc. or “A” by Moody’s Investors Service, Inc.;<\/p>\n
(e) Investments constituting acquisitions permitted by Section 8.18 hereof;<\/p>\n
(f) (i) Investments and contractual commitments for future Investments that
\nare in existence on November 29, 1999, (ii) after the Acquisition Date,
\nInvestments and contractual commitments for future Investments of any U S WEST
\nRestricted Subsidiary in each case to the extent that such Investments and
\ncontractual commitments for future Investments are in existence on the
\nAcquisition Date and (iii) Investments by the Borrower and its Wholly Owned
\nRestricted Subsidiaries in the Borrower or any Wholly Owned Restricted
\nSubsidiary;<\/p>\n
(g) in addition to all the other permitted Investments under this Section
\n8.04 and so long as (i) there exists no Default or Event of Default both before
\nand after giving effect to such Investment, Permitted Investments except the U S
\nWEST Acquisition, and (ii) (A) there exists no Default under Section 9.01(a)
\nhereof or an Event of Default both before and after giving effect to such
\nInvestment and (B) U S WEST has a Senior Unsecured Debt Rating of BBB- \/Baa3 or
\nhigher immediately prior to the consummation of such Investment, the U S WEST
\nAcquisition;<\/p>\n
(h) receivables owing to the Borrower or any Restricted Subsidiary if
\ncreated or acquired in the ordinary course of business and payable or
\ndischargeable in accordance with customary trade terms;<\/p>\n
(i) payroll, travel, commission and similar advances to cover matters that
\nare expected at the time of such advances ultimately to be treated as expenses
\nfor accounting purposes and that are made in the ordinary course of business,
\nand prepaid expenses, negotiable instruments held for collection and lease,
\nutility and workers’ compensation, performance and other similar deposits made
\nin the ordinary course of business;<\/p>\n
(j) loans or advances, or extensions of credit, to employees, directors,
\ndistributors and sales agents made in the ordinary course of business consistent
\nwith past practices of the Borrower or such Restricted Subsidiary;<\/p>\n
(k) Investments held in trust by the Borrower or any Restricted Subsidiary
\nfor the purpose of paying deferred compensation to its officers and employees;<\/p>\n
(l) so long as there exists no Default or Event of Default both before and
\nimmediately after giving effect to any such Investment, Investments in bonds,
\nnotes, debentures and other securities received as a result of the Disposition
\nby the Borrower or any Restricted Subsidiary of any assets or Properties
\npermitted in accordance with the terms of Section 8.05 hereof, provided that the
\n ————-
\naggregate amount of such Investments for the Borrower and its Restricted
\nSubsidiaries shall not exceed $25,000,000 at any one time outstanding;<\/p>\n
(m) Investments made in the ordinary course of business as partial payment
\nfor constructing a network relating to a Telecommunications Business, including,
\nwithout limitation,<\/p>\n
76<\/p>\n
the internet, internet protocol, web hosting and electronic commerce, not to
\nexceed in the aggregate an amount in excess of (i) $50,000,000 outstanding at
\nany one time prior to the Acquisition Date and (ii) $100,000,000 outstanding at
\nany one time on and after the Acquisition Date; and<\/p>\n
(n) Notwithstanding the foregoing limitations set forth in this Section
\n8.04, in the event that (i) there exists no Default or Event of Default on the
\ndate any such Investment is made, (ii) the Borrower has a Senior Unsecured Debt
\nRating of BBB- or Baa3 or higher on the date any such Investment is made, and
\n(iii) Investments made by the Borrower and its Restricted Subsidiaries in
\nAffiliates (other than Subsidiaries of the Borrower), Unrestricted Subsidiaries
\nand Subsidiaries that are not Wholly Owned Restricted Subsidiaries do not exceed
\nan amount equal to 10% of the Tangible Assets of the Borrower and the Restricted
\nSubsidiaries in the aggregate over the term of this Agreement (after giving
\neffect to the proposed Investment), the Borrower and its Restricted Subsidiaries
\nmay make any Investments.<\/p>\n
8.05. Liquidation, Disposition and Merger. The Borrower shall not, and
\nshall not permit any Restricted Subsidiary of the Borrower to, at any time:<\/p>\n
(a) liquidate or dissolve itself (or suffer any liquidation or dissolution)
\nor otherwise wind up; or effect any Disposition of all or any part of its
\nassets, Properties or business other than:<\/p>\n
(i) Permitted Asset Sales and the contribution of EUnet International
\n Limited and any other assets of the Borrower or any Restricted Subsidiary
\n contractually committed prior to the Original Closing Date to be
\n contributed by the Borrower to the KPNQwest Joint Venture;<\/p>\n
(ii) so long as (1) there exists no Event of Default both before and
\n after giving effect to any such Disposition, (2) there exists no Default
\n under Section 9.01(a) hereof both before and after giving effect to any
\n such Disposition, (3) the Administrative Agent has not received notice from
\n the Borrower in accordance with the terms of Section 7.04(b) hereof that an
\n event has occurred or a circumstance exists that is, or would reasonably be
\n expected to cause, a Material Adverse Change both before and after giving
\n effect to any such Disposition, and (4) the Borrower is in compliance with
\n the terms of Section 2.05 and Section 2.11 hereof:<\/p>\n
(A) Dispositions of assets not constituting Capital Stock of
\n Qwest Material Subsidiaries with a Disposition price of less than
\n $15,000,000 for any one Disposition and less than an amount equal to
\n 10% of the Tangible Assets of the Original Borrower and its Original
\n Restricted Subsidiaries (determined on the date of each such
\n Disposition) in the aggregate for all such Dispositions from the
\n Original Closing Date through the date of such Disposition,<\/p>\n
(B) sales of accounts receivable in accordance with the terms of
\n Section 8.12 hereof,<\/p>\n
(C) any Restricted Subsidiary of the Borrower owned all or in
\n part by the Borrower or any Wholly Owned Restricted Subsidiary, can be
\n dissolved, so long as the Borrower and each such Wholly Owned
\n Restricted Subsidiary owning any Capital Stock of such Restricted
\n Subsidiary acquires its proportionate part of the total of such
\n Restricted Subsidiary’s assets, provided that, so long as such
\n ————-
\n dissolution is in the ordinary course of business in accordance with
\n the past practices of the<\/p>\n
77<\/p>\n
Borrower and is otherwise in compliance with this subsection (C), such
\n dissolution may occur during the existence of a Default or Event of
\n Default or after notice of the occurrence of a Material Adverse
\n Change,<\/p>\n
(D) any Wholly Owned Restricted Subsidiary hereunder, may
\n Dispose of assets, Property or business to the Borrower or any other
\n Wholly Owned Restricted Subsidiary or the Borrower, provided that, so
\n ————-
\n long as such Disposition is in the ordinary course of business in
\n accordance with the past practices of the Borrower and the Restricted
\n Subsidiaries and is otherwise in compliance with this subsection (D),
\n such Disposition may occur during the existence of a Default or Event
\n of Default or after notice of the occurrence of a Material Adverse
\n Change,<\/p>\n
(E) any Disposition by the Borrower and its Restricted
\n Subsidiaries of any of their non-U.S. assets and Properties, including
\n without limitation (I) the 1,400-route-mile extension of the U.S.
\n network into Mexico, (II) the capacity on three undersea systems
\n linking its network to Europe, (III) the proposed 13, 125-mile-four-
\n fiber-pair submarine cable systems connecting the U.S. to Japan,
\n scheduled for completion by the second quarter of 2000 and (IV) all
\n transatlantic and transpacific cable capacity or systems,<\/p>\n
(F) any (I) Dispositions of fiber or IRU’s in fiber or capacity
\n and the related transport and network equipment in accordance with the
\n terms of Section 8.17 hereof, and (II) fiber swaps and fiber exchanges
\n of capacity, so long as the Borrower is in compliance with the terms
\n of Section 6.12 hereof, and<\/p>\n
(G) Dispositions by the Borrower or any Restricted Subsidiary of
\n the Capital Stock of any Unrestricted Subsidiary;<\/p>\n
(iii) any Investment of the Borrower or any Restricted Subsidiary
\n that is permitted by Section 8.04 hereof; and<\/p>\n
(iv) all Dispositions (A) required by the FCC or any PUC or any other
\n governmental or regulatory body in order to consummate the U S WEST
\n Acquisition and (B) contemplated by or in connection with the U S WEST
\n Acquisition, provided that, in no event shall the aggregate sales prices of
\n ————-
\n all such Dispositions described in (a)(iv)(A) and (a)(iv)(B) above exceed
\n an amount equal to 10% of the Original Borrower’s and the Original
\n Restricted Subsidiaries’ total assets (including goodwill and other
\n intangible assets),<\/p>\n
(b) enter into any merger or consolidation, except that, so long as there
\nexists no Default under Section 9.01(a) hereof or any Event of Default both
\nbefore and after giving effect to any such transaction, any Wholly Owned
\nRestricted Subsidiary of the Borrower can merge or consolidate into the Borrower
\nor any other Wholly Owned Restricted Subsidiary of the Borrower, provided that,
\n ————-
\nso long as such merger or consolidation is in the ordinary course of business of
\nthe Borrower and in accordance with the past practices of the Borrower and is
\notherwise in compliance with this subsection (b), such merger or consolidation
\nmay occur during the existence of a Default or Event of Default or after notice
\nof the occurrence of a Material Adverse Change, or<\/p>\n
78<\/p>\n
(c) enter into any merger or consolidation, except that, another Person may
\nbe merged into the Borrower or any Restricted Subsidiary in connection with an
\nacquisition permitted under Section 8.18 hereof, so long as the Borrower or any
\nRestricted Subsidiary is the surviving entity.<\/p>\n
8.06. Guaranties; Contingent Liabilities. The Borrower shall not, and
\nshall not permit any Restricted Subsidiary to, at any time make or issue any
\nGuaranty, or assume, be obligated with respect to, or permit to be outstanding
\nany Contingent Liabilities, except (a) pursuant to the Loan Papers and the New
\nCredit Facility Documentation, (b) Contingent Liabilities in existence on the
\nOriginal Closing Date and described on Schedule 8.06 hereto, (c) Contingent
\n ————-
\nLiabilities of the Borrower or its Restricted Subsidiaries with respect to
\nsurety bonds and similar instruments incurred in the ordinary course of the
\nBorrower’s business and (d) Contingent Liabilities permitted to be incurred
\nunder Section 8.02 hereof.<\/p>\n
8.07. Restricted Payments. The Borrower shall not, and shall not permit
\nany Restricted Subsidiary to, directly or indirectly declare, make or pay any
\nRestricted Payment; provided, however<\/p>\n
(a) any Restricted Subsidiary of the Borrower may declare, make and
\n pay Distributions to the Borrower or any other Restricted Subsidiary so
\n long as such Distribution is made proportionately to the ownership of the
\n Capital Stock of such Restricted Subsidiary;<\/p>\n
(b) so long as (i) there exists no Default or Event of Default both
\n before and after giving effect to any such Restricted Payment and (ii) the
\n Total Leverage Ratio is less than or equal to 4.00 to 1.00 both before and
\n after giving effect to any such Restricted Payment, the Borrower or any
\n Restricted Subsidiary may make any Restricted Payment not otherwise
\n prohibited by this Agreement (without reference to this Section 8.07) and
\n the Loan Papers;<\/p>\n
(c) in addition to the permitted Restricted Payments described in
\n subparagraph (b) above, so long as (i) there exists no Default or Event of
\n Default both before and after giving effect to any such Restricted Payment
\n and (ii) the Borrower receives the prior written consent of the Arranging
\n Agents, the Borrower or any Restricted Subsidiary may repurchase its Debt
\n for Borrowed Money in a maximum aggregate amount over the term of this
\n Agreement of $200,000,000 (in addition to Permitted Refinancing
\n Indebtedness and U S WEST Permitted Refinancing Indebtedness);<\/p>\n
(d) so long as there exists no Default or Event of Default both before
\n and after giving effect to any such Restricted Payment, management and
\n consulting fees payable to Unrestricted Subsidiaries and other Affiliates
\n of the Borrower in an aggregate amount in any fiscal year not to exceed
\n $5,000,000;<\/p>\n
(e) so long as there exists no Default or Event of Default both before
\n and after giving effect to any such Restricted Payment, the Borrower may
\n repurchase any shares of its common Capital Stock or options to acquire its
\n common Capital Stock from Persons who were formerly directors, officers or
\n employees of the Borrower or any of its Restricted Subsidiaries, provided
\n ——–
\n that the aggregate amount of all such repurchases made pursuant to this
\n —-
\n subparagraph (e) for the Borrower and all of its Restricted Subsidiaries
\n shall not exceed $1,000,000 in any fiscal year;<\/p>\n
79<\/p>\n
(f) payments permitted to be made to Affiliates of the Borrower and
\n Unrestricted Subsidiaries in accordance with the terms of Section 8.04,
\n Section 8.08 and Section 8.16 hereof;<\/p>\n
(g) so long as there exists no Default or Event of Default both before
\n and after giving effect to any such Restricted Payment, the Borrower and
\n its Restricted Subsidiaries may make required scheduled payments in
\n accordance with the terms of the Existing Financing Documentation, and
\n other Debt permitted to be incurred or exist in accordance with the terms
\n of Section 8.02 hereof;<\/p>\n
(h) so long as there exists no Default or Event of Default both before
\n and after giving effect to any such Restricted Payment, the Borrower may
\n retire or repurchase any of its common Capital Stock in exchange for, or
\n with the proceeds of any issuance of, any common Capital Stock of the
\n Borrower issued in accordance with the terms of Section 8.10 hereof; and<\/p>\n
(i) so long as there exists no Default or Event of Default both before
\n and after giving effect to any such Restricted Payment, the Borrower and
\n its Restricted Subsidiaries may make required scheduled payments in
\n accordance with the terms of the U S WEST Financing Documentation.<\/p>\n
8.08. Affiliate Transactions. The Borrower shall not, and shall not
\npermit any of the Restricted Subsidiaries to, at any time engage in any
\ntransaction with any of its Affiliates, nor make an assignment or other transfer
\nof any of its assets or Properties to any of its Affiliates (other than
\ntransactions among the Borrower and its Wholly Owned Restricted Subsidiaries),
\non terms materially less advantageous to the Borrower or any such Restricted
\nSubsidiary than would be the case if such transaction had been effected with a
\nnon-Affiliate, except (a) as permitted by Section 8.07 and Section 8.16 hereof
\nand (b) those transactions described on Schedule 8.08 hereof and transactions
\n ————-
\npursuant to employee compensation arrangements approved by the Board of
\nDirectors, provided that if the Board of Directors or the board of directors of
\n ————-
\nany Restricted Subsidiary, as applicable, determines in good faith that no
\ncomparable transaction exists for purposes of making the determination set forth
\nabove, then such board shall determine that the terms of such transaction are
\nfair and commercially reasonable and in the best interests of the Borrower or
\nthe Restricted Subsidiary entering into such transaction.<\/p>\n
8.09. Compliance with ERISA. The Borrower shall not, and shall not
\npermit any of its Restricted Subsidiaries to, directly or indirectly, or permit
\nany member of its Controlled Group to directly or indirectly, (a) terminate any
\nPlan so as to result in any liability to the Borrower or any member of its
\nControlled Group which would reasonably be expected to result in a liability to
\nthe Borrower or any Restricted Subsidiary in excess of $10,000,000, (b) permit
\nto exist any ERISA Event, or any other event or condition which presents the
\nrisk of liability of the Borrower or any member of its Controlled Group that
\nwould reasonably be expected to result in a liability to the Borrower or any
\nRestricted Subsidiary in excess of $10,000,000, (c) make a complete or partial
\nwithdrawal (within the meaning of Section 4201 of ERISA) from any Multiemployer
\nPlan so as to result in any liability to the Borrower or any member of<\/p>\n
80<\/p>\n
its Controlled Group that is would reasonably be expected to be in excess of
\n$10,000,000, (d) enter into any new Plan or modify any existing Plan so as to
\nincrease its obligations thereunder except in the ordinary course of business
\nconsistent with past practice which would result in any liability to the
\nBorrower, or any member of its Controlled Group that is or would reasonably be
\nexpected to be in excess of $10,000,000, or (e) permit the present value of all
\nbenefit liabilities, as defined in Title IV of ERISA, under each Plan of the
\nBorrower or any member of its Controlled Group (using the actuarial assumptions
\nset forth in the Plan) to exceed the fair market value of Plan assets allocable
\nto such benefits all determined as of the most recent valuation date for each
\nsuch Plan on an ongoing plan basis, by an amount that is or would reasonably be
\nexpected to be in excess of $10,000,000.<\/p>\n
8.10. Capital Stock. The Borrower shall not, and shall not permit any
\nRestricted Subsidiary to (a) make or permit any transfer, assignment,
\ndistribution, mortgage, pledge or gift of any shares of Capital Stock of any
\nRestricted Subsidiary, except (i) to the Borrower or another Wholly Owned
\nRestricted Subsidiary or (ii) in accordance with the terms of Section 8.03
\nhereof and Section 8.05(a) hereof, and (b) issue any Capital Stock other than
\n(i) so long as there exists no Event of Default both before and after giving
\neffect to such issuance, common Capital Stock issued by the Borrower, (ii) so
\nlong as there exists no Default or Event of Default both before and after giving
\neffect to such issuance, common Capital Stock issued by any Restricted
\nSubsidiary, so long as such Capital Stock is issued to the Borrower or another
\nWholly Owned Restricted Subsidiary or to any Restricted Subsidiary so long as
\nthe Borrower’s indirect ownership in such Restricted Subsidiary issuing such
\nCapital Stock is not diluted, and (iii) so long as there exists no Default or
\nEvent of Default both before and after giving effect to such issuance, Preferred
\nStock of the Borrower in accordance with the terms of Section 8.02 hereof.<\/p>\n
8.11. Sale and Leaseback. The Borrower shall not, and shall not permit
\nany Restricted Subsidiary to, enter into any arrangement whereby it consummates
\nany Disposition of any of its assets, and thereafter rents or leases back assets
\n(each a “Sale and Leaseback Transaction”), provided that, if there exists no
\n ————-
\nDefault or Event of Default both before and after giving effect to both the
\nDisposition and the leaseback, the Borrower and\/or its Restricted Subsidiaries
\nmay enter into Sale and Leaseback Transactions (a) among the Borrower and its
\nWholly Owned Restricted Subsidiaries and (b) so long as the Borrower and its
\nRestricted Subsidiaries comply fully with Sections 2.05(a), 2.11(b) and 8.05(a)
\nhereof, with other Persons.<\/p>\n
8.12. Sale or Discount of Receivables. The Borrower shall not, and
\nshall not permit any Restricted Subsidiary to, directly or indirectly sell, with
\nor without recourse, for discount or otherwise, any notes or accounts receivable
\nother than in the ordinary course of business in accordance with past practices
\nof collection, provided that, so long as there exists no Default or Event of
\n ————-
\nDefault both before and after giving effect to each such sale, if the Total
\nLeverage Ratio is less than 4.00 to 1.00 both before and after giving effect to
\nany such sale, the Borrower and its Restricted Subsidiaries may sell accounts
\nreceivable on a non recourse basis, in an aggregate amount not to exceed
\n$200,000,000 in accounts sold and outstanding at any one time.<\/p>\n
8.13. Limitation on Restrictive Agreements. The Borrower shall not, and
\nshall not permit any Restricted Subsidiary to, enter into any indenture,
\nagreement, instrument, financing document or other arrangement which, directly
\nor indirectly, prohibits or restrains, or has the effect of prohibiting or
\nrestraining, or imposes materially adverse conditions upon: (a) the acceptance
\nof a waiver or consent with respect to any term or provision of this Agreement
\nor any other Loan Paper, or (b) amending, extending, increasing or substituting
\nany provision of this Agreement or any Loan Paper, provided that, nothing in
\n ————-
\nthis Section 8.13 shall limit the ability of the Borrower or any Restricted
\nSubsidiary to enter into agreements which have the effect of prohibiting,
\nrestraining or conditioning their ability to amend, extend, increase or
\nsubstitute any provision of this Agreement<\/p>\n
81<\/p>\n
or any Loan Paper solely as a result of general covenants regarding debt
\nlimitations, financial ratios or other general restrictive covenants.<\/p>\n
8.14. Amendment of Material Agreements. The Borrower shall not, and
\nshall not permit any Restricted Subsidiary to, amend, waive or consent to any
\ndeviation from any provision of any documentation or agreements of the (a)
\narticles of incorporation of the Borrower and the Restricted Subsidiaries and
\n(b) by laws and other organizational documents in any manner with respect to
\nboth (a) and (b) foregoing that is both material and adverse to the interests of
\nthe Lenders, except, any such amendment, waiver or consent that is necessary to
\npermit the consummation of the U S WEST Acquisition. Except in connection with
\nPermitted Refinancing Indebtedness incurred in accordance with the terms of
\nSection 8.02 hereof, the Borrower shall not, nor shall it permit any of its
\nRestricted Subsidiaries to, amend or change (or take any action or fail to take
\nany action the result of which is an effective amendment or change) or accept
\nany waiver or consent with respect to, any of the Existing Financing
\nDocumentation, or any other document or instrument that would result in (a) an
\nincrease in the outstanding principal amount of any of the Existing Financing,
\n(ii) any increase in any principal, interest, fees, or other amounts payable
\nunder any of the Existing Financing, (iii) a change in any date fixed for any
\npayment of principal, interest, fees, or other amounts payable under any of the
\nExisting Financing Documentation (including, without limitation, as a result of
\nany redemption, and including without limitation a waiver or action that results
\nin the waiver of any payment default under any of the Existing Financing), (iv)
\na decrease in any percentage of holders of any of the Existing Financing
\nrequired under the terms of the Existing Financing Documentation, respectively,
\nto take (or refrain from taking) any action, (v) a more restrictive change in
\nany financial covenant in the Existing Financing Documentation, (vi) a change in
\nany remedy or right of the holders of the any of the Existing Financing, (vii) a
\nchange in the definition of “Change of Control” in any of the Existing Financing
\nDocumentation, (viii) a change in any covenant, term or provision in the
\nExisting Financing Documentation which would result in such term or provision
\nbeing more restrictive than the terms of this Agreement and the Loan Papers, or
\n(ix) a change in any term or provision of the Existing Financing Documentation
\nor other document or instrument in connection therewith that would have, in any
\nmaterial respect, an adverse effect on the interests of the Lenders, provided
\n ——–
\nthat, notwithstanding the foregoing, any amendment, waiver or consent of any
\n—-
\nagreement of the Borrower and its Restricted Subsidiaries of any provision that
\nwould otherwise prohibit the consummation of the U S WEST Acquisition, this
\nAgreement or the New Credit Facility shall not be precluded by the foregoing
\nlimitation.<\/p>\n
8.15. Name Changes. The Borrower shall not, and shall not permit any
\nRestricted Subsidiary of the Borrower to, change its name without prior written
\nnotice to the Administrative Agent, provided that this Section 8.15 shall not
\n ————-
\nprohibit the Borrower or any of its Restricted Subsidiaries from operating under
\nany trade names or assumed names.<\/p>\n
8.16. Unrestricted Subsidiaries. Except for those transactions listed on<\/p>\n
Schedule 8.16 hereto, the Borrower shall not, and shall not permit any
\n————-
\nRestricted Subsidiary to, contribute any equity, make any loan, advance or other
\ninvestment in, or otherwise conduct any business with, any Unrestricted
\nSubsidiary, except (a) in accordance with the terms and conditions of Sections
\n8.04 and 8.07 hereof, and (b) with respect to market service agreements and
\nother market arrangements that are negotiated in good faith on terms and
\nconditions substantially similar to those of comparable arrangements with
\nunaffiliated Persons negotiated at arm’s length.<\/p>\n
82<\/p>\n
8.17. Limitation on IRU Agreements. The Borrower shall not, and shall
\nnot permit any Restricted Subsidiary to, enter into an IRU Agreement granting an
\nIRU to any Person other than to the Borrower or any Restricted Subsidiary,<\/p>\n
provided that (a) the Borrower or any Restricted Subsidiary may enter into an
\n————-
\nIRU Agreement granting an IRU to any Person (other than the Borrower or any
\nRestricted Subsidiary), so long as in each case (i) there exists no Default or
\nEvent of Default at the time such IRU Agreement is entered into and (ii) the
\nBorrower is in compliance with Section 6.12 hereof, and (b) so long as there
\nexists no Default or Event of Default both before and after entering into such
\nIRU Agreement, the Borrower or any Restricted Subsidiary may enter into an IRU
\nAgreement granting IRU’s with respect to the existing fiber and related
\ntransport and network equipment of LCI and its Subsidiaries.<\/p>\n
8.18. Acquisitions, Creation of Subsidiaries. The Borrower shall not,
\nand shall not permit any Restricted Subsidiary to, acquire any assets, Property
\nor business of any other Person, or participate in any joint venture, or create
\nor acquire any Subsidiary, except<\/p>\n
(a) assets and Property acquired in the ordinary course of business,<\/p>\n
(b) so long as there exists no Default under Section 9.01(a) hereof
\n or any Event of Default both before and after giving effect to any such
\n acquisition, the Borrower or any Wholly Owned Restricted Subsidiary may
\n acquire assets, Property or business from any other Wholly Owned Restricted
\n Subsidiary,<\/p>\n
(c) acquisitions constituting Investments that are permitted by
\n Section 8.04 hereof,<\/p>\n
(d) the Borrower or any Restricted Subsidiary may consummate
\n Permitted Acquisitions, so long as in each case (1) there exists no Event
\n of Default both before and after giving effect to any such acquisition, (2)
\n there exists no Default under Section 9.01(a) hereof both before and after
\n giving effect to any such acquisition, and (3) the Administrative Agent has
\n not received notice from the Borrower in accordance with the terms of
\n Section 7.04(b) hereof that an event has occurred or a circumstance exists
\n that is, or would reasonably be expected to cause, a Material Adverse
\n Change both before and after giving effect to any such acquisition<\/p>\n
(provided that, if such an event or circumstance that is, or would
\n ————–
\n reasonably be expected to cause, a Material Adverse Change has occurred,
\n then such proposed acquisition may still be consummated if (x) the purchase
\n price of the proposed acquisition is paid exclusively with the common
\n Capital Stock of the Borrower and such proposed Person to be acquired has
\n zero negative annualized operating cash flow) and<\/p>\n
(i) in the event that either (1) the Total Leverage Ratio is
\n more than 4.00 to 1.00 before or after giving effect to any proposed
\n acquisition, or (2) the proposed acquisition has a cash purchase price
\n of over $100,000,000, or (3) the proposed Person to be acquired has
\n more than $50,000,000 of negative annualized operating cash flow, then
\n the Borrower shall have satisfied the following conditions precedent
\n to such acquisition:<\/p>\n
(A) the Administrative Agent shall have received prior
\n written notice on timing reasonable under the circumstances
\n describing the proposed acquisition in form reasonably acceptable
\n to the Administrative Agent,<\/p>\n
83<\/p>\n
(B) the Borrower shall have confirmed in writing to the
\n Administrative Agent that (I) the proposed acquisition conforms
\n to the definition of Permitted Acquisitions and (II) the
\n Borrower’s projections made in good faith after giving effect to
\n the proposed acquisition evidence pro forma compliance with the
\n terms of Section 8.01 hereof from the date of such acquisition
\n through the Maturity Date and the attached pro forma Compliance
\n Certificate was prepared in good faith, or<\/p>\n
(ii) in the event that the preceding subparagraph (i) is not
\n applicable to any such Permitted Acquisition, or notwithstanding the
\n preceding paragraph (i), in the event that the Total Leverage Ratio is
\n greater than 4.00 to 1.00 but the proposed acquisition is a Minor
\n Acquisition, then the Borrower need only confirm in writing to the
\n Administrative Agent on its next delivered Compliance Certificate in
\n accordance with the terms of Section 7.03 hereof with respect to each
\n such Permitted Acquisition consummated in such fiscal quarter that is
\n not disclosed in accordance with the terms of (i) preceding, that (A)
\n such acquisition conformed to the definition of Permitted Acquisitions
\n and (B) all of the conditions set forth in subparagraph (d)(1), (2)
\n and (3) above were satisfied in accordance with the terms thereof, and<\/p>\n
(e) The Borrower or any Restricted Subsidiary may consummate
\n acquisitions of wholly owned Unrestricted Subsidiaries, so long as in each
\n case there exists no Default or Event of Default both immediately before
\n and after giving effect to any such acquisition, and<\/p>\n
(i) in the event that either (1) the Total Leverage Ratio is
\n more than 4.00 to 1.00 before or after giving effect to any proposed
\n acquisition, or (2) the proposed acquisition has a cash purchase price
\n of over $100,000,000, or (3) the proposed Person to be acquired has
\n more than $50,000,000 of negative annualized operating cash flow, then
\n the Borrower shall have satisfied the following conditions precedent
\n to such acquisition:<\/p>\n
(A) the Administrative Agent shall have received prior
\n written notice on timing reasonable under the circumstances
\n describing the proposed acquisition in form reasonably acceptable
\n to the Administrative Agent,<\/p>\n
(B) the Borrower shall have confirmed in writing to the
\n Administrative Agent that (I) the Borrower has not delivered
\n notice to the Administrative Agent in accordance with the terms
\n of Section 7.04(b) hereof that an event has occurred or a
\n circumstance exists that is, or would reasonably be expected to
\n cause, a Material Adverse Change both before and after giving
\n effect to any such acquisition and (II) the Borrower’s
\n projections made in good faith after giving effect to the
\n proposed acquisition evidence pro forma compliance with the terms
\n of Section 8.01 hereof from the date of such acquisition through
\n the Maturity Date and the attached pro forma Compliance
\n Certificate was prepared in good faith, or<\/p>\n
(ii) in the event that the preceding subparagraph (i) is not
\n applicable to any such acquisition of a wholly owned Unrestricted
\n Subsidiary or notwithstanding the preceding paragraph (i), in the
\n event that the Total Leverage Ratio is greater than<\/p>\n
84<\/p>\n
4.00 to 1.00 but the proposed acquisition is a Minor Acquisition, then
\n the Borrower need only confirm in writing to the Administrative Agent
\n on its next delivered Compliance Certificate in accordance with the
\n terms of Section 7.03 hereof with respect to each such acquisition of
\n a wholly owned Unrestricted Subsidiary consummated in such fiscal
\n quarter that is not disclosed in accordance with the terms of (i)
\n preceding, that no Default or Event of Default existed both
\n immediately prior to and after giving effect to any such acquisition.<\/p>\n
For the purposes of this Section 8.18, a “Minor Acquisition” shall mean one
\n or more acquisitions by the Borrower and its Restricted Subsidiaries
\n consummated in any fiscal quarter (a) that have purchase prices not
\n exceeding $25,000,000 in the aggregate for all such acquisitions and (b) of
\n any Person or Persons which in the aggregate do not have in excess of
\n $10,000,000 of negative annualized operating cash flow.<\/p>\n
ARTICLE IX. EVENTS OF DEFAULT<\/p>\n
9.01. Events of Default. Any one or more of the following shall be an
\n“Event of Default” hereunder, if the same shall occur for any reason whatsoever,
\nwhether voluntary or involuntary, by operation of Law, or otherwise, subject to
\nSection 9.08 hereof:<\/p>\n
(a) The Borrower shall fail to pay any (i) principal payable under any Loan
\nPaper on the date due; or (ii) interest, commitment fees or letter of credit
\nfees payable within three Business Days of the due date thereof; or (iii) other
\nfees or other amounts that are due and payable within 30 days of the due date
\nthereof;<\/p>\n
(b) any representation or warranty made or deemed made by any Obligor or
\nany Original Restricted Subsidiary under or in connection with any Loan Paper
\nshall prove to have been incorrect in any material respect when made or deemed
\nmade,<\/p>\n
(c) the Borrower shall fail to perform or observe in any material respect
\nany term or covenant contained in Section 7.05 hereof or in any Section of
\nArticle VIII hereof: provided that notwithstanding the foregoing (i) any such
\n ————-
\nfailure to perform or observe any term or covenant contained in Sections 8.04,
\n8.08, 8.14 and 8.15 hereof shall not constitute an Event of Default until the
\nfifth day after such failure, and (ii) any such failure to perform or observe
\nany term or covenant contained in Section 8.03 hereof as a result of any filing
\nof any UCC-1 that does not secure Debt for Borrowed Money shall not constitute
\nan Event of Default until the fifth day after such failure;<\/p>\n
(d) any Obligor or Original Restricted Subsidiary shall fail to perform or
\nobserve in any material respect any other term or covenant applicable to it and
\ncontained in this Agreement or any other Loan Paper, other than those described
\nin Sections 9.01(a), (b) and (c) above, and such failure shall not be remedied
\nwithin thirty days following the earlier of an Authorized Officer’s knowledge of
\nsuch failure or notice from the Administrative Agent or any other Arranging
\nAgent of the occurrence of such failure;<\/p>\n
(e) Any of the following shall occur: (i) Any Material Loan Document or
\nmaterial provision thereof shall, for any reason, not be valid and binding on
\nthe Obligor signatory thereto, or not be in full force and effect, or shall be
\ndeclared to be null and void, other than as a result of the<\/p>\n
85<\/p>\n
action or inaction on the part of the Administrative Agent or any Lender, or
\n(ii) the validity or enforceability of any Material Loan Document shall be
\ncontested by any Obligor, Restricted Subsidiary, any Unrestricted Subsidiary or
\nany Affiliate of the Borrower and its Subsidiaries; or (iii) any Obligor shall
\ndeny in writing that it has any or further liability or obligation under its
\nrespective Material Loan Document; or (iv) any default or breach under any
\nprovision of any Material Loan Document shall continue after the applicable
\ngrace period, if any, specified in such Material Loan Document;<\/p>\n
(f) Any of the following shall occur: (i) the Borrower or any of its
\nOriginal Restricted Subsidiaries shall make an assignment for the benefit of
\ncreditors or be unable to pay its debts generally as they become due; (ii) the
\nBorrower or any of its Original Restricted Subsidiaries shall petition or apply
\nto any Tribunal for the appointment of a trustee, receiver, or liquidator of it,
\nor of any substantial part of its assets, or shall commence any proceedings
\nrelating to the Borrower or any of its Original Restricted Subsidiaries under
\nany Debtor Relief Laws; (iii) any such petition or application shall be filed,
\nor any such proceedings shall be commenced, against the Borrower or any of its
\nOriginal Restricted Subsidiaries, or an order, judgment or decree shall be
\nentered appointing any such trustee, receiver, or liquidator, or approving the
\npetition in any such proceedings, and such petition or application shall be
\nconsented to or uncontested by the Borrower or such Original Restricted
\nSubsidiary, or if contested by the Borrower or such Original Restricted
\nSubsidiary, shall not be dismissed within 60 days following the filing of such
\npetition or application; (iv) any final order, judgment, or decree shall be
\nentered in any proceedings against the Borrower or any of its Original
\nRestricted Subsidiaries decreeing its dissolution, other than for a Original
\nRestricted Subsidiary that is not a Qwest Material Subsidiary as part of a
\nvoluntary dissolution; or (v) any final order, judgment, or decree shall be
\nentered in any proceedings against the Borrower or any of its Original
\nRestricted Subsidiaries decreeing its split-up which requires the divestiture of
\na substantial part of its assets;<\/p>\n
(g) Any of the following shall occur: (i) The Borrower or any Original
\nRestricted Subsidiary of the Borrower shall fail to pay any Debt for Borrowed
\nMoney of the Borrower or any Original Restricted Subsidiary (other than Debt
\nunder the Loan Papers and Debt under the U S WEST Guarantees) in an aggregate
\namount of $25,000,000 or more when due (whether by scheduled maturity, required
\nprepayment, acceleration, demand, or otherwise), and such failure shall continue
\nafter the applicable grace period, if any, specified in the agreement or
\ninstrument relating to such Debt; or (ii) the Borrower or any Original
\nRestricted Subsidiary of the Borrower shall fail to perform or observe any term
\nor covenant contained in any agreement or instrument relating to any such Debt
\nfor Borrowed Money, when required to be performed or observed, and such failure
\nshall continue after the applicable grace period, if any, specified in such
\nagreement or instrument, and can result in acceleration of the maturity of such
\nDebt; or (iii) any such Debt shall be declared to be due and payable, or
\nrequired to be prepaid, mandatorily redeemed or repurchased (other than by a
\nregularly scheduled required prepayment), prior to the stated maturity thereof;
\nor (iv) the Borrower shall fail to pay any Debt under any of the U S WEST
\nGuarantees in an aggregate amount of more than $100,000,000 when due (whether by
\nscheduled maturity, required prepayment, acceleration, demand, or otherwise),
\nand such failure shall continue after the applicable grace period, if any,
\nspecified in the agreement or instrument relating to such U S WEST Guarantees;<\/p>\n
(h) Any of the following shall occur: (i) Any Obligor or Original
\nRestricted Subsidiary shall have any material final judgment(s) outstanding
\nagainst it, and such judgment(s) shall remain unstayed, in effect, and unpaid
\nfor the period of time after which the judgment holder may cause the<\/p>\n
86<\/p>\n
creation of Liens against or seizure of any of its Property; or (ii) Any
\nLitigation commenced against the Borrower or any of its Original Restricted
\nSubsidiaries is adversely determined by a court of applicable jurisdiction,
\nwhich such Litigation is either non-appealable or which such Obligor or Original
\nRestricted Subsidiary has elected not to appeal, except in either case, any such
\nLitigation which has not had, and would not reasonably be expected to have, a
\nMaterial Adverse Effect; or (iii) Any civil action or state criminal action
\nshall be commenced against the Borrower or any of its Original Restricted
\nSubsidiaries under any federal or state racketeering statute (including, without
\nlimitation, the Racketeer Influenced and Corrupt Organization Act of
\n1970)(“RICO”) and such action shall be adversely determined by a court of
\napplicable jurisdiction, and which such determination is either non-appealable
\nor which the Borrower or such Original Restricted Subsidiary has elected not to
\nappeal; or any criminal action or proceeding shall be commenced against the
\nBorrower or any of its Original Restricted Subsidiaries under any federal
\nracketeering statute (including, without limitation, RICO);<\/p>\n
(i) Any of the following shall occur: (i) Any ERISA Event shall have
\noccurred with respect to a Plan of the Borrower or any Original Restricted
\nSubsidiary of the Borrower, and the sum of the Insufficiency of such Plan and
\nliabilities relating thereto is equal to or greater than $10,000,000 or (ii) the
\nBorrower, the Original Restricted Subsidiaries of the Borrower or any ERISA
\nAffiliate of any of them shall have committed a failure described in Section
\n302(f)(l) of ERISA, and the amount determined under Section 302(f)(3) of ERISA
\nis equal to or greater than $10,000,000;<\/p>\n
(j) The Borrower or any ERISA Affiliate of the Borrower shall have been
\nnotified by the sponsor of a Multiemployer Plan that (A) it has incurred
\nWithdrawal Liability to such Plan in an amount that exceeds $10,000,000 or
\nrequires payments exceeding $10,000,000 per annum, or (B) such Multiemployer
\nPlan is in reorganization or is being terminated, within the meaning of Title IV
\nof ERISA, if as a result thereof the aggregate annual contributions to all
\nMultiemployer Plans in reorganization or being terminated is increased over the
\namounts contributed to such Multiemployer Plans for the preceding Multiemployer
\nPlan year by an amount exceeding $10,000,000;<\/p>\n
(k) Any of the Borrower or any of its Original Restricted Subsidiaries
\nshall be required under any Environmental Law: (i) to implement any remedial,
\nneutralization, or stabilization process or program, other than any such process
\nor program the cost of which has not had, and would not reasonably be expected
\nto have, a Material Adverse Effect, or (ii) to pay any penalty, fine, or
\ndamages, except for any such penalty, fine or damages which in an aggregate
\namount has not had, and which would not reasonably be expected to have, a
\nMaterial Adverse Effect;<\/p>\n
(l) Any of the following shall occur: (i) Any property or assets (whether
\nleased or owned), or the operations conducted thereon by any of the Borrower or
\nany of its Original Restricted Subsidiaries, or any current or prior owner or
\noperator thereof (in the case of real Property), shall violate or have violated
\nany applicable Environmental Law, except any such violation which has not had,
\nand would not reasonably be expected to have, a Material Adverse Effect; or
\n(ii) the Borrower or such Original Restricted Subsidiary shall not obtain or
\nmaintain any License required to be obtained or filed under any Environmental
\nLaw in connection with the use of such Property and assets, including without
\nlimitation past or present treatment, storage, disposal, or release of Hazardous
\nMaterials into the environment, except those failures to obtain or maintain the
\nsame which have not had, and would not reasonably be expected to have, a
\nMaterial Adverse Effect;<\/p>\n
87<\/p>\n
(m) Any of the following shall have occurred if the effect thereof has had,
\nor would reasonably be expected to have, a Material Adverse Effect: (i) A final
\nnon-appealable order is issued by any Tribunal, including, but not limited to,
\nthe FCC, any applicable PUC, or the United States Justice Department, requiring
\nany Obligor or Original Restricted Subsidiary to divest a portion of its assets
\npursuant to any antitrust, restraint of trade, unfair competition, industry
\nregulation, or similar Laws (except in connection with the U S WEST
\nAcquisition), or (ii) any Tribunal shall condemn, seize, or otherwise
\nappropriate, or take custody or control of all or any portion of the assets of
\nthe Borrower or any of its Original Restricted Subsidiaries, or (iii) any
\nLicense or Licenses whether presently existing or hereafter granted to or
\nobtained by the Borrower or any of its Original Restricted Subsidiaries shall
\nexpire without renewal or be suspended or revoked, or (iv) the Borrower or any
\nof its Original Restricted Subsidiaries shall become subject to any injunction
\nor other order affecting or which may affect the Borrower’s or any of its
\nOriginal Restricted Subsidiary’s present or proposed operations under any such
\nLicense or Licenses (except in connection with the U S WEST Acquisition);<\/p>\n
(n) The Borrower or any Original Restricted Subsidiary shall fail to comply
\nin any respect with the Communications Act, or any rule or regulation
\npromulgated by the FCC or any applicable PUC, except any such failure that has
\nnot had, and would not reasonably be expected to have, a Material Adverse
\nEffect;<\/p>\n
(o) There shall occur a Change of Control or a Specified Change of Control;<\/p>\n
(p) Any Substantial Portion shall not, for any reason (including, without
\nlimitation, loss of FCC License or otherwise) be operating for a period in
\nexcess of 30 days. For purposes of this Section 9.01(p), “Substantial Portion”
\nmeans any portion of the Backbone, the failure of which to operate will have the
\neffect of reducing Operating Cash Flow for the Borrower and its Original
\nRestricted Subsidiaries by more than ten percent (determined by the most
\nrecently completed 12 month period);<\/p>\n
(q) The occurrence of any of the following events: With respect to Debt
\nobligations of the Borrower and the Restricted Subsidiaries (i) an “Event of
\nDefault” or “Default” as defined in any of the Existing Financing Documentation;
\n(ii) a Repayment Event with respect to any of the Existing Financing or any
\nother Debt for Borrowed Money of the Borrower or any Original Restricted
\nSubsidiary (except with respect to any of the U S WEST Guarantees) in excess of
\n$25,000,000; (iii) an “Event of Default” as defined in any of the New Credit
\nFacility Documentation, or (iv) a Repayment Event with respect to the Borrower’s
\nobligations under any of the U S WEST Guarantees in excess of $100,000,000.
\nWith respect to Debt for Borrowed Money of the U S WEST Restricted Subsidiaries,
\na U S WEST Default; or<\/p>\n
(r) (i) Any U S WEST Restricted Subsidiary shall fail to comply with any of
\nthe provisions of Sections 6.07, 6.11, 7.01, 7.02, 7.04(d), or 7.07 hereof, and
\nsuch failure shall continue after the grace period set forth in Section 9.01(d)
\nhereof applicable to such Section; or (ii) any U S WEST Restricted Subsidiary
\nshall fail to comply with any of the provisions of Sections 8.01, 8.02, 8.04,
\n8.07 or 8.16 hereof, and such failure shall continue after the grace period set
\nforth in Section 9.01(c) hereof applicable to such Section; or (iii) a Material
\nAdverse Effect has occurred as a result of any of the events set forth in
\nSections 9.08(a)(i)-(iv) hereof, as modified by the last clause thereof.<\/p>\n
88<\/p>\n
9.02. Remedies upon Default. If an Event of Default described in
\nSection 9.01(f) shall occur, the aggregate unpaid principal balance of and
\naccrued interest on all Advances and all other Obligations shall, to the extent
\npermitted by applicable Law, thereupon become due and payable concurrently
\ntherewith, and the Commitment shall be concurrently automatically reduced to
\nzero and terminated, all without any action by Administrative Agent or any
\nLender, and without diligence, presentment, demand, protest, notice of protest
\nor intent to accelerate, or notice of any other kind, all of which are hereby
\nexpressly waived. Subject to the foregoing sentence, if any Event of Default
\nshall occur and be continuing, Administrative Agent may at its election, and
\nshall at the direction of Majority Lenders, do any one or more of the following:<\/p>\n
(a) Declare the entire unpaid balance of all Obligations immediately due
\nand payable, whereupon it shall be due and payable without diligence,
\npresentment, demand, protest, notice of protest or intent to accelerate, or
\nnotice of any other kind (except notices specifically provided for under Section
\n9.01 hereof), all of which are hereby expressly waived (except to the extent
\nwaiver of the foregoing is not permitted by applicable Law);<\/p>\n
(b) Terminate any of the Revolver A Commitment, the Working Line Commitment
\nor the Revolver B Commitment, or terminate all of the Commitments;<\/p>\n
(c) Reduce any claim of Administrative Agent and Lenders to judgment;<\/p>\n
(d) Demand (and the Borrower shall pay to Administrative Agent) immediately
\nupon demand and in immediately available funds, the amount equal to the
\naggregate amount of the Letters of Credit then outstanding as cash collateral,
\nirrespective of whether such Letters of Credit have been drawn upon, all as set
\nforth and in accordance with the terms of provisions of Article III hereof. The
\nAdministrative Agent shall promptly advise the Borrower of any such declaration
\nor demand but failure to do so shall not impair the effect of such declaration
\nor demand; and<\/p>\n
(e) Exercise any Rights afforded under any Loan Papers, by Law, including
\nbut not limited to the UCC, at equity, or otherwise.<\/p>\n
9.03. Cumulative Rights. All Rights available to Administrative Agent
\nand Lenders under the Loan Papers shall be cumulative of and in addition to all
\nother Rights granted thereto at Law or in equity, whether or not amounts owing
\nthereunder shall be due and payable, and whether or not the Administrative Agent
\nor any Lender shall have instituted any suit for collection or other action in
\nconnection with the Loan Papers.<\/p>\n
9.04. Waivers. The acceptance by Administrative Agent or any Lender at
\nany time and from time to time of partial payment of any amount owing under any
\nLoan Papers shall not be deemed to be a waiver of any Default or Event of
\nDefault then existing. No waiver by Administrative Agent or any Lender of any
\nDefault or Event of Default shall be deemed to be a waiver of any Default or
\nEvent of Default other than such Default or Event of Default. No delay or
\nomission by Administrative Agent or any Lender in exercising any Right under the
\nLoan Papers shall impair such Right or be construed as a waiver thereof or an
\nacquiescence therein, nor shall any single or partial exercise of any such Right
\npreclude other or further exercise thereof, or the exercise of any other Right
\nunder the Loan Papers or otherwise.<\/p>\n
89<\/p>\n
9.05. Performance by Administrative Agent or any Lender. Should any
\ncovenant of any Obligor or Restricted Subsidiary fail to be performed in
\naccordance with the terms of the Loan Papers, Administrative Agent may, at its
\noption, perform or attempt to perform such covenant on behalf of such Obligor or
\nRestricted Subsidiary. Notwithstanding the foregoing, it is expressly
\nunderstood that the Administrative Agent does not assume, and shall not ever
\nhave, except by express written consent of the Administrative Agent, any
\nliability or responsibility for the performance of any duties or covenants of
\nany Obligor or Restricted Subsidiary.<\/p>\n
9.06. Expenditures. The Borrower shall reimburse Administrative Agent
\nfor any reasonable sums spent by it in connection with the exercise of any Right
\nunder Section 9.05 hereof. Such sums shall bear interest at the lesser of (a)
\nthe Base Rate (whether or not in effect), plus 2.00% per annum and (b) the
\nHighest Lawful Rate, from 15 days after the date the Administrative Agent makes
\ndemand to the Borrower for reimbursement of such amount until the date of
\nrepayment by the Borrower.<\/p>\n
9.07. Control. None of the covenants or other provisions contained in
\nthis Agreement shall, or shall be deemed to, give Administrative Agent or any
\nLender any Rights to exercise control over the affairs and\/or management of any
\nof the Borrower or any of its Subsidiaries being limited to the Rights to
\nexercise the remedies provided in this Article; provided, however, that if
\n ——– ——-
\nAdministrative Agent or any Lender becomes the owner of any partnership, stock
\nor other equity interest in any Person, whether through foreclosure or
\notherwise, it shall be entitled to exercise such legal Rights as it may have by
\nbeing an owner of such stock or other equity interest in such Person.<\/p>\n
9.08. Compliance Concerning U S WEST Companies and Their Assets .<\/p>\n
(a) Notwithstanding anything in this Agreement or in any of the Loan
\n Papers to the contrary (but subject to subsections (b) and (c) below),
\n after the Acquisition Date, no breach of this Agreement, Default or Event
\n of Default shall be deemed to have occurred and no condition precedent set
\n forth in Article IV hereof shall fail to be satisfied, as a result of:<\/p>\n
(i) the inaccuracy of any representation or warranty contained in
\n Article V hereof,<\/p>\n
(ii) any failure to comply with the provisions of any affirmative
\n covenant contained in Article VI hereof (other than any provisions
\n contained in Sections 6.07 and 6.11 hereof),<\/p>\n
(iii) any failure to comply with any information covenant
\n contained in Article VII hereof (other than any provisions contained
\n in Sections 7.01, 7.02 , 7.04(d) and 7.07 hereof),<\/p>\n
(iv) any failure to comply with any negative covenant contained
\n in Article VIII hereof (other than Sections 8.01, 8.02, 8.04, 8.07 and
\n 8.16 hereof) and<\/p>\n
(v) the occurrence of any event that would otherwise constitute
\n any Default or Event of Default contained in Article IX hereof (other
\n than under Sections 9.01(e), (o), (q) and (r) hereof),<\/p>\n
90<\/p>\n
in each case set forth in (i) through (v) above, only to the extent that
\n any such inaccuracy of any such representation or warranty, or failure to
\n comply, failure to satisfy a condition precedent, Default or Event of
\n Default is wholly or in part caused by, or attributable to, any U S WEST
\n Company or the assets or liabilities of any U S WEST Company (a “U S WEST
\n Event”);<\/p>\n
(b) Section 9.08(a) above shall only be effective when:<\/p>\n
(i) at least one of the U S WEST Restricted Subsidiaries has in
\n effect, and is bound by, a bank credit facility in excess of
\n $100,000,000,<\/p>\n
(ii) the U S WEST Event has not caused the occurrence of a
\n Material Adverse Effect, and<\/p>\n
(iii) the Original Borrower and the Original Subsidiaries are
\n otherwise in compliance with all such provisions exempting U S WEST
\n Companies; and<\/p>\n
(c) Notwithstanding any provision of Section 9.08(a) above:<\/p>\n
(i) each U S WEST Restricted Subsidiary shall be subject to, and
\n bound by, the terms and provisions contained in Sections 6.07, 6.11,
\n 7.01, 7.02., 7.04(d), 7.07, 8.01, 8.02, 8.04, 8.07 and 8.16 hereof,<\/p>\n
(ii) any Default or Event of Default under Sections 9.01(a), (e),
\n (o), (q) and (r) that is wholly or in part caused by, or attributable
\n to, any of the U S WEST Restricted Subsidiaries or the assets or
\n liabilities of any of the U S WEST Restricted Subsidiaries, shall be a
\n Default or Event of Default hereunder, as applicable, and<\/p>\n
(iii) Although, in accordance with the terms of this Section
\n 9.08, the U S WEST Restricted Subsidiaries are not subject to the
\n limitations of certain of the negative covenants of this Agreement,
\n each U S WEST Restricted Subsidiary shall be included in any
\n exceptions to such limitations to the extent that the U S WEST
\n Restricted Subsidiaries would, but for this Section 9.08, fall within
\n such exceptions. For the avoidance of doubt, (1) the U S WEST
\n Restricted Subsidiaries that meet the definition of “Wholly Owned
\n Restricted Subsidiaries”, shall be considered and included in the
\n definition of “Wholly Owned Restricted Subsidiaries” for purposes of
\n (A) the parenthetical in Section 8.08 hereof, (B) Sections 8.10
\n (a)(i), (b)(ii) and 8.11 (a) hereof, and (C) the second reference
\n thereto in Section 8.18 (b) hereof, and (2) the U S WEST Restricted
\n Subsidiaries shall be considered “Restricted Subsidiaries” for
\n purposes of the second and fourth references thereto in Section 8.17
\n hereof.<\/p>\n
91<\/p>\n
ARTICLE X. THE ADMINISTRATIVE AGENT<\/p>\n
10.01. Authorization and Action. Each Lender hereby appoints and
\nauthorizes Administrative Agent to take such action as Administrative Agent
\ndeems necessary on its behalf and to exercise such powers under this Agreement
\nand the other Loan Papers as are delegated to the Administrative Agent by the
\nterms of the Loan Papers, together with such powers as are reasonably incidental
\nthereto. As to any matters not expressly provided for by this Agreement and the
\nother Loan Papers (including without limitation enforcement or collection of the
\nNotes), Administrative Agent shall not be required to exercise any discretion or
\ntake any action, but shall be required to act or to refrain from acting (and
\nshall be fully protected in so acting or refraining from acting) upon the
\ninstructions of Majority Lenders (or all Lenders, if required under Section
\n11.01 hereof), and such instructions shall be binding upon all Lenders;
\nprovided, however, that Administrative Agent shall not be required to take any
\n——– ——-
\naction which exposes Administrative Agent to personal liability or which is
\ncontrary to any Loan Papers or applicable Law. Administrative Agent agrees to
\ngive to each Lender (a) notice of each notice given to it by the Borrower
\npursuant to the terms of this Agreement, (b) copies of all information delivered
\nto the Administrative Agent in accordance with the terms of Sections 7.01, 7.02
\nand 7.03 hereof and (c) to promptly distribute to each applicable Lender in like
\nfunds all amounts delivered to Administrative Agent by the Borrower for the
\nindividual account of any Lender pro rata in accordance with the Applicable
\nSpecified Percentage, as set forth in this Agreement. Functions of the
\nAdministrative Agent are administerial in nature and in no event shall the
\nAdministrative Agent have a fiduciary or trustee relationship in respect of any
\nLender by reason of this Agreement or any other Loan Paper.<\/p>\n
10.02. Administrative Agent’s Reliance, Etc. Neither Administrative
\nAgent, nor any of its directors, officers, agents, employees, or representatives
\nshall be liable for any action taken or omitted to be taken by it or them under
\nor in connection with this Agreement or any other Loan Paper, except for its or
\ntheir own gross negligence or willful misconduct. Without limitation of the
\ngenerality of the foregoing, Administrative Agent (a) may treat the payee of any
\nNote as the holder thereof until Administrative Agent receives written notice of
\nthe assignment or transfer thereof signed by such payee and in form satisfactory
\nto Administrative Agent; (b) may consult with legal counsel (including counsel
\nfor the Borrower or any of the Restricted Subsidiaries), independent public
\naccountants, and other experts reasonably selected by it, and shall not be
\nliable for any action taken or omitted to be taken in good faith by it in
\naccordance with the advice of such counsel, accountants, or experts; (c) makes
\nno warranty or representation to any Lender and shall not be responsible to any
\nLender for any statements, warranties, or representations made in or in
\nconnection with this Agreement or any other Loan Papers; (d) shall not have any
\nduty to ascertain or to inquire as to the performance or observance of any of
\nthe terms, covenants, or conditions of this Agreement or any other Loan Papers
\non the part of the Borrower or the Restricted Subsidiaries or to inspect the
\nProperty (including the books and records) of the Borrower or its Subsidiaries;
\n(e) shall not be responsible to any Lender for the due execution, legality,
\nvalidity, enforceability, genuineness, sufficiency, or value of this Agreement,
\nany other Loan Papers, or any other instrument or document furnished pursuant
\nhereto; and (f) shall incur no liability under or in respect of this Agreement
\nor any other Loan Papers by acting upon any notice, consent, certificate, or
\nother instrument or writing believed by it to be genuine and signed or sent by
\nthe proper party or parties.<\/p>\n
10.03. Bank of America, N.A. and Affiliates. With respect to its
\nRevolver A Commitment, Working Line Commitment, Swingline Commitment, Revolver B
\nCommitment, its Advances, and any Loan Papers, Bank of America, N.A. has the
\nsame Rights under this Agreement as any other<\/p>\n
92<\/p>\n
Lender and may exercise the same as though it were not Administrative Agent.
\nBank of America, N.A. and its Affiliates may accept deposits from, lend money
\nto, act as trustee under indentures of, and generally engage in any kind of
\nbusiness with, any Obligor, any Restricted Subsidiary, any Affiliate thereof,
\nand any Person who may do business therewith, all as if Bank of America, N.A.
\nwere not Administrative Agent and without any duty to account therefor to any
\nLender, including, without limitation, the TROL Transaction.<\/p>\n
10.04. Lender Credit Decision. Each Lender acknowledges that it has,
\nindependently and without reliance upon Administrative Agent or any other
\nLender, and based on the financial statements referred to in Section 5.01(j),
\nSection 7.01 and Section 7.02 hereof and such other documents and information as
\nit has deemed appropriate, made its own credit analysis and decision to enter
\ninto this Agreement. Each Lender also acknowledges that it will, independently
\nand without reliance upon Administrative Agent or any other Lender and based on
\nsuch documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit decisions in taking or not taking action under
\nthis Agreement and the other Loan Papers.<\/p>\n
10.05. Indemnification by Lenders. Lenders shall indemnify
\nAdministrative Agent, pro rata in accordance with each Lender’s Total Specified
\nPercentage, from and against any and all liabilities, obligations, losses,
\ndamages, penalties, actions, judgments, suits, reasonable costs and expenses, or
\ndisbursements of any kind or nature whatsoever which may be imposed on, incurred
\nby, or asserted against Administrative Agent in any way relating to or arising
\nout of any Loan Papers or any action taken or omitted by Administrative Agent
\nthereunder, including any negligence of Administrative Agent; provided, however,
\n ——– ——-
\nthat no Lender shall be liable for any portion of such liabilities, obligations,
\nlosses, damages, penalties, actions, judgments, suits, costs, expenses, or
\ndisbursements resulting from Administrative Agent’s gross negligence or willful
\nmisconduct. Without limitation of the foregoing, Lenders shall reimburse
\nAdministrative Agent, pro rata in accordance with each Lender’s Total Specified
\nPercentage, promptly upon demand for any out-of-pocket expenses (including
\nreasonable attorneys’ fees) incurred by Administrative Agent in connection with
\nthe preparation, execution, delivery, administration, modification, amendment,
\nor enforcement (whether through negotiation, legal proceedings or otherwise) of,
\nor legal and other advice in respect of rights or responsibilities under, the
\nLoan Papers. The indemnity provided in this Section 10.05 shall survive the
\ntermination of this Agreement.<\/p>\n
10.06. Successor Administrative Agent. Administrative Agent may resign
\nat any time by giving 30 days written notice thereof to Lenders and the
\nBorrower, and may be removed at any time with or without cause by the action of
\nall of the Lenders (other than Administrative Agent, if it is a Lender). If the
\nAdministrative Agent also then serves in the capacity of the Swingline Bank or
\nthe Letter of Credit issuing bank, such resignation or removal shall constitute
\nresignation or removal of the Swingline Bank and the Administrative Agent in its
\ncapacity of Letter of Credit issuing bank and the successor Administrative Agent
\nshall serve in the capacity of the Swingline Bank and the Letter of Credit
\nissuing bank, provided that, the Administrative Agent agrees that if it
\n ————-
\nvoluntarily resigns as Administrative Agent, the Borrower shall have up to 180
\ndays to reissue the existing Letters of Credit. Upon any such resignation or
\nremoval, Majority Lenders shall have the right to appoint a successor
\nAdministrative Agent with the prior written consent of the Borrower (which shall
\nnot be unreasonably withheld), provided that, if there exists an Event of
\n ————-
\nDefault that is continuing, no consent of the Borrower shall be required. If no
\nsuccessor Administrative Agent shall have been so appointed and shall have
\naccepted such appointment within thirty days after the retiring Administrative
\nAgent’s giving of notice of resignation, then the retiring Administrative Agent
\nmay,<\/p>\n
93<\/p>\n
on behalf of Lenders, appoint a successor Administrative Agent, which shall
\nbe a commercial bank organized under the Laws of the United States of America or
\nof any State thereof and having a combined capital and surplus of at least
\n$500,000,000. Upon the acceptance of any appointment as Administrative Agent
\nhereunder by a successor Administrative Agent, such successor Administrative
\nAgent shall thereupon succeed to and become vested with all the Rights and
\nduties of the retiring Administrative Agent, and the retiring Administrative
\nAgent shall be discharged from its duties and obligations under the Loan Papers,<\/p>\n
provided that if the retiring or removed Administrative Agent is unable to
\n————-
\nappoint a successor Administrative Agent, Administrative Agent shall, after the
\nexpiration of a sixty day period from the date of notice, be relieved of all
\nobligations as Administrative Agent hereunder. Notwithstanding any
\nAdministrative Agent’s resignation or removal hereunder, the provisions of this
\nArticle shall continue to inure to its benefit as to any actions taken or
\nomitted to be taken by it while it was Administrative Agent under this
\nAgreement.<\/p>\n
ARTICLE XI. MISCELLANEOUS<\/p>\n
11.01. Amendments and Waivers. No amendment or waiver of any provision
\nof this Agreement or any other Loan Papers, nor consent to any departure by the
\nBorrower or any Obligor or Restricted Subsidiary therefrom, shall be effective
\nunless the same shall be in writing and signed by the Borrower and the
\nAdministrative Agent with the consent of the Majority Lenders, and then any such
\nwaiver or consent shall be effective only in the specific instance and for the
\nspecific purpose for which given; provided, however, that no amendment, waiver,
\n ——– ——-
\nor consent shall (and the result of action or failure to take action shall not)
\nunless in writing and signed by the Administrative Agent with the consent of all
\nof the Lenders, (a) increase the Revolver A Commitment, the Working Line
\nCommitment or the Revolver B Commitment, (b) reduce any principal, interest,
\nfees, or other scheduled amounts payable hereunder (including mandatory
\nprepayments under Section 2.05 hereof), or waive or result in the waiver of any
\nEvent of Default under Section 9.01(a) hereof, (c) postpone any date fixed for
\nany scheduled payment of principal, interest, fees, or other amounts payable
\nhereunder, (d) release or materially impair the value of any collateral or
\nguaranties securing any Obligor’s or Restricted Subsidiary’s obligations
\nhereunder, other than releases contemplated hereby and by the other Loan Papers,
\n(e) change the meaning of “Total Specified Percentage”, “Revolver A Specified
\nPercentage”, “Working Line Specified Percentage” or “Revolver B Specified
\nPercentage”, or the number of Lenders required to take any action hereunder,
\nchange the definitions of “Commitment”, “Revolver A Commitment”, “Revolver B
\nCommitment”, “Working Line Commitment”, “Maturity Date”, “Majority Lenders”,
\n“SuperMajority Lenders” or “Letter of Credit Commitment”, other than to correct
\nany technical errors or conforming changes to any such definition or (f) amend
\nthis Section 11.01. No amendment, waiver, or consent shall affect the Rights or
\nduties of Administrative Agent under any Loan Papers, unless it is in writing
\nand signed by Administrative Agent in addition to the requisite number of
\nLenders. No amendment, waiver, or consent shall affect the Rights or duties of
\nSwingline Bank under any Loan Papers, unless it is in writing and signed by the
\nSwingline Bank in addition to the requisite number of Lenders.<\/p>\n
11.02. Notices.<\/p>\n
(a) Manner of Delivery. All notices to be given or delivered under the Loan
\nPapers shall, except in those cases where giving notice by telephone is
\nexpressly permitted, be given or delivered in writing. All written notices
\nshall be sent by registered or certified mail, postage prepaid, return receipt
\nrequested, by telecopier, or delivered by hand or overnight courier. In the
\nevent of a<\/p>\n
94<\/p>\n
discrepancy between any telephonic notice and any written confirmation thereof,
\nsuch written confirmation shall be deemed the effective notice except to the
\nextent Administrative Agent, any Lender or the Borrower has acted in reliance on
\nsuch telephonic notice.<\/p>\n
(b) Addresses. All notices, communications and materials to be given or
\ndelivered pursuant to this Agreement shall be given or delivered at the
\nfollowing respective addresses and telecopier and telephone numbers and to the
\nattention of the following individuals or departments:<\/p>\n
(i) If to the Borrower or any Restricted Subsidiary:<\/p>\n
Qwest Communications International Inc.
\n 700 Qwest Tower
\n 555 Seventeenth Street
\n Denver, CO 80202<\/p>\n
Telephone No.: (303) 992-1400
\n Telecopier No.: (303) 992-1198
\n Attention: Mr. Robert S. Woodruff
\n Executive Vice President-Finance,
\n Chief Financial Officer and Treasurer<\/p>\n
and<\/p>\n
Telephone No.: (303) 992-1400
\n Telecopier No.: (303) 992-1198
\n Attention: Mr. William Bryant
\n Director of Finance and Assistant Treasurer<\/p>\n
and<\/p>\n
Telephone No.: (303) 992-1400
\n Telecopier No.: (303) 992-1044
\n Attention: Drake S. Tempest, Esq.
\n Executive Vice President and General Counsel<\/p>\n
With copies to (which is not required for effective delivery as set
\n forth above):<\/p>\n
Holme Roberts & Owen LLP
\n 1700 Lincoln, Suite 4100
\n Denver, CO 80203<\/p>\n
Telephone No.: (303) 861-7000
\n Facsimile No.: (303) 866-0200
\n Attention: Martha Collins Rolle, Esq.<\/p>\n
(ii) If to Administrative Agent:<\/p>\n
Bank of America, N.A.<\/p>\n
95<\/p>\n
Bank of America Plaza
\n 901 Main Street, 64th Floor
\n Dallas, Texas 75202<\/p>\n
Telephone No.: (214) 209-0157
\n Telecopier No.: (214) 209-9390
\n Attention: Anthony M. Cacheria
\n Managing Director and Manager <\/p>\n
Telephone No.: (214) 209-2576
\n Telecopier No.: (214) 209-9390
\n Attention: Richard M. Peck
\n Associate<\/p>\n
With a copy to (which is not required for effective delivery as set
\n forth above):<\/p>\n
Donohoe, Jameson & Carroll, P.C.
\n 3400 Renaissance Tower
\n 1201 Elm Street
\n Dallas, Texas 75270<\/p>\n
Telephone No.: (214) 698-3814
\n Telecopier No.: (214) 744-0231
\n Attention: Melissa Ruman Stewart
\n and
\n Telephone No.: (214) 698-3867
\n Telecopier No.: (214) 744-0231
\n Attention: Michael D. Cuda<\/p>\n
(iii) If to any Lender, to its address shown opposite its signature block
\non the signature pages hereto, or on any Assignment and Acceptance, or in any
\nother notice to the Borrower and the Administrative Agent,<\/p>\n
or at such other address or, telecopier or telephone number or to the attention
\nof such other individual or department as the party to which such information
\npertains may hereafter specify for the purpose in a notice to the other
\nspecifically captioned “Notice of Change of Address”.<\/p>\n
(c) Effectiveness. Each notice to be given or delivered to any party
\npursuant to this Agreement shall be effective or deemed delivered or furnished
\n(i) if sent by mail upon receipt, (ii) if sent by telecopier, when such notice
\nis transmitted to the appropriate number, answerback received, (iii) if sent by
\nhand delivery or overnight courier, when received by the addressee addressed as
\nabove provided, and (iv) if given by telephone, when communicated to the
\nindividual or any member of the department specified as the individual or
\ndepartment to whose attention notices, communications and materials are to be
\ngiven or delivered except that notices of a change of address, telecopier or
\ntelephone number or individual or department to whose attention notices,
\ncommunications and materials are to be given or delivered shall not be effective
\nuntil received; provided, however, that notices to Administrative Agent pursuant
\n ——– ——-
\nto Article II shall be effective when received. The Borrower agrees that
\nAdministrative Agent shall have no duty or obligation to verify or otherwise
\nconfirm<\/p>\n
96<\/p>\n
telephonic notices given pursuant to Article II, and agrees to indemnify
\nand hold harmless Administrative Agent and Lenders for any and all liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, claims,
\ncosts, and expenses resulting, directly or indirectly, from acting upon any such
\nnotice.<\/p>\n
11.03. Parties in Interest. All covenants and agreements contained in
\nthis Agreement and all other Loan Papers shall bind and inure to the benefit of
\nthe respective successors and permitted assigns of the parties hereto. Each
\nLender may from time to time assign or transfer its interests hereunder pursuant
\nto Section 11.04 hereof. The Borrower may not assign or transfer its Rights or
\nobligations hereunder without the prior written consent of each Lender.<\/p>\n
11.04. Assignments and Participations.<\/p>\n
(a) Each Lender (an “Assignor”) may assign its Rights and obligations as a
\nLender under the Loan Papers to another Lender or its Bank Affiliate, or to one
\nor more transferees pursuant to an Assignment and Acceptance, so long as, if
\nsuch Assignee is not another Lender or a Bank Affiliate of the Assignor (i) each
\nassignment shall be of a constant, and not a varying percentage of all Rights
\nand obligations thereunder, (ii) each Assignor shall obtain in each case the
\nprior written consent of Administrative Agent and the Borrower, such consent of
\nthe Borrower not to be unreasonably withheld or delayed, provided that, in the
\n ————-
\nevent there exists an Event of Default that is continuing, no consent of the
\nBorrower shall be required to make an assignment, (iii) each Assignor shall in
\neach case pay a $3,500 processing fee to Administrative Agent and (iv) no such
\nassignment is for an amount less than $10,000,000 (unless such Lender is
\nassigning all of its remaining interest) and in increments of $1,000,000 (and,
\nif such assignment is a partial assignment, no Lender shall hold less than
\n$10,000,000 immediately after giving effect to any assignment unless it assigned
\nall of its interest). Assignments and other transfers (except participations)
\nwith respect to each Lender’s participation in a given Letter of Credit may only
\nbe made with the prior written consent of the Administrative Agent. Within five
\nBusiness Days after the Borrower receives notice of any such assignment, the
\nBorrower shall execute and deliver to Administrative Agent, but only in exchange
\nfor the Notes issued to Assignor, new Notes to the order of such Assignor and
\nits assignee in amounts equal to their respective Applicable Specified
\nPercentages of the Revolver A Commitment and the Revolver B Commitment (if any
\nexists), and\/or the Working Line Commitment, or after the Conversion Date (if
\nany), the amount of the Working Line Loan, as applicable. Such new Notes shall
\nbe dated the effective date of the assignment. It is specifically acknowledged
\nand agreed that on and after the effective date of each assignment, the assignee
\nshall be a party hereto and shall have the Rights and obligations of a Lender
\nunder the Loan Papers.<\/p>\n
(b) Each Lender may sell participations to one or more Persons in all or any
\nof its Rights and obligations under the Loan Papers; provided, however, that (i)
\n ——– ——-
\nsuch Lender’s obligations under the Loan Papers shall remain unchanged, (ii)
\nsuch Lender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations, (iii) such Lender shall remain the holder of
\nits Notes for all purposes of the Loan Papers, (iv) the participant shall be
\ngranted the Right to vote on or consent to only those matters described in
\nSections 11.01(a), (b), (c), (d) and (e) hereof, (v) Obligors, the Restricted
\nSubsidiaries, the Administrative Agent, and other Lenders shall continue to deal
\nsolely and directly with such Lender in connection with their respective Rights
\nand obligations under the Loan Papers and (vi) no such participation is for an
\namount less than $5,000,000.<\/p>\n
97<\/p>\n
(c) Any Lender may, in connection with any assignment or participation, or
\nproposed assignment or participation, disclose to the assignee or participant,
\nor proposed assignee or participant, any information relating to the Borrower
\nand its Subsidiaries furnished to such Lender by or on behalf of the Borrower
\nand its Subsidiaries, subject to the provisions of Section 11.15 hereof.<\/p>\n
(d) Notwithstanding any other provision set forth in this Agreement, (i) any
\nLender may at any time create a security interest in all or any portion of its
\nRights under this Agreement (including, without limitation, the Advances owing
\nto it and the Notes held by it) in favor of any Federal Reserve Bank in
\naccordance with Regulation A of the Board of Governors of the Federal Reserve
\nSystem and (ii) no participant of any Lender may further assign or participate
\nany of its interest in the Loan Papers to any Person (except as may be required
\nby Law or a Tribunal having authority over such participant).<\/p>\n
11.05. Sharing of Payments. If, after and during the continuance of any
\nEvent of Default, any Lender shall obtain any payment (whether voluntary,
\ninvoluntary, through the exercise of any Right of set-off, or otherwise) on
\naccount of its Advances in excess of its pro rata share of payments made by the
\nBorrower in accordance with such Lender’s Total Specified Percentage (except
\npayments to the Swingline Bank made to repay Swingline Advances), such Lender
\nshall forthwith purchase participations in Advances made by the other Lenders as
\nshall be necessary to share the excess payment pro rata in accordance with each
\nLender’s Total Specified Percentage with each of them; provided, however, that
\n ——– ——-
\nif any of such excess payment is thereafter recovered from the purchasing
\nLender, its purchase from each Lender shall be rescinded and each Lender shall
\nrepay the purchase price to the extent of such recovery together with a pro rata
\nshare of any interest or other amount paid or payable by the purchasing Lender
\nin respect of the total amount so recovered. The Borrower agrees that any
\nLender so purchasing a participation from another Lender pursuant to this
\nSection 11.05 may, to the fullest extent permitted by Law, exercise all its
\nRights of payment (including the Right of set-off) with respect to such
\nparticipation as fully as if such Lender were the direct creditor of the
\nBorrower in the amount of such participation.<\/p>\n
11.06. Right of Set-off. Upon the occurrence and during the continuance
\nof any Event of Default, each Lender is hereby authorized (after prior written
\nnotice to the Administrative Agent) at any time and from time to time, to the
\nfullest extent permitted by Law, to set-off and apply any and all deposits
\n(general or special, time or demand, provisional or final) at any time held and
\nother indebtedness at any time owing by such Lender to or for the credit or the
\naccount of the Borrower or any of its Restricted Subsidiaries against any and
\nall of the obligations of the Borrower now or hereafter existing under this
\nAgreement and the other Loan Papers, whether or not Administrative Agent or any
\nLender shall have made any demand under this Agreement or the other Loan Papers,
\nand even if such obligations are unmatured. Each Lender shall promptly notify
\nthe Borrower after any such set-off and application, provided that the failure
\n ————-
\nto give such notice shall not affect the validity of such set-off and
\napplication. The Rights of each Lender under this Section 11.06 are in addition
\nto other Rights (including, without limitation, other Rights of set-off) which
\nsuch Lender may have.<\/p>\n
11.07. Costs, Expenses, and Taxes.<\/p>\n
98<\/p>\n
(a) Notwithstanding anything to the contrary in the Loan Papers, the
\nBorrower agrees to pay on demand (i) all reasonable out of pocket costs and
\nexpenses of Administrative Agent in connection with the preparation and
\nnegotiation of all Loan Papers, including without limitation the reasonable fees
\nand out-of-pocket expenses of Special Counsel, FCC counsel, PUC counsel and
\nlocal counsel, as appropriate, (ii) all costs and expenses (including reasonable
\nattorneys’ fees and expenses) of Administrative Agent in connection with any
\ninterpretation, grant and perfection of any Lien, modification, amendment,
\nwaiver, release of any Loan Papers, restructuring or work-out and (iii) all
\ncosts and expenses (including reasonable attorneys’ fees and expenses) of
\nAdministrative Agent in connection with any collection of any portion of the
\nObligations or the enforcement of any Loan Papers during the continuance of an
\nEvent of Default.<\/p>\n
(b) In addition, notwithstanding anything to the contrary in the Loan
\nPapers, the Borrower shall pay any and all stamp, debt, and other Taxes payable
\nor determined to be payable in connection with any payment hereunder to
\nAdministrative Agent, Arranging Agents or any Lender (but specifically excluding
\nany participant) (other than Taxes on the overall net income of Administrative
\nAgent or any Lender or franchise Taxes or Taxes on capital or capital receipts
\nof Administrative Agent or any Lender), or the execution, delivery, or
\nrecordation of any Loan Papers, and agrees to save Administrative Agent and each
\nLender harmless from and against any and all liabilities with respect to, or
\nresulting from any delay in paying or omission to pay any Taxes in accordance
\nwith this Section 11.07, including any penalty, interest, and expenses relating
\nthereto. All payments by the Borrower or any Restricted Subsidiary of the
\nBorrower under any Loan Papers shall be made free and clear of and without
\ndeduction for any present or future Taxes (other than Taxes on the overall net
\nincome of Administrative Agent or any Lender of any nature now or hereafter
\nexisting, levied, or withheld, or franchise Taxes or Taxes on capital or capital
\nreceipts of Administrative Agent or any Lender), including all interest,
\npenalties, or similar liabilities relating thereto. If the Borrower shall be
\nrequired by Law to deduct or to withhold any Taxes from or in respect of any
\namount payable hereunder (i) the amount so payable shall be increased to the
\nextent necessary so that, after making all required deductions and withholdings
\n(including Taxes on amounts payable to Administrative Agent or any Lender
\npursuant to this sentence), Administrative Agent or any Lender receives an
\namount equal to the sum it would have received had no such deductions or
\nwithholdings been made, (ii) the Borrower shall make such deductions or
\nwithholdings, and (iii) the Borrower shall pay the full amount deducted or
\nwithheld to the relevant taxing authority in accordance with applicable Law.
\nWithout prejudice to the survival of any other agreement of the Borrower
\nhereunder, the agreements and obligations of the Borrower contained in this
\nSection 11.07 shall survive the execution of this Agreement, termination of the
\nCommitment, repayment of the Obligations, satisfaction of each agreement
\nsecuring or assuring the Obligations and termination of this Agreement and each
\nother Loan Paper.<\/p>\n
11.08. Rate Provision. It is not the intention of any party to any Loan
\nPapers to make an agreement violative of the Laws of any applicable jurisdiction
\nrelating to usury. In no event shall any Obligor, Restricted Subsidiary or any
\nother Person be obligated to pay any amount in excess of the Maximum Amount. If
\nAdministrative Agent or any Lender ever receives, collects or applies, as
\ninterest, any such excess, such amount which would be excessive interest shall
\nbe deemed a partial repayment of principal and treated hereunder as such; and if
\nprincipal is paid in full, any remaining excess shall be paid to the Borrower or
\nthe other Person entitled thereto. In determining whether or not the interest
\npaid or payable, under any specific contingency, exceeds the Maximum Amount,
\neach Obligor, Restricted Subsidiary, Administrative Agent and each Lender shall,
\nto the maximum extent permitted under Applicable Laws, (a) characterize any
\nnonprincipal payment as an expense, fee or<\/p>\n
99<\/p>\n
premium rather than as interest, (b) exclude voluntary prepayments and the
\neffect thereof, and (c) amortize, prorate, allocate and spread in equal parts,
\nthe total amount of interest throughout the entire contemplated term of the
\nObligations so that the interest rate is uniform throughout the entire term of
\nthe Obligations; provided that if the Obligations are paid and
\n ————
\nperformed in full prior to the end of the full contemplated term thereof, and if
\nthe interest received for the actual period of existence thereof exceeds the
\nMaximum Amount, Administrative Agent or Lenders, as appropriate, shall refund to
\nthe Borrower the amount of such excess or credit the amount of such excess
\nagainst the total principal amount owing, and, in such event, to the extent
\npermitted by Applicable Law, neither Administrative Agent nor any Lender shall
\nbe subject to any penalties provided by any Laws for contracting for, charging
\nor receiving interest in excess of the Maximum Amount. This Section 11.08 shall
\ncontrol every other provision of all agreements among the parties to the Loan
\nPapers pertaining to the transactions contemplated by or contained in the Loan
\nPapers.<\/p>\n
11.09. Severability. If any provision of any Loan Paper is held to be
\nillegal, invalid, or unenforceable under present or future Laws during the term
\nthereof, such provision shall be fully severable, the appropriate Loan Paper
\nshall be construed and enforced as if such illegal, invalid, or unenforceable
\nprovision had never comprised a part thereof, and the remaining provisions
\nthereof shall remain in full force and effect and shall not be affected by the
\nillegal, invalid, or unenforceable provision or by its severance therefrom.
\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision there
\nshall be added automatically as a part of such Loan Paper a legal, valid, and
\nenforceable provision substantially similar in terms to the illegal, invalid, or
\nunenforceable provision as may be possible.<\/p>\n
11.10. Exceptions to Covenants. No Obligor or Restricted Subsidiary
\nshall be deemed to be permitted to take any action or to fail to take any action
\nthat is permitted as an exception to any covenant in any Loan Papers, or that is
\nwithin the permissible limits of any covenant, if such action or omission would
\nresult in a violation of any other covenant in any Loan Papers.<\/p>\n
11.11. Counterparts. This Agreement and the other Loan Papers may be
\nexecuted in any number of counterparts with different parties signing on
\ndifferent counterparts, all of which taken together shall constitute one and the
\nsame instrument. In making proof of any such agreement, it shall not be
\nnecessary to produce or account for any counterpart other than one signed by the
\nparty against which enforcement is sought.<\/p>\n
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.<\/p>\n
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE CONTRACTS
\nMADE IN NEW YORK, NEW YORK, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
\nWITH THE LAWS OF THE STATE OF NEW YORK, AND THE UNITED STATES OF AMERICA.
\nWITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER AGREES TO SUBMIT ITSELF
\nTO THE JURISDICTION OF THE FEDERAL COURTS OF NEW YORK LOCATED IN NEW YORK, NEW
\nYORK FOR PROCEEDINGS IN CONNECTION HEREWITH. TO THE MAXIMUM EXTENT PERMITTED BY
\nLAW, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY
\nRIGHT THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN
\nTORT, CONTRACT, EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS
\nAGREEMENT, THE OTHER LOAN PAPERS, OR ANY RELATED MATTERS, AND<\/p>\n
100<\/p>\n
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
\nJURY.<\/p>\n
(b) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES
\nPERSONAL SERVICE OF ANY LEGAL PROCESS UPON IT. THE BORROWER, THE ADMINISTRATIVE
\nAGENT AND EACH LENDER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
\nREGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER, THE
\nADMINISTRATIVE AGENT OR EACH SUCH LENDER, RESPECTIVELY, AT ITS ADDRESS
\nDESIGNATED FOR NOTICE UNDER THIS AGREEMENT. NOTHING IN THIS SECTION 11.12
\nSHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
\nPERMITTED BY LAW.<\/p>\n
11.13. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
\nREPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
\nEVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
\nTHERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS AGREEMENT
\nSUPERSEDES AND REPLACES IN ITS ENTIRETY THE COMMITMENT LETTER AGREEMENT DATED
\nFEBRUARY 8, 2000 INCLUDING, WITHOUT LIMITATION, THE SUMMARY OF TERMS AND
\nCONDITIONS DATED FEBRUARY 8, 2000.<\/p>\n
11.14. Release of Conditional Early Release Unlimited Guaranty. At such
\ntime as (i) there exists no Default under Section 9.01(a) hereof, (ii) there
\nexists no Event of Default and (iii) the Senior Unsecured Debt Rating is BBB- or
\nBaa3 or better, the Guarantor shall be immediately and automatically released
\nfrom its obligations under the Conditional Early Release Unlimited Guaranty, and
\nthe Administrative Agent shall, and the Arranging Agents and the Lenders hereby
\nauthorize the Administrative Agent to, promptly take all action and execute such
\ndocuments to release the Guarantor from its obligations under the Conditional
\nEarly Release Unlimited Guaranty in full, and return the Conditional Early
\nRelease Unlimited Guaranty to the Guarantor.<\/p>\n
11.15. Confidentiality. Each Lender agrees to keep information obtained
\nby it pursuant to the terms hereof or the terms of any other Loan Paper that is
\nnot otherwise publicly available (“Confidential Information”) confidential in
\naccordance with such Lender’s customary procedures for handling confidential
\ninformation of this nature and in accordance with safe and sound banking
\npractices and agrees that it will only use such Confidential Information in
\nconnection with the transactions contemplated by this Agreement and not disclose
\nany of such Confidential Information other than (a) to such Lenders and its
\nAffiliates’ (other than an Affiliate which is a competitor of the Borrower or
\nits Subsidiaries) employees, counsel (in-house and outside), accountants,
\nconsultants, representatives, professional advisors and agents so long as such
\nPerson is advised of the confidentiality of such Confidential Information and
\nthe limitation on its use under this Section 11.15, needs to have knowledge of
\nsuch Confidential Information for such limited use, and, if such Person is not
\nsuch Lenders’ or its Affiliates’ employee, counsel (in-house and outside),
\naccountant consultant, professional advisor or agent, such Person has executed
\na confidentiality undertaking in favor of the Borrower substantially upon the
\nterms of this Section 11.15 before such Confidential Information is disclosed to
\nsuch Person, (b) to regulatory officials, and in order to comply with any
\nApplicable Law, or other law, regulation or judicial order, or as requested or
\nrequired by bank regulators or auditors or other governmental authorities or
\nTribunals, (c) as reasonably deemed<\/p>\n
101<\/p>\n
necessary in connection with any investigation, legal process or litigation, or
\n(d) to assignees or participants or proposed assignees or proposed participants
\nof all or any part of this credit facility so long as such Person has executed a
\nconfidentiality undertaking in favor of the Borrower substantially upon the
\nterms of this Section 11.15 before such Confidential Information is disclosed to
\nsuch Person. The failure of any Lender to comply with the provisions of this
\nSection 11.15 shall not affect the Obligations, or the obligation of the
\nBorrower to comply with the terms of this Agreement and the other Loan Papers,
\nor the validity of any assignment or participation granted pursuant to the terms
\nof this Agreement. Each Lender shall be responsible for any breach of the
\nprovisions of this Section 11.15 or unauthorized disclosure of such Confidential
\nInformation by any of its or its Affiliates’ employees, counsel (in-house and
\noutside), accountants, consultants, representatives, professional advisors and
\nagents. Each Lender shall take customary precautions to prevent Confidential
\nInformation from being disclosed to its employees or employees of any Affiliate
\nwho are equity analysts or Persons involved in publication of research in
\nconnection with the Borrower or any of the Borrower’s Subsidiaries or any of
\ntheir respective securities.<\/p>\n
11.16. Amendment and Restatement. This Agreement is an amendment and
\nrestatement of the Original Credit Agreement by Majority Lenders in accordance
\nwith the terms of Section 11.01 of the Original Credit Agreement, and, as such,
\nexcept for the “Obligation” as defined in the Original Credit Agreement (which
\nshall survive, be renewed and restated by the terms of this Agreement), all
\nterms and provisions of this Agreement supersede in their entirety the terms and
\nprovisions of the Original Credit Agreement. The Conditional Early Release
\nUnlimited Guaranty shall remain valid, binding and enforceable. All references
\nin any Loan Paper to the “Credit Agreement” shall hereafter be deemed to be
\nreferences to this Agreement. All provisions of each Loan Paper shall remain in
\nfull force and effect, and such provisions are hereby ratified and confirmed,
\nregardless of whether any such Loan Paper was executed prior to the Amendment
\nand Restatement Closing Date.<\/p>\n
11.17. Option Date and Extension. The parties hereto acknowledge and
\nagree that on and as of the Option Date, the Borrower has exercised the
\nExtension Option, and the Working Line Loan has been extended for an additional
\n364 days in accordance with the terms of Section 2.16(a) hereof and the other
\nterms and provisions of this Agreement, and the Lenders’ Working Line Specified
\nPercentages of the Working Line Loan, as so extended, shall be as set forth on
\nthe signature pages hereto.<\/p>\n
===============================================================================
\n THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
\n===============================================================================<\/p>\n
102<\/p>\n
IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first
\nset forth above.<\/p>\n
THE BORROWER:
\n QWEST COMMUNICATIONS INTERNATIONAL INC.<\/p>\n
\/s\/ Drake S. Tempest
\n ———————————————
\n By: Drake S. Tempest
\n Its: Executive Vice President and General Counsel<\/p>\n
103<\/p>\n
ADMINISTRATIVE AGENT:<\/p>\n
BANK OF AMERICA, N.A., as Administrative Agent and Co-
\n Arranging Agent<\/p>\n
\/s\/ Anthony M. Cacheria
\n ——————————————————
\n By: Anthony M. Cacheria
\n Its: Managing Director and Manager<\/p>\n
104<\/p>\n
THE BANK OF NEW YORK, as a Co-Arranging Agent<\/p>\n
\/s\/ Gerry Granovsky
\n —————————————————–
\n By: Gerry Granovsky
\n —————————————————–
\n Its: Vice President
\n —————————————————–<\/p>\n
105<\/p>\n
CITIBANK, N.A., as a Co-Arranging Agent<\/p>\n
\/s\/ Suneet Gupta
\n —————————————————–
\n By: Suneet Gupta
\n —————————————————–
\n Its: Vice President
\n —————————————————–<\/p>\n
106<\/p>\n
LENDERS:<\/p>\n
BANK OF AMERICA, N.A., individually as a Lender
\nAddress:
\n901 Main Street
\n64th Floor
\nDallas, Texas 75202 \/s\/ Anthony M. Cacheria
\n ————————
\n By: Anthony M. Cacheria
\nAttn.: Richard M. Peck Its: Managing Director and Manager
\n Anthony M. Cacheria
\nTelephone: (214) 209-2576 Mr. Peck
\nTelephone: (214) 209-0157 Mr. Cacheria
\nTelecopy: (214) 209-9390<\/p>\n
Revolver A Specified Percentage: 6.450000000%
\nWorking Line Specified Percentage: 8.050000000%
\nRevolver B Specified Percentage: 6.450000000%
\nTotal Specified Percentage: 7.250000000%<\/p>\n
107<\/p>\n
THE BANK OF NEW YORK, individually as a Lender
\nAddress:
\nOne Wall Street
\n16th Floor
\nNew York, New York 10286<\/p>\n
\/s\/ Gerry Granovsky
\n —————————————-
\n By: Gerry Granovsky
\n ———————————–
\n Its: Vice President
\n ———————————-<\/p>\n
Attn: Gerry Granovsky
\nTelephone: (212) 635-8615
\nTelecopy: (212) 635-8593<\/p>\n
Revolver A Specified Percentage: 6.450000000%
\nWorking Line Specified Percentage: 7.850000000%
\nRevolver B Specified Percentage: 6.450000000%
\nTotal Specified Percentage: 7.150000000%<\/p>\n
108<\/p>\n
FIRST UNION NATIONAL BANK, individually as a
\n Lender<\/p>\n
Address:
\n201 S. College Street
\nMail Code: 0760
\nCharlotte, North Carolina 28288<\/p>\n
\/s\/ C. Brand Hosford
\n ———————————————-
\n By: C. Brand Hosford
\n ——————————————-
\n Its: Vice President
\n —————————————–<\/p>\n
Attn: Brand Hosford
\nTelephone: (704) 374-6355
\nTelecopy: (704) 374-4793<\/p>\n
Revolver A Specified Percentage: 6.450000000%
\nWorking Line Specified Percentage: 7.850000000%
\nRevolver B Specified Percentage: 6.450000000%
\nTotal Specified Percentage: 7.150000000%<\/p>\n
109<\/p>\n
CITIBANK, N.A., individually as a Lender
\nAddress:
\n399 Park Avenue
\n8th Floor, Zone 5
\nNew York, New York 10022
\n \/s\/ Suneet Gupta
\n ————————————————-
\n By: Suneet Gupta
\n ———————————————
\n Its: Vice President
\n ——————————————-<\/p>\n
Attn: Suneet Gupta
\nTelephone: (212) 559-2374
\nTelecopy: (212) 793-6873<\/p>\n
Revolver A Specified Percentage: 6.450000000%
\nWorking Line Specified Percentage: 7.850000000%
\nRevolver B Specified Percentage: 6.450000000%
\nTotal Specified Percentage: 7.150000000%<\/p>\n
110<\/p>\n
ABN AMRO BANK N.V.
\nAddress:<\/p>\n
135 South LaSalle, Suite 625
\nChicago, Illinois 60604-1003
\nAttn: Roxanne Sopala
\nTelephone: (312 ) 904-2504 \/s\/ Roxana Sopala
\nTelecopy: (312 ) 904-5445 ———————————————-
\n By: Roxana Sopala
\n ——————————————
\n Its: Vice President
\n —————————————-<\/p>\n
\/s\/ Brian M. Sharpe
\n ———————————————-
\n By: Brian M. Sharpe
\n ———————————————-
\n Its: Vice President
\n ———————————————-<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
111<\/p>\n
BANK AUSTRIA CREDITANSTALT CORPORATE
\n FINANCE, INC.
\nAddress:<\/p>\n
Two Ravinia Drive, Suite 1680
\nAtlanta, Georgia 30346
\nAttn: Richard Varalla
\nTelephone: (770) 390-1850 \/s\/ Richard W. Varalla
\nTelecopy: (770) 390-1851 ———————————————-
\n By: Richard W. Varalla
\n ——————————————
\n Its: Senior Associate
\n —————————————–<\/p>\n
\/s\/ Robert M. Biringer
\n ———————————————–
\n By: Robert M. Biringer
\n ——————————————-
\n Its: Executive Vice President
\n ——————————————-<\/p>\n
Revolver A Specified Percentage: 2.20000000%
\nWorking Line Specified Percentage: 2.20000000%
\nRevolver B Specified Percentage: 2.20000000%
\nTotal Specified Percentage: 2.20000000%<\/p>\n
112<\/p>\n
BANK OF MONTREAL
\nAddress:<\/p>\n
430 Park Avenue
\nNew York, New York 10022
\nAttn: Ola Anderssen
\nTelephone: (212) 605-1453 \/s\/ Ola Anderssen
\nTelecopy: (212) 605-1648 ———————————————–
\n By: Ola Anderssen
\n ——————————————-
\n Its: Director
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 2.20000000%
\nWorking Line Specified Percentage: 2.20000000%
\nRevolver B Specified Percentage: 2.20000000%
\nTotal Specified Percentage: 2.20000000%<\/p>\n
113<\/p>\n
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
\nAddress:<\/p>\n
1251 Avenue of the Americas, 12th Floor
\nNew York, New York 10020-1104
\nAttn: Michael Deadder
\nTelephone: (212) 782-4423 \/s\/ Victor F. Bulzacchelli
\nTelecopy: (212) 782-4935 —————————————-
\n By: Victor F. Bulzacchelli
\n ————————————
\n Its: Senior Vice President
\n ———————————–<\/p>\n
Revolver A Specified Percentage: 2.20000000%
\nWorking Line Specified Percentage: 2.20000000%
\nRevolver B Specified Percentage: 2.20000000%
\nTotal Specified Percentage: 2.20000000%<\/p>\n
114<\/p>\n
BANQUE NATIONALE DE PARIS
\nAddress:<\/p>\n
725 S. Figueroa, Suite 2090
\nLos Angeles, California 90017
\nAttn: Mitchell Ozawa
\nTelephone: (213) 688-6416 \/s\/ Clive Bettles
\nTelecopy: (213) 488-9602 ——————————————-
\n By: Clive Bettles
\n —————————————
\n Its: Senior Vice President and Manager
\n ————————————–<\/p>\n
\/s\/ Mitchell M. Ozawa
\n ——————————————-
\n By: Mitchell M. Ozawa
\n —————————————-
\n Its: Vice President
\n —————————————<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
115<\/p>\n
BAYERISCHE LANDESBANK GIROZENTRALE,
\n CAYMEN ISLANDS BRANCH
\nAddress:<\/p>\n
560 Lexington Avenue
\nNew York, New York 10022
\nAttn: James H. Boyle
\nTelephone: (212) 310-9817 \/s\/ Hereward Drummond
\nTelecopy: (212) 310-9868 ———————————————–
\n By: Hereward Drummond
\n ——————————————-
\n Its: Senior Vice President
\n ——————————————<\/p>\n
\/s\/ James H. Boyle
\n ———————————————–
\n By: James H. Boyle
\n ——————————————-
\n Its: Vice President
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 2.20000000%
\nWorking Line Specified Percentage: 2.20000000%
\nRevolver B Specified Percentage: 2.20000000%
\nTotal Specified Percentage: 2.20000000%<\/p>\n
116<\/p>\n
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW
\n YORK BRANCH
\nAddress:<\/p>\n
150 East 42nd Street
\nNew York, New York 10017
\nAttn: Eric Pelletier
\nTelephone: (212) 672-5460 \/s\/ Marianne Weinzinger
\nTelecopy: (212) 672-5530 ————————————————
\n By: Marianne Weinzinger
\n ——————————————–
\n Its: Director
\n ——————————————–<\/p>\n
\/s\/ Ivana Albanese-Rizzo
\n ————————————————
\n By: Ivana Albanese-Rizzo
\n ———————————————
\n Its: Director
\n ——————————————–<\/p>\n
Revolver A Specified Percentage: 2.20000000%
\nWorking Line Specified Percentage: 2.20000000%
\nRevolver B Specified Percentage: 2.20000000%
\nTotal Specified Percentage: 2.20000000%<\/p>\n
117<\/p>\n
COOPERATIEVE CENTRALE RAIFFEISEN-
\n BOERENLEENBANK B.A., “RABOBANK
\n NEDERLAND”, NEW YORK BRANCH
\nAddress:<\/p>\n
c\/o Rabo Support Services
\n10 Exchange Place \/s\/ Eric Hurshman
\n ——————————————
\n16th Floor By: Eric Hurshman
\nJersey City, New Jersey —————————————
\nTelephone: (201) 499-5200 Its: Vice President
\nTelecopy: (201) 499-5328 ————————————-<\/p>\n
With a copy to:<\/p>\n
300 South Wacker Drive, Suite 3500
\nChicago, Illinois 60606 \/s\/ Nancy J. O’Connor
\n ——————————————
\nAttn: Alan McLintock By: Nancy J. O’Connor
\nTelephone: (312) 408-8253 —————————————
\nTelecopy: (312) 786-0052 Its: Vice President
\n ————————————–<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 0.00000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 1.90000000%<\/p>\n
118<\/p>\n
DEUTSCHE BANK AG NEW YORK
\n BRANCH AND\/OR CAYMAN ISLAND BRANCH
\nAddress:<\/p>\n
31 W. 52nd Street
\nNew York, New York 10019
\nAttn: Joel Makowsky
\nTelephone: (212) 469-7896 \/s\/ Robert B. Landis
\nTelecopy: (212) 469-4604 ———————————————–
\n By: Robert B. Landis
\n ——————————————–
\n Its: Managing Director
\n ——————————————<\/p>\n
\/s\/ Joel Makowsly
\n ———————————————–
\n By: Joel Makowsly
\n ——————————————–
\n Its: Vice President
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 2.75000000%
\nWorking Line Specified Percentage: 2.75000000%
\nRevolver B Specified Percentage: 2.75000000%
\nTotal Specified Percentage: 2.75000000%<\/p>\n
119<\/p>\n
DEUTSCHE GENOSSENSCHAFTSBANK AG
\nAddress:<\/p>\n
609 Fifth Avenue
\nNew York, New York 10017
\nAttn: Sabine Wendt
\nTelephone: (212) 745-1559 \/s\/ Sabine Wendt
\nTelecopy: (212) 745-1556 ————————————————
\n By: Sabine Wendt
\n ———————————————
\n Its: Vice President
\n ——————————————-<\/p>\n
\/s\/ Rob T. Jokhai
\n ————————————————
\n By: Rob T. Jokhai
\n ——————————————–
\n Its: Vice President
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 1.50000000%
\nWorking Line Specified Percentage: 1.50000000%
\nRevolver B Specified Percentage: 1.50000000%
\nTotal Specified Percentage: 1.50000000%<\/p>\n
120<\/p>\n
DRESDNER BANK AG, NEW YORK AND GRAND
\n CAYMEN BRANCHES<\/p>\n
Address:<\/p>\n
75 Wall Street
\nNew York, New York 10005
\nAttn: Helen Ng
\nTelephone: (212) 429-2430 \/s\/ Jane A. Majeski
\nTelecopy: (212) 429-4181 ———————————————-
\n By: Jane A. Majeski
\n ——————————————-
\n Its: First Vice President
\n —————————————–<\/p>\n
\/s\/ Helen Ng, P.E.
\n ———————————————-
\n By: Helen Ng, P.E.
\n ——————————————-
\n Its: Assistant Vice President
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 6.20000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 5.00000000%<\/p>\n
121<\/p>\n
EXPORT DEVELOPMENT CORPORATION
\nAddress:<\/p>\n
151 O’Connor Street
\nOttawa, Ontario K1A 1K3
\nAttn: Roman Chomyn
\nTelephone: (613) 598-2778 \/s\/ Sean Brownlee
\nTelecopy: (613) 598-6858 ———————————————-
\n By: Sean Brownlee
\n ——————————————-
\n Its: Asset Manager
\n —————————————–<\/p>\n
\/s\/ Lynda Bernst
\n ———————————————-
\n By: Lynda Bernst
\n ——————————————-
\n Its: Asset Manager
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
122<\/p>\n
FIRST NATIONAL BANK OF OMAHA
\nAddress:<\/p>\n
1620 Dodge Street
\nOmaha, Nebraska 68102
\nAttn: Mark Baratta
\nTelephone: (402) 633-3512 \/s\/ Mark Baratta
\nTelecopy: (402) 633-3519 ———————————————–
\n By: Mark Baratta
\n ——————————————–
\n Its: Vice President
\n ——————————————-<\/p>\n
Revolver A Specified Percentage: 1.50000000%
\nWorking Line Specified Percentage: 1.50000000%
\nRevolver B Specified Percentage: 1.50000000%
\nTotal Specified Percentage: 1.50000000%<\/p>\n
123<\/p>\n
FLEET NATIONAL BANK
\nAddress:<\/p>\n
1 Landmark Street, 12th Floor
\nStamford, Connecticut 06904
\nAttn: Barbara Keegan
\nTelephone: (203) 358-6195 \/s\/ Barbara Keegan
\nTelecopy: (203) 358-6111 —————————————–
\n By: Barbara Keegan
\n ————————————–
\n Its: Vice President
\n ————————————-<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
124<\/p>\n
KBC BANK N.V.
\nAddress:<\/p>\n
515 South Figueroa Street, Suite 1920
\nLos Angeles, California 90071
\nAttn: Jean Frammolino
\nTelephone: (213) 624-0401 \/s\/ Jean-Pierre Diels
\nTelecopy: (213) 629-5801 ————————————
\n By: Jean-Pierre Diels
\n ———————————
\n Its: First Vice President
\n ——————————-<\/p>\n
\/s\/ Patrick A. Janssens
\n ————————————
\n By: Patrick A. Janssens
\n ———————————
\n Its: Vice President
\n ——————————–<\/p>\n
Revolver A Specified Percentage: 2.75000000%
\nWorking Line Specified Percentage: 2.75000000%
\nRevolver B Specified Percentage: 2.75000000%
\nTotal Specified Percentage: 2.75000000%<\/p>\n
125<\/p>\n
NORWEST BANK COLORADO, NATIONAL
\n ASSOCIATION
\nAddress:<\/p>\n
1740 Broadway
\nDenver, Colorado 80274-8673
\nAttn: Catherine Jones
\nTelephone: (303) 863-5070 \/s\/ Catherine M. Jones
\nTelecopy: (303) 863-6670 ———————————————-
\n By: Catherine M. Jones
\n ——————————————-
\n Its: Vice President
\n ——————————————<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 2.00000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 2.90000000%<\/p>\n
126<\/p>\n
PNC BANK, NATIONAL ASSOCIATION
\nAddress:<\/p>\n
21st Floor Mail Stop F2-F070-21-1
\n1600 Market Street
\nPhiladelphia, Pennsylvania 19103
\nAttn: Steven J. McGehrin
\nTelephone: (215) 585-6269 \/s\/ Steven J. McGehrin
\nTelecopy: (215) 585-6680 —————————————-
\n By: Steven J. McGehrin
\n ————————————
\n Its: Vice President
\n ———————————–<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 0.00000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 1.90000000%<\/p>\n
127<\/p>\n
ROYAL BANK OF CANADA
\nAddress:<\/p>\n
One Liberty Plaza
\nNew York, New York 10006
\nAttn: Andrew Cozewith
\nTelephone: (212) 428-6552 \/s\/ Andrew C. Williamson
\nTelecopy: (212) 428-6460 ——————————————-
\n By: Andrew C. Williamson
\n —————————————-
\n Its: Senior Manager
\n ————————————–<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
128<\/p>\n
THE BANK OF NOVA SCOTIA
\nAddress:<\/p>\n
580 California Street, Suite 2100
\nSan Francisco, California 94104
\nAttn: Jon Burckin
\nTelephone: (415) 986-1100 \/s\/ Jon A. Burckin
\nTelecopy: (415) 397-6791 —————————————
\n By: Jon A. Burckin
\n ————————————
\n Its: Director, Corporate
\n ———————————-<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
129<\/p>\n
BANK ONE, NA (Formerly known as THE FIRST
\n NATIONAL BANK OF CHICAGO)
\nAddress:<\/p>\n
1 Bank One Plaza
\nIL1-0363
\nChicago, Illinois 60670
\nAttn: Lori J. Thomas
\nTelephone: (312) 732-2003 \/s\/ Lori J. Thomas
\nTelecopy: (312) 732-8587 ———————————————
\n By: Lori J. Thomas
\n ——————————————
\n Its: Vice President
\n —————————————–<\/p>\n
Revolver A Specified Percentage: 3.80000000%
\nWorking Line Specified Percentage: 3.80000000%
\nRevolver B Specified Percentage: 3.80000000%
\nTotal Specified Percentage: 3.80000000%<\/p>\n
130<\/p>\n
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW
\n YORK BRANCH<\/p>\n
Address:<\/p>\n
Three Allen Center
\n333 Clay Street, Suite 4850
\nHouston, Texas 77002
\nAttn: Scott Chappell
\nTelephone: (713) 651-9444 \/s\/ Michael N. Oakes
\nTelecopy: (713) 651-9209 ———————————————
\n By: Michael N. Oakes
\n —————————————–
\n Its: Senior Vice President, Houston Office
\n —————————————-<\/p>\n
Revolver A Specified Percentage: 1.500000000%
\nWorking Line Specified Percentage: 1.500000000%
\nRevolver B Specified Percentage: 1.500000000%
\nTotal Specified Percentage: 1.500000000%<\/p>\n
131<\/p>\n
TORONTO DOMINION (TEXAS), INC.
\nAddress:<\/p>\n
909 Fannin St.
\nSuite 1700
\nHouston, Texas 77010
\nAttention: Carolyn Faeth
\nTelephone: (713) 427-8520 \/s\/ Carolyn R. Faeth
\nTelecopy: (713) 951-9921 ———————————————
\n By: Carolyn R. Faeth
\n ——————————————
\n Its: Vice President
\n —————————————-<\/p>\n
Revolver A Specified Percentage: 3.800000000%
\nWorking Line Specified Percentage: 0.000000000%
\nRevolver B Specified Percentage: 3.800000000%
\nTotal Specified Percentage: 1.900000000%<\/p>\n
132<\/p>\n
U.S. BANK NATIONAL ASSOCIATION
\nAddress:<\/p>\n
918 17th Street, 2nd Floor
\nDenver, Colorado 80202
\nAttn: Heather A. Miller
\nTelephone: (303) 585-6522 \/s\/ Brian T. McKinney
\nTelecopy: (303) 585-4135 ————————————-
\n By: Brian T. McKinney
\n ———————————
\n Its: Vice President
\n ——————————–<\/p>\n
Revolver A Specified Percentage: 3.800000000%
\nWorking Line Specified Percentage: 3.800000000%
\nRevolver B Specified Percentage: 3.800000000%
\nTotal Specified Percentage: 3.800000000%<\/p>\n
133<\/p>\n
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
\n NEW YORK BRANCH
\nAddress:<\/p>\n
1211 Avenue of the Americas, 23rd Floor
\nNew York, New York 10036
\nAttn: Barry Wadler
\nTelephone: (212) 852-6137 \/s\/ Walter T. Duffy III
\nTelecopy: (212) 852-6148 —————————————-
\n By: Walter T. Duffy III
\n ————————————
\n Its: Vice President
\n ———————————-<\/p>\n
\/s\/ Barry S. Wadler
\n —————————————–
\n By: Barry S. Wadler
\n ————————————–
\n Its: Associate
\n ————————————<\/p>\n
Revolver A Specified Percentage: 3.800000000%
\nWorking Line Specified Percentage: 3.800000000%
\nRevolver B Specified Percentage: 3.800000000%
\nTotal Specified Percentage: 3.800000000%<\/p>\n
134<\/p>\n
FIRST UNION SECURITIES, INC., as a Co-Arranging Agent<\/p>\n
\/s\/ C. Brand Hosford
\n —————————————————–
\n By: C. Brand Hosford
\n ————————————————-
\n Its: Vice President
\n ————————————————<\/p>\n
135<\/p>\n
COMMERZBANK AKTIENGESELLSCHAFT
\n NEW YORK BRANCH<\/p>\n
Address:<\/p>\n
633 West Fifth Street, Suite 6600
\nLos Angeles, California 90071
\nAttn: Steven F. Larsen
\nTelephone: (213) 683-5412 \/s\/ Christian Jagenberg
\nTelecopy: (213) 623-0039 ——————————————–
\n By: Christian Jagenberg
\n —————————————–
\n Its: Senior Vice President and Manager
\n —————————————<\/p>\n
\/s\/ Steven F. Larsen
\n ——————————————–
\n By: Steven F. Larsen
\n —————————————–
\n Its: Vice President
\n —————————————<\/p>\n
Revolver A Specified Percentage: 0.000000000%
\nWorking Line Specified Percentage: 5.000000000%
\nRevolver B Specified Percentage: 0.000000000%
\nTotal Specified Percentage: 2.500000000%<\/p>\n
136<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6550,6846,6850,7104,8542,8630,9083,9279],"corporate_contracts_industries":[9415,9519],"corporate_contracts_types":[9561,9560],"class_list":["post-40982","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-abn-amro-holding-nv","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-citigroup-inc","corporate_contracts_companies-pnc-financial-services-group-inc","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_companies-toronto-dominion-bank","corporate_contracts_companies-wachovia-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40982","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40982"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40982"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40982"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40982"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}