\n Category 1
\n ———-
\nA or higher by S&P; 0.0000% 0.2250% 0.0550%
\nA2 or higher by Moody’s
\n—————————————————————————————————–<\/p>\n Category 2
\n ———-
\nA- by S&P; 0.0000% 0.2500% 0.0600%
\nA3 by Moody’s
\n—————————————————————————————————–
\n Category 3
\n ———-
\nBBB+ by S&P; 0.0000% 0.3500% 0.0900%
\nBaa1 by Moody’s
\n—————————————————————————————————–
\n Category 4
\n ———-
\nBBB by S&P; 0.0000% 0.4000% 0.1000%
\nBaa2 by Moody’s
\n—————————————————————————————————–
\n Category 5
\n ———-
\nBBB- or lower by S&P; 0.0000% 0.4500% 0.1200%
\nBaa3 or lower by Moody’s
\n—————————————————————————————————–
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
(a) For purposes of determining the Applicable Margin, (i) if
\n neither Moody’s nor S&P shall have in effect a rating for
\n Index Debt (other than by reason of the circumstances referred
\n to in the last sentence of this definition), then both such
\n rating agencies will be deemed to have established ratings for
\n Index Debt in Category 5; (ii) if only one of Moody’s or S&P
\n shall have in effect a rating for Index Debt, Borrower and the
\n Lenders will negotiate in good faith to agree upon another
\n rating agency to be substituted by an agreement for the rating
\n agency which shall not have a rating in effect, and in the
\n absence of such agreement the Applicable Margin will be
\n determined by reference to the available rating; (iii) if the
\n ratings established by Moody’s and S&P shall differ by one
\n Category, the Applicable Margin shall be determined by
\n reference to the numerically lower Category: (for example, if
\n the rating from S&P is in Category 1 and the rating from
\n Moody’s is in Category 2, the Applicable Margin shall be
\n determined by reference to Category 1); (iv) if the ratings
\n established by Moody’s and S&P shall differ by more than one
\n Category, the Applicable Margin shall be determined by
\n reference to the Category that is one numerical Category lower
\n than the numerically higher of the two Categories
\n corresponding to the ratings established by the two rating
\n agencies: (for example, if the rating from S&P is in Category
\n 2 and the rating from Moody’s is in Category 5, the Applicable
\n Margin shall be determined by reference to Category 4); and
\n (v) if any rating established by Moody’s or S&P shall be
\n changed (other than as a result of a change in the rating
\n system of either Moody’s or S&P), such change shall be
\n effective as of the date on which such change is first
\n announced by the rating agency making such change. If the
\n rating system of either Moody’s or S&P shall change prior to
\n the payment in full of the Obligation and the cancellation of
\n all commitments to lend hereunder, Borrower and the Lenders
\n shall negotiate in good faith to amend the references to
\n specific ratings in this definition to reflect such changed
\n rating system. If both Moody’s and S&P shall cease to be in
\n the business of rating corporate debt obligations, Borrower
\n and the Lenders shall negotiate in good faith to agree upon a
\n substitute rating agency and to amend the references to
\n specific ratings in this definition to reflect the ratings
\n used by such substitute rating agency.<\/p>\n
(b) On any date of determination of the Applicable Margin for
\n Eurodollar Rate Borrowings, if the sum of the “Facility A
\n Commitment Usage” (as such term is defined in the Facility A
\n Agreement), the “Facility B Principal Debt” (as such term is
\n defined in the Facility B Agreement), and the Principal Debt
\n exceeds 33 1\/3% (but less than 66 2\/3%) of the Total
\n Commitment, then the Applicable Margin for Eurodollar Rate
\n Borrowings shall be increased by 0.05% (the “UTILIZATION
\n FEE”); provided that, if the “Facility A Commitment Usage” (as
\n such term is defined in the Facility A<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
3
\n 9
\n Agreement), the “Facility B Principal Debt” (as such term is
\n defined in the Facility B Agreement), and the Principal Debt
\n equals or exceeds 66 2\/3% of the Total Commitment, then such
\n Utilization Fee shall be increased to 0.10%.<\/p>\n
ARRANGER means NationsBanc Montgomery Securities LLC, and its
\nsuccessors and assigns in its capacity as “Lead Arranger” under the Loan
\nPapers.<\/p>\n
AUTHORIZATIONS means all filings, recordings, and registrations with,
\nand all validations or exemptions, approvals, orders, authorizations, consents,
\nfranchises, licenses, certificates, and permits from, any Governmental
\nAuthority (including, without limitation, the FCC and applicable PUCs),
\nincluding without limitation, any of the foregoing authorizing or permitting
\nthe acquisition, construction, or operation of network facilities or any other
\ntelecommunications system.<\/p>\n
BASE RATE means, for any day, the rate per annum equal to the higher
\nof (a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
\nand (b) the Prime Rate for such day. Any change in the Base Rate due to a
\nchange in the Prime Rate or the Federal Funds Rate shall be effective on the
\neffective date of such change in the Prime Rate or Federal Funds Rate.<\/p>\n
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
\nthe Base Rate plus the Applicable Margin for Base Rate Borrowings.<\/p>\n
BORROWER is defined in the preamble to this Agreement.<\/p>\n
BORROWING means any amount disbursed (a) by one or more Lenders to
\nBorrower under the Loan Papers (whether under the Competitive Bid Subfacility,
\nthe Swing Line Subfacility, or otherwise), whether such amount constitutes an
\noriginal disbursement of funds or the continuation of an amount outstanding, or
\n(b) by any Lender in accordance with, and to satisfy the obligations of any
\nRestricted Company under, any Loan Paper.<\/p>\n
BORROWING DATE is defined in SECTION 2.7(a).<\/p>\n
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
\nSunday, and any other day on which commercial banking institutions are required
\nor authorized by Law to be closed in Dallas, Texas, or New York, New York and
\n(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing,
\na day on which dealings in United States dollars are conducted in the London
\ninterbank market and commercial banks are open for international business in
\nLondon.<\/p>\n
CAPITAL LEASE means any capital lease or sublease which should be
\ncapitalized on a balance sheet in accordance with GAAP.<\/p>\n
CLOSING DATE means the date upon which this Agreement has been
\nexecuted by Borrower, Lenders, and Administrative Agent, and all conditions
\nprecedent specified in SECTION 5.1 have been satisfied or waived.<\/p>\n
CO-SYNDICATION AGENTS means Bank of America NT & SA, Barclays Bank
\nPLC, The Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of
\nNew York, and Royal Bank of Canada.<\/p>\n
CODE means the Internal Revenue Code of 1986, as amended, together
\nwith rules and regulations promulgated thereunder.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
4
\n 10
\n COMMITMENT means an amount (subject to availability, reduction, or
\ncancellation as provided in this Agreement) equal to $7,000,000,000.<\/p>\n
COMMITTED SUM means, on any date of determination for any Lender, the
\namount stated beside its name on the most recently amended SCHEDULE 2.1 to the
\nAgreement (which amount is subject to availability, increase, reduction, or
\ncancellation in accordance with this Agreement.)<\/p>\n
COMPETITIVE BID means an offer by a Lender to fund a Borrowing under
\nthe Competitive Bid Subfacility pursuant to SECTION 2.3.<\/p>\n
COMPETITIVE BID NOTE means a promissory note in substantially the form
\nof EXHIBIT A-2 and all renewals and extensions of all or any part thereof.<\/p>\n
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Lender
\npursuant to SECTION 2.3, (a) in the case of a Eurodollar Rate Borrowing, the
\nmargin which shall be added to or subtracted from the Adjusted Eurodollar Rate,
\nand (b) in the case of a Fixed Rate Borrowing, the fixed rate of interest, in
\neach case, offered by the Lender making such Competitive Bid.<\/p>\n
COMPETITIVE BID REQUEST means a request for Competitive Bids made
\npursuant to SECTION 2.3(b) substantially in the form of EXHIBIT B-4.<\/p>\n
COMPETITIVE BID SUBFACILITY means a subfacility of this 364-Day
\nFacility as described in and subject to the limitations of SECTION 2.3.<\/p>\n
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
\nSubfacility.<\/p>\n
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
\nOfficer, substantially in the form of EXHIBIT D.<\/p>\n
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
\nreasonably incur in respect of a Eurodollar Rate Borrowing or a Fixed Rate
\nBorrowing as a consequence of (a) any failure or refusal of Borrower (for any
\nreasons whatsoever other than a default by Administrative Agent or a Lender) to
\naccept or utilize such Borrowing after Borrower shall have requested it under
\nthis Agreement, or (b) any prepayment or payment of such Borrowing or
\nconversion of such Borrowing to a Borrowing of another Type, in each case,
\nprior to the last day of the Interest Period therefor.<\/p>\n
CONSOLIDATED COMPANIES means, at any date of determination thereof,
\nBorrower and each of its Subsidiaries (including the Unrestricted
\nSubsidiaries).<\/p>\n
CONSOLIDATED NET WORTH means, for any period, the consolidated
\nstockholders’ equity of the Restricted Companies as determined in accordance
\nwith GAAP.<\/p>\n
CURRENT FINANCIALS means, at the time of any determination thereof,
\nthe more recently delivered to Lenders of (a) as applicable, either (i) prior
\nto the MCI Merger Date, the Financial Statements for the fiscal year ended
\nDecember 31, 1997, and the three-month period ended March 31, 1998, calculated
\non a consolidated basis for Borrower and the Consolidated Companies; or (ii) on
\nor after the MCI Merger Date, the combined consolidated financial statements of
\nBorrower and MCI and their consolidated Subsidiaries as then most recently
\nfiled with the Securities and Exchange Commission; or (b) the Financial
\nStatements required to be delivered under<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
5
\n 11
\nSECTIONS 7.3(a) or 7.3(b), as the case may be, calculated on a consolidated
\nbasis for the Consolidated Companies; provided that, for purposes of SECTION
\n5.1(b), “CURRENT FINANCIALS” shall mean both the Financial Statements described
\nin ITEMS (I) and (II) preceding, whether or not the MCI Merger Date has
\noccurred on or prior to such date of determination.<\/p>\n
DEBT means (without duplication), for any Person, the sum of the
\nfollowing: (a) all liabilities, obligations, and indebtedness of such Person
\nwhich in accordance with GAAP should be classified upon such Person’s balance
\nsheet as liabilities in respect of (i) money borrowed, including, without
\nlimitation, the Principal Debt, (ii) obligations of such Person under Capital
\nLeases, and (iii) obligations of such Person issued or assumed as the deferred
\npurchase price of property, all conditional sale obligations, and obligations
\nunder any title retention agreement (but excluding trade accounts payable
\narising in the ordinary course of business); (b) all obligations of the type
\nreferred to in CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
\nthe payment of which such Person is responsible or liable as obligor,
\nguarantor, or otherwise; (c) all obligations of the type referred to in CLAUSES
\n(a)(i) through CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons
\nsecured by any Lien on any property or asset of such Person (whether or not
\nsuch obligation is assumed by such Person), the amount of such obligation being
\ndeemed to be the lesser of the value of such property or assets or the amount
\nof the obligation so secured; (d) the face amount of all letters of credit and
\nbanker’s acceptances issued for the account of such Person, and without
\nduplication, all drafts drawn and unpaid thereunder; and (e) obligations
\narising under any Accounts Receivable Financing which in accordance with GAAP
\nshould be classified upon such Person’s balance sheet as liabilities; provided,
\nhowever, that Debt shall not include obligations of Borrower which are owed to
\na trust or other special purpose entity, all of whose common equity is
\nbeneficially owned by Borrower, so long as such obligations are held by such
\ntrusts or their representatives and are subordinate in right of payment to the
\nObligation.<\/p>\n
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
\nAmerica and all other applicable liquidation, conservatorship, bankruptcy,
\nmoratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
\ntransfer or conveyance, suspension of payments or similar Laws from time to
\ntime in effect affecting the Rights of creditors generally.<\/p>\n
DEFAULT is defined in SECTION 8.<\/p>\n
DEFAULT RATE means a per annum rate of interest equal from day to day
\nto the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
\nBase Rate Borrowings plus 2% and (b) the Maximum Rate.<\/p>\n
DETERMINING LENDERS means for all purposes under the Loan Papers (i)
\non any date of determination occurring prior to the earlier of the Term Loan
\nConversion Date or the Termination Date, those Lenders who collectively hold at
\nleast 51% of the Commitment; and (ii) on any date of determination occurring on
\nor after the earlier of the Termination Date or the Term Loan Conversion Date,
\nthose Lenders who collectively hold at least 51% of the Principal Debt.<\/p>\n
DISTRIBUTION for any Person means, with respect to any shares of any
\ncapital stock or other equity securities issued by such Person, (a) the
\nretirement, redemption, purchase, or other acquisition for value of any such
\nsecurities, (b) the declaration or payment of any dividend on or with respect
\nto any such securities, and (c) any other payment by such Person with respect
\nto such securities.<\/p>\n
DOLLARS and the symbol $ shall mean lawful money of the United States
\nof America.<\/p>\n
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so
\nlong as such assignment is not made<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
6
\n 12
\nin conjunction with the sale of such Affiliate); and (c) any other Person
\napproved by Administrative Agent (which approval will not be unreasonably
\nwithheld or delayed by Administrative Agent) and, unless a Default has occurred
\nand is continuing at the time any assignment is effected in accordance with
\nSECTION 11.13, Borrower, such approval not to be unreasonably withheld or
\ndelayed by Borrower and such approval to be deemed given by Borrower if no
\nobjection is received by the assigning Lender and the Administrative Agent from
\nBorrower within five Business Days after notice of such proposed assignment has
\nbeen provided by the assigning Lender to Borrower; provided, however, that
\nneither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
\nAssignee.<\/p>\n
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
\nIV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
\nbut not including any Multiemployer Plan.<\/p>\n
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
\ncondition or protection of air, groundwater, surface water, soil, or other
\nenvironmental media, (b) the environment, including natural resources or any
\nactivity which affects the environment, (c) the regulation of any pollutants,
\ncontaminants, wastes, substances, and Hazardous Substances, including, without
\nlimitation, the Comprehensive Environmental Response, Compensation, and
\nLiability Act (42 U.S.C. Section 9601 et seq.) (“CERCLA”), the Hazardous
\nMaterials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
\nConservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”), the
\nClean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
\nU.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
\nSection 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
\n(7 U.S.C. Section 136 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
\n201 and Section 300f et seq.) and the Rivers and Harbors Act (33 U.S.C.
\nSection 401 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.)
\nand analogous state and local Laws, as any of the foregoing may have been and
\nmay be amended or supplemented from time to time, and any analogous future
\nenacted or adopted Law, or (d) the Release or threatened Release of Hazardous
\nSubstances.<\/p>\n
ERISA means the Employee Retirement Income Security Act of 1974, as
\namended, and the regulations and rulings thereunder.<\/p>\n
ERISA AFFILIATE means, with respect to Borrower or any of its
\nSubsidiaries, any company, trade, or business (whether or not incorporated)
\nwhich, for purposes of Title IV of ERISA, is a member of Borrower’s controlled
\ngroup or which is under common control with Borrower within the meaning of
\nSection 414(b), (c) or (m) of the Code.<\/p>\n
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
\nInterest Period therefor, the rate per annum (rounded upwards, if necessary, to
\nthe nearest 1\/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
\nsuccessor page) as the London interbank offered rate for deposits in Dollars at
\napproximately 11:00 a.m. (London time) two Business Days prior to the first day
\nof such Interest Period for a term comparable to such Interest Period. If for
\nany reason such rate is not available, the term “Eurodollar Rate” shall mean,
\nfor any Eurodollar Rate Borrowing for any Interest Period therefor, the rate
\nper annum (rounded upwards, if necessary, to the nearest 1\/100 of 1%) appearing
\non Reuters Screen LIBO Page as the London interbank offered rate for deposits
\nin Dollars at approximately 11:00 a.m. (London time) two Business Days prior
\nto the first day of such Interest Period for a term comparable to such Interest
\nPeriod; provided, however, if more than one rate is specified on Reuters Screen
\nLIBO Page, the applicable rate shall be the arithmetic mean of all such rates
\n(rounded upwards, if necessary, to the nearest 1\/100 of 1%).<\/p>\n
EURODOLLAR RATE BORROWING means, as the case may be, either (a) a
\nBorrowing (other than a Competitive Borrowing) bearing interest at the sum of
\nthe Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
\nBorrowings or (b) a Competitive Borrowing bearing interest at the sum of the
\nAdjusted Eurodollar Rate plus or<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
7
\n 13
\nminus the margin indicated for such Competitive Borrowing in the related
\nCompetitive Bid.<\/p>\n
EXHIBIT means an exhibit to this Agreement unless otherwise specified.<\/p>\n
EXISTING DEBT means on any date of determination, (a) the secured and
\nunsecured Debt of Borrower and its Restricted Subsidiaries existing on the
\nClosing Date and described in PART A of SCHEDULE 7.12 (but expressly excluding
\nthe WorldCom\/Brooks Fiber Loan on and after the earlier of (i) the date of
\nrepayment thereof in full and termination of the commitment thereunder and (ii)
\nthe thirtieth (30th) day after the closing date of this 364-Day Facility); (b)
\non and after the MCI Merger Date, the secured and unsecured Debt of MCI and its
\nSubsidiaries existing on the MCI Merger Date and described in PART B of
\nSCHEDULE 7.12 (but expressly excluding the MCI Revolving Facility, which shall
\nbe repaid in full and the commitment thereunder terminated on or before the MCI
\nMerger Date); and (c) renewals, extensions, and refinancings of any of the
\nExisting Debt described in CLAUSES (a) and (b) to the extent that the principal
\namount under (or the maximum principal amount that may be borrowed under) such
\nExisting Debt is not increased on or after the Closing Date (with respect to
\nExisting Debt listed in PART A of SCHEDULE 7.12) or on or after the MCI Merger
\nDate (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).<\/p>\n
FACILITY A means the credit facility described in and subject to the
\nlimitations of the Facility A Agreement.<\/p>\n
FACILITY A AGREEMENT means the Amended and Restated Facility A
\nRevolving Credit Agreement dated of even date herewith, among Borrower,
\nNationsBank, N.A., as “Administrative Agent” thereunder, and the lenders party
\nthereto (as the same may be amended, modified, supplemented, or restated from
\ntime to time).<\/p>\n
FACILITY A COMMITMENT means an amount (subject to availability,
\nreduction, or cancellation as provided in the Facility A Agreement) equal to
\n$3,750,000,000.<\/p>\n
FACILITY B means the term loan facility described in and subject to
\nthe limitations of the Facility B Agreement.<\/p>\n
FACILITY B AGREEMENT means the Amended and Restated Term Loan
\nAgreement dated of even date herewith among Borrower, NationsBank, N.A., as the
\n“Administrative Agent” thereunder, and the lenders party thereto (as the same
\nmay be amended, modified, supplemented, restated, or increased from time to
\ntime).<\/p>\n
FCC means the Federal Communications Commission and any successor
\nregulatory body.<\/p>\n
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
\nupwards, if necessary, to the nearest 1\/100 of 1%) determined (which
\ndetermination shall be conclusive and binding, absent manifest error) by
\nAdministrative Agent to be equal to the weighted average of the rates on
\novernight Federal funds transactions with member banks of the Federal Reserve
\nSystem arranged by Federal funds brokers on such day, as published by the
\nFederal Reserve Bank of New York on the Business Day next succeeding such day;
\nprovided that (a) if such day is not a Business Day, the Federal Funds Rate for
\nsuch day shall be such rate on such transactions on the next preceding Business
\nDay as so published on the next succeeding Business Day, and (b) if no such
\nrate is so published on such next succeeding Business Day, the Federal Funds
\nRate for such day shall be the average rate charged to the Administrative Agent
\n(in its individual capacity) on such day on such transactions as determined by
\nthe Administrative Agent (which determination shall be conclusive and binding,
\nabsent manifest error).<\/p>\n
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
\ncontract which is intended to reduce or eliminate the risk of fluctuations in
\ninterest rates, or (b) a foreign exchange, currency hedging, commodity<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
8
\n 14
\nhedging, or other contract which is intended to reduce or eliminate the market
\nrisk of holding currency or a commodity in either the cash or futures markets,
\nwhich Financial Hedge under either CLAUSE (a) or CLAUSE (b) is entered into by
\nany Restricted Company with any Lender or an Affiliate of any Lender or any
\nother Person under the Laws of a jurisdiction in which such contracts are legal
\nand enforceable (except as enforceability may be limited by applicable Debtor
\nRelief Laws and general principles of equity).<\/p>\n
FINANCIAL STATEMENTS means balance sheets, statements of operations,
\nstatements of shareholders’ investments, and statements of cash flows prepared
\nin accordance with GAAP, which statements of operations and statements of cash
\nflows shall be in comparative form to the corresponding period of the preceding
\nfiscal year, and which balance sheets and statements of shareholders’
\ninvestments shall be in comparative form to the prior fiscal year-end figures.<\/p>\n
FIXED RATE BORROWING means any Competitive Borrowing made from a
\nLender pursuant to SECTION 2.3 based upon an actual percentage rate per annum
\noffered by such Lender, expressed as a decimal (to no more than four decimal
\nplaces) and accepted by Borrower.<\/p>\n
GAAP means generally accepted accounting principles of the Accounting
\nPrinciples Board of the American Institute of Certified Public Accountants and
\nthe Financial Accounting Standards Board which (a) with respect to the covenant
\ncontained in SECTION 7.22 (and, to the extent used in or relating to such
\ncovenant, any defined terms), are in effect on the date hereof, and (b) for all
\nother purposes hereunder, are applicable from time to time.<\/p>\n
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or
\nfederal judicial, executive, or legislative instrumentality, (b) private
\narbitration board or panel, or (c) central bank.<\/p>\n
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
\ndefined or classified as a hazardous waste, hazardous material, pollutant,
\ncontaminant or toxic or hazardous substance under any Environmental Law,
\nincluding without limitation, any hazardous substance within the meaning of
\nSection 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil,
\nmotor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons,
\n(c) regulated asbestos and asbestos-containing materials in any form, (d)
\npolychlorinated biphenyls, or (e) urea formaldehyde foam.<\/p>\n
INDENTURES means any indentures or other agreements pursuant to which
\nnotes, debentures, bonds, or debt securities are issued by any Restricted
\nCompany, including, without limitation, the following: Indenture dated as of
\nMarch 1, 1997, between Borrower and The Chase Manhattan Trust Company, N.A., as
\nsuccessor trustee; Indenture dated as of January 26, 1994, between MFS
\nCommunications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
\nIndenture dated as of January 23, 1996 between MFS Communications Company, Inc.
\nand IBJ Schroder Bank & Trust Co., as trustee; Indenture dated as of February
\n26, 1996, between Brooks Fiber Properties, Inc. and The Bank of New York, as
\ntrustee; and Indenture dated as of May 29, 1997, between Brooks Fiber
\nProperties, Inc. and The Bank of New York, as trustee, in each case as the same
\nhave been or may be amended, modified, supplemented or restated from time to
\ntime; and on and after the MCI Merger Date, references to “INDENTURES” shall
\nalso include the Indenture dated as of October 15, 1989, between MCI and
\nCitibank, N.A., as trustee; Indenture dated as of February 17, 1995, between
\nMCI and Citibank, N.A., as trustee; and Junior Subordinated Indenture dated as
\nof May 29, 1996, between MCI and Wilmington Trust Company, as trustee, in each
\ncase as the same have been or may be amended, modified, supplemented, or
\nrestated from time to time.<\/p>\n
INTEREST PERIOD is determined in accordance with SECTION 3.9.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
9
\n 15
\n LAWS means all applicable statutes, laws, treaties, ordinances, tariff
\nrequirements, rules, regulations, orders, writs, injunctions, decrees,
\njudgments, opinions, or interpretations of any Governmental Authority.<\/p>\n
LENDERS means, on any date of determination, the financial
\ninstitutions named on SCHEDULE 2.1 (as the same may be amended from time to
\ntime by Administrative Agent to reflect the assignments made in accordance with
\nSECTION 11.13(c) of this Agreement), and subject to the terms and conditions of
\nthis Agreement, their respective successors and assigns, but not any
\nParticipant who is not otherwise a party to this Agreement.<\/p>\n
LIEN means any lien, mortgage, security interest, pledge, assignment,
\ncharge, title retention agreement, or encumbrance of any kind, and any other
\nRight of or arrangement with any creditor (other than under or relating to
\nsubordination or other intercreditor arrangements) to have its claim satisfied
\nout of any property or assets, or the proceeds therefrom, prior to the general
\ncreditors of the owner thereof.<\/p>\n
LITIGATION means any action by or before any Governmental Authority.<\/p>\n
LOAN PAPERS means (a) this Agreement, certificates delivered pursuant
\nto this Agreement, and Exhibits and Schedules hereto, (b) all agreements,
\ndocuments, or instruments in favor of Agents or Lenders (or Administrative
\nAgent on behalf of Lenders) delivered pursuant to this Agreement or otherwise
\ndelivered in connection with all or any part of the Obligation, (c) any
\nFinancial Hedge between any Restricted Company and any Lender or any Affiliate
\nof any Lender, and (d) all renewals, extensions, or restatements of, or
\namendments or supplements to, any of the foregoing.<\/p>\n
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
\nevents which, individually or collectively, could reasonably be expected to
\nresult in any (a) material impairment of the ability of any Restricted Company
\nto perform any of its payment or other material obligations under the Loan
\nPapers or the ability of Administrative Agent or any Lender to enforce any such
\nobligations or any of their respective Rights under the Loan Papers, (b)
\nmaterial and adverse effect on the business, properties, condition (financial
\nor otherwise) or results of operations of the Restricted Companies, in each
\ncase considered as a whole, or (c) material and adverse effect on the business,
\nproperties, condition (financial or otherwise) or results of operations of the
\nConsolidated Companies, in each case considered as a whole. The phrase “could
\nbe a Material Adverse Event” (and any similar phrase herein) means that there
\nis a material probability of such Material Adverse Event occurring, and the
\nphrase “could not be a Material Adverse Event” (and any similar phrase herein)
\nmeans that there is not a material probability of such Material Adverse Event
\noccurring.<\/p>\n
MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary
\nof Borrower (or any group of Subsidiaries of Borrower) that individually or
\ncollectively own 10% or more of the book value of the consolidated assets of
\nthe Restricted Companies determined as of the date of, and with respect to, the
\nCurrent Financials and the related Compliance Certificate.<\/p>\n
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender,
\nthe maximum non-usurious amount and the maximum non-usurious rate of interest
\nwhich, under applicable Law, such Lender is permitted to contract for, charge,
\ntake, reserve, or receive on the Obligation.<\/p>\n
MCI means MCI Communications Corporation.<\/p>\n
MCI MERGER means the merger of MCI with and into TC Investments Corp.,
\na wholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
\nMerger Agreement.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
10
\n 16
\n MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as
\nof November 9, 1997, among Borrower, MCI, and TC Investments Corp. (as amended
\nto date and as hereinafter amended subject to the consent of Administrative
\nAgent to any material amendment thereof, which consent shall not be
\nunreasonably withheld).<\/p>\n
MCI MERGER DATE means the date upon which the MCI Merger closes in
\naccordance with the MCI Merger Agreement.<\/p>\n
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
\nFacility dated as of April 30, 1997, among MCI and the lenders party thereto,
\nas amended by that certain First Amendment to Revolving Credit Agreement dated
\nas of April 28, 1998.<\/p>\n
MOODY’S means Moody’s Investors Service, Inc. or any successor
\nthereto.<\/p>\n
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
\n3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
\nRestricted Company or any ERISA Affiliate is making, or has made, or is
\naccruing, or has accrued, an obligation to make contributions.<\/p>\n
NATIONSBANK means NationsBank, N.A., in its individual capacity as a
\nLender and its successors and assigns.<\/p>\n
NOTES means, at the time of any determination thereof, all outstanding
\nand unpaid Revolving Notes, Competitive Bid Notes, Term Notes, and the Swing
\nLine Notes.<\/p>\n
NOTICE OF BORROWING is defined in SECTION 2.7(a).<\/p>\n
NOTICE OF CONVERSION is defined in SECTION 3.10.<\/p>\n
OBLIGATION means all present and future indebtedness, liabilities, and
\nobligations, and all renewals and extensions thereof, or any part thereof, now
\nor hereafter owed to any Agent, or any Lender by any Restricted Company arising
\nfrom, by virtue of, or pursuant to any Loan Paper, together with all interest
\naccruing thereon, fees, costs, and expenses (including, without limitation, all
\nreasonable attorneys’ fees and expenses incurred in the enforcement or
\ncollection thereof) payable under the Loan Papers.<\/p>\n
PARTICIPANT is defined in SECTION 11.13(e).<\/p>\n
PBGC means the Pension Benefit Guaranty Corporation, or any successor
\nthereof, established pursuant to ERISA.<\/p>\n
PERCENTAGE PART means, at the time of any determination, the
\nproportion which any Swing Line Lender’s Swing Line Committed Sum bears to the
\nSwing Line Commitment then in effect.<\/p>\n
PERMITTED SUCCESSOR CORPORATION means any corporation into which
\nBorrower is merged or consolidated, so long as:<\/p>\n
(a) immediately after giving effect to such merger or
\n consolidation, the surviving corporation shall have then-effective
\n ratings (or implied ratings) published by Moody’s and S&P applicable
\n to such surviving corporation’s senior, unsecured,
\n non-credit-enhanced, long term Debt, equal to or higher than BBB- by
\n S&P, and Baa3 by Moody’s;<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
11
\n 17
\n (b) such surviving corporation shall be a corporation
\n organized and existing under the laws of the United States of America,
\n any state thereof or the District of Columbia, and shall expressly
\n assume all of Borrower’s obligations for the due and punctual payment
\n of the Obligation and the performance or observance of the Loan
\n Papers;<\/p>\n
(c) immediately after giving effect to such merger or
\n consolidation, no Default or Potential Default shall have occurred and
\n be continuing;<\/p>\n
(d) Borrower shall have delivered to Administrative Agent
\n a certificate signed by a Responsible Officer of Borrower and a
\n written opinion of counsel satisfactory to the Administrative Agent
\n (and its counsel), each stating that such merger or consolidation
\n complies with the requirements for a Permitted Successor Corporation
\n and that all conditions precedent herein provided for relating to such
\n merger or consolidation have been satisfied;<\/p>\n
(e) No “Change of Control” (as described in SECTION 8.6)
\n has occurred as a result of such merger or consolidation; and<\/p>\n
(f) on and prior to the closing of any such merger or
\n consolidation, such merger and consolidation shall have been approved
\n and recommended by the Board of Directors of Borrower.<\/p>\n
PERSON means any individual, entity, or Governmental Authority.<\/p>\n
POTENTIAL DEFAULT means the occurrence of any event or existence of
\nany circumstance which, with the giving of notice or lapse of time or both,
\nwould become a Default.<\/p>\n
PRIME RATE means the per annum rate of interest established from time
\nto time by NationsBank, N.A. as its prime rate, which rate may not be the
\nlowest rate of interest charged by NationsBank, N.A. to its customers.<\/p>\n
PRINCIPAL DEBT means, on any date of determination, the aggregate
\nunpaid principal balance of all Borrowings under this Agreement.<\/p>\n
PRO RATA or PRO RATA PART means on any date of determination for any
\nLender, (a) at any time prior to the earlier of the Termination Date or the
\nTerm Loan Conversion Date, the proportion that such Lender’s Committed Sum
\nbears to the Commitment, or (b) at any time on or after the earlier of the
\nTermination Date or the Term Loan Conversion Date, the proportion that the
\nPrincipal Debt owed to such Lender bears to the Principal Debt owed to all
\nLenders; provided that with respect to any principal or interest payments on
\nany Competitive Borrowing, Pro Rata or Pro Rata Part means the proportion that
\nthe outstanding principal amount or accrued and unpaid interest (as the case
\nmay be) owed to any Lender participating in such Competitive Borrowing bears to
\nthe total principal amount outstanding or accrued and unpaid interest (as the
\ncase may be) owed to all Lenders participating in such Competitive Borrowing.<\/p>\n
PUC means any state or local regulatory agency or governmental
\nauthority that exercises jurisdiction over the rates or services or the
\nownership, construction, or operation of network facilities or
\ntelecommunications systems or over Persons who own, construct, or operate
\nnetwork facilities or telecommunications systems.<\/p>\n
QUOTED SWING LINE BORROWINGS has the meaning as defined in SECTION
\n2.2(a).<\/p>\n
QUOTED SWING LINE RATE has the meaning as defined in SECTION 2.2(a).<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
12
\n 18
\n RECEIVABLES means all Rights of any Consolidated Company (as a
\n“Seller” under Receivables Documents) to payments (whether constituting
\naccounts, chattel paper, instruments, general intangibles, or otherwise, and
\nincluding the Right to payment of any interest or finance charges) with respect
\nto dedicated telecommunications services provided by any such Consolidated
\nCompany to its customers between designated customer premises.<\/p>\n
RECEIVABLES DOCUMENTS means one or more receivables purchase
\nagreements entered into by one or more Consolidated Companies and each other
\ninstrument, agreement, and document entered into by such Consolidated Companies
\nevidencing Accounts Receivable Financings.<\/p>\n
RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which
\nundivided percentage interests are transferred by any Consolidated Company
\npursuant to the Receivables Documents, (b) all Receivables Related Assets with
\nrespect to the Receivables described in CLAUSE (a) of this definition, and (c)
\nall collections (including recoveries) and other proceeds of the assets
\ndescribed in the foregoing clauses.<\/p>\n
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
\ndocumentation governing or relating to Receivables (including Rights in respect
\nof Liens securing such Receivables and other credit support in respect of such
\nReceivables), (b) any proceeds of such Receivables and any lockboxes or
\naccounts in which such proceeds are deposited, and (c) spread accounts and
\nother similar accounts (and any amounts on deposit therein) established in
\nconnection with an Accounts Receivable Financing.<\/p>\n
RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
\ncreated in connection with the transactions contemplated by an Accounts
\nReceivable Financing, which Subsidiary engages in no activities, has no
\nmaterial liabilities, or owns no other assets, other than those incidental to
\nsuch Accounts Receivable Financing.<\/p>\n
REGISTER is defined in SECTION 11.13(c).<\/p>\n
REGULATION D means Regulation D of the Board of Governors of the
\nFederal Reserve System, as amended.<\/p>\n
REGULATION U means Regulation U of the Board of Governors of the
\nFederal Reserve System, as amended.<\/p>\n
RELEASE means any spilling, leaking, pumping, pouring, emitting,
\nemptying, discharging, injecting, escaping, leaching, dumping, disposal,
\ndeposit, dispersal, migrating, or other movement into the air, ground, or
\nsurface water, or soil.<\/p>\n
REPORTABLE EVENT shall have the meaning specified in Section 4043 of
\nERISA or the regulations issued thereunder in connection with an Employee Plan,
\nexcluding events for which the notice requirement is waived under applicable
\nPBGC regulations other than those events described in sections 2615.11, 2615.15
\nand 2615.19 of such regulations, including each such provision as it may
\nsubsequently be renumbered.<\/p>\n
REPRESENTATIVES means representatives, officers, directors, employees,
\nattorneys, and agents.<\/p>\n
RESERVE REQUIREMENT means, at any time, the maximum rate at which
\nreserves (including, without limitation, any marginal, special, supplemental,
\nor emergency reserves) are required to be maintained under regulations issued
\nfrom time to time by the Board of Governors of the Federal Reserve System (or
\nany successor) by member banks of the Federal Reserve System against, in the
\ncase of Eurodollar Rate Borrowings, “Eurocurrency liabilities” (as such term is
\nused in Regulation D). Without limiting the effect of the foregoing, the
\nReserve Requirement shall reflect any other reserves required to be maintained
\nby such member banks with respect to (a) any category of liabilities which
\nincludes deposits by reference to which the Adjusted Eurodollar Rate is to be<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
13
\n 19
\ndetermined, or (b) any category of extensions of credit or other assets which
\ninclude Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be
\nadjusted automatically on and as of the effective date of any change in the
\nReserve Requirement.<\/p>\n
RESPONSIBLE OFFICER means the chairman, president, chief executive
\nofficer, chief financial officer, senior vice president, or treasurer of
\nBorrower, or, for all purposes under the Loan Papers other than SECTION 8.6,
\nany other officer designated from time to time by the Board of Directors of
\nBorrower, which designated officer is acceptable to Administrative Agent.<\/p>\n
RESTRICTED COMPANIES, at any time of determination thereof, means
\nBorrower and the Restricted Subsidiaries.<\/p>\n
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower
\n(other than the Unrestricted Subsidiaries).<\/p>\n
RIGHTS means rights, remedies, powers, privileges, and benefits.<\/p>\n
RIGHTS OF WAY means the easements, rights of way, and other rights
\nentitling the Restricted Companies to own, use, operate, and maintain the
\nnetwork facilities.<\/p>\n
S&P means Standard & Poor’s Rating Group, a division of McGraw Hill,
\nInc., a New York corporation.<\/p>\n
SCHEDULE means, unless specified otherwise, a schedule attached to
\nthis Agreement, as the same may be supplemented and modified from time to time
\nin accordance with the terms of the Loan Papers.<\/p>\n
SOLVENT means, as to a Person, that (a) the aggregate fair market
\nvalue of such Person’s assets exceeds its liabilities (whether contingent,
\nsubordinated, unmatured, unliquidated, or otherwise), (b) such Person has
\nsufficient cash flow to enable it to pay its Debts as they mature, and (c) such
\nPerson does not have unreasonably small capital to conduct such Person’s
\nbusinesses.<\/p>\n
SUBSIDIARY of any Person means any entity of which an aggregate of
\nmore than 50% (in number of votes) of the stock (or equivalent interests) is
\nowned of record or beneficially, directly or indirectly, by such Person.<\/p>\n
SWING LINE BORROWING means any Borrowing under the Swing Line
\nSubfacility, including Alternate Rate Swing Line Borrowings and Quoted Rate
\nSwing Line Borrowings.<\/p>\n
SWING LINE COMMITMENT means an amount (subject to availability,
\nreduction, or cancellation as herein provided) equal to $175,000,000.<\/p>\n
SWING LINE COMMITTED SUM means, on any date of determination for any
\nSwing Line Lender, the amount stated beside its name on the most-recently
\namended SCHEDULE 2.2 to the Agreement (which amount is subject to availability,
\nincrease, reduction, or cancellation in accordance with this Agreement).<\/p>\n
SWING LINE LENDERS means, collectively, NationsBank, those Lenders
\nlisted on SCHEDULE 2.2, and any Lender designated by borrower as a “Swing Line
\nLender” pursuant to and in accordance with SECTION 2.2(g), and their respective
\npermitted successors and assigns.<\/p>\n
SWING LINE NOTE means a promissory note in substantially the form of
\nEXHIBIT A-3, and all renewals and<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
14
\n 20
\nextensions of all or any part thereof.<\/p>\n
SWING LINE PRINCIPAL DEBT means, on any date of determination, that
\nportion of the Principal Debt outstanding under the Swing Line Subfacility.<\/p>\n
SWING LINE SUBFACILITY means the subfacility under this 364-Day
\nFacility described in, and subject to the limitations of, SECTION 2.2.<\/p>\n
TAXES means, for any Person, taxes, assessments, or other governmental
\ncharges or levies imposed upon such Person, its income, or any of its
\nproperties, franchises, or assets.<\/p>\n
TERM CONVERSION DATE means the date upon which the Principal Debt is
\nconverted to a Term Loan in accordance with SECTION 2.5.<\/p>\n
TERM CONVERSION REQUEST is defined in SECTION 2.5(a).<\/p>\n
TERM LOAN means loans made by Lenders pursuant to SECTION 2.5.<\/p>\n
TERM LOAN MATURITY DATE has the meaning set forth in SECTION 2.5.<\/p>\n
TERM NOTE means a promissory note in substantially the form of EXHIBIT
\nA-4, and all renewals and extensions of all or any part thereof.<\/p>\n
TERMINATION DATE means the earliest of (a) August 5, 1999, as such
\ndate may be extended pursuant to SECTION 2.4, and (b) the effective date of any
\nother termination or cancellation of Lenders’ Commitments to lend under, and in
\naccordance with, this Agreement.<\/p>\n
TOTAL CAPITALIZATION means, on any date of determination, the sum of
\nTotal Debt and Consolidated Net Worth.<\/p>\n
TOTAL COMMITMENT means, on any date of determination, the sum of the
\nFacility A Commitment, the Facility B Principal Debt, and the Commitment.<\/p>\n
TOTAL DEBT means (without duplication) all Debt of the Restricted
\nCompanies; provided that, in determining “Total Debt,” Debt arising under the
\n8.00% Junior Subordinated Deferrable Interest Debentures (the “DEBENTURES”)
\nissued by MCI pursuant to Supplemental Indenture No. 1 to the Junior
\nSubordinated Indenture dated as of May 29, 1996, between MCI and Wilmington
\nTrust Company, as Trustee (as the same have been or may be amended, modified,
\nsupplemented, or restated, but not increased from time to time) shall not be
\nincluded, so long as no “Event of Default” under such Debentures or the related
\nIndenture has occurred and is continuing on any date of determination.<\/p>\n
TYPE means any type of Borrowing determined with respect to the
\ninterest option applicable thereto.<\/p>\n
UNREFUNDED SWING LINE BORROWINGS has the meaning set forth in SECTION
\n2.2(d).<\/p>\n
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
\nmean (a) the Receivables Subsidiary and (b) any Subsidiary of Borrower
\ndesignated as an “Unrestricted Subsidiary” from time to time in accordance with
\nSECTION 7.21. UNRESTRICTED SUBSIDIARY, at any time of determination, shall
\nmean any of the<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
15
\n 21
\nUnrestricted Subsidiaries.<\/p>\n
UTILIZATION FEE has the meaning set forth in CLAUSE (b) of the
\ndefinition of “Applicable Margin” in this SECTION 1.1.<\/p>\n
VOTING STOCK shall mean securities (as such term is defined in Section
\n2(1) of the Securities Act of 1933, as amended) of any class or classes, the
\nholders of which are ordinarily, in the absence of contingencies, entitled to
\nelect a majority of the corporate directors (or Persons performing similar
\nfunctions).<\/p>\n
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
\nSubsidiary of which all of the issued and outstanding shares of stock (except
\nshares required as directors’ qualifying shares) shall be owned by Borrower or
\none or more of its Wholly-owned Subsidiaries.<\/p>\n
WORLDCOM\/BROOKS FIBER LOAN means the loans under that certain
\n$1,250,000,000 364-Day Revolving Credit and Term Loan Agreement dated as of
\nFebruary 19, 1998, among Borrower, NationsBank N.A. (in its capacity as
\n“Administrative Agent” thereunder and as a lender), and the other lenders party
\nthereto (as amended, restated and modified from time to time).<\/p>\n
1.2 Number and Gender of Words; Other References. Unless
\notherwise specified, in the Loan Papers (a) where appropriate, the singular
\nincludes the plural and vice versa, and words of any gender include each other
\ngender, (b) heading and caption references may not be construed in interpreting
\nprovisions, (c) monetary references are to currency of the United States of
\nAmerica, (d) section, paragraph, annex, schedule, exhibit, and similar
\nreferences are to the particular Loan Paper in which they are used, (e)
\nreferences to “telecopy,” “facsimile,” “fax,” or similar terms are to facsimile
\nor telecopy transmissions, (f) references to “including” mean including without
\nlimiting the generality of any description preceding that word, (g) the rule of
\nconstruction that references to general items that follow references to
\nspecific items are limited to the same type or character of those specific
\nitems is not applicable in the Loan Papers, (h) references to any Person
\ninclude that Person’s heirs, personal representatives, successors, trustees,
\nreceivers, and permitted assigns, (i) references to any Law include every
\namendment or supplement to it, rule and regulation adopted under it, and
\nsuccessor or replacement for it, and (j) references to any Loan Paper or other
\ndocument include every renewal and extension of it, amendment and supplement to
\nit, and replacement or substitution for it.<\/p>\n
1.3 Accounting Principles. All accounting and financial terms
\nused in the Loan Papers and the compliance with each financial covenant therein
\nshall be determined in accordance with GAAP, and, all accounting principles
\nshall be applied on a consistent basis so that the accounting principles in a
\ncurrent period are comparable in all material respects to those applied during
\nthe preceding comparable period.<\/p>\n
SECTION 2 BORROWING PROVISIONS.<\/p>\n
2.1 Commitments. Subject to and in reliance upon the terms,
\nconditions, representations, and warranties in the Loan Papers, each Lender
\nseverally and not jointly agrees to lend to Borrower such Lender’s Pro Rata
\nPart of one or more Borrowings under this Agreement not to exceed such Lender’s
\nCommitted Sum under this Agreement, which, subject to the Loan Papers, Borrower
\nmay borrow, repay, and reborrow under this Agreement; provided that (i) each
\nsuch Borrowing must occur on a Business Day and no later than the Business Day
\nimmediately preceding the Termination Date; (ii) each such Borrowing shall be
\nin an amount not less than (A) $5,000,000 or a greater integral multiple of
\n$1,000,000 (if a Base Rate Borrowing), (B) $10,000,000 or a greater integral
\nmultiple of $1,000,000 (if a Eurodollar Rate Borrowing), (C) $5,000,000 or a
\ngreater integral multiple of $1,000,000 (if a Competitive Borrowing), or (D)
\n$1,000,000 or an integral multiple of $250,000 if in excess thereof (if a Swing<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
16
\n 22
\nLine Borrowing); and (iii) on any date of determination, the Principal Debt
\nshall never exceed the Commitment.<\/p>\n
2.2 Swing Line Subfacility.<\/p>\n
(a) Subject to the terms and conditions hereof and
\n relying upon the representations and warranties herein set forth, each
\n Swing Line Lender agrees, severally and not jointly, on and after the
\n Closing Date and until the earlier of the Business Day immediately
\n preceding the Termination Date or the termination of the Swing Line
\n Committed Sum of such Swing Line Lender, (i) to make available to
\n Borrower requested Swing Line Borrowings (“QUOTED SWING LINE
\n BORROWINGS”) on the basis of quoted interest rates (each, a “QUOTED
\n SWING LINE RATE”) furnished by such Swing Line Lender from time to
\n time in its discretion to Borrower (through Administrative Agent) and
\n accepted by Borrower in its discretion and (ii) to lend to Borrower
\n such Swing Line Lender’s Percentage Part of any requested Swing Line
\n Borrowing (“ALTERNATE RATE SWING LINE BORROWINGS”), bearing interest
\n at a rate equal to the Alternate Rate; provided that, (A) the
\n aggregate Swing Line Principal Debt outstanding on any date of
\n determination shall not exceed the Swing Line Commitment; (B) on any
\n date of determination, the Principal Debt shall never exceed the
\n Commitment; (C) at the time of such Swing Line Borrowing, no Default
\n or Potential Default shall have occurred and be continuing; (D) no
\n Swing Line Borrowing may be made on any date on which a Borrowing
\n under this Agreement pursuant to SECTION 2.1 is being made; (E) no
\n additional Swing Line Borrowings shall be made at any time after any
\n Lender has refused, notwithstanding the requirements of SECTIONS
\n 2.2(c) and (d), to either fund a Borrowing under this Agreement or to
\n purchase a participation in the Swing Line Principal Debt as required
\n in such Sections (such unavailability of the Swing Line Subfacility
\n shall continue until such funding or purchase shall occur or until the
\n Swing Line Principal Debt has been repaid); and (F) at any time after
\n Lenders are deemed to have purchased a participation in any Unrefunded
\n Swing Line Borrowing pursuant to SECTION 2.2(d), such Unrefunded Swing
\n Line Borrowings shall bear interest at the Default Rate. On any date
\n of determination, (i) as a result of Quoted Swing Line Borrowings, the
\n Swing Line Principal Debt owed to any Swing Line Lender may exceed
\n such Swing Line Lender’s Swing Line Committed Sum and (ii) as a result
\n of Swing Line Borrowings, the Principal Debt owed to any Swing Line
\n Lender may exceed its Commitment. Each Quoted Swing Line Borrowing
\n shall be made only by the Swing Line Lender furnishing the relevant
\n Quoted Swing Line Rate. Each Alternate Rate Swing Line Borrowing shall
\n be made by all Swing Line Lenders ratably in accordance with their
\n respective Percentage Parts. Swing Line Borrowings shall be made in a
\n minimum aggregate principal amount of $1,000,000 or an integral
\n multiple of $250,000 if in excess thereof (or an aggregate principal
\n amount equal to the remaining balance of the available Swing Line
\n Commitment). Each Swing Line Lender shall make the portion of each
\n Swing Line Borrowing to be made by it available to Borrower by means
\n of a credit to the general deposit account of Borrower with
\n Administrative Agent or by a wire transfer, at the expense of
\n Borrower, to an account designated in writing by Borrower, in each
\n case by 2:30 p.m, Dallas, Texas time, on the date such Swing Line
\n Borrowing is requested to be made pursuant to SECTION 2.2(b) below, in
\n immediately available funds. Borrower may borrow, prepay, and reborrow
\n Swing Line Borrowings on or after the Closing Date and prior to the
\n Termination Date (or such earlier date on which the Swing Line
\n Commitment shall terminate in accordance herewith) on the terms and
\n subject to the conditions and limitations set forth herein.<\/p>\n
(b) Borrowings under the Swing Line Subfacility shall be
\n subject to those terms and conditions applicable to Borrowings as set
\n forth in SECTIONS 5.2(c), (d), (e), and (f). Borrower shall give
\n Administrative Agent telephonic, written, or telecopy notice
\n substantially in the form of EXHIBIT B-7 (provided that, in the case
\n of telephonic notice, such notice shall be promptly confirmed by
\n telecopy) no later than 1:30 p.m., Dallas, Texas time (or, in the case
\n of a proposed Quoted Swing Line Borrowing, 11:00 a.m., Dallas, Texas
\n time), on the day of a proposed Swing Line Borrowing. Such notice
\n shall be delivered on a Business Day, shall be irrevocable (subject,
\n in the case of Quoted Swing Line Borrowings,<\/p>\n
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17
\n 23
\n to receipt by Borrower of Quoted Swing Line Rates acceptable to it)
\n and shall refer to this Agreement and shall specify the requested
\n Borrowing Date (which shall be a Business Day) and the amount of such
\n requested Swing Line Borrowing. Administrative Agent shall promptly
\n advise the Swing Line Lenders of any notice received from Borrower
\n pursuant to this SECTION 2.2(b). In the event that Borrower accepts a
\n Quoted Swing Line Rate in respect of a requested Quoted Swing Line
\n Borrowing, Borrower shall notify Administrative Agent (which shall in
\n turn notify the relevant Swing Line Lender) of such acceptance no
\n later than 1:30 p.m., Dallas, Texas time, on the relevant Borrowing
\n Date.<\/p>\n
(c) Upon the occurrence of a Default or in the event that
\n any Swing Line Borrowing shall be outstanding for more than five
\n Business Days, Administrative Agent shall, on behalf of Borrower
\n (which hereby irrevocably directs and authorizes Administrative Agent
\n to act on its behalf), request a Base Rate Borrowing from the Lenders,
\n including the Swing Line Lenders (and each Lender shall fund its Pro
\n Rata Part of), in an amount sufficient to repay the Swing Line
\n Principal Debt outstanding under such Swing Line Borrowing; provided
\n that, such Borrowings under this Agreement shall be made
\n notwithstanding Borrower’s noncompliance with SECTION 5.2. Each
\n Lender will remit its Pro Rata Part of such Borrowing to
\n Administrative Agent for the account of the Swing Line Lenders at the
\n office of Administrative Agent prior to 12:00 Noon, Dallas, Texas
\n time, in funds immediately available on the Business Day next
\n succeeding the date such notice is given. The proceeds of such
\n Borrowings under this Agreement shall be immediately applied to repay
\n such Swing Line Borrowing.<\/p>\n
(d) If, for any reason, Borrowings under this Agreement
\n may not be (as determined by Administrative Agent in its sole
\n discretion), or are not, made pursuant to SECTION 2.2(c) to repay any
\n Swing Line Borrowing as required by such Section, then, effective on
\n the date such Borrowing under this Agreement would otherwise have been
\n made, each Lender severally, unconditionally, and irrevocably agrees
\n that it shall be deemed to have purchased an undivided participating
\n interest in such Swing Line Borrowings (“UNREFUNDED SWING LINE
\n BORROWINGS”) to the extent of such Lender’s Pro Rata part thereof.
\n Each Lender shall fund a Borrowing under this Agreement or a
\n participation in the Unrefunded Swing Line Borrowings no later than
\n the close of business on the date notice of such funding requirement
\n is given by Administrative Agent if such notice was given prior to
\n 12:00 noon, Dallas, Texas time, on any Business Day, or if made at any
\n other time, on the next Business Day following the date of such
\n notice. All such amounts payable by any Lender under this SECTION
\n 2.2(d) shall include interest thereon from the date on which such
\n payment is payable by such Lender to, but not including, the date such
\n amount is paid by such Lender to Administrative Agent, at the Federal
\n Funds Rate. If such Lender does not promptly pay such amount upon
\n Administrative Agent’s demand therefor, and until such time as such
\n Lender makes the required payment, each Swing Line Lender shall be
\n deemed to continue to have outstanding its ratable portion of the
\n Swing Line Principal Debt in the amount of such unpaid obligation.
\n Each payment by Borrower of all or any part of any Swing Line
\n Borrowings shall be paid to Administrative Agent for the benefit of
\n the applicable Swing Line Lender (in the case of a Quoted Swing Line
\n Borrowing) or (in the case of Alternate Rate Swing Line Borrowings)
\n for the benefit of the Swing Line Lenders and those Lenders who hold
\n funded participations in such Unrefunded Swing Line Borrowings under
\n this SECTION 2.2(d); provided that, with respect to any such
\n participation, all interest on the Swing Line Principal Debt to which
\n such participation relates, accruing prior to the date of funding such
\n participation, shall be payable solely to Administrative Agent for the
\n account of the Swing Line Lenders (and all Lenders holding funded
\n participations in any Unrefunded Swing Line Borrowing prior to such
\n date). Subject to SECTION 3.12, any Lender holding a participation in
\n any Unrefunded Swing Line Borrowing may exercise any and all Rights of
\n banker’s lien, setoff, or counterclaim with respect to any and all
\n moneys owing by Borrower to such Lender by reason thereof as fully as
\n if such Lender had extended such Borrowing under this Agreement
\n directly to Borrower in the amount of such participation.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
18
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\n (e) Whenever, at any time after any Swing Line Lender has
\n received from any Lender such Lender’s participating interest in any
\n Swing Line Borrowing, such Swing Line Lender receives any payment on
\n account thereof, such Swing Line Lender will promptly distribute to
\n such Lender its participating interest in such amount (appropriately
\n adjusted, in the case of interest payments, to reflect the period of
\n time during which such Lender’s participating interest was outstanding
\n and funded); provided, however, that in the event that such payment
\n received by such Swing Line Lender is required to be returned, such
\n Lender will return to such Swing Line Lender any portion thereof
\n previously distributed by such Swing Line Lender to it.<\/p>\n
(f) Notwithstanding anything to the contrary in this
\n Agreement, each Lender’s obligation to fund the Borrowings referred to
\n in SECTION 2.2(c) and to purchase and fund participating interests
\n pursuant to SECTION 2.2(d) shall be absolute and unconditional and
\n shall not be affected by any circumstance, including, without
\n limitation, (i) any setoff, counterclaim, recoupment, defense, or
\n other right which such Lender or Borrower may have against any Swing
\n Line Lender, Borrower, or any other Person for any reason whatsoever;
\n (ii) the occurrence or continuance of a Potential Default or a
\n Default or the failure to satisfy any of the conditions specified in
\n SECTION 5; (iii) any adverse change in the condition (financial or
\n otherwise) of Borrower or any of its Subsidiaries; (iv) any breach of
\n this Agreement by Borrower or any Lender; or (v) any other
\n circumstance, happening, or event whatsoever, whether or not similar
\n to any of the foregoing.<\/p>\n
(g) Upon written or telecopy notice to the Swing Line
\n Lenders and to Administrative Agent, Borrower may at any time
\n terminate, or from time to time reduce in part or increase (with the
\n approval of the relevant Swing Line Lender), the Swing Line Committed
\n Sum of any Swing Line Lender, so long as the Swing Line Commitment is
\n not increased. At any time when there shall be fewer than seven Swing
\n Line Lenders, Borrower may appoint from among the Lenders a new Swing
\n Line Lender, subject to the prior consent of such new Swing Line
\n Lender and prior notice to Administrative Agent, so long as at no time
\n shall there be more than seven Swing Line Lenders. Notwithstanding
\n anything to the contrary in this Agreement, (i) if any Alternate Rate
\n Swing Line Borrowings shall be outstanding at the time of any
\n termination, reduction, increase, or appointment pursuant to the
\n preceding two sentences, Borrower shall on the date thereof prepay or
\n borrow Alternate Rate Swing Line Borrowings to the extent necessary to
\n ensure that at all times the outstanding Alternate Rate Swing Line
\n Borrowings held by the Swing Line Lenders shall be ratable according
\n to the respective Swing Line Committed Sums of the Swing Line Lenders
\n and (ii) in no event may the aggregate Swing Line Committed Sums of
\n the Swing Line Lenders exceed the Swing Line Commitment then in
\n effect. On the date of any termination or reduction of Swing Line
\n Committed Sums pursuant to this SECTION 2.2(g), Borrower shall pay or
\n prepay so much of the Swing Line Principal Debt as shall be necessary
\n in order that, after giving effect to such termination or reduction,
\n (i) the aggregate outstanding principal amount of the Alternate Rate
\n Swing Line Borrowings of any Swing Line Lender will not exceed the
\n Swing Line Committed Sum of such Swing Line Lender and (ii) the
\n aggregate outstanding principal amount of all Swing Line Borrowings
\n will not exceed the Swing Line Commitment then in effect.<\/p>\n
(h) Borrower may prepay any Swing Line Borrowing in whole
\n or in part at any time without premium or penalty; provided that,
\n Borrower shall have given the Administrative Agent written or telecopy
\n notice (or telephone notice promptly confirmed in writing or by
\n telecopy) of such prepayment not later than 9:30 a.m., Dallas, Texas
\n time, on the Business Day designated by Borrower for such prepayment;
\n and provided further that, each partial prepayment shall be in a
\n minimum principal amount of $1,000,000 or an integral multiple of
\n $250,000 if in excess thereof. Each notice of prepayment under this
\n SECTION 2.2(H) shall specify the prepayment date and the principal
\n amount of each Swing Line Borrowing (or portion thereof) to be
\n prepaid, shall be irrevocable, and shall commit Borrower to prepay
\n such Swing Line<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
19
\n 25
\n Borrowing (or portion thereof) by the amount stated therein on the
\n date stated therein. All accrued interest on Swing Line Borrowings is
\n payable quarterly in arrears. Each payment of principal of or
\n interest on Alternate Rate Swing Line Borrowings shall be allocated,
\n as between the Swing Line Lenders, ratably in accordance with their
\n respective Swing Line Committed Sums.<\/p>\n
2.3 Competitive Bid Subfacility.<\/p>\n
(a) In addition to Borrowings under this Agreement
\n otherwise provided for herein, but subject to the terms and conditions
\n of the Loan Papers, Borrower may, as set forth in this SECTION 2.3,
\n request Lenders to make offers to make Competitive Borrowings under
\n this Agreement. Lenders may, but shall have no obligation to, make
\n any such offers, and Borrower may, but shall have no obligation to,
\n accept any such offers. Any Competitive Borrowings made available to
\n Borrower hereunder shall be subject, however, to the conditions that
\n on any date of determination: (i) the aggregate principal
\n outstanding under all Competitive Borrowings under this Agreement made
\n by all Lenders shall not exceed the Commitment then in effect; (ii) on
\n any date of determination, the Principal Debt shall not exceed the
\n Commitment; and (iii) each Borrowing under the Competitive Bid
\n Subfacility in respect of this Agreement must occur on a Business Day
\n and prior to the Business Day immediately preceding the Termination
\n Date.<\/p>\n
(b) In order to request Competitive Bids, Borrower shall
\n deliver a Competitive Bid Request to Administrative Agent (i) not
\n later than 10:00 a.m. Dallas, Texas time on the fourth Business Day
\n preceding the Borrowing Date for any requested Competitive Borrowing
\n that will be comprised of Eurodollar Rate Borrowings, or (ii) not
\n later than 10:00 a.m. Dallas, Texas time one Business Day before the
\n Borrowing Date for any requested Competitive Borrowing that will be
\n comprised of Fixed Rate Borrowings. A Competitive Bid Request that
\n does not conform substantially to the format of EXHIBIT B-4 may be
\n rejected by Administrative Agent, and Administrative Agent shall
\n promptly notify Borrower of such rejection. Each Competitive Bid
\n Request shall refer to this Agreement and shall specify (i) whether
\n the Competitive Borrowing then being requested will be comprised of
\n Eurodollar Rate Borrowings or Fixed Rate Borrowings, (ii) the
\n Borrowing Date of such Competitive Borrowing (which shall be a
\n Business Day) and the aggregate principal amount thereof (which shall
\n not be less than $5,000,000 or a greater integral multiple of
\n $1,000,000), and (iii) the Interest Period with respect thereto (which
\n may not be more than six months and which may not extend beyond the
\n Termination Date). Promptly after its receipt of a Competitive Bid
\n Request that is not rejected as aforesaid, Administrative Agent shall
\n notify Lenders of the Competitive Bid Request on a form substantially
\n similar to EXHIBIT B-5 hereto, pursuant to which the Lenders are
\n invited to bid, subject to the terms and conditions of this Agreement,
\n to make Competitive Borrowings pursuant to such Competitive Bid
\n Request. Notwithstanding the foregoing, Administrative Agent shall
\n have no obligation to invite any Lender to make a Competitive Bid
\n pursuant to this SECTION 2.3 until such Lender has delivered a
\n completed Administrative Questionnaire to Administrative Agent.<\/p>\n
(c) Each Lender may make one or more Competitive Bids to
\n Borrower responsive to each respective Competitive Bid Request. Each
\n Competitive Bid by a Lender must be received by Administrative Agent
\n substantially in the form of EXHIBIT B-6, (i) no later than 11:00 a.m.
\n Dallas, Texas time on the third Business Day preceding the Borrowing
\n Date for any requested Competitive Borrowing that will be comprised of
\n Eurodollar Rate Borrowings, or (ii) prior to 10:00 a.m. Dallas, Texas
\n time on the Borrowing Date for any requested Competitive Borrowing
\n that will be comprised of Fixed Rate Borrowings. Competitive Bids
\n that do not conform substantially to the format of EXHIBIT B-6 may be
\n rejected by Administrative Agent after conferring with, and upon the
\n instruction of, Borrower, and Administrative Agent shall notify the
\n appropriate Lender of such rejection as soon as practicable. Each
\n Competitive Bid shall refer to this Agreement and shall (x) specify
\n the principal amount (which shall be in a minimum<\/p>\n
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20
\n 26
\n principal amount of $5,000,000 or a greater integral multiple of
\n $1,000,000 and which may equal the entire principal amount of the
\n Competitive Borrowing requested by Borrower and may exceed such
\n Lender’s Committed Sum under this Agreement, subject to the
\n limitations set forth in SECTION 2.3(a) hereof) of the Competitive
\n Borrowing such Lender is willing to make to Borrower, (y) specify the
\n Competitive Bid Rate at which such Lender is prepared to make its
\n Competitive Borrowing, and (z) confirm the Interest Period with
\n respect thereto specified by Borrower in its Competitive Bid Request.
\n A Competitive Bid submitted by a Lender pursuant to this SECTION
\n 2.3(c) shall be irrevocable.<\/p>\n
(d) Administrative Agent shall promptly notify Borrower
\n of all Competitive Bids made and the Competitive Bid Rate and the
\n principal amount of each Competitive Borrowing in respect of which a
\n Competitive Bid was made and the identity of the Lender that made each
\n bid.<\/p>\n
(e) Borrower may, subject only to the provisions of this
\n SECTION 2.3(e), accept or reject any or all of the Competitive Bids
\n for this Agreement referred to in SECTION 2.3(c); provided, however,
\n that the aggregate amount of the Competitive Bids so accepted by
\n Borrower may not exceed the principal amount of the Competitive
\n Borrowing requested by Borrower (subject to the further limitations of
\n SECTION 2.3(a) hereof). Borrower shall notify Administrative Agent
\n whether and to what extent it has decided to accept or reject any or
\n all of the bids referred to in SECTION 2.3(c), (i) not later than
\n 10:45 a.m. Dallas, Texas time three Business Days before the Borrowing
\n Date specified for a proposed Competitive Borrowing that is deemed a
\n Eurodollar Rate Borrowing or (ii) not later than 11:00 a.m., Dallas,
\n Texas time on the day specified for a proposed Competitive Borrowing
\n that is deemed a Fixed Rate Borrowing; provided, however, that (w) the
\n failure by Borrower to give such notice shall be deemed to be a
\n rejection of all the bids referred to in SECTION 2.3(c), (x) Borrower
\n shall not accept a bid under this Agreement in the same or lower
\n principal amount made at a particular Competitive Bid Rate if Borrower
\n has decided to reject a bid made at a lower Competitive Bid Rate, (y)
\n if Borrower shall accept bids made at a particular Competitive Bid
\n Rate but shall be restricted by other conditions hereof from borrowing
\n the principal amount of the Competitive Borrowing in respect of which
\n bids at such Competitive Bid Rate have been made, then Borrower shall
\n accept a ratable portion of each bid made at such Competitive Bid Rate
\n based as nearly as possible on the respective principal amounts of the
\n Competitive Borrowing for which such bids were made, and (z) no bid
\n shall be accepted for a Competitive Borrowing under this Agreement
\n unless the aggregate principal amount to be funded pursuant to all
\n accepted bids under this Agreement shall be in a minimum amount of
\n $5,000,000 or a greater integral multiple of $1,000,000 for each
\n respective Lender whose bid is accepted. Notwithstanding the
\n foregoing, if it is necessary for Borrower to accept a ratable
\n allocation of the bids for this Agreement made in response to a
\n Competitive Bid Request (whether pursuant to the events specified in
\n CLAUSE (y) above or otherwise) and the available principal amount of
\n the Competitive Borrowing to be allocated among the Lenders submitting
\n Competitive Bids is not sufficient to enable Competitive Borrowings to
\n be allocated to each such Lender in a minimum principal amount of
\n $5,000,000 or a greater integral multiple of $1,000,000, then Borrower
\n shall select the Lenders to be allocated such Competitive Borrowings
\n and shall round allocations up or down to the next higher or lower
\n multiple of $500,000 as it shall deem appropriate. A notice given by
\n Borrower pursuant to this SECTION 2.3(e) shall be irrevocable.<\/p>\n
(f) Administrative Agent shall promptly notify each
\n bidding Lender whether or not its Competitive Bid has been accepted
\n (which notice to those Lenders whose Competitive Bids have been
\n accepted will be given within one hour from the time such bid was
\n accepted by Borrower and shall further indicate in what amount and at
\n what Competitive Bid Rate), and each successful bidder will thereupon
\n become bound, subject to the other applicable conditions hereof, to
\n advance the Competitive Borrowing in respect of which its bid has been
\n accepted. After completing the notifications referred to in the<\/p>\n
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21
\n 27
\n immediately preceding sentence, Administrative Agent shall notify each
\n bidding Lender of the aggregate principal amount of all Competitive
\n Bids under this Agreement accepted for and the range of Competitive
\n Bid Rates submitted in connection with that Competitive Borrowing.<\/p>\n
(g) If Administrative Agent shall at any time elect to
\n submit a Competitive Bid in its capacity as a Lender, it shall submit
\n such bid directly to Borrower one-half hour earlier than the latest
\n time at which the other Lenders are required to submit their bids to
\n Administrative Agent pursuant to SECTION 2.3(c).<\/p>\n
(h) Each Competitive Borrowing shall be due and payable
\n on the last day of the applicable Interest Period; provided that if
\n Borrower fails to repay any Competitive Borrowing on such day,
\n Borrower shall be deemed to have given a Notice of Borrowing
\n requesting the Lenders to make a Base Rate Borrowing under this
\n Agreement in the amount of such Competitive Borrowing, subject to
\n satisfaction of the conditions specified in SECTIONS 2.1 and 5.2;
\n provided that failure to repay such Competitive Borrowing on the last
\n day of the applicable Interest Period shall not constitute a failure
\n to satisfy such conditions.<\/p>\n
2.4 Optional Renewal of Commitments.<\/p>\n
(a) Optional Renewal Procedures. Borrower may request
\n that the Termination Date be extended for all or a portion of the
\n Commitment to a date which is no later than the 364th day after the
\n then-current Termination Date; provided that, (i) any such extension
\n request shall be made in writing (a “EXTENSION REQUEST”) by Borrower
\n and delivered to Administrative Agent no more than 60 days prior to
\n (but no later than 30 days prior to) the then-current Termination
\n Date; (ii) no more than two such Extension Requests may be made by
\n Borrower; and (iii) no Extension Request may be made after the Term
\n Conversion Date or which would have the effect of extending the
\n Termination Date to a date later than the last day of the third
\n 364-day period following the Closing Date. Promptly upon receipt of
\n an Extension Request, Administrative Agent shall notify Lenders of
\n such request.<\/p>\n
(i) Lenders’ Response to Extension Request.
\n Lenders may, at their option, accept or reject such Extension
\n Request by giving written notice to Administrative Agent
\n delivered no earlier than 30 days prior to (but no later than
\n 25 days prior to) the then-effective Termination Date (such
\n 25th day being the “RESPONSE DATE”). If any Lender shall fail
\n to give such notice to Administrative Agent by the Response
\n Date, such Lender shall be deemed to have rejected the
\n requested extension. If the Extension Request is not
\n consented to by Determining Lenders by the Response Date, the
\n Extension Request will be rejected, and this Commitment will
\n terminate on the then-effective Termination Date (unless prior
\n to such Termination Date, Borrower elects to convert the
\n Principal Debt, or a portion thereof, in accordance with
\n SECTION 2.5 hereof). If Determining Lenders consent to the
\n Extension Request by the Response Date, the Termination Date
\n for those Lenders consenting to the extension (for purposes of
\n this SECTION 2.4(a), the “ACCEPTING LENDERS”) shall be
\n automatically extended to the date which is the 364th day
\n after the then-current Termination Date; provided that (i) the
\n Termination Date may never be extended on any one date for a
\n period greater than 364 days; and (ii) no more than two such
\n 364-day extensions of the Termination Date may be granted by
\n Determining Lenders.<\/p>\n
(ii) Additional Procedures to Extend the Rejected
\n Amount. If the Extension Request is consented to by
\n Determining Lenders, but fewer than all Lenders (any Lender
\n not consenting to the Extension Request being referred to in
\n this SECTION 2.4(a) as a “REJECTING LENDER”), then<\/p>\n
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22
\n 28
\n Administrative Agent shall, within 48 hours of making such
\n determination, notify the Accepting Lenders and Borrower of
\n the aggregate Committed Sums held by the Rejecting Lenders (as
\n used in this SECTION 2.4(a), the “REJECTED AMOUNT”). Each
\n Accepting Lender shall have the Right, but not the obligation,
\n to elect to increase its respective Committed Sum by an amount
\n not to exceed the Rejected Amount, which election shall be
\n made by notice from each Accepting Lender to the
\n Administrative Agent given not later than ten days after the
\n date notified by Administrative Agent, specifying the amount
\n of such proposed increase in such Accepting Lender’s Committed
\n Sum. If the aggregate amount of the proposed increases in the
\n Committed Sums of all Accepting Lenders making such an
\n election does not equal or exceed the Rejected Amount, then
\n Borrower shall have the Right to add one or more financial
\n institutions (which are not Rejecting Lenders and which are
\n Eligible Assignees) as Lenders (as used in this SECTION
\n 2.4(a), a “PURCHASING LENDER”) to replace such Rejecting
\n Lenders, which Purchasing Lenders shall have aggregate
\n Committed Sums not greater than those of the Rejecting Lenders
\n (less any increases in the Committed Sums of Accepting
\n Lenders, as described in the following CLAUSE (iii)). The
\n transfer of Committed Sums and outstanding Borrowings from
\n Rejecting Lenders to Purchasing Lenders or Accepting Lenders
\n shall take place on the effective date of, and pursuant to the
\n execution, delivery, and acceptance of, Assignment and
\n Acceptance Agreements in accordance with the procedures set
\n forth in SECTION 11.14(c).<\/p>\n
(iii) Adjustments to, and Terminations of,
\n Commitments.<\/p>\n
(A) If less than 100% (but more than 51%)
\n of the Commitment is extended (whether by virtue of
\n Borrower’s failure to request an extension of the
\n full Commitment or by virtue of any Lender not
\n consenting to any Extension Request), then the
\n Commitment shall automatically be reduced on the
\n Termination Date on which the applicable approved
\n extension is effective by an amount equal to (as the
\n case may be) (i) the portion of the Commitment not
\n requested to be extended by Borrower in its Extension
\n Request (which terminated portion of the Commitment
\n shall be allocated Pro Rata among the Lenders) or
\n (ii) the amount of the Rejected Amount (to the extent
\n not replaced by Accepting Lenders or Purchasing
\n Lenders pursuant to the procedures set forth in the
\n foregoing SECTION 2.4(a)(ii)). Each Rejecting Lender
\n shall have no further obligation or Committed Sum
\n following the Termination Date on which the
\n applicable approved extension is effective, other
\n than any obligation accruing prior to such date as
\n provided herein.<\/p>\n
(B) If the aggregate amount of the proposed
\n increases in the Committed Sums of all Accepting
\n Lenders making an election to increase their
\n respective Committed Sums is in excess of the
\n Rejected Amount, then (i) the Rejected Amount shall
\n be allocated pro rata among such Accepting Lenders
\n based on the respective amounts of the proposed
\n increases to Committed Sums elected by such Accepting
\n Lenders; and (ii) the respective Committed Sums of
\n each such Accepting Lender shall be increased by the
\n respective amount allocated pursuant to CLAUSE (i) of
\n this SECTION 2.4(a)(iii)(b), such that, after giving
\n effect to the approved extensions and all such
\n terminations and increases, no reduction will occur
\n in the aggregate amount of the Commitment.<\/p>\n
(C) If the aggregate amount of the
\n proposed increases to the Committed Sums of all
\n Accepting Lenders making such an election to so
\n increase their respective Committed Sums equals the
\n Rejected Amount, then the respective Committed Sums
\n of such Accepting Lenders shall be increased by the
\n respective amounts of their proposed<\/p>\n
364-DAY REVOLVING
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23
\n 29
\n increases, such that, after giving effect to the
\n approved extensions and all such terminations and
\n increases, no reduction will occur in the aggregate
\n amount of the Commitment.<\/p>\n
(D) If the aggregate amount of the
\n proposed increases to the Committed Sums of all
\n Accepting Lenders making such an election is less
\n than the Rejected Amount, then (i) the respective
\n Committed Sums of each such Accepting Lender shall be
\n increased by the respective amount of its proposed
\n increase; and (ii) the amount of the Commitment shall
\n be reduced by the amount of the Rejected Amount (to
\n the extent not replaced by the Accepting Lenders or
\n the Purchasing Lenders, if any).<\/p>\n
(b) No Obligation to Renew. Borrower acknowledges that
\n (i) neither Administrative Agent nor any Lender has made any
\n representations to Borrower regarding its intent to agree to any
\n extensions set forth in this Section, (ii) neither Administrative
\n Agent nor any Lender shall have any obligation to extend the
\n Commitment (or any portion thereof), and (iii) Administrative Agent’s
\n and Lenders’ agreement to one or more extensions shall not commit
\n Administrative Agent or the Lenders to any additional extensions.<\/p>\n
2.5 Conversion to Term Loans. Borrower shall have the option to
\nconvert up to $4,000,000,000 of the Principal Debt outstanding on the
\nTermination Date (after giving effect to any loan repayments on or prior to the
\nTermination Date) to a Term Loan maturing no later than one year after the Term
\nConversion Date (the “TERM LOAN MATURITY DATE”); provided, however, that (i) no
\nTerm Loan Conversion may be made on any date on which all or any portion of the
\nCommitment is available to be borrowed as revolving Borrowings under the
\n364-Day Facility; and (ii) notwithstanding the foregoing, if the mandatory
\nCommitment reductions required by SECTION 2.8 have been effected, Borrower may
\nonly convert up to $1,714,000,000 of the Principal Debt to a Term Loan pursuant
\nto this SECTION 2.5. Such Term Loan conversion is subject to and on the terms
\nand conditions set forth below:<\/p>\n
(a) No sooner than 90 days (and not later than 10 days)
\n preceding the Termination Date, Borrower shall deliver to
\n Administrative Agent a Term Conversion Request in substantially the
\n form of EXHIBIT B-3 (a “TERM CONVERSION REQUEST”), which, among other
\n things, shall (i) specify Borrower’s election to make such conversion
\n to a Term Loan, and (ii) specify the Type of Borrowing or Borrowings
\n to which the Principal Debt shall be converted and the Interest
\n Periods therefor (if applicable) on the Term Conversion Date; and<\/p>\n
(b) No Default or Potential Default shall exist on either
\n the date such Term Conversion Request is delivered or on the Term
\n Conversion Date; and no Default or Potential Default shall exist after
\n giving effect to the Term Loan conversion.<\/p>\n
2.6 Termination of Commitments. (a) Without premium or penalty,
\nand upon giving not less than three (3) Business Days prior written and
\nirrevocable notice to Administrative Agent, Borrower may permanently terminate
\nin whole or in part the unused portion of the Commitment; provided that: (a)
\neach partial termination shall be in an amount of not less than $5,000,000 or a
\ngreater integral multiple of $1,000,000; (b) the amount of the Commitment may
\nnot be reduced below the Principal Debt then outstanding; and (c) each
\nreduction shall be allocated Pro Rata among the Lenders in accordance with
\ntheir respective Pro Rata Parts. Promptly after receipt of such notice of
\ntermination or reduction, Administrative Agent shall notify each Lender of the
\nproposed cancellation or reduction. Such termination or partial reduction of
\nthe Commitment shall be effective on the Business Day specified in Borrower’s
\nnotice (which date must be at least three (3) Business Days after Borrower’s
\ndelivery of such notice). In the event that the Commitment is reduced to zero
\nat a time when there is no<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
24
\n 30
\noutstanding Principal Debt, this Agreement shall be terminated to the extent
\nspecified in SECTION 11.14, and all commitment fees and other fees then earned
\nand unpaid hereunder and all other amounts of the Obligation relating to this
\nAgreement then due and owing shall be immediately due and payable, without
\nnotice or demand by Administrative Agent or any Lender. The Swing Line
\nCommitment shall be automatically and permanently reduced from time to time on
\nthe date of each reduction in the Commitment such that the Swing Line
\nCommitment does not exceed the Commitment after giving effect to such reduction
\nof the Commitment. Each reduction in the Swing Line Commitment will be
\nallocated among Swing Line Lenders in accordance with their respective
\nPercentage Parts.<\/p>\n
2.7 Borrowing Procedure. The following procedures apply to
\nBorrowings under this Agreement (other than Competitive Borrowings, Swing Line
\nBorrowings, and Borrowings pursuant to SECTION 2.2(D)):<\/p>\n
(a) Each Borrowing shall be made on Borrower’s notice (a
\n “NOTICE OF BORROWING,” substantially in the form of EXHIBIT B-1) to
\n Administrative Agent requesting that Lenders fund a Borrowing on a
\n certain date (the “BORROWING DATE”), which notice (i) shall be
\n irrevocable and binding on Borrower, (ii) shall specify the Borrowing
\n Date, amount, Type, and (for a Borrowing comprised of Eurodollar Rate
\n Borrowings) Interest Period, and (iii) must be received by
\n Administrative Agent no later than 10:00 a.m. Dallas, Texas time on
\n the third Business Day preceding the Borrowing Date for any Eurodollar
\n Rate Borrowing or on the Business Day immediately preceding the
\n Borrowing Date for any Base Rate Borrowing. Administrative Agent
\n shall timely notify each Lender with respect to each Notice of
\n Borrowing.<\/p>\n
(b) Each Lender shall remit its Pro Rata Part of each
\n requested Borrowing to Administrative Agent’s principal office in
\n Dallas, Texas, in funds which are or will be available for immediate
\n use by Administrative Agent by 1:00 p.m. Dallas, Texas time on the
\n Borrowing Date therefor. Subject to receipt of such funds,
\n Administrative Agent shall (unless to its actual knowledge any of the
\n conditions precedent therefor have not been satisfied by Borrower or
\n waived by Determining Lenders) make such funds available to Borrower
\n by causing such funds to be deposited to Borrower’s account as
\n designated to Administrative Agent by Borrower. Notwithstanding the
\n foregoing, unless Administrative Agent shall have been notified by a
\n Lender prior to a Borrowing Date that such Lender does not intend to
\n make available to Administrative Agent such Lender’s Pro Rata Part of
\n the applicable Borrowing, Administrative Agent may assume that such
\n Lender has made such proceeds available to Administrative Agent on
\n such date, as required herein, and Administrative Agent may (unless to
\n its actual knowledge any of the conditions precedent therefor have not
\n been satisfied by Borrower or waived by Determining Lenders), in
\n reliance upon such assumption (but shall not be required to), make
\n available to Borrower a corresponding amount in accordance with the
\n foregoing terms, but, if such corresponding amount is not in fact made
\n available to Administrative Agent by such Lender on such Borrowing
\n Date, Administrative Agent shall be entitled to recover such
\n corresponding amount on demand (i) from such Lender, together with
\n interest at the Federal Funds Rate during the period commencing on the
\n date such corresponding amount was made available to Borrower and
\n ending on (but excluding) the date Administrative Agent recovers such
\n corresponding amount from such Lender, or (ii) if such Lender fails to
\n pay such corresponding amount forthwith upon such demand, then from
\n Borrower, together with interest at a rate per annum equal to the
\n applicable rate for such Borrowing during the period commencing on
\n such Borrowing Date and ending on (but excluding) the date
\n Administrative Agent recovers such corresponding amount from Borrower.
\n No Lender shall be responsible for the failure of any other Lender to
\n make its Pro Rata Part of any Borrowing.<\/p>\n
2.8 Mandatory Commitment Reduction. If, on or before the sixtieth
\n(60th) day after the Closing Date, either (i) the MCI Merger has not been
\nconsummated and all necessary and material consents and approvals have not been
\nobtained with respect to the MCI Merger, or (ii) Borrower has not satisfied the
\nrequirements of<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
25
\n 31
\nSECTION 7.3(f), then on the next Business Day immediately following such
\nsixtieth (60th) day after the Closing Date (the “REDUCTION DATE”), (a) the
\nCommitment shall automatically be reduced to $3,000,000,000 and Borrower shall
\nmake any prepayments required under SECTION 3.2(d) as a result thereof, and (b)
\nthe portion of the Principal Debt eligible for conversion to a Term Loan under
\nSECTION 2.5 shall automatically be reduced from $4,000,000,000 to
\n$1,714,000,000. On such Reduction Date, the Commitment reduction effected
\nshall be allocated among Lenders on a Pro Rata basis.<\/p>\n
SECTION 3 TERMS OF PAYMENT.<\/p>\n
3.1 Loan Accounts, Notes, and Payments.<\/p>\n
(a) Principal Debt owed to each Lender shall be evidenced
\n by one or more loan accounts or records maintained by such Lender in
\n the ordinary course of business. The loan accounts or records
\n maintained by the Administrative Agent (including, without limitation,
\n the Register) and each Lender shall be conclusive evidence absent
\n manifest error of the amount of the Borrowings made by Borrower from
\n each Lender under this Agreement (and subfacilities thereunder) and
\n the interest and principal payments thereon. Any failure to so record
\n or any error in doing so shall not, however, limit or otherwise affect
\n the obligation of Borrower under the Loan Papers to pay any amount
\n owing with respect to the Obligation.<\/p>\n
(b) Upon the request of any Lender made through the
\n Administrative Agent, the Principal Debt owed to such Lender may be
\n evidenced by one or more of the following Notes (as the case may be):
\n (i) a Revolving Note (with respect to Principal Debt, prior to the
\n Term Conversion Date, other than under the Swing Line Subfacility or
\n the Competitive Bid Subfacility); (ii) a Competitive Bid Note (with
\n respect to Principal Debt arising and outstanding under the
\n Competitive Bid Subfacility under this 364-Day Facility); (iii) a
\n Swing Line Note (with respect to Principal Debt arising under the
\n Swing Line Subfacility); and (iv) a Term Note (with respect to
\n Principal Debt on and after the Term Conversion Date).<\/p>\n
(c) All payments of principal, interest, and other
\n amounts to be made by Borrower under this Agreement and the other Loan
\n Papers shall be made to Administrative Agent at its principal office
\n in Dallas, Texas in Dollars and in funds which are or will be
\n available for immediate use by Administrative Agent by 12:00 noon
\n Dallas, Texas time on the day due, without setoff, deduction, or
\n counterclaim. Subject to the definition of “Interest Period” herein,
\n whenever any payment under this Agreement or any other Loan Paper
\n shall be stated to be due on a day that is not a Business Day, such
\n payment may be made on the next succeeding Business Day, and such
\n extension of time in such case shall be included in the computation of
\n interest and fees, as applicable and as the case may be. Payments
\n made after 12:00 noon, Dallas, Texas, time shall be deemed made on the
\n Business Day next following. Administrative Agent shall pay to each
\n Lender any payment of principal, interest, or other amount to which
\n such Lender is entitled hereunder on the same day Administrative Agent
\n shall have received the same from Borrower; provided such payment is
\n received by Administrative Agent prior to 12:00 noon Dallas, Texas
\n time, and otherwise before 12:00 noon Dallas, Texas time on the
\n Business Day next following. If and to the extent Administrative
\n Agent shall not make such payments to Lenders when due as set forth in
\n the preceding sentence, such unpaid amounts shall accrue interest,
\n payable by Administrative Agent, at the Federal Funds Rate from the
\n due date until (but not including) the date on which Administrative
\n Agent makes such payments to Lenders.<\/p>\n
3.2 Interest and Principal Payments.<\/p>\n
(a) Interest on each Eurodollar Rate Borrowing or on each
\n Fixed Rate Borrowing shall be due and payable as it accrues on the
\n last day of its respective Interest Period and on the Termination Date<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
26
\n 32
\n and the Term Loan Maturity Date, as applicable; provided that if any
\n Interest Period is a period greater than three (3) months, then
\n accrued interest shall also be due and payable on the date three (3)
\n months after the commencement of such Interest Period. Interest on
\n each Base Rate Borrowing shall be due and payable as it accrues on
\n each March 31, June 30, September 30, and December 31, and on the
\n Termination Date and Term Loan Maturity Date.<\/p>\n
(b) To the extent that the Principal Debt is not
\n converted to a Term Loan on or prior to the Termination Date, Borrower
\n shall pay on such Termination Date all outstanding Principal Debt not
\n so converted to a Term Loan, together with all accrued and unpaid
\n interest and fees.<\/p>\n
(c) To the extent any portion of the Principal Debt is
\n converted to a Term Loan, the Principal Debt outstanding under the
\n Term Loan shall be due and payable in a single installment on the Term
\n Loan Maturity Date.<\/p>\n
(d) On any date of determination, if the Principal Debt
\n exceeds the Commitment then in effect, or if the Swing Line Principal
\n Debt exceeds the Swing Line Commitment then in effect, then Borrower
\n shall make a mandatory prepayment of the Principal Debt in at least
\n the amount of such excess, together with (i) all accrued and unpaid
\n interest on the principal amount so prepaid and (ii) any Consequential
\n Loss arising as a result thereof.<\/p>\n
(e) After giving Administrative Agent advance written
\n notice of the intent to prepay, Borrower may voluntarily prepay all or
\n any part of the Principal Debt from time to time and at any time, in
\n whole or in part, without premium or penalty; provided that: (i) such
\n notice must be received by Administrative Agent by 12:00 noon Dallas,
\n Texas time on (A) the third Business Day preceding the date of
\n prepayment of a Eurodollar Rate Borrowing, and (B) one Business Day
\n preceding the date of prepayment of a Base Rate Borrowing; (ii) each
\n such partial prepayment must be in a minimum amount of at least
\n $5,000,000 or a greater integral multiple of $1,000,000 thereof (if a
\n Eurodollar Rate Borrowing or a Base Rate Borrowing), or $250,000 or an
\n integral multiple thereof (if a Swing Line Borrowing); (iii) all
\n accrued interest on the Obligation must also be paid in full, to the
\n date of such prepayment; (iv) Borrower shall pay any related
\n Consequential Loss within ten (10) days after demand therefor; and (v)
\n notwithstanding the provisions of this SECTION 3.2(D), prepayments of
\n any Swing Line Borrowing shall be made in accordance with SECTION
\n 2.2(H). Each notice of prepayment shall specify the prepayment date,
\n the facility or the subfacility hereunder being prepaid, the Type of
\n Borrowing(s) and amount(s) of such Borrowing(s) to be prepaid and
\n shall constitute a binding obligation of Borrower to make a prepayment
\n on the date stated therein. Notwithstanding the foregoing, Borrower
\n shall not voluntarily prepay any Competitive Borrowing prior to the
\n last day of the Interest Period therefor.<\/p>\n
3.3 Interest Options. Except where specifically otherwise
\nprovided, Borrowings shall bear interest at a rate per annum equal to the
\nlesser of (a) as to the respective Type of Borrowing (as designated by Borrower
\nin accordance with this Agreement), the Base Rate plus the Applicable Margin
\nfor Base Rate Borrowings, the Adjusted Eurodollar Rate plus the Applicable
\nMargin for Eurodollar Rate Borrowings, any Competitive Bid Rate, the Quoted
\nSwing Line Rate, or the Alternate Rate, as the case may be, and (b) the Maximum
\nRate. Each change in the Base Rate, the Maximum Rate, the Quoted Swing Line
\nRate, or the Alternate Rate, subject to the terms of this Agreement, will
\nbecome effective, without notice to Borrower or any other Person, upon the
\neffective date of such change.<\/p>\n
3.4 Quotation of Rates. It is hereby acknowledged that a
\nResponsible Officer or other appropriately designated employee of Borrower may
\ncall Administrative Agent on or before the date on which a Notice of Borrowing
\nis to be delivered by Borrower in order to receive an indication of the rates
\nthen in effect, but such indicated<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
27
\n 33
\nrates shall neither be binding upon Administrative Agent or Lenders nor affect
\nthe rate of interest which thereafter is actually in effect when the Notice of
\nBorrowing is given.<\/p>\n
3.5 Default Rate. At the option of Determining Lenders and to the
\nextent permitted by Law, all past-due Principal Debt and accrued interest
\nthereon shall bear interest from maturity (stated or by acceleration) at the
\nDefault Rate until paid, regardless whether such payment is made before or
\nafter entry of a judgment; provided that the Default Rate shall automatically
\napply in the case of SECTION 2.2(a) where the Default Rate is specified.<\/p>\n
3.6 Interest Recapture. If the designated rate applicable to any
\nBorrowing exceeds the Maximum Rate, the rate of interest on such Borrowing
\nshall be limited to the Maximum Rate, but any subsequent reductions in such
\ndesignated rate shall not reduce the rate of interest thereon below the Maximum
\nRate until the total amount of interest accrued thereon equals the amount of
\ninterest which would have accrued thereon if such designated rate had at all
\ntimes been in effect. In the event that at maturity (stated or by
\nacceleration), or at final payment of the Principal Debt, the total amount of
\ninterest paid or accrued is less than the amount of interest which would have
\naccrued if such designated rates had at all times been in effect, then, at such
\ntime and to the extent permitted by Law, Borrower shall pay an amount equal to
\nthe difference between (a) the lesser of the amount of interest which would
\nhave accrued if such designated rates had at all times been in effect and the
\namount of interest which would have accrued if the Maximum Rate had at all
\ntimes been in effect, and (b) the amount of interest actually paid or accrued
\non the Principal Debt.<\/p>\n
3.7 Interest Calculations.<\/p>\n
(a) All payments of interest shall be calculated on the
\n basis of actual number of days (including the first day but excluding
\n the last day) elapsed but computed as if each calendar year consisted
\n of 360 days in the case of a Eurodollar Rate Borrowing, a Fixed Rate
\n Borrowing, Base Rate Borrowings calculated with reference to the
\n Federal Funds Rate or Swing Line Borrowings accruing interest at the
\n Quoted Swing Line Rate or the Alternate Rate (unless such calculation
\n would result in the interest on the Borrowings exceeding the Maximum
\n Rate in which event such interest shall be calculated on the basis of
\n a year of 365 or 366 days, as the case may be) and 365 or 366 days, as
\n the case may be, in the case of a Base Rate Borrowing calculated with
\n reference to Prime Rate. All interest rate determinations and
\n calculations by Administrative Agent shall be conclusive and binding
\n absent manifest error.<\/p>\n
(b) The provisions of this Agreement relating to
\n calculation of the Base Rate, the Adjusted Eurodollar Rate, the Quoted
\n Swing Line Rate, the Alternate Rate, and Competitive Bid Rates are
\n included only for the purpose of determining the rate of interest or
\n other amounts to be paid hereunder that are based upon such rate.<\/p>\n
3.8 Maximum Rate. Regardless of any provision contained in any
\nLoan Paper, no Lender shall ever be entitled to contract for, charge, take,
\nreserve, receive, or apply, as interest on the Obligation, or any part thereof,
\nany amount in excess of the Maximum Rate, and, if Lenders ever do so, then such
\nexcess shall be deemed a partial prepayment of principal and treated hereunder
\nas such and any remaining excess shall be refunded to Borrower. In determining
\nif the interest paid or payable exceeds the Maximum Rate, Borrower and Lenders
\nshall, to the maximum extent permitted under applicable Law, (a) treat all
\nBorrowings as but a single extension of credit (and Lenders and Borrower agree
\nthat such is the case and that provision herein for multiple Borrowings is for
\nconvenience only), (b) characterize any nonprincipal payment as an expense,
\nfee, or premium rather than as interest, (c) exclude voluntary prepayments and
\nthe effects thereof, and (d) amortize, prorate, allocate, and spread the total
\namount of interest throughout the entire contemplated term of the Obligation;
\nprovided that, if the Obligation is paid and performed in full prior to the end
\nof the full contemplated term thereof, and if the<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
28
\n 34
\ninterest received for the actual period of existence thereof exceeds the
\nMaximum Amount, Lenders shall refund such excess, and, in such event, Lenders
\nshall not, to the extent permitted by Law, be subject to any penalties provided
\nby any Laws for contracting for, charging, taking, reserving, or receiving
\ninterest in excess of the Maximum Amount.<\/p>\n
3.9 Interest Periods. When Borrower requests any Eurodollar Rate
\nBorrowing or a Fixed Rate Borrowing, Borrower may elect the interest period
\n(each an “INTEREST PERIOD”) applicable thereto, which shall be, at Borrower’s
\noption, one, two, three, or six months or, if available to all Lenders, nine or
\ntwelve months (in respect of any Eurodollar Rate Borrowing) and any period of
\nup to six (6) months (with respect to any Fixed Rate Borrowing); provided,
\nhowever, that: (a) the initial Interest Period for a Eurodollar Rate Borrowing
\nshall commence on the date of such Borrowing (including the date of any
\nconversion thereto), and each Interest Period occurring thereafter in respect
\nof such Borrowing shall commence on the day on which the next preceding
\nInterest Period applicable thereto expires; (b) if any Interest Period for a
\nEurodollar Rate Borrowing begins on a day for which there is no numerically
\ncorresponding Business Day in the calendar month at the end of such Interest
\nPeriod, such Interest Period shall end on the next Business Day immediately
\nfollowing what otherwise would have been such numerically corresponding day in
\nthe calendar month at the end of such Interest Period (unless such date would
\nbe in a different calendar month from what would have been the month at the end
\nof such Interest Period, or unless there is no numerically corresponding day in
\nthe calendar month at the end of the Interest Period; whereupon, such Interest
\nPeriod shall end on the last Business Day in the calendar month at the end of
\nsuch Interest Period); (c) no Interest Period may be chosen with respect to any
\nportion of the Principal Debt which would extend beyond the scheduled repayment
\ndate (including any dates on which mandatory prepayments are required to be
\nmade) for such portion of the Principal Debt; and (d) no more than an aggregate
\nof ten (10) Interest Periods shall be in effect at one time.<\/p>\n
3.10 Conversions. Borrower may (a) convert a Eurodollar Rate
\nBorrowing on the last day of an Interest Period to a Base Rate Borrowing, (b)
\nconvert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
\n(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing),
\nby giving notice (a “NOTICE OF CONVERSION,” substantially in the form of
\nEXHIBIT B-2) of such intent no later than 10:00 a.m. Dallas, Texas time on the
\nthird Business Day prior to the date of conversion or the last day of the
\nInterest Period, as the case may be (in the case of a conversion to a
\nEurodollar Rate Borrowing or an election of a new Interest Period), and no
\nlater than 10:00 a.m. Dallas, Texas time one Business Day prior to the last day
\nof the Interest Period (in the case of a conversion to a Base Rate Borrowing);
\nprovided that the principal amount converted to, or continued as, a Eurodollar
\nRate Borrowing shall be in an amount not less than $10,000,000 or a greater
\nintegral multiple of $1,000,000. Administrative Agent shall timely notify each
\nLender with respect to each Notice of Conversion. Absent Borrower’s Notice of
\nConversion or election of a new Interest Period, a Eurodollar Rate Borrowing
\nshall be deemed converted to a Base Rate Borrowing effective as of the
\nexpiration of the Interest Period applicable thereto. No Eurodollar Rate
\nBorrowing may be either made or continued as a Eurodollar Rate Borrowing, and
\nno Base Rate Borrowing may be converted to a Eurodollar Rate Borrowing, if the
\ninterest rate for such Eurodollar Rate Borrowing would exceed the Maximum Rate.<\/p>\n
3.11 Order of Application.<\/p>\n
(a) So long as no Default or Potential Default has
\n occurred and is continuing, payments and prepayments of the Obligation
\n shall be applied in the order and manner as Borrower may direct;
\n provided that, each such payment or prepayment (other than payments of
\n fees payable solely to Administrative Agent or a specific Lender)
\n shall be allocated to each Lender in the proportion that the Principal
\n Debt owed to such Lender bears to the Principal Debt owed to all
\n Lenders under the 364-Day Facility (or Subfacility thereunder) in
\n respect of which such payment was made.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
29
\n 35
\n (b) If a Default or Potential Default has occurred and is
\n continuing (or if Borrower fails to give directions as permitted under
\n SECTION 3.11(A)), any payment or prepayment (including proceeds from
\n the exercise of any Rights) shall be applied in the following order:<\/p>\n
(i) to the ratable payment of all fees and
\n reasonable expenses for which Agents or Lenders have not been
\n paid or reimbursed in accordance with the Loan Papers; (as
\n used in this SECTION 3.11(b)(i), a “ratable payment” for any
\n Lender or any Agent shall be, on any date of determination,
\n that proportion which the portion of the total fees and
\n indemnities owed to such Lender or Agent bears to the total
\n aggregate fees and indemnities owed to all Lenders and Agents
\n on such date of determination);<\/p>\n
(ii) to the Pro Rata payment of all accrued and
\n unpaid interest on the Principal Debt;<\/p>\n
(iii) to the ratable payment of the Swing Line
\n Principal Debt which is due and payable and which remains
\n unfunded by any Borrowing under this Agreement; provided that,
\n such payments shall be allocated among the Swing Line Lenders
\n and the Lenders which have funded their participation in the
\n Swing Line Principal Debt;<\/p>\n
(iv) to the Pro Rata payment of the remaining
\n Principal Debt in such order as Determining Lenders may elect
\n (provided that, Determining Lenders will apply such proceeds
\n in an order that will minimize any Consequential Loss); and<\/p>\n
(v) to the payment of the remaining Obligation in
\n the order and manner Determining Lenders deem appropriate.<\/p>\n
Subject to the provisions of SECTION 10 and provided that Administrative Agent
\nshall in any event not be bound to inquire into or to determine the validity,
\nscope, or priority of any interest or entitlement of any Lender and may suspend
\nall payments or seek appropriate relief (including, without limitation,
\ninstructions from Determining Lenders or an action in the nature of
\ninterpleader) in the event of any doubt or dispute as to any apportionment or
\ndistribution contemplated hereby, Administrative Agent shall promptly
\ndistribute such amounts to each Lender in accordance with this Agreement and
\nthe related Loan Papers.<\/p>\n
3.12 Sharing of Payments, Etc. If any Lender shall obtain any
\npayment (whether voluntary, involuntary, or otherwise, including, without
\nlimitation, as a result of exercising its Rights under SECTION 3.13) which is
\nin excess of its ratable share of any such payment, such Lender shall purchase
\nfrom the other Lenders such participations as shall be necessary to cause such
\npurchasing Lender to share the excess payment ratably with each of them;
\nprovided, however, that if all or any portion of such excess payment is
\nthereafter recovered from such purchasing Lender, the purchase shall be
\nrescinded and the purchase price restored to the extent of such recovery.
\nBorrower agrees that any Lender so purchasing a participation from another
\nLender pursuant to this section may to the fullest extent permitted by Law,
\nexercise all of its Rights of payment (including the Right of offset) with
\nrespect to such participation as fully as if such Lender were the direct
\ncreditor of Borrower in the amount of such participation.<\/p>\n
3.13 Offset. Upon the occurrence and during the continuance of a
\nDefault, each Lender shall be entitled to exercise (for the benefit of all
\nLenders in accordance with SECTION 3.12) the Rights of offset and\/or banker’s
\nLien against each and every account and other property, or any interest
\ntherein, which Borrower may now or hereafter have with, or which is now or
\nhereafter in the possession of, such Lender to the extent of the full<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
30
\n 36
\namount of the Obligation owed to such Lender.<\/p>\n
3.14 Booking Borrowings. To the extent permitted by Law, any
\nLender may make, carry, or transfer its Borrowings at, to, or for the account
\nof any of its branch offices or the office of any of its Affiliates; provided
\nthat no Affiliate shall be entitled to receive any greater payment under
\nSECTION 3.15 than the transferor Lender would have been entitled to receive
\nwith respect to such Borrowings.<\/p>\n
3.15 Increased Cost and Reduced Return.<\/p>\n
(a) If, after the date hereof, the adoption of any
\n applicable Law or any change in any applicable Law, or any change in
\n the interpretation or administration thereof by any Governmental
\n Authority, or compliance by any Lender (or its Applicable Lending
\n Office) with any request or directive (whether or not having the force
\n of law) of any such Governmental Authority:<\/p>\n
(i) shall subject such Lender (or its Applicable
\n Lending Office) to any Tax with respect to any Eurodollar Rate
\n Borrowing, its Notes, or its obligation to loan Eurodollar
\n Rate Borrowings, or change the basis of taxation of any
\n amounts payable to such Lender (or its Applicable Lending
\n Office) under the Loan Papers in respect of any Eurodollar
\n Rate Borrowings (other than with respect to Taxes imposed on
\n the overall net income of such Lender by any jurisdiction and
\n other than liabilities, interest, and penalties incurred as a
\n result of the gross negligence or wilful misconduct of such
\n Lender);<\/p>\n
(ii) shall impose, modify, or deem applicable any
\n reserve, special deposit, assessment, or similar requirement
\n (other than the Reserve Requirement utilized in the
\n determination of the Adjusted Eurodollar Rate) relating to any
\n extensions of credit or other assets of, or any deposits with
\n or other liabilities or commitments of, such Lender (or its
\n Applicable Lending Office), including the commitment of such
\n Lender hereunder; or<\/p>\n
(iii) shall impose on such Lender (or its
\n Applicable Lending Office) or the London interbank market any
\n other condition affecting the Loan Papers or any of such
\n extensions of credit or liabilities or commitments;<\/p>\n
and the result of any of the foregoing is to increase the actual cost
\n to such Lender (or its Applicable Lending Office) of making,
\n converting into, continuing, or maintaining any Eurodollar Rate
\n Borrowings or to reduce any sum received or receivable by such Lender
\n (or its Applicable Lending Office) under the Loan Papers with respect
\n to any Eurodollar Rate Borrowing, then Borrower shall pay to such
\n Lender on demand such amount or amounts as will compensate such Lender
\n for such increased cost or reduction as provided in SECTION 3.15(c)
\n below. If any Lender requests compensation by Borrower under this
\n SECTION 3.15(a), Borrower may, by notice to such Lender (with a copy
\n to Administrative Agent), suspend the obligation of such Lender to
\n loan or continue Borrowings of the Type with respect to which such
\n compensation is requested, or to convert Borrowings of any other Type
\n into Borrowings of such Type, until the event or condition giving rise
\n to such request ceases to be in effect (in which case the provisions
\n of SECTION 3.18 shall be applicable); provided, that such suspension
\n shall not affect the Right of such Lender to receive the compensation
\n so requested.<\/p>\n
(b) If, after the date hereof, any Lender shall have
\n determined that the adoption of any applicable Law regarding capital
\n adequacy or any change therein or in the interpretation or
\n administration thereof by any Governmental Authority charged with the
\n interpretation or administration<\/p>\n
364-DAY REVOLVING
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31
\n 37
\n thereof, or any request or directive regarding capital adequacy
\n (whether or not having the force of law) of any such Governmental
\n Authority has or would have the effect of reducing the rate of return
\n by an amount deemed by it to be material on the capital of such Lender
\n or any corporation controlling such Lender as a consequence of such
\n Lender’s obligations hereunder to a level below that which such Lender
\n or such corporation could have achieved but for such adoption, change,
\n request, or directive (taking into consideration its policies with
\n respect to capital adequacy), then from time to time upon demand
\n Borrower shall pay to such Lender such additional amount or amounts as
\n will compensate such Lender for such reduction.<\/p>\n
(c) Each Lender shall promptly notify Borrower and
\n Administrative Agent of any event of which it has knowledge, occurring
\n after the date hereof, which will entitle such Lender to compensation
\n pursuant to this Section and will designate a different Applicable
\n Lending Office if such designation will avoid the need for, or reduce
\n the amount of, such compensation and will not, in the reasonable
\n judgment of such Lender, be otherwise disadvantageous to it. Any
\n Lender claiming compensation under this Section shall furnish to
\n Borrower and Administrative Agent a statement setting forth in
\n reasonable detail the additional amount or amounts to be paid
\n hereunder which shall be presumed correct in the absence of manifest
\n error. In determining such amount, such Lender may use any reasonable
\n averaging and attribution methods.<\/p>\n
3.16 Limitation on Types of Loans. If on or prior to the first day
\nof any Interest Period for any Eurodollar Rate Borrowing:<\/p>\n
(a) Administrative Agent determines (which determination
\n shall be conclusive absent manifest error) that by reason of
\n circumstances affecting the relevant market, adequate and reasonable
\n means do not exist for ascertaining the Eurodollar Rate for such
\n Interest Period; or<\/p>\n
(b) Determining Lenders determine (which determination
\n shall be conclusive absent manifest error) and notify Administrative
\n Agent that the Adjusted Eurodollar Rate will not adequately and fairly
\n reflect the cost to the Lenders of funding Eurodollar Rate Borrowings
\n for such Interest Period;<\/p>\n
then Administrative Agent shall give Borrower prompt notice thereof specifying
\nthe relevant amounts or periods, and so long as such condition remains in
\neffect, the Lenders shall be under no obligation to fund additional Eurodollar
\nRate Borrowings, continue Eurodollar Rate Borrowings, or to convert Base Rate
\nBorrowings into Eurodollar Rate Borrowings, and Borrower shall, on the last
\nday(s) of the then current Interest Period(s) for the outstanding Eurodollar
\nRate Borrowings, either prepay such Borrowings or convert such Borrowings into
\nBase Rate Borrowings in accordance with the terms of this Agreement.<\/p>\n
3.17 Illegality. Notwithstanding any other provision of this
\nAgreement, in the event that it becomes unlawful for any Lender or its
\nApplicable Lending Office to make, maintain, or fund Eurodollar Rate Borrowings
\nhereunder, then such Lender shall promptly notify Borrower thereof and such
\nLender’s obligation to make or continue Eurodollar Rate Borrowings and to
\nconvert other Base Rate Borrowings into Eurodollar Rate Borrowings shall be
\nsuspended until such time as such Lender may again make, maintain, and fund
\nEurodollar Rate Borrowings (in which case the provisions of SECTION 3.18 shall
\nbe applicable); provided that, such Lender will use best efforts (consistent
\nwith legal and regulatory restrictions) to change the jurisdiction of its
\nApplicable Lending Office so as to eliminate any illegality, if such change, in
\nthe reasonable judgment of such Lender, is not otherwise disadvantageous to
\nsuch Lender.<\/p>\n
3.18 Treatment of Affected Loans. If the obligation of any Lender
\nto fund Eurodollar Rate Borrowings<\/p>\n
364-DAY REVOLVING
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32
\n 38
\nor to continue, or to convert Base Rate Borrowings into Eurodollar Rate
\nBorrowings, shall be suspended pursuant to SECTIONS 3.15, 3.16, or 3.17 hereof,
\nsuch Lender’s Eurodollar Rate Borrowings shall be automatically converted into
\nBase Rate Borrowings on the last day(s) of the then current Interest Period(s)
\nfor Eurodollar Rate Borrowings (or, in the case of a conversion required by
\nSECTION 3.17 hereof, on such earlier date as such Lender may specify to
\nBorrower with a copy to Administrative Agent) and, unless and until such Lender
\ngives notice as provided below that the circumstances specified in SECTIONS
\n3.15, 3.16, or 3.17 hereof that gave rise to such conversion no longer exist:<\/p>\n
(a) to the extent that such Lender’s Eurodollar Rate
\n Borrowings have been so converted, all payments and prepayments of
\n principal that would otherwise be applied to such Lender’s Eurodollar
\n Rate Borrowings shall be applied instead to its Base Rate Borrowings;
\n and<\/p>\n
(b) all Borrowings that would otherwise be made or
\n continued by such Lender as Eurodollar Rate Borrowings shall be made
\n or continued instead as Base Rate Borrowings, and all Borrowings of
\n such Lender that would otherwise be converted into Eurodollar Rate
\n Borrowings shall be converted instead into (or shall remain as) Base
\n Rate Borrowings.<\/p>\n
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
\nthat the circumstances specified in SECTIONS 3.15, 3.16, or 3.17 hereof that
\ngave rise to the conversion of such Lender’s Eurodollar Rate Borrowings
\npursuant to this SECTION 3.18 no longer exist (which such Lender agrees to do
\npromptly upon such circumstances ceasing to exist) at a time when Eurodollar
\nRate Borrowings made by other Lenders are outstanding, such Lender’s Base Rate
\nBorrowings shall be automatically converted, on the first day(s) of the next
\nsucceeding Interest Period(s) for such outstanding Eurodollar Rate Borrowings,
\nto the extent necessary so that, after giving effect thereto, all Eurodollar
\nRate Borrowings held by the Lenders and by such Lender are held Pro Rata (as to
\nprincipal amounts, Types, and Interest Periods) in accordance with their
\nrespective Commitments.<\/p>\n
3.19 Compensation; Replacement of Lenders.<\/p>\n
(a) Upon the request of any Lender, Borrower shall pay to
\n such Lender such amount or amounts as shall be sufficient (in the
\n reasonable opinion of such Lender) to compensate it for any
\n Consequential Loss; provided that, in each case, the Person claiming
\n such Consequential Loss has furnished Borrower with a reasonably
\n detailed statement of such loss, which statement shall be conclusive
\n in the absence of manifest error.<\/p>\n
(b) If any Lender requests compensation under SECTION
\n 3.15 or if Borrower is required to pay additional amounts to or for
\n the account of any Lender pursuant to SECTION 3.20 (collectively,
\n “ADDITIONAL AMOUNTS”), then Borrower may, at its sole expense and
\n effort, upon written notice to such Lender and Administrative Agent,
\n require such Lender to assign and delegate, without recourse, all its
\n interests, Rights, and obligations under this Agreement and the other
\n Loan Papers (other than any outstanding Competitive Borrowings held by
\n such Lender) to an Eligible Assignee that shall assume such
\n obligations; provided that, (i) Borrower shall have received the prior
\n written consent of Administrative Agent to any such assignment; (ii)
\n such Lender shall have received payment from Borrower of any
\n Additional Amounts owed to such Lender by Borrower for periods prior
\n to the replacement of such Lender and any actual costs incurred as a
\n result of such replacement of a Lender; (iii) such assignment will
\n result in reduction or elimination of the Additional Amounts; and (iv)
\n such assignment and acceptance shall be made in accordance with, and
\n subject to the requirements and restrictions contained in, SECTION
\n 11.13(b). A Lender shall not be required to make any such assignment
\n and delegation if, prior thereto, as a result of a waiver by such
\n Lender or otherwise, the circumstances entitling such Borrowing to
\n require such<\/p>\n
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33
\n 39
\n assignment and delegation cease to apply.<\/p>\n
3.20 Taxes.<\/p>\n
(a) Any and all payments by Borrower to or for the
\n account of any Lender or Administrative Agent hereunder or under any
\n other Loan Paper shall be made free and clear of and without deduction
\n for any and all present or future Taxes, excluding, in the case of
\n each Lender and Administrative Agent, Taxes imposed on its income and
\n franchise Taxes imposed on it by any jurisdiction and other
\n liabilities, interest, and penalties incurred as a result of the gross
\n negligence or wilful misconduct of such Lender or Administrative Agent
\n (all such Non-Excluded Taxes referred to as “NON-EXCLUDED TAXES”). If
\n Borrower shall be required by law to deduct any Non-Excluded Taxes
\n from or in respect of any sum payable under this Agreement or any
\n other Loan Paper to any Lender or Administrative Agent, (i) the sum
\n payable shall be increased as necessary so that after making all
\n required deductions (including deductions applicable to additional
\n sums payable under this SECTION 3.20) such Lender or Administrative
\n Agent receives an amount equal to the sum it would have received had
\n no such deductions been made, (ii) Borrower shall make such
\n deductions, (iii) Borrower shall pay the full amount deducted to the
\n relevant taxation authority or other authority in accordance with
\n applicable law, and (iv) Borrower shall furnish to Administrative
\n Agent, at its address listed in SCHEDULE 2.1, the original or a
\n certified copy of a receipt evidencing payment thereof.<\/p>\n
(b) In addition, Borrower agrees to pay any and all
\n present or future stamp or documentary taxes and any other excise or
\n property Taxes which arise from any payment made under this Agreement
\n or any other Loan Paper or from the execution or delivery of, or
\n otherwise with respect to, this Agreement or any other Loan Paper
\n (hereinafter referred to as “OTHER TAXES”).<\/p>\n
(c) BORROWER AGREES TO INDEMNIFY EACH LENDER AND
\n ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON- EXCLUDED TAXES THAT
\n SHOULD HAVE BEEN WITHHELD BY BORROWER AND OTHER TAXES (INCLUDING,
\n WITHOUT LIMITATION, ANY NON-EXCLUDED TAXES THAT SHOULD HAVE BEEN
\n WITHHELD BY BORROWER OR OTHER TAXES IMPOSED OR ASSERTED BY ANY
\n JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 3.20) PAID BY SUCH
\n LENDER OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) AND ANY LIABILITY
\n (INCLUDING PENALTIES, INTEREST, AND EXPENSES OTHER THAN THOSE INCURRED
\n AS A RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH
\n LENDER OR ADMINISTRATIVE AGENT) ARISING THEREFROM OR WITH RESPECT
\n THERETO.<\/p>\n
(d) Each Lender organized under the Laws of a
\n jurisdiction outside the United States, on or prior to the date of its
\n execution and delivery of this Agreement in the case of each Lender
\n listed on the signature pages hereof and on or prior to the date on
\n which it becomes a Lender in the case of each other Lender, and from
\n time to time thereafter, including, without limitation, upon the
\n expiration or obsolescence of any previously delivered form or upon
\n the written request of Borrower or Administrative Agent (but only so
\n long as such Lender remains lawfully able to do so) shall provide
\n Borrower and Administrative Agent with (i) Internal Revenue Service
\n Form 1001 or 4224, as appropriate, or any successor form prescribed by
\n the Internal Revenue Service, certifying that such Lender is entitled
\n to benefits under an income tax treaty to which the United States is a
\n party which reduces the rate of withholding tax on payments of
\n interest or certifying that the income receivable pursuant to this
\n Agreement is effectively connected with the conduct of a trade or
\n business in the United States, (ii) Internal Revenue Service Form W-8
\n or W-9, as appropriate, or any successor form prescribed by the
\n Internal Revenue Service, and (iii) any other form or certificate
\n required by any taxing authority (including any certificate required
\n by Sections 871(h) and 881(c) of the Internal Revenue Code),
\n certifying that such Lender is entitled to an exemption from or a
\n reduced rate of tax on payments pursuant to this Agreement or any of
\n the other Loan Papers.<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
34
\n 40
\n (e) For any period with respect to which a Lender has
\n failed to provide Borrower and Administrative Agent with the
\n appropriate form pursuant to SECTION 3.20(d) (unless such failure is
\n due to a change in Law, occurring subsequent to the date on which a
\n form originally was required to be provided), such Lender shall not be
\n entitled to indemnification under this SECTION 3.20 with respect to
\n Taxes imposed by the United States; provided, however, that should a
\n Lender, which is otherwise exempt from or subject to a reduced rate of
\n withholding tax, become subject to Taxes because of its failure to
\n deliver a form required hereunder, Borrower shall take such steps as
\n such Lender shall reasonably request to assist such Lender to recover
\n such Taxes.<\/p>\n
(f) If Borrower is required to pay additional amounts to
\n or for the account of any Lender pursuant to this SECTION 3.20, then
\n such Lender will use best efforts (consistent with legal and
\n regulatory restrictions) to change the jurisdiction of its Applicable
\n Lending Office so as to eliminate or reduce any such additional
\n payment which may thereafter accrue if such change, in the judgment of
\n such Lender, is not otherwise disadvantageous to such Lender.<\/p>\n
(g) Within thirty (30) days after the date of any payment
\n of Non-Excluded Taxes or Other Taxes, Borrower shall furnish to
\n Administrative Agent the original or a certified copy of a receipt
\n evidencing such payment.<\/p>\n
(h) Without prejudice to the survival of any other
\n agreement of Borrower hereunder, the agreements and obligations of
\n Borrower contained in this SECTION 3.20 shall survive the termination
\n of the Commitment and the payment in full of the Obligation.<\/p>\n
SECTION 4 FEES.<\/p>\n
4.1 Treatment of Fees. Except as otherwise provided by Law, the
\nfees described in this SECTION 4: (a) do not constitute compensation for the
\nuse, detention, or forbearance of money, (b) are in addition to, and not in
\nlieu of, interest and expenses otherwise described in this Agreement, (c) shall
\nbe payable in accordance with SECTION 3.1, (d) shall be non-refundable, (e)
\nshall, to the fullest extent permitted by Law, bear interest, if not paid when
\ndue, at the Default Rate, and (f) shall be calculated on the basis of actual
\nnumber of days (including the first day, but excluding the last day) elapsed,
\nbut computed as if each calendar year consisted of 360 days, unless such
\ncomputation would result in interest being computed in excess of the Maximum
\nRate in which event such computation shall be made on the basis of a year of
\n365 or 366 days, as the case may be.<\/p>\n
4.2 Fees of Administrative Agent and Arranger. Borrower shall pay
\nto Administrative Agent or Arranger, as the case may be, solely for their
\nrespective accounts, the fees described in that certain separate letter
\nagreement dated as of June 30, 1998 (as thereafter amended or modified from
\ntime to time), among Borrower, Administrative Agent, and Arranger, which
\npayments shall be made on the dates specified, and in amounts calculated in
\naccordance with, such letter agreement.<\/p>\n
4.3 Commitment Fees. Following the Closing Date, Borrower shall
\npay to Administrative Agent, for the ratable account of Lenders, a commitment
\nfee, payable in installments in arrears, on each March 31, June 30, September
\n30, and December 31 and on the Termination Date or the Term Conversion Date, in
\neach case, commencing September 30, 1998. Each installment shall be in an
\namount equal to the Applicable Margin designated in SECTION 1.1 for commitment
\nfees multiplied by the amount by which (i) the average daily Commitment exceeds
\n(ii) the average daily Principal Debt, in each case during the period from and
\nincluding the last payment date to and excluding the payment date for such
\ninstallment; provided that each such installment shall be calculated in
\naccordance with SECTION 4.1(f). Solely for the purposes of this SECTION 4.3,
\n(i) determinations of the average<\/p>\n
364-DAY REVOLVING
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35
\n 41
\ndaily Principal Debt shall exclude the Principal Debt of all Competitive
\nBorrowings and Swing Line Borrowings; and (ii) “ratable” shall mean, for any
\nperiod of calculation, with respect to any Lender, that proportion which (x)
\nthe average daily unused Committed Sum of such Lender during such period bears
\nto (y) the amount of the average daily unused Commitment during such period.<\/p>\n
SECTION 5 CONDITIONS PRECEDENT.<\/p>\n
5.1 Conditions Precedent to Closing. This Agreement shall not
\nbecome effective unless and until (a) Administrative Agent has received all of
\nthe agreements, documents, instruments, and other items described on SCHEDULE
\n5.1, and (b) there has been no change in the consolidated financial condition
\nof the Consolidated Companies from that shown in the respective Current
\nFinancials of such companies which could be a Material Adverse Event.<\/p>\n
5.2 Conditions Precedent to Each Borrowing. In addition to the
\nconditions stated in SECTION 5.1 (except SECTION 5.1(b)), Lenders will not be
\nobligated to fund (as opposed to continue or convert) any Borrowing (including
\nany Competitive Borrowing or Swing line Borrowing), as the case may be, unless
\non the date of such Borrowing or issuance (and after giving effect thereto), as
\nthe case may be:<\/p>\n
(a) Administrative Agent shall have timely received
\n therefor a Notice of Borrowing or Notice of Competitive Borrowing as
\n the case may be;<\/p>\n
(b) Administrative Agent shall have received, as
\n applicable, the fees provided for in SECTION 4.3 hereof or any fees
\n then payable as provided for in SECTION 4.2, if applicable;<\/p>\n
(c) all of the representations and warranties of any
\n Consolidated Company set forth in the Loan Papers are true and correct
\n in all material respects (except to the extent that (i) the
\n representations and warranties speak to a specific date or (ii) the
\n facts on which such representations and warranties are based have been
\n changed by transactions contemplated or permitted by the Loan Papers);<\/p>\n
(d) no Default or Potential Default shall have occurred
\n and be continuing;<\/p>\n
(e) the funding of such Borrowing is permitted by Law; and<\/p>\n
(f) all matters related to such Borrowing must be
\n satisfactory to Determining Lenders and their respective counsel in
\n their reasonable determination, and upon the reasonable request of
\n Administrative Agent, Borrower shall deliver to Administrative Agent
\n evidence substantiating any of the matters in the Loan Papers which
\n are necessary to enable Borrower to qualify for such Borrowing.<\/p>\n
Each Notice of Borrowing delivered to Administrative Agent shall constitute the
\nrepresentation and warranty by Borrower to Administrative Agent that the
\nstatements in CLAUSES (C) and (D) above are true and correct in all respects.
\nEach condition precedent in this Agreement is material to the transactions
\ncontemplated in this Agreement, and time is of the essence in respect of each
\nthereof. Subject to the prior approval of Determining Lenders, Lenders may
\nfund any Borrowing without all conditions being satisfied, but, to the extent
\npermitted by Law, the same shall not be deemed to be a waiver of the
\nrequirement that each such condition precedent be satisfied as a prerequisite
\nfor any subsequent funding or issuance, unless Determining Lenders specifically
\nwaive each such item in writing.<\/p>\n
364-DAY REVOLVING
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36
\n 42
\nSECTION 6 REPRESENTATIONS AND WARRANTIES. Borrower represents and
\nwarrants to Administrative Agent and Lenders as follows:<\/p>\n
6.1 Purpose of Credit Facility. Borrower will use all proceeds of
\nBorrowings for general corporate purposes of the Restricted Companies,
\nincluding, without limitation, liquidity support for commercial paper. No
\nRestricted Company is engaged principally, or as one of its important
\nactivities, in the business of extending credit for the purpose of purchasing
\nor carrying any “margin stock” within the meaning of Regulation U. No part of
\nthe proceeds of any Borrowing will be used, directly or indirectly, for a
\npurpose which violates any Law, including, without limitation, the provisions
\nof Regulations T, U, or X (as enacted by the Board of Governors of the Federal
\nReserve System, as amended). “Margin Stock” (as defined in Regulation U)
\nconstitutes less than 25% of those assets of the Restricted Companies which are
\nsubject to any limitation on sale, pledge, or other similar restrictions
\nhereunder.<\/p>\n
6.2 Existence, Good Standing, Authority, and Authorizations. Each
\nRestricted Company is duly organized, validly existing, and in good standing
\nunder the Laws of its jurisdiction of organization. Except where failure could
\nnot be a Material Adverse Event, each Restricted Company (a) is duly qualified
\nto transact business and is in good standing in each jurisdiction where the
\nnature and extent of its business and properties require the same, and (b)
\npossesses all requisite authority, power, licenses, approvals, permits,
\nAuthorizations, and franchises to use its assets and conduct its business as is
\nnow being, or is contemplated herein to be, conducted, except where failure
\ncould not be a Material Adverse Event. No Authorization is required to
\nauthorize, or is required in connection with, the execution, delivery,
\nlegality, validity, binding effect, performance, or enforceability of the Loan
\nPapers (including any change of control occurring as a result thereof)
\nconsummated on or prior to the date this representation or warranty (or
\nreconfirmation thereof) is made under the Loan Papers, except those
\nAuthorizations the failure of which to be obtained or made could not be a
\nMaterial Adverse Event. The Restricted Companies have obtained all
\nAuthorizations of the FCC and any applicable PUC necessary to conduct their
\nbusinesses, and all such Authorizations are in full force and effect, without
\nconditions, except such conditions as are generally applicable to holders of
\nsuch Authorizations. There are no violations of any such Authorizations which
\ncould, individually or collectively, be a Material Adverse Event, nor are there
\nany proceedings pending or, to the knowledge of Borrower, threatened against
\nthe Restricted Companies to revoke or limit any such Authorization which could,
\nindividually or collectively, be a Material Adverse Event, and Borrower has no
\nknowledge that any such Authorizations will not be renewed in the ordinary
\ncourse, except for any nonrenewals that could not be a Material Adverse Event.<\/p>\n
6.3 Authorization and Contravention. The execution, delivery, and
\nperformance by Borrower of each Loan Paper and its obligations thereunder (a)
\nare within the corporate power of Borrower, (b) will have been duly authorized
\nby all necessary corporate action on the part of Borrower when such Loan Paper
\nis executed and delivered, (c) require no action by or in respect of, consent
\nof, or filing with, any Governmental Authority, which action, consent, or
\nfiling has not been taken or made on or prior to the Closing Date, (d) will not
\nviolate any provision of the charter or bylaws of Borrower, (e) will not
\nviolate any provision of Law applicable to it, other than such violations which
\nindividually or collectively could not be a Material Adverse Event, (f) will
\nnot violate any material written or oral agreements, contracts, commitments, or
\nunderstandings to which it is a party, other than such violations which could
\nnot be a Material Adverse Event, or (g) will not result in the creation or
\nimposition of any Lien on any asset of any Consolidated Company that is
\nmaterial in relation to the Consolidated Companies taken as a whole. On and as
\nof the MCI Merger Date, no action by, or in respect of, consent of, or filing
\nwith, any Governmental Authority or other Person is required in connection with
\nthe MCI Merger which has not been obtained or performed on or prior to the MCI
\nMerger Date or the failure of which to be obtained or performed would not be a
\nMaterial Adverse Event.<\/p>\n
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37
\n 43
\n 6.4 Binding Effect. Upon execution and delivery by all parties
\nthereto, each Loan Paper will constitute a legal, valid, and binding obligation
\nof Borrower, enforceable against Borrower in accordance with its terms, except
\nas enforceability may be limited by applicable Debtor Relief Laws and general
\nprinciples of equity.<\/p>\n
6.5 Financial Statements. The Current Financials were prepared in
\naccordance with GAAP and present fairly, in all material respects, the
\nconsolidated financial condition, results of operations, and cash flows of the
\nConsolidated Companies as of and for the portion of the fiscal year ending on
\nthe date or dates thereof (subject only to normal year-end audit adjustments).
\nThere were no material liabilities, direct or indirect, fixed or contingent, of
\nthe Consolidated Companies as of the date or dates of the Current Financials
\nwhich are required under GAAP to be reflected therein or in the notes thereto,
\nand are not so reflected.<\/p>\n
6.6 Litigation, Claims, Investigations. No Restricted Company is
\nsubject to, or aware of the threat of, any Litigation which is reasonably
\nlikely to be determined adversely to any Restricted Company, and, if so
\nadversely determined, could (individually or collectively with other
\nLitigation) be a Material Adverse Event. There are no judgments, decrees, or
\norders of any Governmental Authority outstanding against any Restricted Company
\nthat could be a Material Adverse Event.<\/p>\n
6.7 Taxes. All Tax returns of each Consolidated Company required
\nto be filed have been filed (or extensions have been granted) prior to
\ndelinquency, except for any such returns for which the failure to so file could
\nnot be a Material Adverse Event, and all Taxes imposed upon each Consolidated
\nCompany which are due and payable have been paid prior to delinquency, other
\nthan Taxes for which the criteria for Liens permitted under SECTION 7.13(F)
\nhave been satisfied or for which nonpayment thereof could not constitute a
\nMaterial Adverse Event.<\/p>\n
6.8 Environmental Matters. No Consolidated Company (a) knows of
\nany environmental condition or circumstance, such as the presence or Release of
\nany Hazardous Substance, on any property presently or previously owned by any
\nConsolidated Company that could be a Material Adverse Event, (b) knows of any
\nviolation by any Consolidated Company of any Environmental Law, except for such
\nviolations that could not be a Material Adverse Event, or (c) knows that any
\nConsolidated Company is under any obligation to remedy any violation of any
\nEnvironmental Law, except for such obligations that could not be a Material
\nAdverse Event; provided, however, that each Consolidated Company (x) to the
\nbest of its knowledge, has in full force and effect all environmental permits,
\nlicenses, and approvals required to conduct its operations and is operating in
\nsubstantial compliance thereunder, and (y) has taken prudent steps to determine
\nthat its properties and operations are not in violation of any Environmental
\nLaw.<\/p>\n
6.9 ERISA Compliance. (a) No Employee Plan has incurred an
\naccumulated funding deficiency, as defined in section 302 of ERISA and section
\n412 of the Code, (b) neither Borrower nor any ERISA Affiliate has incurred
\nmaterial liability which is currently due and remains unpaid under Title IV of
\nERISA to the PBGC or to an Employee Plan in connection with any such Employee
\nPlan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in whole or in
\npart from participation in a Multiemployer Plan, (d) Borrower has not engaged
\nin any “prohibited transaction” (as defined in section 406 of ERISA or section
\n4975 of the Code) which would be a Material Adverse Event, and (e) no
\nReportable Event has occurred which is likely to result in the termination of
\nan Employee Plan. The present value of all benefit liabilities within the
\nmeaning of Title IV of ERISA under each Employee Plan (based on those actuarial
\nassumptions used to fund such Employee Plan) did not, as of the last annual
\nvaluation date for the 1997 plan year of such Plan, exceed the value of the
\nassets of such Employee Plan, and the total present values of all benefit
\nliabilities within the meaning of Title IV of ERISA of all Employee Plans
\n(based on the actuarial assumptions used to fund each such Plan) did not, as of
\nthe respective annual valuation dates for the 1997 plan year of each such Plan,
\nexceed the value of the assets of all such plans.<\/p>\n
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38
\n 44
\n 6.10 Properties; Liens. Each Restricted Company has good and
\nmarketable title to (or, in the case of Rights of Way, the right to use) all
\nits property reflected on the Current Financials, except for (a) property that
\nis obsolete, (b) property that has been disposed of in the ordinary course of
\nbusiness, (c) property with title defects or failures in title which would not
\nbe a Material Adverse Event, or (d) as otherwise permitted by the Loan Papers.
\nExcept for Liens permitted in SECTION 7.13, there is no Lien on any property of
\nany Restricted Company, and the execution, delivery, performance, or observance
\nof the Loan Papers will not require or result in the creation of any Lien on
\nsuch property.<\/p>\n
6.11 Government Regulations. No Restricted Company is subject to
\nregulation under the Investment Company Act of 1940, as amended, the Public
\nUtility Holding Company Act of 1935, as amended, or any other Law (other than
\nRegulations T, U, and X of the Board of Governors of the Federal Reserve System
\nand the requirements of any PUC or public service commission) which regulates
\nthe incurrence of Debt.<\/p>\n
6.12 No Default. No event has occurred and is continuing or would
\nresult from the incurring of obligations by Borrower under this Agreement or
\nany other Loan Paper which constitutes a Default or a Potential Default. No
\nRestricted Subsidiary is in default under or with respect to any material
\nwritten or oral agreements, contracts, commitments, or understandings to which
\nany Restricted Company is party which could, individually or together with all
\nsuch defaults, be a Material Adverse Event.<\/p>\n
6.13 Senior Indebtedness. All of the Obligation constitutes
\n“senior indebtedness” or “senior debt” (or ranks at least pari passu with other
\nsenior and unsubordinated indebtedness) under the terms of the Indentures to
\nwhich Borrower is a party or any other unsecured senior Debt or secured or
\nunsecured subordinated Debt of Borrower.<\/p>\n
6.14 Year 2000 Compliance. Borrower has (i) initiated a review and
\nassessment of all areas within its and each of its Subsidiaries’ business and
\noperations that could be adversely affected by the “Year 2000 Problem” (that
\nis, the risk that computer applications used by the Borrower or any of its
\nSubsidiaries may be unable to recognize and perform properly date-sensitive
\nfunctions involving certain dates prior to and any date after December 31,
\n1999), (ii) developed a plan and time line for addressing the Year 2000 Problem
\non a timely basis, and (iii) to date, implemented in all material respects that
\nplan in accordance with that timetable.<\/p>\n
SECTION 7 COVENANTS. Borrower covenants and agrees (and agrees to cause
\neach other Restricted Company and Consolidated Company to the extent any
\ncovenant is applicable to such Restricted Company or Consolidated Company) to
\nperform, observe, and comply with each of the following covenants, from the
\nClosing Date and so long thereafter as Lenders are committed to fund Borrowings
\nunder this Agreement and thereafter until the payment in full of the Principal
\nDebt and payment in full of all other interest, fees, and other amounts of the
\nObligation then due and owing, unless Borrower receives a prior written consent
\nto the contrary by Administrative Agent as authorized by Determining Lenders:<\/p>\n
7.1 Use of Proceeds. Borrower shall use the proceeds of
\nBorrowings only for the purposes represented herein.<\/p>\n
7.2 Books and Records. The Consolidated Companies shall maintain
\nbooks, records, and accounts necessary to prepare financial statements in
\naccordance with GAAP (with such exceptions as may be noted in the Current
\nFinancials provided to Administrative Agent).<\/p>\n
7.3 Items to be Furnished. Borrower shall cause the following to
\nbe furnished to Administrative<\/p>\n
364-DAY REVOLVING
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39
\n 45
\nAgent for delivery to Lenders:<\/p>\n
(a) Promptly after preparation, and no later than 110
\n days after the last day of each fiscal year of Borrower, Financial
\n Statements showing the consolidated financial condition and results of
\n operations calculated for the Consolidated Companies (or in lieu
\n thereof the Form 10-K of the Consolidated Companies filed with the
\n Securities and Exchange Commission for such fiscal year), accompanied
\n by:<\/p>\n
(i) the unqualified opinion of a firm of
\n nationally-recognized independent certified public
\n accountants, based on an audit using generally accepted
\n auditing standards, that such Financial Statements (calculated
\n with respect to the Consolidated Companies) were prepared in
\n accordance with GAAP and present fairly the consolidated
\n financial condition and results of operations of the
\n Consolidated Companies;<\/p>\n
(ii) a certificate from such accounting firm to
\n Administrative Agent indicating that during its audit it
\n obtained no knowledge of any Default or Potential Default or,
\n if it obtained such knowledge, the nature and period of
\n existence thereof; and<\/p>\n
(iii) a Compliance Certificate with respect to such
\n Financial Statements.<\/p>\n
(b) Promptly after preparation, and no later than 65 days
\n after the last day of each fiscal quarter of Borrower (other than the
\n fourth fiscal quarter of each fiscal year), Financial Statements
\n showing the consolidated financial condition and results of operations
\n calculated for the Consolidated Companies (or in lieu thereof the Form
\n 10-Q of the Consolidated Companies filed with the Securities and
\n Exchange Commission for such fiscal quarter), accompanied by a
\n Compliance Certificate with respect to such Financial Statements.<\/p>\n
(c) Notice, promptly after Borrower knows or has reason
\n to know of (i) the existence and status of any Litigation which could
\n be a Material Adverse Event, or of any order or judgment for the
\n payment of money which (individually or collectively) is in excess of
\n $100,000,000, or any warrant of attachment, sequestration or similar
\n proceeding against a Consolidated Company’s assets having a value
\n (individually or collectively) of $100,000,000; (ii) any other
\n Litigation affecting the Restricted Companies which Borrower would be
\n required to report to the Securities and Exchange Commission pursuant
\n to the Securities and Exchange Act of 1934, as amended, within four
\n Business Days after reporting the same to the Securities and Exchange
\n Commission; (iii) a Default or Potential Default, specifying the
\n nature thereof and what action Borrower or any other Consolidated
\n Company has taken, is taking, or proposes to take with respect
\n thereto; (iv) the receipt by any Consolidated Company of any notice
\n from any Governmental Authority of the expiration without renewal,
\n termination, material modification or suspension of, or institution of
\n any proceedings to terminate, materially modify, or suspend, any
\n Authorization granted by the FCC or any applicable PUC, or any other
\n Authorization which any Consolidated Company is required to hold in
\n order to operate its business in compliance with all applicable Laws,
\n other than such expirations, terminations, suspensions, or
\n modifications which individually or in the aggregate would not
\n constitute a Material Adverse Event; (v) a default or event of default
\n under any material agreement of any Restricted Company which could be
\n a Material Adverse Event; (vi) the receipt by any Consolidated Company
\n of notice of any violation or alleged violation of any Environmental
\n Law, which violation or alleged violation could individually or
\n collectively with other such violations or allegations, constitute a
\n Material Adverse Event; or (vii) (A) the occurrence of a Reportable
\n Event that, alone or together with any other Reportable Event, could
\n reasonably be expected to result in liability of<\/p>\n
364-DAY REVOLVING
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40
\n 46
\n Borrower to the PBGC in an aggregate amount exceeding $100,000,000;
\n (B) any expressed statement in writing on the part of the PBGC of its
\n intention to terminate any Employee Plan or Plans; (C) Borrower’s or
\n an ERISA Affiliate’s becoming obligated to file with the PBGC a notice
\n of failure to make a required installment or other payment with
\n respect to an Employee Plan; or (D) the receipt by Borrower or an
\n ERISA Affiliate from the sponsor of a Multiemployer Plan of either a
\n notice concerning the imposition of withdrawal liability in an
\n aggregate amount exceeding $100,000,000 or of the impending
\n termination or reorganization of such Multiemployer Plan.<\/p>\n
(d) Promptly after the filing thereof, a true, correct,
\n and complete copy of each material report and registration statement
\n filed with the Securities and Exchange Commission, including, without
\n limitation, each Form 10-K, Form 10-Q, and Form 8-K filed by or on
\n behalf of Borrower or any Consolidated Company with the Securities and
\n Exchange Commission.<\/p>\n
(e) Promptly upon request therefor by Administrative
\n Agent or Lenders holding, in the aggregate, at least 25% of the sum of
\n the Commitment or the Facility B Principal Debt (through
\n Administrative Agent), such information (not otherwise required to be
\n furnished under the Loan Papers) respecting the business affairs,
\n assets, and liabilities of the Consolidated Companies, and such
\n opinions, certifications and documents, in addition to those mentioned
\n in this Agreement, as reasonably requested.<\/p>\n
(f) No later than 60 days after the Closing Date,
\n Borrower shall provide Administrative Agent with (i) written
\n confirmation that the MCI Merger has been effected, (ii) a copy of the
\n Certificate of Merger filed with the Delaware Secretary of State in
\n connection with the MCI Merger, and (iii) an opinion from internal
\n counsel to Borrower confirming that all material and necessary
\n consents and approvals with respect to the MCI Merger have been
\n obtained (which opinion must be in a form and upon terms reasonably
\n satisfactory to Administrative Agent).<\/p>\n
7.4 Inspections. On and after the occurrence of any Potential
\nDefault or Default, the Consolidated Companies shall allow Administrative Agent
\nor any Lender (or their respective Representatives) to inspect any of their
\nproperties, to review reports, files, and other records and to make and take
\naway copies thereof, to conduct tests or investigations, and to discuss any of
\ntheir affairs, conditions, and finances with the Consolidated Companies’ other
\ncreditors, directors, officers, employees, other representatives, and
\nindependent accountants, from time to time, during reasonable business hours,
\nas often as may be desired, and all at the expense of Borrower.<\/p>\n
7.5 Taxes. Each Consolidated Company (a) shall promptly pay when
\ndue any and all Taxes other than Taxes the applicability, amount, or validity
\nof which is being contested in good faith by lawful proceedings diligently
\nconducted, and against which reserve or other provision required by GAAP has
\nbeen made, and in respect of which levy and execution of any lien securing same
\nhave been and continue to be stayed, and (b) shall not, directly or indirectly,
\nuse any portion of the proceeds of any Borrowing to pay the wages of employees
\nunless a timely payment to or deposit with the appropriate Governmental
\nAuthorities of all amounts of Tax required to be deducted and withheld with
\nrespect to such wages is also made.<\/p>\n
7.6 Payment of Obligations. Borrower shall pay the Obligation in
\naccordance with the terms and provisions of the Loan Papers. Each Restricted
\nCompany shall promptly pay (or renew and extend) all of its material
\nobligations as the same become due (unless such obligations [other than the
\nObligation arising under the Loan Papers] are being contested in good faith by
\nappropriate proceedings).<\/p>\n
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41
\n 47
\n 7.7 Maintenance of Existence, Assets, and Business. Except as
\notherwise permitted by SECTION 7.20, each Restricted Company shall at all
\ntimes: (a) maintain its existence and good standing in the jurisdiction of its
\norganization and its authority to transact business in all other jurisdictions
\nwhere the failure to so maintain its authority to transact business could be a
\nMaterial Adverse Event; (b) maintain all licenses, permits, and franchises
\nnecessary for its business where the failure to so maintain could be a Material
\nAdverse Event; (c) keep all of its assets which are useful in and necessary to
\nits business in good working order and condition (ordinary wear and tear
\nexcepted) and make all necessary repairs thereto and replacements thereof,
\nexcept where the failure to do so would not be a Material Adverse Event; and
\n(d) do all things necessary to obtain, renew, extend, and continue in effect
\nall Authorizations issued by the FCC or any applicable PUC which may at any
\ntime and from time to time be necessary for the Consolidated Companies to
\noperate their businesses in compliance with applicable Law, where the failure
\nto so renew, extend, or continue in effect could be a Material Adverse Event.<\/p>\n
7.8 Insurance. Each Consolidated Company shall, at its cost and
\nexpense, maintain insurance with financially sound and reputable insurers, in
\nsuch amounts, and covering such risks, as shall be ordinary and customary for
\nsimilar companies in the industry, except where the failure to so maintain
\nwould not be a Material Adverse Event.<\/p>\n
7.9 Preservation and Protection of Rights. Each Consolidated
\nCompany shall perform such acts and duly authorize, execute, acknowledge,
\ndeliver, file, and record any additional agreements, documents, instruments,
\nand certificates as Administrative Agent or Determining Lenders may reasonably
\ndeem necessary or appropriate in order to preserve and protect the Rights of
\nAdministrative Agent and Lenders under any Loan Paper.<\/p>\n
7.10 Employee Benefit Plans. Borrower shall not directly or
\nindirectly, engage in any “prohibited transaction” (as defined in section 406
\nof ERISA or section 4975 of the Code), and Borrower and its ERISA Affiliates
\nshall not, directly or indirectly, (a) incur any “accumulated funding
\ndeficiency” as such term is defined in section 302 of ERISA with respect to any
\nEmployee Plan, (b) permit any Employee Plan to be subject to involuntary
\ntermination proceedings pursuant to Title IV of ERISA, or (c) fully or
\npartially withdraw from any Multiemployer Plan, if such prohibited transaction,
\naccumulated funding deficiency, termination proceeding, or withdrawal would
\nresult in liability on the part of Borrower in excess of $100,000,000.<\/p>\n
7.11 Environmental Laws. Each Consolidated Company shall (a)
\nconduct its business so as to comply with all applicable Environmental Laws and
\nshall promptly take corrective action to remedy any non-compliance with any
\nEnvironmental Law, except where the failure to so comply or correct would not
\nbe a Material Adverse Event; (b) shall promptly investigate and remediate any
\nknown Release or threatened Release of any Hazardous Substance on any property
\nowned by any Consolidated Company or at any facility operated by any
\nConsolidated Company to the extent and degree necessary to comply with Law and
\nto assure that any Release or threatened Release does not result in a
\nsubstantial endangerment to human health or the environment, except where the
\nfailure to do so would not be a Material Adverse Event; and (c) establish and
\nmaintain a management system designed to ensure compliance with applicable
\nEnvironmental Laws and minimize financial and other risks to each Consolidated
\nCompany arising under applicable Environmental Laws or as a result of
\nenvironmentally-related injuries to Persons or property.<\/p>\n
7.12 Debt. No Restricted Company shall, directly or indirectly,
\ncreate, incur, or suffer to exist any direct, indirect, fixed, or contingent
\nliability for any Debt, other than:<\/p>\n
(a) The Obligation;<\/p>\n
(b) Existing Debt;<\/p>\n
364-DAY REVOLVING
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42
\n 48
\n (c) Debt arising under Facilities A and B;<\/p>\n
(d) Debt incurred by any Restricted Company under any
\n Financial Hedge with any Lender or an Affiliate of any Lender;<\/p>\n
(e) Debt between Restricted Companies, so long as any
\n such inter-company Debt owed by Borrower to any other Restricted
\n Company is unsecured; or Debt of any Restricted Company to the
\n Receivables Subsidiary; and<\/p>\n
(f) Debt of any Restricted Company not otherwise
\n permitted by this SECTION 7.12, so long as (i) no Default or Potential
\n Default exists on the date any such Debt is created, incurred, or
\n assumed or arises after giving effect to such Debt incurrence; and
\n (ii) if such Debt is secured, on the date any such secured Debt is
\n created, incurred, or assumed, the principal amount of such secured
\n Debt when aggregated with the principal amount of all other secured
\n Debt of the Restricted Companies incurred in accordance with this
\n SECTION 7.12(f) does not exceed 10% of the book value of the
\n consolidated assets of the Restricted Companies determined as of the
\n date of, and with respect to, the Current Financials and the related
\n Compliance Certificate.<\/p>\n
Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate
\nprincipal amount of all Debt of the Restricted Subsidiaries may not exceed, on
\nany date of determination, the sum of (i) 10% of the book value of the
\nconsolidated assets of the Restricted Companies, determined as of the date of
\nthe most-recently delivered consolidated Financial Statements of Borrower and
\nthe related Compliance Certificate, plus (ii) the principal amount of all
\nExisting Debt of MCI and its Subsidiaries on and after the MCI Merger Date.<\/p>\n
7.13 Liens. No Restricted Company will, directly or indirectly,
\ncreate, incur, or suffer or permit to be created or incurred or to exist any
\nLien upon any of its assets, except:<\/p>\n
(a) Liens securing Debt permitted to be incurred or
\n outstanding under SECTION 7.12(b) and SECTION 7.12(f), so long as (i)
\n with respect to Liens securing Existing Debt, such Liens are limited
\n to the assets securing such Existing Debt on the Closing Date (in the
\n case of Existing Debt described in PART A of SCHEDULE 7.12) or on the
\n MCI Merger Date (in the case of Existing Debt described in PART B of
\n SCHEDULE 7.12), (ii) no Default or Potential Default exists on the
\n date any such Lien is granted or created, (iii) the aggregate amount
\n of all Debt secured by such Liens does not exceed the aggregate amount
\n of secured Debt permitted by SECTIONS 7.12(b) and 7.12(f)(ii); and
\n (iv) the aggregate amount of Debt of Restricted Subsidiaries secured
\n by such Liens does not exceed the amount of Restricted Subsidiary Debt
\n permitted under SECTION 7.12;<\/p>\n
(b) Pledges or deposits made to secure payment of
\n worker’s compensation, or to participate in any fund in connection
\n with worker’s compensation, unemployment insurance, pensions, or other
\n social security programs, and reasonable and customary reserves
\n established in connection with the sale of Receivables permitted under
\n SECTION 7.19(d);<\/p>\n
(c) Good-faith pledges or deposits made to secure
\n performance of bids, tenders, insurance, or other contracts (other
\n than for the repayment of borrowed money), or leases, or to secure
\n statutory obligations, surety or appeal bonds, or indemnity,
\n performance, or other similar bonds as all such Liens arise in the
\n ordinary course of business of the Restricted Companies;<\/p>\n
(d) Encumbrances consisting of zoning restrictions,
\n easements, or other restrictions on<\/p>\n
364-DAY REVOLVING
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43
\n 49
\n the use of real property, none of which impair in any material respect
\n the use of such property by the Person in question in the operation of
\n its business, and none of which is violated by existing or proposed
\n structures or land use;<\/p>\n
(e) If no Lien has been agreed to or filed in any
\n jurisdiction, (i) claims and Liens for Taxes not yet due and payable,
\n (ii) mechanic’s Liens and materialmen’s Liens for services or
\n materials and similar Liens incident to construction and maintenance
\n of real property, in each case for which payment is not yet due and
\n payable, (iii) landlord Liens for rental not yet due and payable, and
\n (iv) Liens of warehousemen and carriers and similar Liens securing
\n obligations that are not yet due and payable;<\/p>\n
(f) The following, so long as the validity or amount
\n thereof is being contested in good faith and by appropriate and lawful
\n proceedings diligently conducted, reserve or other appropriate
\n provision (if any) required by GAAP shall have been made, levy and
\n execution thereon have been stayed and continue to be stayed, and they
\n do not in the aggregate materially detract from the value of the
\n property of the Person in question, or materially impair the use
\n thereof in the operation of its business: (i) claims and Liens for
\n Taxes (other than Liens relating to Environmental Laws or ERISA); (ii)
\n claims and Liens upon, and defects of title to, real or personal
\n property, including any attachment of personal or real property or
\n other legal process prior to adjudication of a dispute of the merits;
\n (iii) claims and Liens of mechanics, materialmen, warehousemen,
\n carriers, landlords, or other like Liens; and (iv) adverse judgments
\n on appeal;<\/p>\n
(g) Liens on the Receivables Program Assets created
\n pursuant to any Receivables Documents evidencing Accounts Receivable
\n Financing permitted by SECTION 7.19(d); and<\/p>\n
(h) Any attachment or judgment Lien not constituting a
\n Default or Potential Default.<\/p>\n
7.14 Transactions with Affiliates. Except for those transactions
\nlisted on SCHEDULE 7.14, no Restricted Company shall enter into any material
\ntransaction with any of its Affiliates (excluding transactions among or between
\nRestricted Companies), other than (i) transactions in the ordinary course of
\nbusiness and upon fair and reasonable terms not materially less favorable than
\nsuch Restricted Company could obtain or could become entitled to in an
\narm’s-length transaction with a Person that was not its Affiliate and (ii)
\nsales and contributions of Receivables Program Assets from Borrower or certain
\nRestricted Subsidiaries to the Receivables Subsidiary pursuant to an Accounts
\nReceivable Financing permitte by SECTION 7.19(d); provided, that, for the
\npurposes hereof, determinations of materiality shall be made in the good faith
\njudgment of Borrower with respect to the Restricted Companies taken as a whole.<\/p>\n
7.15 Compliance with Laws and Documents. No Restricted Company
\nshall violate the provisions of any Laws applicable to it, including, without
\nlimitation, all rules and regulations promulgated by the FCC or any applicable
\nPUC, or any material written or oral agreement, contract, commitment, or
\nunderstanding to which it is a party, if such violation alone, or when
\naggregated with all other such violations, could be a Material Adverse Event;
\nno Consolidated Company shall violate the provisions of its charter or bylaws,
\nor modify, repeal, replace, or amend any provision of its charter or bylaws, if
\nsuch action could adversely affect the Rights of Lenders.<\/p>\n
7.16 Assignment. Without the express written consent of all
\nLenders, Borrower shall not assign or transfer any of its Rights, duties, or
\nobligations under any of the Loan Papers.<\/p>\n
7.17 Permitted Distributions. Borrower may not, directly or
\nindirectly declare, make, or pay any<\/p>\n
364-DAY REVOLVING
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44
\n 50
\nDistributions if any Default or Potential Default exists or will exist after
\ngiving effect to any such Distribution. Any Distribution permitted hereunder
\nis permitted only to the extent such Distribution is made in accordance with
\napplicable Law and constitutes a valid, non-voidable transaction.<\/p>\n
7.18 Restrictions on Subsidiaries. No Restricted Subsidiary shall,
\ndirectly or indirectly, enter into or permit to exist any material arrangement
\nor agreement (other than the Loan Papers) which directly or indirectly
\nprohibits any such Restricted Subsidiary from (a) declaring, making, or paying,
\ndirectly or indirectly, any Distribution to Borrower or any other Restricted
\nSubsidiary, (b) paying any Debt owed to Borrower or any other Restricted
\nSubsidiary, (c) making loans, advances, or investments to Borrower or any other
\nRestricted Subsidiary, or (d) transferring any of its property or assets to
\nBorrower or any other Restricted Subsidiary.<\/p>\n
7.19 Sale of Assets. No Restricted Company shall, directly or
\nindirectly, sell, assign, transfer, or otherwise dispose of any of its assets
\nexcept: (a) disposition of obsolete or worn-out property or real property no
\nlonger used or useful in its business; (b) the sale, discount, or transfer of
\ndelinquent accounts receivable in the ordinary course of business for purposes
\nof collection; (c) sales of inventory in the ordinary course of business; (d)
\nthe sale, assignment, transfer, or other disposition of undivided percentage
\ninterests in the Receivables Program Assets pursuant to any Accounts
\nReceivables Financing, so long as the aggregate Accounts Receivable Financing
\nAmount payable from the Receivables Program Assets to the purchasers under all
\nsuch Accounts Receivable Financings does not exceed $2,000,000,000 on any date
\nof determination; (e) asset sales between Restricted Companies; and (f) if no
\nDefault or Potential Default then exists or arises as a result thereof,
\nadditional sales or disposition of other assets, if after giving effect to such
\nsales or disposition, the aggregate book value of assets sold on and after the
\nClosing Date does not exceed 20% of the book value of the consolidated assets
\nof the Restricted Companies determined as of the date of, and with respect to,
\nthe Current Financials and the related Compliance Certificate.<\/p>\n
7.20 Mergers and Dissolutions; Sale of Capital Stock. No
\nRestricted Company will, directly or indirectly, merge or consolidate with any
\nother Person, other than (a) mergers or consolidations by Borrower with another
\nPerson; (b) mergers or consolidations by any Restricted Subsidiary with another
\nPerson, if a Restricted Subsidiary is the surviving or resulting entity; (c)
\nmergers or consolidations among Restricted Companies; (d) as previously
\napproved by Determining Lenders; and (e) mergers or consolidations between
\nRestricted Companies and Unrestricted Subsidiaries; provided that, under this
\nSECTION 7.20, unless previously approved by Determining Lenders, (i) in any
\nmerger or consolidation involving Borrower, Borrower or a Permitted Successor
\nCorporation must be the surviving or resulting entity, (ii) in any merger or
\nconsolidation involving a wholly-owned Restricted Subsidiary, a wholly-owned
\nSubsidiary must be the surviving or resulting entity; and, (iii) in any merger
\nor consolidation involving any other Restricted Company (including any
\nacquisition effected as a merger), a Restricted Subsidiary must be the
\nsurviving or resulting entity. No Restricted Company shall liquidate, wind up,
\nor dissolve (or suffer any liquidation or dissolution), other than (x)
\nliquidations, wind ups, or dissolutions incident to mergers or consolidations
\npermitted under this SECTION 7.20, or (y) liquidations, wind ups, or
\ndissolutions of a Restricted Subsidiary if no Default or Potential Default
\nexists or would result therefrom and its proportionate share of assets (if any)
\nare transferred to a Restricted Company.<\/p>\n
7.21 Designation of Unrestricted Companies. So long as no Default
\nor Potential Default exists or arises as a result thereof, Borrower may from
\ntime to time designate a Subsidiary as an Unrestricted Subsidiary or designate
\nan Unrestricted Subsidiary as a Restricted Subsidiary; provided that, Borrower
\nshall (a) provide Administrative Agent written notification of such
\ndesignation, and (b) deliver to Administrative Agent a Compliance Certificate
\ndemonstrating pro-forma compliance with SECTIONS 7.12 and 7.22 immediately
\nprior to and after giving effect to such designation.<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
45
\n 51
\n 7.22 Financial Covenant. As calculated on a consolidated basis for
\nthe Restricted Companies, Borrower shall never permit the ratio of Total Debt
\nto Total Capitalization, on any date of determination, to exceed 0.68 to 1.00.<\/p>\n
7.23 Year 2000 Compliance. Borrower will promptly notify the
\nAdministrative Agent in the event Borrower discovers or determines that any
\ncomputer application that is material to its or any of its Subsidiaries’
\nbusiness and operations will not be Year 2000 compliant on a timely basis,
\nexcept to the extent that such failure is not reasonably expected to be a
\nMaterial Adverse Event.<\/p>\n
7.24 Repayment of Certain Existing Debt. On or before the
\nthirtieth (30th) day following the Closing Date, Borrower shall repay in full
\nand cancel its commitment under the WorldCom\/Brooks Fiber Loan. On the MCI
\nMerger Date, Borrower shall cause all Debt under the MCI Revolving Facility to
\nbe repaid in full and the commitment thereunder cancelled. On the date of the
\nDebt repayment and commitment reduction required in this SECTION 7.24 in
\nconnection with the WorldCom\/Brooks Fiber Loan, Borrower shall provide
\nAdministrative Agent with written confirmation and evidence that all such Debt
\nrepayments and commitment terminations have been effected in accordance with
\nthe requirements of this SECTION 7.24. Within five (5) Business Days after the
\nMCI Merger Date, Borrower shall provide Administrative Agent with written
\nconfirmation that all such Debt repayments and commitment terminations have
\nbeen effected in connection with the MCI Revolving Facility.<\/p>\n
SECTION 8 DEFAULT. The term “DEFAULT” means the occurrence of any one
\nor more of the following events:<\/p>\n
8.1 Payment of Obligation. The failure or refusal of (a) Borrower
\nto pay (i) Principal Debt within three days after the same becomes due in
\naccordance with the Loan Papers; (ii) interest, fees, or any other part of the
\nObligation within five days after the same becomes due and payable in
\naccordance with the Loan Papers; or (iii) the indemnifications and
\nreimbursements provided for in SECTIONS 3.15, 3.19, and 3.20 within ten days
\nafter demand therefor as required by such Sections; or (b) any Restricted
\nCompany to punctually and properly perform, observe, and comply with SECTION
\n9.12 or with any other provision in the Loan Papers setting forth
\nindemnification or reimbursement obligations (other than pursuant to SECTIONS
\n3.15, 3.19, and 3.20) of the Restricted Companies, and such failure or refusal
\ncontinues for 15 days.<\/p>\n
8.2 Covenants. The failure or refusal of Borrower (and, if
\napplicable, any other Consolidated Company) to punctually and properly perform,
\nobserve, and comply with: (a) any covenant, agreement, or condition contained
\nin SECTIONS 7.1, 7.12, 7.13 (other than by reason of attachment or involuntary
\nLien), 7.16, 7.17, 7.19 through 7.21, and 7.24; (b) any covenant, agreement, or
\ncondition contained in SECTION 7.13 (if by reason of an attachment or
\ninvoluntary Lien), 7.18, 7.22, and 7.23, which failure or refusal continues for
\n15 days; or (c) any other covenant, agreement, or condition contained in any
\nLoan Paper (other than the covenants to pay the Obligation set forth in SECTION
\n8.1 and the covenants in CLAUSES (a) and (b) hereof), which failure or refusal
\ncontinues for 30 days.<\/p>\n
8.3 Debtor Relief. Borrower or any Material Subsidiary (a) shall
\nnot be Solvent, (b) fails to pay its Debts generally as they become due, (c)
\nvoluntarily seeks, consents to, or acquiesces in the benefit of any Debtor
\nRelief Law, other than as a creditor or claimant, or (d) becomes a party to or
\nis made the subject of any proceeding provided for by any Debtor Relief Law,
\nother than as a creditor or claimant, that could suspend or otherwise adversely
\naffect the Rights of Administrative Agent or any Lender granted in the Loan
\nPapers (unless, in the event such proceeding is involuntary, the petition
\ninstituting same is dismissed within 60 days after its filing).<\/p>\n
8.4 Judgments and Attachments. Any Restricted Company fails,
\nwithin 60 days after entry, to pay,<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
46
\n 52
\nbond, or otherwise discharge any one or more judgments or orders for the
\npayment of money (not paid or fully covered by insurance) in excess of
\n$100,000,000 (individually or collectively) or the equivalent thereof in
\nanother currency or currencies, or any warrant of attachment, sequestration, or
\nsimilar proceeding against any Restricted Company’s assets having a value
\n(individually or collectively) of $100,000,000 or the equivalent thereof in
\nanother currency or currencies, which is not either (a) stayed on appeals; (b)
\nbeing diligently contested in good faith by appropriate proceedings with
\nadequate reserves having been set aside on the books of such Restricted Company
\nin accordance with GAAP, or (c) dismissed by a court of competent jurisdiction.<\/p>\n
8.5 Misrepresentation. Any representation or warranty made by any
\nConsolidated Company contained in any Loan Paper shall at any time prove to
\nhave been incorrect in any material respect when made.<\/p>\n
8.6 Change of Control. (a) A Responsible Officer or Officers
\nbecome the “beneficial owner” (as defined in Rule 13(d)(3) under the 1934 Act
\nand herein so called) of 50% or more of the Voting Stock of Borrower; (b) any
\nSpecial Shareholder or Special Shareholders become beneficial owners of 50% or
\nmore of the Voting Stock of Borrower; or (c) any other Person or two or more
\nPersons (acting within the meaning of Rule 13(d)(3) under the 1934 Act), other
\nthan Persons described in CLAUSE (A) hereof, become the beneficial owner of 20%
\nor more of the Voting Stock of Borrower. As used herein, “Special
\nShareholders” shall mean (i) any Person or two or more Persons (acting within
\nthe meaning of Rule 13(d)(3) under the 1934 Act) who were on December 4, 1992
\n(or prior to any change in beneficial ownership were) beneficial owners of 20%
\nor more of the Voting Stock of LDDS Communications, Inc., a Tennessee
\ncorporation and the predecessor of Borrower, or immediately prior to the merger
\nbetween LDDS Communications, Inc., a Tennessee corporation, and Advanced
\nTelecommunications Corporation, a Delaware corporation, were beneficial owners
\nof 20% or more of the Voting Stock of either such company, and (ii) Metromedia
\nCompany, a Delaware general partnership.<\/p>\n
8.7 Default Under Other Agreements. (a) Any default exists under
\nany agreement to which a Restricted Company is a party, the effect of which is
\nto cause, or to permit any Person to cause, an amount of Debt of such
\nRestricted Company in excess (individually or collectively) of $100,000,000 (or
\nthe equivalent thereof in another currency or currencies) to become due and
\npayable by any Restricted Company (whether by acceleration or by its terms); or
\n(b) any default exists under any material written or oral agreement, contract,
\ncommitment, or understanding to which a Restricted Company is a party, the
\neffect of which would be a Material Adverse Event, unless, in the case of this
\nCLAUSE (B), and so long as, such default is being contested by such Restricted
\nCompany in good faith by appropriate proceedings, and adequate reserves in
\nrespect thereof have been established on the books of such Restricted Company
\nto the extent required by GAAP.<\/p>\n
8.8 Employee Benefit Plans. (a) A Reportable Event or Reportable
\nEvents, or a failure to make a required installment or other payment (within
\nthe meaning of Section 412(n)(1) of the Code), shall have occurred with respect
\nto any Employee Plan or Plans that is expected to result in liability of
\nBorrower to the PBGC or to a Plan in an aggregate amount exceeding $100,000,000
\nand, within 30 days after the reporting of any such Reportable Event to
\nAdministrative Agent or after the receipt by Administrative Agent of a
\nstatement required pursuant to SECTION 7.3(D) hereof, Administrative Agent
\nshall have notified Borrower in writing that (i) Determining Lenders have made
\na reasonable determination that, on the basis of such Reportable Event or
\nReportable Events or the failure to make a required payment, there are grounds
\nunder Title IV of ERISA for the termination of such Employee Plan or Plans by
\nthe PBGC, or the appointment by the appropriate United States district court of
\na trustee to administer such Employee Plan or Plans or the imposition of a Lien
\npursuant to section 412(n) of the Code in favor of an Employee Plan and (ii) as
\na result thereof a Default exists hereunder; or (b) Borrower or any ERISA
\nAffiliate has provided to any affected party a 60-day notice of intent to
\nterminate an Employee Plan pursuant to a distress termination in accordance
\nwith section 4041(c) of ERISA if the liability expected to be incurred as a
\nresult of<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
47
\n 53
\nsuch termination will exceed $100,000,000; or (c) a trustee shall be appointed
\nby a United States district court to administer any such Employee Plan; or (d)
\nthe PBGC shall institute proceedings (including giving notice of intent
\nthereof) to terminate any such Employee Plan; or (e)(i) Borrower or any ERISA
\nAffiliate shall have been notified by the sponsor of a Multiemployer Plan that
\nit has incurred withdrawal liability (within the meaning of section 4201 of
\nERISA) to such Multiemployer Plan, (ii) Borrower or such ERISA Affiliate does
\nnot have reasonable grounds for contesting such withdrawal liability or is not
\ncontesting such withdrawal liability in a timely and appropriate manner and
\n(iii) the amount of such withdrawal liability specified in such notice, when
\naggregated with all other amounts required to be paid to Multiemployer Plans in
\nconnection with withdrawal liabilities (determined as of the date or dates of
\nsuch notification), exceeds $100,000,000; or (f) Borrower or any ERISA
\nAffiliate shall have been notified by the sponsor of a Multiemployer Plan that
\nsuch Multiemployer Plan is in reorganization or is being terminated, within the
\nmeaning of Title IV of ERISA, if solely as a result of such reorganization or
\ntermination the aggregate annual contributions of Borrower and its ERISA
\nAffiliates to all Multiemployer Plans that are then in reorganization or have
\nbeen or are being terminated have been or will be increased over the amounts
\nrequired to be contributed to such Multiemployer Plans for their most recently
\ncompleted plan years by an amount exceeding $100,000,000.<\/p>\n
8.9 Default Under Facility A or Facility B. The occurrence and
\ncontinuance of a “Default” under either Facility A or Facility B.<\/p>\n
8.10 Validity and Enforceability of Loan Papers. Any Loan Paper
\nshall, at any time after its execution and delivery and for any reason, cease
\nto be in full force and effect in any material respect or be declared to be
\nnull and void (other than in accordance with the terms hereof or thereof) or
\nthe validity or enforceability thereof be contested by any Restricted Company
\nparty thereto or any Restricted Company shall deny in writing that it has any
\nor any further liability or obligations under any Loan Paper to which it is a
\nparty.<\/p>\n
SECTION 9 RIGHTS AND REMEDIES.<\/p>\n
9.1 Remedies Upon Default.<\/p>\n
(a) If a Default exists under SECTION 8.3(c) or 8.3(d),
\n the commitment to extend credit hereunder shall automatically
\n terminate and the entire unpaid balance of the Obligation under this
\n 364-Day Facility shall automatically become due and payable without
\n any action or notice of any kind whatsoever.<\/p>\n
(b) If any Default exists, Administrative Agent may (and,
\n subject to the terms of SECTION 10, shall upon the request of
\n Determining Lenders) or Determining Lenders may, do any one or more of
\n the following: (i) if the maturity of the Obligation under this
\n 364-Day Facility Agreement has not already been accelerated under
\n SECTION 9.1(A), declare the entire unpaid balance of the Obligation
\n under this 364-Day Facility, or any part thereof, immediately due and
\n payable, whereupon it shall be due and payable; (ii) terminate the
\n commitments of Lenders to extend credit hereunder; (iii) reduce any
\n claim to judgment; (iv) to the extent permitted by Law, exercise (or
\n request each Lender to, and each Lender shall be entitled to,
\n exercise) the Rights of offset or banker’s Lien against the interest
\n of Borrower in and to every account and other property of Borrower
\n which are in the possession of Administrative Agent or any Lender to
\n the extent of the full amount of the Obligation (to the extent
\n permitted by Law, Borrower being deemed directly obligated to each
\n Lender in the full amount of the Obligation for such purposes); and
\n (v) exercise any and all other legal or equitable Rights afforded by
\n the Loan Papers, the Laws of the State of New York, or any other
\n applicable jurisdiction as Administrative Agent shall deem
\n appropriate, or otherwise, including, but not limited to, the Right to
\n bring suit or other proceedings before any<\/p>\n
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\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
48
\n 54
\n Governmental Authority either for specific performance of any covenant
\n or condition contained in any of the Loan Papers or in aid of the
\n exercise of any Right granted to Administrative Agent or any Lender in
\n any of the Loan Papers.<\/p>\n
9.2 Company Waivers. To the extent permitted by Law, Borrower
\nhereby waives presentment and demand for payment, protest, notice of intention
\nto accelerate, notice of acceleration, and notice of protest and nonpayment,
\nand agrees that its liability with respect to the Obligation (or any part
\nthereof), shall not be affected by any renewal or extension in the time of
\npayment of the Obligation (or any part thereof), by any indulgence, or by any
\nrelease or change in any security for the payment of the Obligation (or any
\npart thereof).<\/p>\n
9.3 Performance by Administrative Agent. If any covenant, duty,
\nor agreement of any Consolidated Company is not performed in accordance with
\nthe terms of the Loan Papers, after the occurrence and during the continuance
\nof a Default, Administrative Agent may, at its option (but subject to the
\napproval of Determining Lenders), perform or attempt to perform such covenant,
\nduty, or agreement on behalf of such Consolidated Company. In such event, any
\namount expended by Administrative Agent in such performance or attempted
\nperformance shall be payable by the Consolidated Companies, jointly and
\nseverally, to Administrative Agent on demand, shall become part of the
\nObligation, and shall bear interest at the Default Rate from the date of such
\nexpenditure by Administrative Agent until paid. Notwithstanding the foregoing,
\nit is expressly understood that Administrative Agent does not assume and shall
\nnever have, except by its express written consent, any liability or
\nresponsibility for the performance of any covenant, duty, or agreement of any
\nConsolidated Company.<\/p>\n
9.4 Delegation of Duties and Rights. Lenders may perform any of
\ntheir duties or exercise any of their Rights under the Loan Papers by or
\nthrough their respective Representatives.<\/p>\n
9.5 Not in Control. Nothing in any Loan Paper shall, or shall be
\ndeemed to (a) give Administrative Agent, any Agent, or any Lender the Right to
\nexercise control over the assets (including real property), affairs, or
\nmanagement of any Consolidated Company, (b) preclude or interfere with
\ncompliance by any Consolidated Company with any Law, or (c) require any act or
\nomission by any Consolidated Company that may be harmful to Persons or
\nproperty. Any “Material Adverse Event” or other materiality qualifier in any
\nrepresentation, warranty, covenant, or other provision of any Loan Paper is
\nincluded for credit documentation purposes only and shall not, and shall not be
\ndeemed to, mean that Administrative Agent, any Agent, or any Lender acquiesces
\nin any non-compliance by any Consolidated Company with any Law or document, or
\nthat Administrative Agent, any Agent, or any Lender does not expect the
\nConsolidated Companies to promptly, diligently, and continuously carry out all
\nappropriate removal, remediation, and termination activities required or
\nappropriate in accordance with all Environmental Laws. Neither the
\nAdministrative Agent nor any Lender has any fiduciary relationship with or
\nfiduciary duty to Borrower or any Consolidated Company arising out of or in
\nconnection with the Loan Papers, and the relationship between the
\nAdministrative Agent and Lenders, on the one hand, and Borrower, on the other
\nhand, in connection with the Loan Papers is solely that of debtor and creditor.
\nThe power of Agents and Lenders under the Loan Papers is limited to the Rights
\nprovided in the Loan Papers, which Rights exist solely to assure payment and
\nperformance of the Obligation and may be exercised in a manner calculated by
\nAgents and Lenders in their respective good faith business judgment.<\/p>\n
9.6 Course of Dealing. The acceptance by Administrative Agent or
\nLenders at any time and from time to time of partial payment on the Obligation
\nshall not be deemed to be a waiver of any Default then existing. No waiver by
\nAdministrative Agent, Determining Lenders, or Lenders of any Default shall be
\ndeemed to be a waiver of any other then-existing or subsequent Default. No
\ndelay or omission by Administrative Agent, Determining Lenders, or Lenders in
\nexercising any Right under the Loan Papers shall impair such Right or be
\nconstrued as a waiver thereof or any acquiescence therein, nor shall any single
\nor partial exercise of any such Right preclude<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
49
\n 55
\nother or further exercise thereof, or the exercise of any other Right under the
\nLoan Papers or otherwise.<\/p>\n
9.7 Cumulative Rights. All Rights available to Administrative
\nAgent and Lenders under the Loan Papers are cumulative of and in addition to
\nall other Rights granted to Administrative Agent and Lenders at law or in
\nequity, whether or not the Obligation is due and payable and whether or not
\nAdministrative Agent or Lenders have instituted any suit for collection,
\nforeclosure, or other action in connection with the Loan Papers.<\/p>\n
9.8 Application of Proceeds. Any and all proceeds ever received
\nby Administrative Agent or Lenders from the exercise of any Rights pertaining
\nto the Obligation shall be applied to the Obligation in the order and manner
\nset forth in SECTION 3.11.<\/p>\n
9.9 Certain Proceedings. Borrower will promptly execute and
\ndeliver, or cause the execution and delivery of, all applications,
\ncertificates, instruments, registration statements, and all other documents and
\npapers Administrative Agent or Lenders may reasonably request in connection
\nwith the obtaining of any consent, approval, registration, qualification,
\npermit, license, or authorization of any Governmental Authority or other Person
\nnecessary or appropriate for the effective exercise of any Rights under the
\nLoan Papers. Because Borrower agrees that Administrative Agent’s and Lenders’
\nremedies at Law for failure of Borrower to comply with the provisions of this
\nparagraph would be inadequate and that such failure would not be adequately
\ncompensable in damages, Borrower agrees that the covenants of this paragraph
\nmay be specifically enforced.<\/p>\n
9.10 Limitation of Rights. Notwithstanding any other provision of
\nthis Agreement or any other Loan Paper, any action taken or proposed to be
\ntaken by Administrative Agent or any other Agent or any Lender under any Loan
\nPaper which would affect the operational, voting, or other control of any
\nConsolidated Company, shall be pursuant to Section 310(d) of the Communications
\nAct of 1934 (as amended), any applicable state Law, and the applicable rules
\nand regulations thereunder and, if and to the extent required thereby, subject
\nto the prior consent of the FCC or any applicable PUC.<\/p>\n
9.11 Expenditures by Lenders. Borrower shall promptly pay within
\nfifteen (15) Business Days after request therefor (a) all reasonable costs,
\nfees, and expenses paid or incurred by Administrative Agent incident to any
\nLoan Paper (including, but not limited to, the reasonable fees and expenses of
\ncounsel to Administrative Agent and the allocated cost of internal counsel in
\nconnection with the negotiation, preparation, delivery, execution, coordination
\nand administration of the Loan Papers and any related amendment, waiver, or
\nconsent) and (b) all reasonable costs and expenses of Lenders, and
\nAdministrative Agent incurred by Administrative Agent, or any Lender in
\nconnection with the enforcement of the obligations of any Restricted Company
\narising under the Loan Papers (including, without limitation, costs and
\nexpenses incurred in connection with any workout or bankruptcy) or the exercise
\nof any Rights arising under the Loan Papers (including, but not limited to,
\nreasonable attorneys’ fees including allocated cost of internal counsel, court
\ncosts and other costs of collection), all of which shall be a part of the
\nObligation and shall bear interest at the Default Rate from the date due until
\nthe date repaid by Borrower.<\/p>\n
9.12 Indemnification. BORROWER, FOR ITSELF AND ON BEHALF OF THE
\nOTHER RESTRICTED COMPANIES, INDEMNIFIES, PROTECTS, AND HOLDS ADMINISTRATIVE
\nAGENT, EACH OTHER AGENT, AND EACH LENDER AND THEIR RESPECTIVE AFFILIATES,
\nPARENTS, AND SUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES’ RESPECTIVE
\nDIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS,
\nAND ATTORNEYS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND
\nAGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
\nACTIONS, JUDGMENTS, SUITS, CLAIMS, AND PROCEEDINGS AND ALL REASONABLE AND
\nNECESSARY COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE
\nATTORNEYS’ FEES AND LEGAL EXPENSES INCLUDING ALLOCATED COST OF INTERNAL
\nCOUNSEL, AND AMOUNTS PAID IN SETTLEMENT WHETHER OR NOT SUIT IS BROUGHT), AND
\nDISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER, AND AMOUNTS PAID IN SETTLEMENT
\n(THE “INDEMNIFIED LIABILITIES”) WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED
\nBY, OR ASSERTED<\/p>\n
364-DAY REVOLVING
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50
\n 56
\nAGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR ARISING OUT OF (A)
\nTHE DIRECT OR INDIRECT RESULT OF THE VIOLATION BY ANY CONSOLIDATED COMPANY OF
\nANY ENVIRONMENTAL LAW, AS WELL AS ANY AMENDMENT AND SUPPLEMENT THERETO AND ANY
\nSTATE COUNTERPART THEREOF; (B) ANY CONSOLIDATED COMPANY’S GENERATION,
\nMANUFACTURE, PRODUCTION, STORAGE, TRANSPORTATION, RELEASE, THREATENED RELEASE,
\nDISCHARGE, DISPOSAL OR PRESENCE IN CONNECTION WITH ITS PROPERTIES OF A
\nHAZARDOUS SUBSTANCE (INCLUDING, WITHOUT LIMITATION, (I) ALL DAMAGES ARISING
\nFROM ANY SUCH USE, GENERATION, MANUFACTURE, PRODUCTION, STORAGE, RELEASE,
\nTHREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE, OR (II) THE COSTS OF ANY
\nREQUIRED OR NECESSARY ENVIRONMENTAL INVESTIGATION, MONITORING, REPAIR, CLEANUP,
\nOR DETOXIFICATION AND THE PREPARATION AND IMPLEMENTATION OF ANY CLOSURE,
\nREMEDIAL, OR OTHER PLANS); OR (C) THE LOAN PAPERS OR ANY OF THE TRANSACTIONS
\nCONTEMPLATED THEREIN OR THE USE OF PROCEEDS OF ANY BORROWING, TO THE EXTENT
\nTHAT ANY OF THE INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY, FROM
\nANY CLAIM MADE OR ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY
\nPERSON OTHER THAN BY THE INDEMNIFIED PARTIES; (PROVIDED THAT, NONE OF THE
\nRESTRICTED COMPANIES SHALL HAVE ANY OBLIGATION HEREUNDER TO ANY INDEMNIFIED
\nPARTY WITH RESPECT TO ANY INDEMNIFIED LIABILITY ARISING FROM (I) THE FRAUD,
\nGROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY OR ANY
\nASSOCIATED PERSON OF SUCH INDEMNIFIED PARTY, OR (II) LEGAL PROCEEDINGS
\nCOMMENCED AGAINST ANY INDEMNIFIED PARTY BY ANY SECURITY HOLDER OR CREDITOR
\nTHEREOF ARISING OUT OF AND BASED UPON RIGHTS AFFORDED TO SUCH PERSON SOLELY IN
\nSUCH CAPACITY). AS USED IN THIS PARAGRAPH, THE TERM “ASSOCIATED PERSON” MEANS,
\nWITH RESPECT TO ANY PERSON, THE AFFILIATES, PARENTS, SUBSIDIARIES, DIRECTORS,
\nOFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND
\nATTORNEYS OF SUCH PERSON, OR OF ANOTHER PERSON OF WHICH SUCH PERSON IS ALSO AN
\nASSOCIATED PERSON. THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET
\nFORTH IN THIS PARAGRAPH SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE
\nOBLIGATION AND TERMINATION OF THIS AGREEMENT. AN INDEMNIFIED PARTY WILL
\nPROMPTLY NOTIFY THE RESTRICTED COMPANIES UPON RECEIPT OF WRITTEN NOTICE OF ANY
\nCLAIM, ACTION, SUIT, OR PROCEEDING MADE, COMMENCED, OR THREATENED THAT COULD
\nGIVE RISE TO AN INDEMNIFIED LIABILITY AND AFFORD THE RESTRICTED COMPANIES FIRST
\nRIGHT TO DEFEND OR RESOLVE THE SAME (WITH COUNSEL REASONABLY SATISFACTORY TO
\nSUCH INDEMNIFIED PARTY); PROVIDED THAT, ANY FAILURE BY SUCH INDEMNIFIED PARTY
\nTO GIVE SUCH NOTICE SHALL NOT RELIEVE THE RESTRICTED COMPANIES FROM THEIR
\nOBLIGATIONS TO INDEMNIFY THE INDEMNIFIED PARTY TO THE EXTENT SUCH FAILURE DOES
\nNOT PREJUDICE THE ABILITY OF THE RESTRICTED COMPANIES TO DEFEND OR RESOLVE ANY
\nSUCH CLAIM, ACTION, SUIT, OR PROCEEDING. THE RESTRICTED COMPANIES SHALL NOT
\nSETTLE ANY SUCH CLAIM OR ACTION WITHOUT THE CONSENT OF SUCH INDEMNIFIED PARTY,
\nWHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. IF THE RESTRICTED
\nCOMPANIES ASSUME ANY DEFENSE, THEY SHALL KEEP THE APPLICABLE INDEMNIFIED
\nPARTIES FULLY ADVISED OF THE STATUS OF, AND SHALL CONSULT WITH THOSE
\nINDEMNIFIED PARTIES BEFORE TAKING ANY MATERIAL POSITION IN RESPECT OF, THAT
\nPROCEEDING. IF (I) COUNSEL FOR ANY INDEMNIFIED PARTY DETERMINES IN GOOD FAITH
\nTHAT THERE IS A CONFLICT WHICH REQUIRES SEPARATE REPRESENTATION FOR THE
\nRESTRICTED COMPANIES AND SUCH INDEMNIFIED PARTY OR FOR SUCH INDEMNIFIED PARTY
\nAND ANY OTHER INDEMNIFIED PARTY OR (II) THE RESTRICTED COMPANIES FAIL TO ASSUME
\nOR PROCEED IN A TIMELY AND REASONABLE MANNER WITH THE DEFENSE OF SUCH ACTION OR
\nFAIL TO EMPLOY COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY IN ANY
\nSUCH ACTION, THEN IN EITHER SUCH EVENT THE INDEMNIFIED PARTY SHALL BE ENTITLED
\nTO SELECT COUNSEL OF ITS OWN CHOICE TO REPRESENT THE INDEMNIFIED PARTY, AND THE
\nRESTRICTED COMPANIES SHALL NO LONGER BE ENTITLED TO ASSUME THE DEFENSE THEREOF
\nON BEHALF OF SUCH INDEMNIFIED PARTY, AND SUCH INDEMNIFIED PARTY SHALL CONTINUE
\nTO BE ENTITLED TO INDEMNIFICATION (INCLUDING, WITHOUT LIMITATION, REASONABLE
\nFEES AND DISBURSEMENTS OF COUNSEL INCLUDING ALLOCATED COST OF INTERNAL COUNSEL)
\nTO THE EXTENT PROVIDED IN THIS INDEMNIFICATION PROVISION. NOTHING HEREIN SHALL
\nPRECLUDE ANY INDEMNIFIED PARTY, AT ITS OWN EXPENSE, FROM RETAINING ADDITIONAL
\nCOUNSEL TO REPRESENT SUCH PARTY IN ANY ACTION WITH RESPECT TO WHICH INDEMNITY
\nMAY BE SOUGHT FROM THE RESTRICTED COMPANIES HEREUNDER. NO INDEMNIFIED PARTY
\nSHALL SETTLE ANY SUCH CLAIM OR ACTION WITHOUT THE CONSENT OF THE RESTRICTED
\nCOMPANIES, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED.<\/p>\n
SECTION 10 AGREEMENT AMONG LENDERS.<\/p>\n
10.1 Administrative Agent.<\/p>\n
(a) Each Lender (including any Lender in its capacity as
\n an issuer of a Financial Hedge or as a Swing Line Lender) hereby
\n appoints NationsBank (and NationsBank hereby accepts such appointment)
\n as its nominee and agent, in its name and on its behalf: (i) to act
\n as nominee for and on behalf of such Lender in and under all Loan
\n Papers; (ii) to arrange the means whereby the funds of Lenders are to
\n be made available to Borrower under the Loan Papers; (iii) to take
\n such action as may be requested by any Lender under the Loan Papers
\n (when such Lender is entitled to make such request under the Loan
\n Papers and after such requesting Lender has obtained the concurrence
\n of such other Lenders as may be required under the Loan Papers); (iv)
\n to receive all documents and items to be furnished to Lenders under
\n the Loan Papers; (v) to<\/p>\n
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\n be the secured party, mortgagee, beneficiary, and similar party in
\n respect of, and to receive, as the case may be, any collateral for the
\n benefit of Lenders; (vi) to timely distribute, and Administrative
\n Agent agrees to so distribute, to each Lender all material
\n information, requests, documents, and items received from Borrower
\n under the Loan Papers; (vii) to promptly distribute to each Lender its
\n ratable part of each payment or prepayment (whether voluntary, as
\n proceeds of collateral upon or after foreclosure, as proceeds of
\n insurance thereon, or otherwise) in accordance with the terms of the
\n Loan Papers; (viii) to deliver to the appropriate Persons requests,
\n demands, approvals, and consents received from Lenders; and (ix) to
\n execute, on behalf of Lenders, such releases or other documents or
\n instruments as are permitted by the Loan Papers or as directed by
\n Lenders from time to time; provided, however, Administrative Agent
\n shall not be required to take any action which exposes Administrative
\n Agent to personal liability or which is contrary to the Loan Papers or
\n applicable Law.<\/p>\n
(b) Administrative Agent may resign at any time as
\n Administrative Agent under the Loan Papers by giving written notice
\n thereof to Lenders and may be removed as Administrative Agent under
\n the Loan Papers at any time with cause by Determining Lenders. Should
\n the initial or any successor Administrative Agent ever cease to be a
\n party hereto or should the initial or any successor Administrative
\n Agent ever resign or be removed as Administrative Agent, then
\n Determining Lenders shall elect the successor Administrative Agent
\n from among the Lenders (other than the resigning Administrative
\n Agent). If no successor Administrative Agent shall have been so
\n appointed by Determining Lenders, within 30 days after the retiring
\n Administrative Agent’s giving of notice of resignation or Determining
\n Lenders’ removal of the retiring Administrative Agent, then the
\n retiring Administrative Agent may, on behalf of Lenders, appoint a
\n successor Administrative Agent, which shall be a commercial bank
\n having a combined capital and surplus of at least $1,000,000,000.
\n Upon the acceptance of any appointment as Administrative Agent under
\n the Loan Papers by a successor Administrative Agent, such successor
\n Administrative Agent shall thereupon succeed to and become vested with
\n all the Rights of the retiring Administrative Agent, and the retiring
\n Administrative Agent shall be discharged from its duties and
\n obligations of Administrative Agent under the Loan Papers, and each
\n Lender shall execute such documents as any Lender may reasonably
\n request to reflect such change in and under the Loan Papers. After
\n any retiring Administrative Agent’s resignation or removal as
\n Administrative Agent under the Loan Papers, the provisions of this
\n SECTION 10 shall inure to its benefit as to any actions taken or
\n omitted to be taken by it while it was Administrative Agent under the
\n Loan Papers.<\/p>\n
(c) Administrative Agent, in its capacity as a Lender,
\n shall have the same Rights under the Loan Papers as any other Lender
\n and may exercise the same as though it were not acting as
\n Administrative Agent; the term “Lender” shall, unless the context
\n otherwise indicates, include Administrative Agent; and any
\n resignation, or removal of by Administrative Agent hereunder shall not
\n impair or otherwise affect any Rights which it has or may have in its
\n capacity as an individual Lender. Each Lender and Borrower agree that
\n Administrative Agent is not a fiduciary for Lenders or for Borrower
\n but simply is acting in the capacity described herein to alleviate
\n administrative burdens for both Borrower and Lenders, that
\n Administrative Agent has no duties or responsibilities to Lenders or
\n Borrower except those expressly set forth herein, and that
\n Administrative Agent in its capacity as a Lender has all Rights of any
\n other Lender.<\/p>\n
(d) Administrative Agent and its Affiliates may now or
\n hereafter be engaged in one or more loan, letter of credit, leasing,
\n or other financing transactions with Borrower, act as trustee or
\n depositary for Borrower, or otherwise be engaged in other transactions
\n with Borrower (collectively, the “OTHER ACTIVITIES”) not the subject
\n of the Loan Papers. Without limiting the Rights of Lenders
\n specifically set forth in the Loan Papers, Administrative Agent and
\n its Affiliates shall not be<\/p>\n
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\n responsible to account to Lenders for such other activities, and no
\n Lender shall have any interest in any other activities, any present or
\n future guaranties by or for the account of Borrower which are not
\n contemplated or included in the Loan Papers, any present or future
\n offset exercised by Administrative Agent and its Affiliates in respect
\n of such other activities, any present or future property taken as
\n security for any such other activities, or any property now or
\n hereafter in the possession or control of Administrative Agent or its
\n Affiliates which may be or become security for the obligations of
\n Borrower arising under the Loan Papers by reason of the general
\n description of indebtedness secured or of property contained in any
\n other agreements, documents or instruments related to any such other
\n activities; provided that, if any payments in respect of such
\n guaranties or such property or the proceeds thereof shall be applied
\n to reduction of the obligations of Borrower arising under the Loan
\n Papers, then each Lender shall be entitled to share in such
\n application ratably.<\/p>\n
(e) Each Lender acknowledges that, and consents to,
\n NationsBank’s also serving as the “Administrative Agent” under the
\n Facility A Agreement and the Facility B Agreement.<\/p>\n
10.2 Expenses. Upon demand by Administrative Agent, each Lender
\nshall pay its Pro Rata Part of any reasonable expenses (including, without
\nlimitation, court costs, reasonable attorneys’ fees and other costs of
\ncollection) incurred by Administrative Agent in connection with any of the Loan
\nPapers if and to the extent Administrative Agent does not receive reimbursement
\ntherefor from other sources within 60 days after incurred; provided that each
\nLender shall be entitled to receive its Pro Rata Part of any reimbursement for
\nsuch expenses, or part thereof, which Administrative Agent subsequently
\nreceives from such other sources.<\/p>\n
10.3 Proportionate Absorption of Losses. Except as otherwise
\nprovided in the Loan Papers, nothing in the Loan Papers shall be deemed to give
\nany Lender any advantage over any other Lender insofar as the Obligation
\narising under the Loan Papers is concerned, or to relieve any Lender from
\nabsorbing its Pro Rata Part of any losses sustained with respect to the
\nObligation (except to the extent such losses result from unilateral actions or
\ninactions of any Lender that are not made in accordance with the terms and
\nprovisions of the Loan Papers).<\/p>\n
10.4 Delegation of Duties; Reliance. Administrative Agent may
\nperform any of its duties or exercise any of its Rights under the Loan Papers
\nby or through its Representatives. Administrative Agent and its
\nRepresentatives shall (a) be entitled to rely upon (and shall be protected in
\nrelying upon) any writing, resolution, notice, consent, certificate, affidavit,
\nletter, cablegram, telecopy, telegram, telex or teletype message, statement,
\norder, or other documents or conversation believed by it or them to be genuine
\nand correct and to have been signed or made by the proper Person and, with
\nrespect to legal matters, upon opinion of counsel selected by Administrative
\nAgent, (b) be entitled to deem and treat each Lender as the owner and holder of
\nthe Principal Debt owed to such Lender for all purposes until, subject to
\nSECTION 11.13, written notice of the assignment or transfer thereof shall have
\nbeen given to and received by Administrative Agent (and any request,
\nauthorization, consent, or approval of any Lender shall be conclusive and
\nbinding on each subsequent holder, assignee, or transferee of the Principal
\nDebt owed to such Lender or portion thereof until such notice is given and
\nreceived), (c) not be deemed to have notice of the occurrence of a Default
\nunless a responsible officer of Administrative Agent, who handles matters
\nassociated with the Loan Papers and transactions thereunder, has actual
\nknowledge thereof or Administrative Agent has been notified thereof by a Lender
\nor Borrower, and (d) be entitled to consult with legal counsel (including
\ncounsel for Borrower), independent accountants and other experts selected by
\nAdministrative Agent and shall not be liable for any action taken or omitted to
\nbe taken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts.<\/p>\n
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\n 10.5 Limitation of Liability.<\/p>\n
(a) None of the Agents or any of their respective
\n Representatives shall be liable for any action taken or omitted to be
\n taken by it or them under the Loan Papers in good faith and reasonably
\n believed by it or them to be within the discretion or power conferred
\n upon it or them by the Loan Papers or be responsible for the
\n consequences of any error of judgment, except for fraud, gross
\n negligence, or willful misconduct as found in a final, non-appealable
\n judgment by a court of competent jurisdiction; and none of the Agents
\n or any of their respective Representatives has a fiduciary
\n relationship with any Lender by virtue of the Loan Papers (provided
\n that nothing herein shall negate the obligation of Administrative
\n Agent to account for funds received by it for the account of any
\n Lender).<\/p>\n
(b) Unless indemnified to its satisfaction against loss,
\n cost, liability, and expense, no Agent shall be compelled to do any
\n act under the Loan Papers or to take any action toward the execution
\n or enforcement of the powers thereby created or to prosecute or defend
\n any suit in respect of the Loan Papers. If any Agent requests
\n instructions from Lenders or Determining Lenders, as the case may be,
\n with respect to any act or action (including, but not limited to, any
\n failure to act) in connection with any Loan Paper, or Loan Paper, such
\n Agent shall be entitled (but shall not be required) to refrain
\n (without incurring any liability to any Person by so refraining) from
\n such act or action unless and until it has received such instructions.
\n In no event, however, shall any Agent or any of its respective
\n Representatives be required to take any action which it or they
\n determine could incur for it or them criminal or onerous civil
\n liability. Without limiting the generality of the foregoing, no
\n Lender shall have any right of action against any Agent as a result of
\n such Agent’s acting or refraining from acting hereunder in accordance
\n with the instructions of Determining Lenders.<\/p>\n
(c) Agents shall not be responsible in any manner to any
\n Lender or any Participant for, and each Lender represents and warrants
\n that it has not relied upon Agents in respect of, (i) the
\n creditworthiness of any Restricted Company and the risks involved to
\n such Lender, (ii) the effectiveness, enforceability, genuineness,
\n validity, or the due execution of any Loan Paper, (iii) any
\n representation, warranty, document, certificate, report, or statement
\n made therein or furnished thereunder or in connection therewith, (iv)
\n the existence, priority, or perfection of any Lien hereafter granted
\n or purported to be granted under any Loan Paper, or (v) observation of
\n or compliance with any of the terms, covenants, or conditions of any
\n Loan Paper on the part of any Restricted Company. Each Lender agrees
\n to indemnify each Agent and its respective Representatives and hold
\n them harmless from and against (but limited to such Lender’s Pro Rata
\n Part of) any and all liabilities, obligations, losses, damages,
\n penalties, actions, judgments, suits, costs, reasonable expenses, and
\n reasonable disbursements of any kind or nature whatsoever which may be
\n imposed on, asserted against, or incurred by them in any way relating
\n to or arising out of the Loan Papers or any action taken or omitted by
\n them under the Loan Papers, to the extent any Agent and its respective
\n Representatives are not reimbursed for such amounts by any Restricted
\n Company (provided that, no Agent and its respective Representatives
\n shall have the right to be indemnified hereunder for its or their own
\n fraud, gross negligence, or willful misconduct as found in a final,
\n non-appealable judgment by a court of competent jurisdiction).<\/p>\n
10.6 Default; Collateral. Upon the occurrence and continuance of a
\nDefault, Lenders agree to promptly confer in order that Determining Lenders or
\nLenders, as the case may be, may agree upon a course of action for the
\nenforcement of the Rights of Lenders; and Administrative Agent shall be
\nentitled to refrain from taking any action (without incurring any liability to
\nany Person for so refraining) unless and until Administrative Agent shall have
\nreceived instructions from Determining Lenders. In actions with respect to any
\nproperty of Borrower,<\/p>\n
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\nAdministrative Agent is acting for the ratable benefit of each Lender. Any and
\nall agreements to subordinate (whether made heretofore or hereafter) other
\nindebtedness or obligations of Borrower to the Obligation shall be construed as
\nbeing for the ratable benefit of each Lender. If Administrative Agent acquires
\nany security for the Obligation or any guaranty of the Obligation upon or in
\nlieu of foreclosure, the same shall be held for the ratable benefit of all
\nLenders in proportion to the Principal Debt respectively owed to each Lender.<\/p>\n
10.7 Limitation of Liability. To the extent permitted by Law, (a)
\nno Agent (acting in its respective agent capacities) shall incur any liability
\nto any other Lender, Agent, or Participant, except for acts or omissions
\nresulting from its own fraud, gross negligence or wilful misconduct as found in
\na final, non-appealable judgment by a court of competent jurisdiction, and (b)
\nno Agent, nor any Lender or Participant shall incur any liability to any other
\nPerson for any act or omission of any other Lender or any other Participant.<\/p>\n
10.8 Relationship of Lenders. Nothing herein shall be construed as
\ncreating a partnership or joint venture among Agents and Lenders or among
\nLenders.<\/p>\n
10.9 Benefits of Agreement. Except for the representations and
\ncovenants in SECTION 10.1(c) in favor of Borrower, none of the provisions of
\nthis SECTION 10 shall inure to the benefit of any Restricted Company or any
\nother Person other than Lenders and Agents; consequently, neither any
\nRestricted Company nor any other Person shall be entitled to rely upon, or to
\nraise as a defense, in any manner whatsoever, the failure of any Lender or
\nAgent to comply with such provisions.<\/p>\n
10.10 Co-Syndication Agents. None of the Lenders identified in this
\nAgreement as a “Co-Syndication Agent” shall have any rights, powers,
\nobligations, liabilities, responsibilities, or duties under this Agreement,
\nother than those applicable to all Lenders as such. Without limiting the
\nforegoing, none of the Lenders so identified as a “Co- Syndication Agent” shall
\nhave or be deemed to have any fiduciary relationship with any Lender.<\/p>\n
SECTION 11 MISCELLANEOUS.<\/p>\n
11.1 Headings. The headings, captions, and arrangements used in
\nany of the Loan Papers are, unless specified otherwise, for convenience only
\nand shall not be deemed to limit, amplify, or modify the terms of the Loan
\nPapers, nor affect the meaning thereof.<\/p>\n
11.2 Nonbusiness Days. In any case where any payment or action is
\ndue under any Loan Paper on a day which is not a Business Day, such payment or
\naction may be delayed until the next-succeeding Business Day, but interest and
\nfees shall continue to accrue in respect of any payment to which it is
\napplicable until such payment is in fact made; provided that, if in the case of
\nany such payment in respect of a Eurodollar Rate Borrowing the next-succeeding
\nBusiness Day is in the next calendar month, then such payment shall be made on
\nthe next-preceding Business Day.<\/p>\n
11.3 Communications. Unless specifically otherwise provided,
\nwhenever any Loan Paper requires or permits any consent, approval, notice,
\nrequest, or demand from one party to another, such communication must be in
\nwriting (which may be by telex or telecopy) to be effective and shall be deemed
\nto have been given (a) if by telex, when transmitted to the telex number, if
\nany, for such party, and the appropriate answer back is received, (b) if by
\ntelecopy, when transmitted to the telecopy number for such party (and all such
\ncommunications sent by telecopy shall be confirmed promptly thereafter by
\npersonal delivery or mailing in accordance with the provisions of this section;
\nprovided, that any requirement in this parenthetical shall not affect the date
\non which such telecopy shall be deemed to have been delivered), (c) if by mail,
\non the third Business Day after it is enclosed in an envelope, properly
\naddressed to such party, properly stamped, sealed, and deposited in the
\nappropriate official<\/p>\n
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\n 61
\npostal service, or (d) if by any other means, when actually delivered to such
\nparty. Until changed by notice pursuant hereto, the address (and telex and
\ntelecopy numbers, if any) for Administrative Agent and each other Agent and
\neach Lender is set forth on SCHEDULE 2.1, and for Borrower and each Restricted
\nCompany is the address set forth by Borrower’s signature on the signature page
\nof this Agreement. A copy of each communication to Administrative Agent shall
\nalso be sent to Haynes and Boone, L.L.P., 901 Main Street, Dallas, Texas
\n75202, Fax: 214\/651-5940, Attn: Karen S. Nelson; a copy of each communication
\nto any Consolidated Company shall also be sent to WorldCom, Inc., 10777 Sunset
\nOffice Drive, St. Louis, MO 63127, Attn: Bruce Borghardt.<\/p>\n
11.4 Form and Number of Documents. Each agreement, document,
\ninstrument, or other writing to be furnished under any provision of this
\nAgreement must be in form and substance and in such number of counterparts as
\nmay be reasonably satisfactory to Administrative Agent and its counsel.<\/p>\n
11.5 Exceptions to Covenants. No Restricted Company shall take any
\naction or fail to take any action which is permitted as an exception to any of
\nthe covenants contained in any Loan Paper if such action or omission would
\nresult in the breach of any other covenant contained in any of the Loan Papers.<\/p>\n
11.6 Survival. All covenants, agreements, undertakings,
\nrepresentations, and warranties made in any of the Loan Papers shall survive
\nall closings under the Loan Papers and, except as otherwise indicated, shall
\nnot be affected by any investigation made by any party. All rights of, and
\nprovisions relating to, reimbursement and indemnification of Administrative
\nAgent, any Agent, or any Lender shall survive termination of this Agreement and
\npayment in full of the Obligation.<\/p>\n
11.7 Governing Law. THE LOAN PAPERS HAVE BEEN ENTERED INTO PURSUANT
\nTO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE LAWS (OTHER
\nTHAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF NEW YORK AND OF THE
\nUNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO
\nTHE LOAN PAPERS AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION
\nOF THE LOAN PAPERS.<\/p>\n
11.8 Invalid Provisions. If any provision in any Loan Paper is
\nheld to be illegal, invalid, or unenforceable, such provision shall be fully
\nseverable; the appropriate Loan Paper shall be construed and enforced as if
\nsuch provision had never comprised a part thereof; and the remaining provisions
\nthereof shall remain in full force and effect and shall not be affected by such
\nprovision or by its severance therefrom. Administrative Agent, Lenders, and
\neach Restricted Company party to such Loan Paper agree to negotiate, in good
\nfaith, the terms of a replacement provision as similar to the severed provision
\nas may be possible and be legal, valid, and enforceable.<\/p>\n
11.9 Entirety. THE RIGHTS AND OBLIGATIONS OF THE RESTRICTED
\nCOMPANIES, LENDERS, AND ADMINISTRATIVE AGENT SHALL BE DETERMINED SOLELY FROM
\nWRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS
\nBETWEEN SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS
\nAGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN
\nPAPERS EXECUTED BY ANY RESTRICTED COMPANY, ANY LENDER, ADMINISTRATIVE AGENT, OR
\nANY OTHER AGENT (TOGETHER WITH ALL FEE LETTERS AS THEY RELATE TO THE PAYMENT OF
\nFEES AFTER THE CLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN THE
\nRESTRICTED COMPANIES, LENDERS, AND\/OR ADMINISTRATIVE AGENT, AND MAY NOT BE
\nCONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
\nAGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
\nSUCH PARTIES.<\/p>\n
11.10 Jurisdiction; Venue; Service of Process; Jury Trial. Each
\nParty Hereto, in Each Case for Itself, its Successors and Assigns (And in the
\nCase of Borrower, for Each of its Subsidiaries), Hereby (A) irrevocably Submits
\nto the Nonexclusive Jurisdiction of the State and Federal Courts Located in New
\nYork, and Agrees and Consents That Service of Process May Be Made upon it in
\nAny Legal Proceeding Arising out of or in Connection with the Loan Papers and
\nthe Obligation by Service of Process as Provided by New York Law, (B)
\nirrevocably Waives, to the Fullest Extent Permitted by Law, Any Objection Which
\nit May Now<\/p>\n
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\nor Hereafter Have to the Laying of Venue of Any Litigation Arising out of or in
\nConnection with the Loan Papers and the Obligation Brought in Any Such Court,
\n(C) irrevocably Waives Any Claims That Any Litigation Brought in Any Such Court
\nHas Been Brought in an Inconvenient Forum, (D) agrees to Designate and Maintain
\nan Agent for Service of Process in New York, New York in Connection with Any
\nSuch Litigation and to Deliver to Administrative Agent Evidence Thereof, If
\nRequested, (E) irrevocably Consents to the Service of Process out of Any of the
\nAforementioned Courts in Any Such Litigation by the Mailing of Copies Thereof
\nby Certified Mail, Return Receipt Requested, Postage Prepaid, at its Address
\nSet Forth Herein, (F) irrevocably Agrees That Any Legal Proceeding Against Any
\nParty Hereto Arising out of or in Connection with the Loan Papers or the
\nObligation Shall Be Brought in One of the Aforementioned Courts, and (G)
\nirrevocably Waives, to the Fullest Extent Permitted by Law, its Respective
\nRights to a Jury Trial of Any Claim or Cause of Action Based upon or Arising
\nout of Any Loan Paper or the Transactions Contemplated Thereby. The scope of
\neach of the foregoing waivers is intended to be all-encompassing of any and all
\ndisputes that may be filed in any court and that relate to the subject matter
\nof this transaction, including, without limitation, contract claims, tort
\nclaims, breach of duty claims, and all other common law and statutory claims.
\nBorrower (for itself and on behalf of each of its Subsidiaries) and each other
\nparty to this Agreement acknowledge that this waiver is a material inducement
\nto the agreement of each party hereto to enter into a business relationship,
\nthat each has already relied on this waiver in entering into this Agreement,
\nand each will continue to rely on each of such waivers in related future
\ndealings. Borrower (for itself and on behalf of each of its Subsidiaries) and
\neach other party to this Agreement warrant and represent that they have
\nreviewed these waivers with their legal counsel, and that they knowingly and
\nvoluntarily agree to each such waiver following consultation with legal
\ncounsel. THE WAIVERS IN THIS SECTION 11.10 ARE IRREVOCABLE, MEANING THAT THEY
\nMAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY
\nTO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR
\nANY OTHER LOAN PAPER. In the event of Litigation, this Agreement may be filed
\nas a written consent to a trial by the court.<\/p>\n
11.11 Amendments, Consents, Conflicts, and Waivers.<\/p>\n
(a) Except as otherwise specifically provided, (i) this
\n Agreement may only be amended, modified or waived by an instrument in
\n writing executed jointly by Borrower and Determining Lenders, and, in
\n the case of any matter affecting Administrative Agent (except removal
\n of Administrative Agent as provided in SECTION 10), by Administrative
\n Agent, and may only be supplemented by documents delivered or to be
\n delivered in accordance with the express terms hereof, and (ii) the
\n other Loan Papers may only be the subject of an amendment,
\n modification, or waiver if Borrower and Determining Lenders, and, in
\n the case of any matter affecting Administrative Agent (except as set
\n forth above), Administrative Agent, have approved same.<\/p>\n
(b) Any amendment to or consent or waiver under this
\n Agreement or any Loan Paper which purports to accomplish any of the
\n following must be by an instrument in writing executed by Borrower and
\n executed (or approved, as the case may be) by each Lender, and, in the
\n case of any matter affecting Administrative Agent, by Administrative
\n Agent: (i) extends the due date or decreases the amount of any
\n scheduled payment of the Obligation arising under the Loan Papers
\n beyond the date specified in the Loan Papers; (ii) reduces the
\n interest rate or decreases the amount of interest, fees, or other sums
\n payable to Administrative Agent or Lenders hereunder (except such
\n reductions as are contemplated by this Agreement); (iii) changes the
\n definition of “APPLICABLE MARGIN” (other than changes having the
\n effect of increasing such Applicable Margin),” “DETERMINING LENDERS,”
\n “PRO RATA,” or “PRO RATA PART” (other than modifications to the
\n definitions of “PRO RATA” or “PRO RATA PART” as a result of changes in
\n the definition of “COMMITMENT”), or (iv) except as otherwise permitted
\n by any Loan Paper, waives compliance with, amends, or releases (in
\n whole or in part) any guaranty (if any) or releases (in whole or in
\n part) any collateral, if any, for the Obligation; or (v) changes this
\n CLAUSE (B), SECTION 2.8 or any other matter specifically requiring the
\n consent of all Lenders hereunder. No amendment or waiver with respect
\n to the definition of “TERMINATION DATE” or “TERM LOAN MATURITY DATE”
\n may be made without the consent of all<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
57
\n 63
\n Lenders. Without the consent of such Lender, no Lender’s “COMMITTED
\n SUM” under this 364-Day Facility may be increased.<\/p>\n
(c) Any conflict or ambiguity between the terms and
\n provisions herein and terms and provisions in any other Loan Paper
\n shall be controlled by the terms and provisions herein.<\/p>\n
(d) No course of dealing nor any failure or delay by
\n Administrative Agent, any Lender, or any of their respective
\n Representatives with respect to exercising any Right of Administrative
\n Agent or any Lender hereunder shall operate as a waiver thereof. A
\n waiver must be in writing and signed by Administrative Agent and
\n Determining Lenders (or by all Lenders, if required hereunder) to be
\n effective, and such waiver will be effective only in the specific
\n instance and for the specific purpose for which it is given.<\/p>\n
11.12 Multiple Counterparts. This Agreement may be executed in a
\nnumber of identical counterparts, each of which shall be deemed an original for
\nall purposes and all of which constitute, collectively, one agreement; but, in
\nmaking proof of this Agreement, it shall not be necessary to produce or account
\nfor more than one such counterpart. It is not necessary that each Lender
\nexecute the same counterpart so long as identical counterparts are executed by
\nBorrower, each Lender, and Administrative Agent. This Agreement shall become
\neffective when counterparts hereof shall have been executed and delivered to
\nAdministrative Agent by each Lender, Administrative Agent, and Borrower, or,
\nwhen Administrative Agent shall have received telecopied, telexed, or other
\nevidence satisfactory to it that such party has executed and is delivering to
\nAdministrative Agent a counterpart hereof.<\/p>\n
11.13 Successors and Assigns; Assignments and Participations.<\/p>\n
(a) This Agreement shall be binding upon, and inure to
\n the benefit of the parties hereto and their respective successors and
\n assigns, except that (i) assignments by Borrower are subject to the
\n restrictions of SECTION 7.16, and (ii) except as permitted under this
\n Section, no Lender may transfer, pledge, assign, sell any
\n participation in, or otherwise encumber its portion of the Obligation.<\/p>\n
(b) Each Lender may assign to one or more Eligible
\n Assignees all or a portion of its Rights and obligations under this
\n Agreement and the other Loan Papers (including, without limitation,
\n all or a portion of its Borrowings, its Notes [to the extent such
\n Principal Debt owed to such Lender is evidenced by Notes]); provided,
\n however, that:<\/p>\n
(i) each such assignment shall be to an Eligible
\n Assignee;<\/p>\n
(ii) except in the case of an assignment to
\n another Lender or an assignment of all of a Lender’s Rights
\n and obligations under this Agreement and the other Loan
\n Papers, any such partial assignment (when aggregated with the
\n amounts of any concurrent assignments under Facility B and\/or
\n Facility A by the assigning Lender to the same assignee) shall
\n be in an amount at least equal to $10,000,000, but in no event
\n shall an assigned interest in any of Facility A, Facility B,
\n or the 364-Day Facility be less than $1,000,000 (except in
\n case of an assignment of all of such 364-Day Facility Lender’s
\n interest in any such facility);<\/p>\n
(iii) each such assignment by a Lender shall be of
\n a constant, and not varying, percentage of all of its Rights
\n and obligations under this Agreement and the Notes (to the
\n extent the Principal Debt owed to the assigning Lender is
\n evidenced by any Notes);<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
58
\n 64
\n (iv) each such assignment shall exclude
\n Competitive Borrowings, unless the assigning Lender is selling
\n all of its Rights and obligations under the Loan Papers;<\/p>\n
(v) the parties to such assignment shall execute
\n and deliver to the Administrative Agent for its acceptance an
\n Assignment and Acceptance Agreement in the form of EXHIBIT E
\n hereto, together with any Notes subject to such assignment (to
\n the extent the Principal Debt owed to the assigning Lender is
\n evidenced by any Notes) and a processing fee of $3,500;<\/p>\n
(vi) no Swing Line Lender may assign any portion
\n of its obligations under the Swing Line Subfacility and its
\n related portion of the Revolving Commitment, unless such
\n assignment is being made in connection with the sale of all
\n such Swing Line Lender’s Rights and interests under the Loan
\n Papers.<\/p>\n
Upon execution, delivery, and acceptance of such Assignment and
\n Acceptance Agreement, the assignee thereunder shall be a party hereto
\n and, to the extent of such assignment, have the obligations, Rights,
\n and benefits of a Lender under the Loan Papers and the assigning
\n Lender shall, to the extent of such assignment, relinquish its rights
\n and be released from its obligations under the Loan Papers. Upon the
\n consummation of any assignment pursuant to this Section, but only upon
\n the request of the assignor or assignee made through Administrative
\n Agent, Borrower shall issue appropriate Notes to the assignor and the
\n assignee, reflecting such assignment and acceptance. If the assignee
\n is not incorporated under the laws of the United States of America or
\n a state thereof, it shall deliver to Borrower and Administrative Agent
\n certification as to exemption from deduction or withholding of Taxes
\n in accordance with SECTION 3.20(d).<\/p>\n
(c) The Administrative Agent shall maintain at its
\n address referred to in SECTION 11.3 a copy of each Assignment and
\n Acceptance Agreement delivered to and accepted by it and a register
\n for the recordation of the names and addresses of the Lenders and the
\n Commitment, and principal amount of the Borrowings owing to, each
\n Lender from time to time (the “REGISTER”). The entries in the
\n Register shall be conclusive and binding for all purposes, absent
\n manifest error, and Borrower, Administrative Agent and the Lenders may
\n treat each Person whose name is recorded in the Register as a Lender
\n hereunder for all purposes of the Loan Papers. The Register shall be
\n available for inspection by Borrower or any Lender at any reasonable
\n time and from time to time upon reasonable prior notice. Upon the
\n consummation of any assignment in accordance with this SECTION 11.13,
\n SCHEDULE 2.1 shall automatically be deemed amended (to the extent
\n required) by Administrative Agent to reflect the name, address, and
\n respective Committed Sums of the assignor and assignee.<\/p>\n
(d) Upon its receipt of an Assignment and Acceptance
\n Agreement executed by the parties thereto, together with any Notes
\n subject to such assignment (to the extent the Principal Debt owed to
\n the assigning Lender is evidenced by any Notes) and payment of the
\n processing fee, the Administrative Agent shall, if such assignment and
\n acceptance has been completed and is in substantially the form of
\n EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement,
\n (ii) record the information contained therein in the Register and
\n (iii) give prompt notice thereof to the parties thereto.<\/p>\n
(e) Each Lender may sell participations to one or more
\n Persons (each a “PARTICIPANT”) in all or a portion of its Rights,
\n obligations, or Rights and obligations under this Agreement and
\n related Loan Papers (including all or a portion of its Committed Sum
\n or its portion of Borrowings advanced under this Agreement); provided,
\n however, that (i) such Lender’s obligations under this Agreement
\n shall remain unchanged; (ii) such Lender shall remain solely
\n responsible to the other parties hereto for the<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
59
\n 65
\n performance of such obligations; (iii) the Participant shall be
\n entitled to the benefit of the yield protection provisions contained
\n in SECTIONS 3.15, 3.19, and 3.20 (so long as Borrower shall not be
\n obligated to pay any amount in excess of the amount that would be due
\n to such Lender under such Sections as though no participations have
\n been made) and the right of set-off contained in SECTION 3.13; (iv)
\n Borrower shall continue to deal solely and directly with such Lender
\n in connection with such Lender’s Rights and obligations under this
\n Agreement and the other Loan Papers and such Lender shall retain the
\n sole Right to enforce the obligations of Borrower relating to
\n Borrowings under this Agreement and its Notes (to the extent the
\n Principal Debt owed to such Lender is evidenced by Notes) and to
\n approve any amendment, modification, or waiver of any provision of
\n this Agreement (other than amendments, modifications, or waivers
\n decreasing the amount of principal of or the rate at which interest is
\n payable on the Principal Debt, extending any scheduled principal
\n payment date or date fixed for the payment of interest on the
\n Principal Debt, or extending such Lender’s Committed Sum); and (v)
\n such Lender shall be solely responsible for any withholding taxes or
\n any filing or reporting requirements relating to such participation
\n and shall hold Borrower and Administrative Agent and their respective
\n successors, permitted assigns, officers, directors, employees, agents,
\n and representatives harmless against the same. Except in the case of
\n the sale of a participating interest to another Lender, the relevant
\n participation agreement shall not permit the Participant to transfer,
\n pledge, assign, sell participations in, or otherwise encumber its
\n portion of the Obligation, unless the consent of the transferring
\n Lender (which consent will not be unreasonably withheld) has been
\n obtained.<\/p>\n
(f) Notwithstanding any other provision set forth in this
\n Agreement, any Lender may at any time assign and pledge all or any
\n portion of its Borrowings and its Notes (to the extent the Principal
\n Debt owed to such Lender is evidenced by any Notes) to any Federal
\n Reserve Bank as collateral security pursuant to Regulation A and any
\n Operating Circular issued by such Federal Reserve Bank. No such
\n assignment shall release the assigning Lender from its obligations
\n hereunder.<\/p>\n
(g) Any Lender may furnish any information concerning the
\n Consolidated Companies in the possession of such Lender from time to
\n time to Eligible Assignees and Participants (including prospective
\n Eligible Assignees and Participants), subject, however, to the
\n provisions of SECTION 11.15 hereof.<\/p>\n
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain
\nCircumstances. Each Restricted Company’s obligations under the Loan Papers
\nshall remain in full force and effect until termination of the Commitment and
\npayment in full of the Principal Debt and of all interest, fees, and other
\namounts of the Obligation then due and owing, (and termination of all
\noutstanding LCs with any Lender, if any, unless such Lender shall otherwise
\nconsent) except that SECTIONS 3.15, 3.19, 3.20, SECTION 9, and SECTION 11, and
\nany other provisions under the Loan Papers expressly intended to survive by the
\nterms hereof or by the terms of the applicable Loan Papers, shall survive such
\ntermination. If at any time any payment of the principal of or interest on any
\nNote or any other amount payable by Borrower under any Loan Paper is rescinded
\nor must be otherwise restored or returned upon the insolvency, bankruptcy, or
\nreorganization of Borrower or otherwise, the obligations of each Restricted
\nCompany under the Loan Papers with respect to such payment shall be reinstated
\nas though such payment had been due but not made at such time.<\/p>\n
11.15 Confidentiality. All information furnished by or on behalf of
\nany Restricted Company in connection with or pursuant to this Agreement or any
\nof the Loan Papers (including but not limited to in connection with or pursuant
\nto the negotiation, preparation or requirements hereof or thereof), which
\ninformation has been identified as confidential by any Restricted Company,
\nshall be held by Administrative Agent, each other Agent, each Lender, and each
\nParticipant (collectively, the “LENDER PARTIES”) in accordance with its
\ncustomary procedures for handling confidential information of this nature and
\nin accordance with safe and sound banking<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
60
\n 66
\npractices, and no Lender Party shall disclose any of such information to any
\nother Person; provided that any Lender or Participant may make disclosure (a)
\nto its attorneys or accountants, provided that such Lender or Participant shall
\ndirect such attorneys or accountants to maintain such information in confidence
\nin accordance with the provisions of this SECTION 11.15, and shall be
\nresponsible if such attorneys fail to do so, (b) to any affiliate of any Lender
\nParty or as reasonably required by any prospective bona fide assignee or
\nParticipant in connection with the contemplated transfer of any interest in the
\nObligation or participation, so long as any such contemplated assignee or
\nParticipant has agreed in writing (with a copy to Borrower) to be bound by the
\nprovisions of this SECTION 11.15, (c) as required or requested by any
\nGovernmental Authority or representative thereof or as required pursuant to any
\nLaw or legal process, provided that, unless prohibited by Law or court order,
\nsuch Lender or Participant shall give prior notice to Borrower of such
\ndisclosure as far in advance thereof as is practicable (other than disclosure
\nin connection with an examination of the financial condition of such Person by
\na Governmental Authority), (d) in connection with proceedings to enforce the
\nobligation of any Restricted Company under the Loan Papers, or (e) of any such
\ninformation that has become generally available to the public other than
\nthrough a breach of this SECTION 11.15 (or of any agreement or obligation to be
\nbound by this SECTION 11.15) by any Lender Party, any affiliate of any Lender
\nParty, any prospective assignee or Participant, or their respective attorneys.<\/p>\n
EXECUTED on the respective dates shown on the signature pages hereto,
\nbut effective as of the Closing Date.<\/p>\n
[REMAINDER OF PAGE INTENTIONALLY BLANK.
\n SIGNATURE PAGES FOLLOW.]<\/p>\n
364-DAY REVOLVING
\n CREDIT AND TERM LOAN AGREEMENT<\/p>\n
61
\n 67
\n SCHEDULE 2.1<\/p>\n
LENDERS AND COMMITTED SUMS<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n NationsBank, N.A., successor in interest by merger to $180,500,000.00 2.578571428571429%
\n NationsBank of Texas, N.A.
\n Communications Finance Division
\n Attn: David C. Williams
\n 901 Main Street, 64th Floor
\n Dallas, TX 75202<\/p>\n ABN AMRO Bank, N.V. $220,000,000.00 3.142857142857143%
\n Attn: Jerry Snider
\n One Ravinia Dr., Suite 1200
\n Atlanta, GA 30346<\/p>\n
Banca Commerciale Italiana – New York Branch $150,000,000.00 2.142857142857143%
\n Attn: Karen Purelis, Vice President
\n One William St.
\n New York, NY 10004<\/p>\n
Banca Di Roma – Chicago Branch $50,000,000.00 0.714285714285714%
\n Attn: Aurora Pensa, Vice President
\n 225 West Washington
\n Suite 1200
\n Chicago, IL 60606<\/p>\n
Banca Popolare di Milano, New York Branch $75,000,000.00 1.071428571428571%
\n Attn: Fulvio Montanari, Assistant Vice President
\n 375 Park Avenue
\n 9th Floor
\n New York, NY 10152<\/p>\n
Banco Central Hispanoamericano S.A. $50,000,000.00 0.714285714285714%
\n Attn: Sen Louie, Credit Manager
\n 50 Broadway
\n New York, NY 10004<\/p>\n
Banco Nazionale del Lavoro S.p.A., New York Branch $50,000,000.00 0.714285714285714%
\n Giulio Giovine, Vice President
\n 25 West 51st Street
\n New York, NY 10019<\/p>\n
Bank of America National Trust and Savings Association $171,500,000.00 2.450000000000000%
\n Attn: Fred Thorne, Vice President
\n 555 California Street, 41st Floor (SFCP #9048)
\n San Francisco, CA 94104<\/p>\n
Bank of Hawaii $25,000,000.00 0.357142857142857%
\n Attn: Eric Pelletier
\n 1850 N. Central Avenue
\n Suite 400
\n Phoenix, AZ 85004<\/p>\n
Bank of Montreal $116,500,000.00 1.664285714285714%
\n Attn: Ola Anderssen
\n Director, Communications\/Media
\n 430 Park Avenue
\n New York, NY 10022
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
364-DAY FACILITY – SCHEDULE 2.1
\n 68<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n The Bank of New York $116,500,000.00 1.664285714285714%
\n Attn: Vincent L. Pacilio, Sr. Vice President
\n One Wall Street, 16th Floor
\n New York, NY 10286<\/p>\n The Bank of Nova Scotia $101,500,000.00 1.450000000000000%
\n Attn: Paul Gonin, Relationship Manager
\n Houston Representative Office
\n 1100 Louisiana St., Suite 3000
\n Houston, TX 77002<\/p>\n
Bank of Tokyo-Mitsubishi Trust Company $116,500,000.00 1.664285714285714%
\n Attn: Emile ElNems
\n Vice President
\n 1251 Avenue of the Americas, 12th Floor
\n New York, NY 10020-1104<\/p>\n
Bankers Trust Company $270,000,000.00 3.857142857142857%
\n Attn: Gregory Shefrin
\n 130 Liberty Street, 34th Floor
\n New York, NY 10006<\/p>\n
Banque Nationale de Paris $160,500,000.00 2.292857142857143%
\n Attn: Nuala Marley, Vice President
\n 499 Park Ave, 2nd Floor
\n New York, NY 10022<\/p>\n
Barclays Bank PLC $171,500,000.00 2.450000000000000%
\n Attn: J. K. Downey, Director
\n 388 Market Street, Suite 1700
\n San Francisco, CA 94111<\/p>\n
Bayerische Hypotheken – Und Wechsel-Bank AG $50,000,000.00 0.714285714285714%
\n Attn: Christian Walter, Vice President
\n 32 Old Slip
\n New York, NY 10005<\/p>\n
Bayerische Landesbank Girozentrale Cayman Islands $75,000,000.00 1.071428571428571%
\n Branch
\n Attn: Jim Boyle, Account Manager
\n 560 Lexington Ave., 17th Floor
\n New York, NY 10022<\/p>\n
Canadian Imperial Bank of Commerce $96,500,000.00 1.378571428571429%
\n Attn: Erik Piecuch
\n c\/o CIBC Oppenheimer
\n 425 Lexington Avenue
\n New York, NY 10017<\/p>\n
CARIPLO-Cassa di Risparmio delle Provincie Lombarde $100,000,000.00 1.428571428571429%
\n SpA
\n Attn: Anthony Giobbi, First Vice President
\n 10 East 53th Street
\n 36th Floor
\n New York, NY 10022<\/p>\n
The Chase Manhattan Bank $171,500,000.00 2.450000000000000%
\n Attn: John J. Huber,
\n Managing Director, Global Media and Telecommunications
\n Group
\n 270 Park Avenue, 37th Floor
\n New York, NY 10017
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
2 364-DAY FACILITY – SCHEDULE 2.1
\n 69<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n Citibank, N.A. $171,500,000.00 2.450000000000000%
\n Attn: Eric Huttner
\n Vice President
\n c\/o Citicorp Securities, Inc.
\n 399 Park Avenue, 8th Floor (Zone 5)
\n New York, NY 10043<\/p>\n Commerzbank Aktiengesellschaft, Atlanta Agency $270,000,000.00 3.857142857142857%
\n Attn: Brian Campbell
\n 1230 Peachtree Street N.E.
\n Suite 3500
\n Atlanta, GA 30309<\/p>\n
Credit Lyonnais New York Branch $116,500,000.00 1.664285714285714%
\n Attn: John Judge, Vice President
\n 1301 Avenue of the Americas
\n New York, NY 10019<\/p>\n
Credit Suisse First Boston $170,000,000.00 2.428571428571428%
\n Attn: Todd Morgan, Director
\n 11 Madison Avenue, 20th Floor
\n New York, NY 10010<\/p>\n
The Dai-Ichi Kangyo Bank, Limited $125,000,000.00 1.785714285714286%
\n Attn: Guenter Kittel, Vice President
\n Account Officer
\n Marquis Two Tower, Suite 2400
\n 285 Peachtree Center Ave, N.E.
\n Atlanta, GA 30303<\/p>\n
Den Danske Bank Akrieselskab, Cayman Islands Branch $50,000,000.00 0.714285714285714%
\n c\/o Den Danske Bank, New York Branch
\n Attn: Peter L. Hargraves, Vice President
\n 280 Park Avenue, 4th Floor East Building
\n New York, NY 10017<\/p>\n
Deutsche Bank AG, New York and\/or Cayman Islands $270,000,000.00 3.857142857142857%
\n Branch
\n Attn: Jon D. Storck
\n Relationship Manager, Credit
\n 31 West 52nd Street, 14th Floor
\n New York, NY 10019<\/p>\n
DG BANK $75,000,000.00 1.071428571428571%
\n Deutsche Genossenschaftsbank Cayman Island Branch
\n Attn: Jim Yeager
\n 303 Peachtree Street, N.E.
\n Atlanta, GA 30308<\/p>\n
Dresdner Bank AG, New York and Grand Cayman Branch $150,000,000.00 2.142857142857143%
\n Attn: Constance Loosemore
\n 75 Wall Street
\n New York, NY 10005<\/p>\n
First American National Bank $20,000,000.00 0.285714285714286%
\n Attn: William R. Stutts, Senior Vice President
\n 6000 Poplar Ave.
\n Suite 300
\n Memphis, TN 38119
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
3 364-DAY FACILITY – SCHEDULE 2.1<\/p>\n
70<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n The First National Bank of Chicago $145,500,000.00 2.078571428571429%
\n Attn: Ronna Bury-Prince, Vice President
\n One First National Plaza, Suite 0629
\n Chicago, IL 60670<\/p>\n The First National Bank of Maryland $50,000,000.00 0.714285714285714%
\n Attn: Janet C. Buresh, Vice President
\n 601 13th Street, NW
\n Suite 1000N
\n Washington, DC 20005<\/p>\n
Fleet National Bank $46,500,000.00 0.664285714285714%
\n Attn: Sue Anderson, Vice President
\n 1 Federal St. MA\/OF\/DO3D
\n Boston, MA 02109<\/p>\n
Fuji Bank, Limited $120,000,000.00 1.714285714285714%
\n Attn: Clarence Mahovlich, Vice President
\n Marquis One Tower, Suite 2100
\n 245 Peachtree Center Ave., N.E.
\n Atlanta, GA 30303-1208<\/p>\n
Gulf International Bank B.S.C. $25,000,000.00 0.357142857142857%
\n Attn: Mireille Khalidi, Assistant Vice President
\n 380 Madison Ave.- 21st Floor
\n New York, NY 10017<\/p>\n
The Industrial Bank of Japan, Limited, Atlanta Agency $126,500,000.00 1.807142857142857%
\n Attn: James Masters, Vice President
\n One Ninety One Peachtree Tower, Suite 3600
\n 191 Peachtree Street, N.E.
\n Atlanta, GA 30303-1757<\/p>\n
KBC Bank N.V. $25,000,000.00 0.357142857142857%
\n Attn: Christine Park, Vice President
\n 125 West 55th St
\n New York, NY 10019<\/p>\n
Lehman Commercial Paper Inc. $270,000,000.00 3.857142857142857%
\n Attn: Chris Wahl
\n c\/o Bankers Trust Company
\n Corporate Trust & Agency Group
\n 4 Albany Street – 7th Floor
\n New York, NY 10006<\/p>\n
Lloyds Bank Plc $270,000,000.00 3.857142857142857%
\n Attn: Windsor Davis
\n 575 5th Avenue
\n New York, NY 10017<\/p>\n
Mellon Bank, N.A. $170,000,000.00 2.428571428571428%
\n Attn: Henry Beukema, Vice President
\n One Mellon Bank Center, Room 4440
\n 500 Grant St.
\n Pittsburgh, PA 15258<\/p>\n
Morgan Guaranty Trust Company of New York $171,500,000.00 2.450000000000000%
\n Attn: George Stapleton
\n Vice President
\n 60 Wall Street, 3rd Floor
\n New York, NY 10260-0060
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
4 364-DAY FACILITY – SCHEDULE 2.1
\n 71<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n Norddeutsche Landesbank Girozentrale, New York Branch $25,000,000.00 0.357142857142857%
\n and\/or Cayman Islands Branch
\n Attn: Stephanie Finnen, Vice President
\n 1270 Avenue of the Americas, 14th Floor
\n New York, NY 10020<\/p>\n The Norinchukin Bank New York Branch $25,000,000.00 0.357142857142857%
\n Attn: Takaaki Yamamiya
\n Vice President
\n 245 Park Avenue, 29th Floor
\n New York, NY 10167<\/p>\n
PNC Bank, National Association $50,000,000.00 0.714285714285714%
\n Attn: Daniel Hopkins, Communications Director
\n Communications Division MS F2-F070-21-1
\n 1600 Market Street, 21st Floor
\n Philadelphia, PA 19103<\/p>\n
Royal Bank of Canada $171,500,000.00 2.450000000000000%
\n Attn: Tom Byrne, Senior Manager
\n One Liberty Plaza
\n New York, NY 10006<\/p>\n
Salomon Brothers Holding Company Inc $270,000,000.00 3.857142857142857%
\n Attn: Caesar W. Wyszomirski\/Nicolas Erni
\n Vice President\/Vice President
\n Seven World Trade Center, 42nd Floor
\n New York, NY 10048<\/p>\n
The Sanwa Bank, Limited $150,000,000.00 2.142857142857143%
\n Attn: John T. Feeney, Vice President
\n 55 E. 52nd Street
\n New York, NY 10055<\/p>\n
SouthTrust Bank National Association $25,000,000.00 0.357142857142857%
\n Attn: Noble Jones, Vice President
\n 600 W. Peachtree Street
\n 27th Floor
\n Atlanta, GA 30308<\/p>\n
The Sumitomo Bank, Limited $125,000,000.00 1.785714285714286%
\n Attn: William S. Rogers, Assistant Vice President
\n 700 Louisiana, Suite 1750
\n Houston, TX 77002<\/p>\n
SunTrust Bank, South Florida, N.A. $15,000,000.00 0.214285714285714%
\n Attn: Steve Apodaca
\n 515 E. Las Olas Boulevard, 7th Floor
\n Ft. Lauderdale, FL 33301<\/p>\n
Toronto Dominion (Texas), Inc. $166,500,000.00 2.378571428571429%
\n Attn: Randy Bingham, Investment
\n Banking\/Communications
\n 31 West 52nd Street
\n New York, New York 10019<\/p>\n
UBS AG New York Branch, successor in interest to Union $145,500,000.00 2.078571428571429%
\n Bank of Switzerland, New York Branch
\n Attn: Robert H. Riley III
\n Executive Director
\n 299 Park Ave, 40th Floor
\n New York, NY 10171
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
5 364-DAY FACILITY – SCHEDULE 2.1
\n 72<\/p>\n
\n\n NAME AND ADDRESS OF LENDERS 364-DAY FACILITY COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n
\n Wachovia Bank, N.A. $105,500,000.00 1.507142857142857%
\n Attn: Karin E. Reel
\n Vice President
\n 191 Peachtree St., N.E., 29th Floor
\n Atlanta, GA 30303<\/p>\n Wells Fargo Bank, N.A. $100,000,000.00 1.428571428571429%
\n Attn: Judy A. Vodhanel
\n 707 Wilshire Blvd., 16th Floor
\n MAC 2818-165
\n Los Angeles, CA 90017<\/p>\n
Westpac Banking Corporation $25,000,000.00 0.357142857142857%
\n Attn: Kate V. Perry, Assistant Vice President
\n 575 Fifth Avenue
\n New York, NY 10017<\/p>\n
Westdeutsche Landesbank Girozentrale, New York Branch $245,000,000.00 3.500000000000000%
\n Attn: Walter T. Duffy III
\n 1211 Avenue of the Americas
\n New York, NY 10036
\n Totals $7,000,000,000.00 100.00%
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
6 364-DAY FACILITY – SCHEDULE 2.1
\n 73
\n SCHEDULE 2.3<\/p>\n
SWING LINE LENDERS AND SWING LINE COMMITTED SUMS<\/p>\n
\n\n NAME AND ADDRESS OF SWING LINE LENDERS SWING LINE
\n COMMITTED SUMS
\n
\n NationsBank, N.A. $25,000,000.00
\n Communications Finance Division
\n Attn: David C. Williams
\n 901 Main Street, 64th Floor
\n Dallas, Texas 75202<\/p>\n Bank of America NT & SA $25,000,000.00
\n Attn: Fred Thorne
\n Vice President
\n 555 California Street, 41st Floor, SFCP9048
\n San Francisco, CA 94104<\/p>\n
Barclays Bank PLC $25,000,000.00
\n Attn: James Downey
\n Director
\n 388 Market Street, Suite 1700
\n San Francisco, CA 94111<\/p>\n
The Chase Manhattan Bank $25,000,000.00
\n Attn: John J. Huber, III
\n Managing Director, Media and Telecommunications Group
\n 270 Park Avenue, 37th Floor
\n New York, NY 10017<\/p>\n
Citibank, N.A. $25,000,000.00
\n Attn: Eric Huttner
\n Vice President
\n c\/o Citicorp Securities, Inc.
\n 399 Park Avenue, 8th Floor (Zone 5)
\n New York, NY 10043<\/p>\n
Morgan Guaranty Trust Company of New York $25,000,000.00
\n Attn: George Stapleton
\n Vice President
\n 60 Wall Street, 22nd Floor
\n New York, NY 10260-0060<\/p>\n
Royal Bank of Canada $25,000,000.00
\n Attn: Tom Byrne
\n Sr. Manager
\n Financial Square – 24th Floor
\n New York, New York 10005-3531<\/p>\n
Totals $175,000,000.00
\n<\/c><\/s><\/caption>\n<\/table>\n
364-DAY FACILITY – SCHEDULE 2.3
\n 74
\n SCHEDULE 5.1<\/p>\n
CONDITIONS PRECEDENT TO CLOSING<\/p>\n
(as used herein, the term “CURRENT DATE” means any
\n date not more than 60 days prior to the Closing Date)<\/p>\n
The Agreement shall not become effective unless Administrative Agent has
\nreceived all of the following (unless otherwise indicated, all documents shall
\nbe dated as of August 6, 1998, and all terms used with their initial letters
\ncapitalized are used herein with their meanings as defined in the Facility A
\nAgreement):<\/p>\n
1. The Agreement. The Agreement (together with all Schedules and
\n Exhibits thereto) executed by Borrower, each Lender and
\n Administrative Agent.<\/p>\n
2. Notes. With respect to any Lender requesting Notes pursuant
\n to SECTION 3.1(b), a Revolving Note and Competitive Bid Note
\n in the forms of EXHIBIT A-1 and EXHIBIT A-2, respectively, one
\n payable to each such requesting Lender.<\/p>\n
3. Articles of Incorporation. A copy of the Second Amended and
\n Restated Articles of Incorporation of Borrower, accompanied by
\n a certificate that such copy is correct and complete, dated
\n the Closing Date, executed by the President or a Vice
\n President and the Secretary or Assistant Secretary of
\n Borrower.<\/p>\n
4. Bylaws. A copy of the Bylaws of Borrower and all amendments
\n thereto, accompanied by a certificate that such copy is
\n correct and complete, dated the Closing Date and executed by
\n the President or Vice President and the Secretary or Assistant
\n Secretary of Borrower.<\/p>\n
5. Good Standing and Authority. Certificates of the Georgia
\n Secretary of State, dated a Current Date, to the effect that
\n Borrower is in good standing (to the extent such information
\n is available) and is duly qualified to transact business in
\n such jurisdiction.<\/p>\n
6. Incumbency. Certificates of incumbency dated as of the
\n Closing Date with respect to all officers and “authorized
\n representatives” of Borrower who will be authorized to execute
\n or attest any of the Loan Papers on behalf of Borrower,
\n executed by the President, a Vice President, the Secretary or
\n an Assistant Secretary of Borrower.<\/p>\n
7. Resolutions. Copies of resolutions duly adopted by the Board
\n of Directors of Borrower approving this Agreement and the
\n other Loan Papers and authorizing the transactions
\n contemplated in such Loan Papers, accompanied by a certificate
\n of the Secretary or an Assistant Secretary of Borrower dated
\n as of the Closing Date certifying that such copy is a true and
\n correct copy of resolutions duly adopted at a meeting of
\n (which may be held by conference telephone or similar
\n communications equipment by means of which all Persons
\n participating in a meeting can hear each other if permitted by
\n applicable Law and, if required by such Law, by its Bylaws),
\n or by the unanimous written consent of (if permitted by
\n applicable Law and, if required by such Law, by its Bylaws),
\n the Board of Directors of Borrower, and that such resolutions
\n constitute all the resolutions adopted with respect to such
\n transactions, have not been amended, modified, or revoked in
\n any respect (except as any such resolution may be modified by
\n any such other resolution), and are in full force and effect
\n as of the Closing Date.<\/p>\n
8. Opinions of Counsel to the Companies. The opinions of counsel
\n to the Companies, addressed to Administrative Agent and
\n Lenders, substantially in the form of EXHIBIT F-1 and the
\n opinion of New York counsel to the Restricted Companies,
\n substantially in the form of EXHIBIT F-2.<\/p>\n
364-DAY FACILITY – SCHEDULE 5.1<\/p>\n
75
\n9. Payment of Closing Fees and Expenses. Payment of all fees
\n payable on or prior to the Closing Date to Administrative
\n Agent as provided for in SECTION 4 of the Agreement, together
\n with reimbursements to Administrative Agent for all reasonable
\n fees and expenses incurred in connection with the negotiation,
\n preparation, and closing of the transactions evidenced by the
\n Loan Papers (including, without limitation, attorneys’ fees
\n and expenses).<\/p>\n
10. Current Financials. True and correct copies of the Current
\n Financials have been delivered to Administrative Agent.<\/p>\n
11. Other Documents. Such other agreements, documents,
\n instruments, opinions, certificates, and evidences as
\n Administrative Agent may reasonably request. Administrative
\n Agent shall, upon request of Borrower, confirm to Borrower
\n that it has received all such items so requested.<\/p>\n
2 364-DAY FACILITY – SCHEDULE 5.1
\n 76
\n SCHEDULE 7.12<\/p>\n
EXISTING DEBT<\/p>\n
[To Be Provided]<\/p>\n
364-DAY FACILITY – SCHEDULE 7.12
\n 77
\n SCHEDULE 7.14<\/p>\n
TRANSACTIONS WITH AFFILIATES<\/p>\n
1. WorldCom, Inc. (“WORLDCOM” or “COMPANY”) leases approximately
\n 139,700 square feet of space for its East Rutherford, New
\n Jersey headquarters, of which approximately 31,000 square feet
\n is used by Metromedia Company (“METROMEDIA”). The Metromedia
\n portion of the rent is approximately $692,000 per year. The
\n entire lease is for a 15-year period, with various partial
\n termination options. In addition, Metromedia guaranteed all
\n of WorldCom’s obligations under the lease for the East
\n Rutherford, New Jersey headquarters. WorldCom also subleased
\n or leased from certain of its affiliates certain additional
\n office space in Secaucus, New Jersey; New York, New York; and
\n Columbia, Maryland. The Company is currently evaluating these
\n properties and leases to determine what action it will take
\n thereunder.<\/p>\n
2. Pursuant to the terms of separate leases of microwave
\n transmission facilities, the Company as successor to
\n Metromedia Communications Corporation (“MCC”) is obligated to
\n make the following estimated minimum payments to Metromedia
\n over the remaining terms of the leases, one of which expires
\n in 1997 and the others expire in 2001: $18,353,000 (1996),
\n $11,367,000 (1997), and $14,547,000 (in the aggregate for the
\n years from 1998 through 2001). In addition, at the end of the
\n term of each of the leases, the Company may purchase the
\n equipment covered by such lease at a price to be determined at
\n such date in accordance with the provisions of each lease.<\/p>\n
3. Indemnity Agreements – IDB WorldCom, Inc. entered into an
\n indemnity agreement with certain of its Affiliates. The
\n agreements indemnify such persons against certain liabilities
\n arising out of their service in their capacities as directors
\n and\/or officers and prevent IDB from modifying its
\n indemnification policy in a way that is adverse to any person
\n who is a party to one of the agreements.<\/p>\n
4. On August 23, 1995, Metromedia converted its Series 1
\n Preferred Stock into 21,876,976 shares of Common Stock and
\n exercised warrants to acquire 3,106,976 shares of Common Stock
\n and sold its position of 30,849,976 shares of Common Stock in
\n a public offering. In connection with the preferred stock
\n conversion, the Company made a non-recurring payment of $15.0
\n million to Metromedia, representing a discount to the minimal
\n nominal dividend that would have been payable on the Series 1
\n Preferred Stock prior to the September 15, 1996 optional call
\n date of approximately $26.6 million (which amount included an
\n annual dividend requirement of $24.5 million plus accrued
\n dividends to such call date). The Company did not receive any
\n proceeds from the sale of the shares, but did receive
\n approximately $33.7 million in proceeds from the concurrent
\n exercise of such warrants. In May 1995, Metromedia exercised
\n its right to purchase approximately 3.1 million shares of
\n Common Stock for $30.7 million under purchase warrants.
\n Metromedia is a Delaware general partnership, of which the
\n sole partners are a trust affiliated with Mr. Kluge and Mr.
\n Subotnick. Ms. Kessell and Messrs. Kluge and Subotnick are
\n officers of Metromedia.<\/p>\n
364-DAY FACILITY – SCHEDULE 7.14<\/p>\n
78<\/p>\n
EXHIBIT A-1<\/p>\n
FORM OF REVOLVING NOTE<\/p>\n
$_____________ August 6, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n____________________ (“LENDER”), at the offices of NATIONSBANK, N.A., as
\nAdministrative Agent under the Credit Agreement (as hereinafter described), on
\nthe Termination Date, the lesser of (i) ________________________ ($______ ____)
\nand (ii) the aggregate Principal Debt (other than under the Competitive Bid
\nSubfacility or the Swing Line Subfacility) disbursed by Lender to Borrower and
\noutstanding and unpaid on the Termination Date (together with accrued and
\nunpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the 364-Day Revolving Credit and Term Loan Agreement, dated as of
\nAugust 6, 1998 (as amended, modified, supplemented, or restated from time to
\ntime, the “CREDIT AGREEMENT”), among Borrower, Lender, other lenders named
\ntherein, Administrative Agent, and the other Agents, and is one of the “Notes”
\nreferred to therein. Unless defined herein, capitalized terms used herein that
\nare defined in the Credit Agreement have the meaning given to such terms in the
\nCredit Agreement. Reference is made to the Credit Agreement for provisions
\naffecting this note regarding applicable interest rates, principal and interest
\npayment dates, final maturity, voluntary and mandatory prepayments,
\nacceleration of maturity, exercise of Rights, payment of attorneys’ fees, court
\ncosts and other costs of collection, certain waivers by Borrower and others now
\nor hereafter obligated for payment of any sums due hereunder and security for
\nthe payment hereof. Without limiting the immediately preceding sentence,
\nreference is made to SECTION 3.8 of the Credit Agreement for usury savings
\nprovisions.<\/p>\n
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
\nINTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————–
\n (Name)
\n —————————-
\n (Title)
\n —————————<\/p>\n
364-DAY FACILITY – EXHIBIT A-1
\n 79
\n EXHIBIT A-2<\/p>\n
FORM OF COMPETITIVE BID NOTE<\/p>\n
August 6, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n____________________ (“LENDER”), at the offices of NATIONSBANK, N.A. (as
\nsuccessor in interest by merger to NationsBank of Texas, N.A.), as
\nAdministrative Agent under the Credit Agreement (as hereinafter described):<\/p>\n
(1) on the last day of the Interest Period for any
\n Competitive Borrowing disbursed by Lender to Borrower under the
\n 364-Day Facility, which Interest Period ends prior to the Termination
\n Date, the aggregate principal amount of such Competitive Borrowing
\n outstanding and unpaid on such last day of such Interest Period
\n (together with accrued and unpaid interest thereon), and<\/p>\n
(2) on the Termination Date, the aggregate principal
\n amount of all Competitive Borrowings disbursed by Lender to Borrower
\n under this 364-Day Facility and outstanding and unpaid on the
\n Termination Date (together with accrued and unpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the 364-Day Revolving Credit and Term Loan Agreement, dated as of
\nAugust 6, 1998 (as amended, modified, supplemented, or restated from time to
\ntime, the “CREDIT AGREEMENT”), among Borrower, Lender, other lenders named
\ntherein, Administrative Agent, and the other Agents, and is one of the
\n“Competitive Bid Notes” referred to therein. Unless defined herein,
\ncapitalized terms used herein that are defined in the Credit Agreement have the
\nmeaning given to such terms in the Credit Agreement. Reference is made to the
\nCredit Agreement for provisions affecting this note regarding applicable
\ninterest rates, principal and interest payment dates, final maturity, voluntary
\nand mandatory prepayments, acceleration of maturity, exercise of Rights,
\npayment of attorneys’ fees, court costs and other costs of collection, certain
\nwaivers by Borrower and others now or hereafter obligated for payment of any
\nsums due hereunder and security for the payment hereof. Without limiting the
\nimmediately preceding sentence, reference is made to SECTION 3.8 of the Credit
\nAgreement for usury savings provisions.<\/p>\n
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
\nINTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ————————-
\n (Name)
\n ———————
\n (Title)
\n ——————–<\/p>\n
364-DAY FACILITY – EXHIBIT A-2
\n 80
\n EXHIBIT A-3<\/p>\n
FORM OF SWING LINE NOTE<\/p>\n
$_____________________ August 6, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n____________________________________________ (“SWING LINE LENDER”) at the
\noffices of NationsBank, N.A., as Administrative Agent under the Credit
\nAgreement (as hereinafter described), on the Termination Date, the aggregate
\nprincipal amount of Borrowings under the Swing Line Subfacility disbursed by
\nSwing Line Lender to Borrower and outstanding and unpaid on the Termination
\nDate and on such other dates as provided in the Credit Agreement (as
\nhereinafter described) (together with accrued and unpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the 364-Day Revolving Credit and Term Loan Agreement, dated as of
\nAugust 6, 1998 (as amended, modified, supplemented, or restated from time to
\ntime, the “CREDIT AGREEMENT”), among Borrower, Swing Line Lender, other lenders
\nnamed therein, Administrative Agent, and the other Agents, and is one of the
\n“Swing Line Notes” referred to therein. Unless defined herein, capitalized
\nterms used herein that are defined in the Credit Agreement have the meaning
\ngiven to such terms in the Credit Agreement. Reference is made to the Credit
\nAgreement for provisions affecting this note regarding applicable interest
\nrates, terms, and conditions of Swing Line Borrowings hereunder, principal and
\ninterest payment dates, final maturity, voluntary and mandatory prepayments,
\nacceleration of maturity, exercise of Rights, payment of attorneys’ fees, court
\ncosts, and other costs of collection, certain waivers by Borrower and others
\nnow or hereafter obligated for payment of any sums due hereunder and security
\nfor the payment hereof. Without limiting the immediately preceding sentence,
\nreference is made to SECTION 3.8 of the Credit Agreement for usury savings
\nprovisions.<\/p>\n
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT,
\nAND INTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————
\n (Name)
\n ————————–
\n (Title)
\n ————————-<\/p>\n
364-DAY FACILITY – EXHIBIT A-3
\n 81
\n EXHIBIT A-4<\/p>\n
FORM OF TERM NOTE<\/p>\n
$_____________ ______________, ____<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of _____________
\n(the “LENDER”), at the offices of NATIONSBANK, N.A., as Administrative Agent
\nfor the Lender and others as hereinafter described, on the Term Loan Maturity
\nDate, the amount of ____________________ ($_____________) (together with
\naccrued and unpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is
\nsubject to the terms of, the 364-Day Revolving Credit and Term Loan Agreement,
\ndated as of August 6, 1998 (as amended, modified, supplemented, or restated
\nfrom time to time, the “CREDIT AGREEMENT”), among Borrower, the Lender and
\nother lenders named therein, the Administrative Agent, and the Agents, and is a
\n“Term Note” referred to therein. Unless defined herein, capitalized terms used
\nherein that are defined in the Credit Agreement have the meaning given to such
\nterms in the Credit Agreement. Reference is made to the Credit Agreement for
\nprovisions affecting this note regarding applicable interest rates, principal
\nand interest payment dates, final maturity, voluntary and mandatory
\nprepayments, acceleration of maturity, exercise of Rights, payment of
\nattorneys’ fees, court costs and other costs of collection, certain waivers by
\nBorrower and others now or hereafter obligated for payment of any sums due
\nhereunder and security for the payment hereof. Without limiting the
\nimmediately preceding sentence, reference is made to SECTION 3.8 of the Credit
\nAgreement for usury savings provisions.<\/p>\n
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF
\nTHE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE
\nRIGHTS AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION,
\nENFORCEMENT, AND INTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————-
\n (Name)
\n —————————
\n (Title)
\n ————————–<\/p>\n
364-FACILITY – EXHIBIT A-4
\n 82
\n EXHIBIT B-1<\/p>\n
FORM OF NOTICE OF BORROWING
\n (OTHER THAN COMPETITIVE BORROWING OR SWING LINE BORROWING)<\/p>\n
Date: ________________, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to (i) the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among the undersigned, the
\nLenders, Administrative Agent, and the other Agents. Capitalized terms used
\nherein and not otherwise defined herein shall have the meanings assigned to
\nsuch terms in the Credit Agreement. The undersigned hereby gives you notice
\npursuant to the Credit Agreement that it requests a Borrowing (other than a
\nCompetitive Borrowing or Swing Line Borrowing) under the Credit Agreement, and
\nin that connection sets forth below the terms on which such Borrowing is
\nrequested to be made:<\/p>\n
\n
\n (A) Borrowing Date(1) (A)
\n ————————<\/p>\n (B) Amount of Borrowing(2) (B)
\n ————————<\/p>\n
(C) Type of Borrowing(3) (C)
\n ————————
\n (D) For a Eurodollar Rate Borrowing, the
\n Interest Period and the last day thereof(4) (D)
\n ————————
\n<\/c><\/c><\/s><\/table>\n
On the date the rate is set, please confirm the interest rate below
\nand return by facsimile transmission to __________________________________.<\/p>\n
Borrower hereby certifies that the following statements are true and
\ncorrect on the date hereof, and will be true and correct on the Borrowing Date
\nspecified herein after giving effect to such Borrowing:<\/p>\n
(a) this Borrowing will not cause the Principal Debt to
\n exceed the Commitment;<\/p>\n
(b) all of the representations and warranties of any
\n Borrower set forth in the Loan Papers are true and correct in all
\n material respects (except to the extent that (i) the representations
\n and warranties speak to a specific date, or (ii) the facts on which
\n such representations and warranties are based have been changed by
\n transactions contemplated or permitted by the Loan Papers);<\/p>\n
364-DAY FACILITY – EXHIBIT B-1
\n 83
\n (c) no Default or Potential Default has occurred and is
\n continuing; and <\/p>\n
(d) the funding of such Borrowing is permitted by Law.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————–
\n (Name)
\n —————————-
\n (Title)
\n —————————<\/p>\n
364-Day Facility Rate:_____________________<\/p>\n
Confirmed by:______________________________<\/p>\n
___________________________________________<\/p>\n
(1) Must be a Business Day occurring prior to the Termination Date and be
\n at least (i) three Business Days following receipt by Administrative
\n Agent of this Notice of Borrowing for any Eurodollar Rate Borrowing,
\n and (ii) one Business Day following receipt by Administrative Agent of
\n this Notice of Borrowing for any Base Rate Borrowing.<\/p>\n
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a
\n Base Rate Borrowing); not less than $10,000,000 or a greater integral
\n multiple of $1,000,000 (if a Eurodollar Rate Borrowing).<\/p>\n
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if available to
\n all Lenders, 9 or 12 months. In no event may the Interest Period end
\n after the Termination Date.<\/p>\n
1 364-DAY FACILITY – EXHIBIT B-1
\n 84
\n EXHIBIT B-2<\/p>\n
FORM OF NOTICE OF CONVERSION<\/p>\n
Date: ________________, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent for the Lenders
\n as defined in the Credit Agreement referred to below
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among the undersigned, the
\nLenders, the Administrative Agent and the other Agents under the Credit
\nAgreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meanings assigned to such terms in the Credit Agreement. The
\nundersigned hereby gives you notice pursuant to SECTION 3.10 of the Credit
\nAgreement that it elects to convert a Borrowing (other than a Competitive
\nBorrowing or Swing Line Borrowing) under the applicable Credit Agreement from
\none Type to another Type or elects a new Interest Period for a Eurodollar Rate
\nBorrowing, and in that connection sets forth below the terms on which such
\nelection is requested to be made:<\/p>\n
\n
\n (A) Date of conversion or last day of applicable Interest
\n Period(1) (A)
\n ————–<\/p>\n (B) Type and principal amount of existing Borrowing being
\n converted or continued(2) (B)
\n ————–<\/p>\n
(C) New Type of Borrowing selected (or Type of Borrowing
\n continued)(3) (C)
\n ————–
\n (D) For conversion to, or continuation of, a Eurodollar
\n Rate Borrowing, Interest Period selected and the last
\n day thereof(4) (D)
\n ————–
\n<\/c><\/c><\/s><\/table>\n
On the date the rate is set, please confirm the interest rate below
\nand return by facsimile transmission to ____________________________________.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————–
\n (Name
\n —————————–
\n (Title)
\n —————————<\/p>\n
364-Day Rate:_____________<\/p>\n
364-DAY FACILITY – EXHIBIT B-2
\n 85
\nConfirmed by:_____________________<\/p>\n
__________________________________<\/p>\n
(1) Must be a Business Day at least (i) three Business Days following receipt
\n by Administrative Agent of this Notice of Conversion from a Base Rate
\n Borrowing to a Eurodollar Rate Borrowing or a continuation of a Eurodollar
\n Rate Borrowing for an additional Interest Period, and (ii) one Business Day
\n following receipt by Administrative Agent (as applicable) of this Notice of
\n Conversion for a conversion from a Eurodollar Rate Borrowing to a Base Rate
\n Borrowing.<\/p>\n
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a Base
\n Rate Borrowing); not less than $10,000,000 or a greater integral multiple
\n of $1,000,000 (if a Eurodollar Rate Borrowing).<\/p>\n
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if available to all
\n Lenders 9 or 12 months. In no event may the Interest Period end after the
\n Termination Date.<\/p>\n
2 364-DAY FACILITY – EXHIBIT B-2
\n 86
\n EXHIBIT B-3<\/p>\n
FORM OF TERM CONVERSION REQUEST<\/p>\n
________________, ____(1)<\/p>\n
NationsBank, N.A.
\n as Administrative Agent for
\n the Lenders as defined
\n in the Credit Agreement referred to below
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among the undersigned, the
\nLenders named therein, the Administrative Agent, and other Agents. Capitalized
\nterms used herein and not otherwise defined herein shall have the meanings
\nassigned to such terms in the Credit Agreement. The undersigned hereby gives
\nyou notice pursuant to SECTION 2.5 of the Credit Agreement that it requests the
\nPrincipal Debt be converted to a Term Loan. In connection with this request,
\nBorrower hereby sets forth below the terms on which such conversion is
\nrequested to be made:<\/p>\n
\n
\n(A) Type of Borrowing(s)(2) _______________
\n(B) For Eurodollar Rate Borrowings, the
\n Interest Period(s) and the last day(s)
\n thereof(3) _______________
\n(C) Term Conversion Date _______________
\n<\/c><\/c><\/s><\/table>\n On the date the rate is set, please confirm the interest rate below
\nand return by facsimile transmission to _______________________.<\/p>\n
Borrower hereby certifies that on the Term Conversion Date specified
\nherein and after giving effect to the Term Loan conversion, no Default or
\nPotential Default has occurred and is continuing.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ————————-
\n (Name)
\n ———————
\n (Title)
\n ——————–<\/p>\n
Rate:________<\/p>\n
364-DAY FACILITY – EXHIBIT B-3
\n 87
\nConfirmed by:_________________________<\/p>\n
(1) This Term Conversion Request must be delivered by Borrower to
\n Administrative Agent no sooner than 90 days (and not later
\n than 10 days) preceding the Termination Date.
\n (2) Eurodollar Rate Borrowing(s) or Base Rate Borrowing(s).
\n (3) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if
\n available to all Lenders, 9 or 12 months. In no event may the
\n Interest Period(s) end after the Termination Date in effect on
\n the date of this Term Conversion Request.<\/p>\n
2 364-DAY FACILITY – EXHIBIT B-3
\n 88
\n EXHIBIT B-4<\/p>\n
FORM OF COMPETITIVE BID REQUEST<\/p>\n
Date: ________________, ____<\/p>\n
NationsBank, N.A.,
\n as Administrative Agent for the Lenders as
\n defined in the Credit Agreement referred to below
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among the undersigned, the
\nLenders, Administrative Agent, and the other Agents under the Credit Agreement.
\nCapitalized terms used herein and not otherwise defined herein shall have the
\nmeanings assigned to such terms in the Credit Agreement. The undersigned
\nhereby gives you notice pursuant to SECTION 2.3(b) of the Credit Agreement that
\nit requests a Competitive Borrowing, and in that connection sets forth below
\nthe terms on which such Competitive Borrowing is requested to be made:<\/p>\n
\n
\n (A) Borrowing Date of Competitive Borrowing(1) (A)
\n ————————-<\/p>\n (B) Principal amount of Competitive Borrowing(2) (B)
\n ————————-<\/p>\n
(C) Type of Borrowing(3) (C)
\n ————————-
\n (D) Interest Period and the last day thereof(4) (D)
\n ————————-
\n<\/c><\/c><\/s><\/table>\n
Accompanying this notice is payment of the competitive bid fee payable
\nto Administrative Agent for its own account pursuant to SECTION 4.2 of the
\nCredit Agreement.<\/p>\n
Borrower hereby certifies that the following statements are true on
\nthe date hereof, and will be true on the Borrowing Date specified herein after
\ngiving effect to such Borrowing:<\/p>\n
(a) this Borrowing will not cause the Principal Debt to
\n exceed the Commitment;<\/p>\n
(b) all of the representations and warranties of Borrower
\n set forth in the Loan Papers are true and correct in all material
\n respects (except to the extent that (i) the representations and
\n warranties speak to a specific date, or (ii) the facts on which such
\n representations and warranties are based have been changed by
\n transactions contemplated or permitted by the Loan Papers);<\/p>\n
(c) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
364-DAY FACILITY – EXHIBIT B-4
\n 89
\n (d) the funding of such Borrowing is permitted by Law.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ————————-
\n (Name)
\n ———————
\n (Title)
\n ——————–<\/p>\n
___________________________<\/p>\n
(1) Must be a Business Day occurring prior to the Termination Date and be at
\n least (i) four Business Days following receipt by Administrative Agent of
\n this Competitive Bid Request for any Competitive Borrowing that will be
\n comprised of Eurodollar Rate Borrowings, and (ii) one Business Day
\n following receipt by Administrative Agent of this Competitive Bid Request
\n for any Competitive Borrowing that will be comprised of Fixed Rate
\n Borrowings.<\/p>\n
(2) Not less than $5,000,000 (and in integral multiples of $1,000,000
\n thereafter), and not greater than the lesser of (i) the unused and
\n available portion of the Commitment.<\/p>\n
(3) Eurodollar Rate Borrowing or Fixed Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3 or 6 months, or if available to all
\n Lenders, 9 or 12 months; Fixed Rate Borrowing — up to 6 months. But in no
\n event may the Interest Period end after the Termination Date.<\/p>\n
2 364-DAY FACILITY – EXHIBIT B-4
\n 90
\n EXHIBIT B-5<\/p>\n
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST<\/p>\n
Date: ________________, ____
\n[Name of Lender]
\n[Address of Lender]
\nAttention: ______________________<\/p>\n
Reference is made to (i) the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among WorldCom, Inc., the
\nLenders, the Administrative Agent for the Lenders, and the other Agents under
\nthe Credit Agreement. Capitalized terms used herein and not otherwise defined
\nherein shall have the meanings assigned to such terms in the Credit Agreement.
\nBorrower delivered a Competitive Bid Request dated ___________, ____, pursuant
\nto SECTION 2.3(b) of the Credit Agreement, and in that connection you are
\ninvited to submit a Competitive Bid by [Date]\/[Time].(1) Your Competitive Bid
\nmust comply with SECTION 2.3(c) of the Credit Agreement and the terms set
\nforth below on which the Competitive Bid Request was made:<\/p>\n
\n
\n (A) Borrowing Date of Competitive Borrowing (a Business (A)
\n Day) ————————<\/p>\n (B) Principal amount of Competitive Borrowing (B)
\n ————————
\n (C) Type of Borrowing (C)
\n ————————
\n (D) Interest Period and the last day thereof (D)
\n ————————
\n<\/c><\/c><\/s><\/table>\n
Very truly yours,<\/p>\n
NATIONSBANK, N.A., as Administrative
\n Agent under the Credit Agreement<\/p>\n
By
\n ————————————
\n Name:
\n ———————————
\n Title:
\n ——————————–<\/p>\n
______________________________<\/p>\n
(1) The Competitive Bid must be received by the Administrative Agent (i) in the
\n case of Eurodollar Rate Borrowings, not later than 10:00 a.m., Dallas,
\n Texas time, four Business Days before the Borrowing Date of the proposed
\n Competitive Borrowing, and (ii) in the case of Fixed Rate Borrowings, not
\n later than 10:00 a.m., Dallas, Texas time, on the Borrowing Date of the
\n proposed Competitive Borrowing.<\/p>\n
364-DAY FACILITY – EXHIBIT B-5
\n 91
\n EXHIBIT B-6<\/p>\n
FORM OF COMPETITIVE BID<\/p>\n
Date: ________________, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent for the Lenders
\n under the Credit Agreement described below
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
The undersigned, [Name of Lender], refers to the 364-Day Revolving
\nCredit and Term Loan Agreement, dated as of August 6, 1998 (as amended,
\nmodified, supplemented, or restated from time to time, the “CREDIT AGREEMENT”),
\namong WorldCom, Inc. (the “BORROWER”), Lenders, Administrative Agent, and the
\nother Agents under the Credit Agreement. Capitalized terms used herein and not
\notherwise defined herein shall have the meanings assigned to such terms in the
\nAgreement. The undersigned hereby makes a Competitive Bid pursuant to SECTION
\n2.3(c) of the Credit Agreement, in response to the Competitive Bid Request made
\nby Borrower on ____________________, ________, and in that connection sets forth
\nbelow the terms on which such Competitive Bid is made:<\/p>\n
\n
\n (A) Principal Amount(1) (A)
\n —————————
\n (B) Competitive Bid Rate(2) (B)
\n —————————
\n (C) Interest Period and the last day thereof(3) (C)
\n —————————
\n<\/c><\/c><\/s><\/table>\n The undersigned hereby confirms that it is prepared to extend credit
\nto Borrower upon acceptance by Borrower of this bid in accordance with SECTION
\n2.3(e) of the Credit Agreement.<\/p>\n
Very truly yours,<\/p>\n
[NAME OF LENDER]
\n By
\n ————————————-
\n Name:
\n ———————————-
\n Title:
\n ———————————<\/p>\n
______________________<\/p>\n
(1) Not less than $5,000,000 (and in integral multiples of $1,000,000
\n thereafter) and which may equal the entire principal amount of the
\n Competitive Borrowing requested by Borrower and which may exceed such
\n Credit Lender’s Committed Sum under the Credit Agreement (subject to the
\n limitations set forth in SECTION 2.3(A) of the Credit Agreement). Multiple
\n bids will be accepted by Administrative Agent.
\n(2) Eurodollar Rate +_____% or-_____%, in the case of Eurodollar Rate
\n Borrowings; or _____%, in the case of Fixed Rate Borrowings (in each case,
\n expressed in the form of a decimal to no more than four decimal places).
\n(3) The Interest Period must be the Interest Period specified in the
\n Competitive Bid Request.<\/p>\n
364-DAY FACILITY – EXHIBIT B-6
\n 92
\n EXHIBIT B-7<\/p>\n
FORM OF SWING LINE BORROWING REQUEST<\/p>\n
Date: ________________, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent for the Lenders
\n under the Credit Agreement described below
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated, from time to time, the “CREDIT AGREEMENT”), among the undersigned,
\nthe Lenders, Administrative Agent, and the other Agents under the Credit
\nAgreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meanings assigned to such terms in the Credit Agreement. The
\nundersigned hereby gives you notice pursuant to SECTION 2.2(b) of the Credit
\nAgreement that it requests a Swing Line Borrowing under the Credit Agreement,
\nand in that connection sets forth below the terms on which such Swing Line
\nBorrowing is requested to be made:<\/p>\n
\n
\n (A) Date of Swing Line Borrowing (which is a (A)
\n —————————
\n Business Day)<\/p>\n (B) Principal Amount of Swing Line Borrowing(1) (B)
\n —————————<\/p>\n
(C) Interest Rate Basis(2) (C)
\n —————————
\n<\/c><\/c><\/s><\/table>\n
Upon acceptance of any or all of the Swing Line Borrowings made by the
\nSwing Line Lenders in response to this request, the undersigned shall be deemed
\nto have represented and warranted that the conditions specified in SECTION
\n5.2(c), (d), (e), and (f) of the Credit Agreement have been satisfied.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ————————————
\n Name:
\n ———————————
\n Title:
\n ——————————–<\/p>\n
______________________________<\/p>\n
(1) Not less than $1,000,000 (and in integral multiples of $250,000).<\/p>\n
(2) Alternate Rate Swing Line Borrowing or Quoted Swing Line Borrowing.<\/p>\n
364-DAY FACILITY – EXHIBIT B-7
\n 93
\n EXHIBIT C<\/p>\n
FORM OF ADMINISTRATIVE QUESTIONNAIRE<\/p>\n
BORROWER: WorldCom, Inc.<\/p>\n
1) Name of Entity as it should appear on Signature Page:
\n ______________________________________. Please indicate
\n number of signature lines required for Entity _______________.<\/p>\n
2) Name and address of Person to Receive Drafts of Loan Papers at
\n Lender: ____________________________________________________
\n _____________________________________________________________.<\/p>\n
3) If different from above, name and address of person to whom
\n signature pages should be forwarded for execution:<\/p>\n
_______________________________________________________________
\n _______________________________________________________________
\n _______________________________________________________________<\/p>\n
4) If different from above, name and address of person to whom
\n signature pages should be forwarded for execution:<\/p>\n
_______________________________________________________________
\n _______________________________________________________________
\n _______________________________________________________________<\/p>\n
\n\n CREDIT CONTACT OPERATIONS CONTACT LEGAL COUNSEL
\n ————– —————— ————-
\n <\/p>\n NAME: ————– —————— ————-<\/p>\n
TITLE: ————– —————— ————-<\/p>\n
ADDRESS: ————– —————— ————-<\/p>\n
————– —————— ————-<\/p>\n
————– —————— ————-<\/p>\n
TELEPHONE: ————– —————— ————-<\/p>\n
FACSIMILE #: ————– —————— ————-<\/p>\n
ANSWERBACK: ————– —————— ————-
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
364-DAY FACILITY – EXHIBIT C
\n 94
\nPAYMENT INSTRUCTIONS<\/p>\n
FED WIRE INSTRUCTIONS<\/p>\n
\n
\nPAY TO:
\n ———————————————————————————————–
\n (Name of Lender)<\/p>\n —————————————————————————————
\n (Address)<\/p>\n
———————————- ——————————————–
\n (City) (State) (Zip)<\/p>\n
—————————————————————————————
\n (ABA #) (Account #)<\/p>\n
—————————————————————————————
\n (Attention)
\n<\/c><\/s><\/table>\n
NATIONSBANK PAYMENT INSTRUCTIONS<\/p>\n
PAY TO: NationsBank TX
\n Dallas, Texas
\n ABA #: 111000025<\/p>\n
ATTENTION: Commercial Loan Operations<\/p>\n
REFERENCE: WorldCom Inc.<\/p>\n
ACCOUNT #: 120-2000-883<\/p>\n
2 364-DAY FACILITY – EXHIBIT C
\n 95
\n EXHIBIT D<\/p>\n
FORM OF COMPLIANCE CERTIFICATE<\/p>\n
FOR ENDED ,
\n ————— —————–<\/p>\n
DATE: ,
\n —————— ———-<\/p>\n
ADMINISTRATIVE AGENT: NationsBank, N.A.<\/p>\n
BORROWER: WorldCom, Inc.<\/p>\n
——————————————————————————-<\/p>\n
This certificate is delivered under the 364-Day Revolving Credit and
\nTerm Loan Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “CREDIT AGREEMENT”) among
\nBorrower, Lenders, Administrative Agent, and the other Agents under the Credit
\nAgreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meaning given to such terms in the Credit Agreement.<\/p>\n
I certify to Lenders that:<\/p>\n
(a) I am a Responsible Officer of the Consolidated Companies in
\nthe position(s) set forth under my signature below;<\/p>\n
(b) the Financial Statements of the Consolidated Companies
\nattached to this certificate were prepared in accordance with GAAP, and present
\nfairly in all material respects the consolidated financial condition and
\nresults of operations of Consolidated Companies as of, and for the (three, six,
\nor nine months, or fiscal year) ended on, _____________________, ___________
\n(the “SUBJECT PERIOD”) [(subject only to normal year-end audit adjustments)];<\/p>\n
(c) a review of the activities of the Consolidated Companies
\nduring the Subject Period has been made under my supervision with a view to
\ndetermining whether, during the Subject Period, the Consolidated Companies have
\nkept, observed, performed, and fulfilled all of their respective obligations
\nunder the Loan Papers, and during the Subject Period, to my knowledge (i) the
\nConsolidated Companies kept, observed, performed, and fulfilled each and every
\ncovenant and condition of the Loan Papers (except for the deviations, if any,
\nset forth on a schedule annexed to this certificate) in all material respects,
\nand (ii) no Default (nor any Potential Default) has occurred which has not been
\ncured or waived (except the Defaults or Potential Defaults, if any, described
\non the schedule annexed to this certificate);<\/p>\n
(d) to my knowledge, the status of compliance by the Restricted
\nCompanies with SECTION 7.22 of the Credit Agreement at the end of the Subject
\nPeriod is as set forth on ANNEX I to this certificate;<\/p>\n
364-DAY FACILITY – EXHIBIT D
\n 96
\n (e) as of the date hereof, to my knowledge, the aggregate secured
\nDebt (including, without limitation, the amounts outstanding as of the date
\nhereof under Capital Leases) of the Restricted Companies restricted by SECTION
\n7.12(F) of the Credit Agreement is $_____________________ [which amount is
\nequal to or less than $____________________ (being 10% of the book value of the
\nconsolidated assets of the Restricted Companies as of the end of the Subject
\nPeriod)]; and<\/p>\n
(f) as of the date hereof, to my knowledge, the aggregate Debt of
\nthe Restricted Subsidiaries is $_________________, which amount does not
\nexceed $ ____________________ [(being (i) 10% of the book value of the
\nconsolidated assets of the Restricted Companies as of the end of the Subject
\nPeriod)] plus (ii) the principal amount of all Existing Debt of MCI and its
\nSubsidiaries on and after the MCI Merger Date.<\/p>\n
By
\n ————————————
\n (Name)
\n ——————————–
\n (Title)
\n ——————————-<\/p>\n
2 364-DAY FACILITY – EXHIBIT D
\n 97
\n ANNEX I TO COMPLIANCE CERTIFICATE<\/p>\n
Status of Compliance with SECTION 7.22
\n of the Credit Agreement1<\/p>\n
(All on consolidated basis for the Restricted Companies at the end of
\n Subject Period)<\/p>\n
\n
\n1. SECTION 7.22 – TOTAL DEBT TO TOTAL CAPITALIZATION
\n ————————————————-<\/p>\n a. Total Debt of Consolidated Companies(1) $
\n ——————————————-<\/p>\n
b. Total Debt of Unrestricted Companies $
\n ———————————–<\/p>\n
c. Total Debt of Restricted Companies (Line a minus Line b) $
\n ——————————————-<\/p>\n
d. Consolidated Net Worth of Consolidated Companies(1) $
\n ———————————–<\/p>\n
e. Consolidated Net Worth of Unrestricted Companies $
\n ——————————————-<\/p>\n
f. Consolidated Net Worth of Restricted Companies
\n (Line d minus Line e) $
\n ———————————–<\/p>\n
g. Total Capitalization(1) (Sum of Line c and Line f) $
\n ———————————–<\/p>\n
h. Ratio of Line c to Line g :
\n ————————————<\/p>\n
i. Maximum Ratio for Subject Period 0.68 : 1.0
\n<\/c><\/c><\/c><\/s><\/table>\n
________________<\/p>\n
(1) All as more particularly determined in accordance with the terms of the
\nCredit Agreement, which control in the event of conflicts with this form.<\/p>\n
3 364-DAY FACILITY – EXHIBIT D
\n 98
\n EXHIBIT E<\/p>\n
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”) among WORLDCOM, INC., a
\nGeorgia corporation (“BORROWER”), Lenders, the Co-Syndication Agents (each such
\nterm as defined in the Credit Agreement), and NATIONSBANK, N.A., as the
\nAdministrative Agent under the Credit Agreement (“ADMINISTRATIVE AGENT”).
\nCapitalized terms used herein and not otherwise defined herein shall have the
\nmeanings assigned to such terms in the Credit Agreement.<\/p>\n
The “ASSIGNOR” and the “ASSIGNEE” referred to on SCHEDULE 1 agree as
\nfollows:<\/p>\n
1. The Assignor hereby sells and assigns to the Assignee, without
\nrecourse and without representation or warranty except as expressly set forth
\nherein, and the Assignee hereby purchases and assumes from the Assignor, an
\ninterest in and to the Assignor’s Rights and obligations under the Credit
\nAgreement and the related Loan Papers as of the date hereof equal to the
\npercentage interest specified on SCHEDULE 1 (excluding any outstanding
\nCompetitive Borrowings owed to the Assignor or any obligations to fund any
\nSwing Line Borrowing in Assignor’s capacity as a Swing Line Lender [unless the
\nAssignor is selling all of its Rights and obligations under the Loan Papers],
\nbut including any participations by the Assignor in any Swing Line Borrowings
\npursuant to SECTION 2.2 of the Credit Agreement). After giving effect to such
\nsale and assignment, the Assignor’s and the Assignee’s Committed Sums and the
\namount of the Borrowings under the Credit Agreement owing to each of them will
\nbe as set forth on SCHEDULE 1.<\/p>\n
2. The Assignor (i) represents and warrants that it is the legal
\nand beneficial owner of the interest being assigned by it hereunder and that
\nsuch interest is free and clear of any adverse claim; (ii) makes no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with the
\nLoan Papers or the execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of the Loan Papers or any other instrument or document
\nfurnished pursuant thereto; (iii) makes no representation or warranty and
\nassumes no responsibility with respect to the financial condition of any party
\nto any Loan Paper or the performance or observance by any such party of any of
\nits obligations under the Loan Papers or any other instrument or document
\nfurnished pursuant thereto; and (iv) attaches the Notes held by the Assignor
\n(to the extent the Principal Debt being assigned and owed to the Assignor is
\nevidenced by Notes) and requests that Administrative Agent exchange such Notes
\nfor new Notes if so requested by either the Assignor or Assignee. Such new
\nNotes shall be prepared in accordance with the provisions of SECTION 3.1(B) of
\nthe Credit Agreement and will reflect the respective Committed Sums of the
\nAssignee and the Assignor after giving effect to this Assignment and
\nAcceptance.<\/p>\n
3. The Assignee (i) confirms that it has received a copy of the
\nCredit Agreement, together with copies of the Current Financials and such other
\ndocuments and information as it has deemed appropriate to make its own credit
\nanalysis and decision to enter into this Assignment and Acceptance; (ii) agrees
\nthat it will, independently and without reliance upon the Administrative Agent,
\nthe Assignor, or any other Lender, and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in taking or not taking action under the Agreement; (iii) confirms
\nthat it is an Eligible Assignee; (iv) appoints and authorizes Administrative
\nAgent to take such action as Administrative Agent on its behalf and to exercise
\nsuch powers and discretion under the Credit Agreement as are delegated to
\nAdministrative Agent by the terms thereof, together with such powers and
\ndiscretion as are reasonably incidental thereto; (v) agrees that it will
\nperform in accordance with their terms all of the obligations that by the terms
\nof the Credit Agreement are required to be performed by it as a Lender; and
\n(vi) attaches any U.S. Internal Revenue Service or other forms required under
\nSECTION 3.20(d) of the Credit Agreement.<\/p>\n
364-DAY – EXHIBIT E
\n 99
\n 4. Following the execution of this Assignment and Acceptance, it
\nwill be delivered to Administrative Agent for acceptance and recording by the
\nAdministrative Agent. The effective date for this Assignment and Acceptance
\n(the “EFFECTIVE DATE”) shall be the date of acceptance hereof by Administrative
\nAgent, unless otherwise specified on SCHEDULE 1.<\/p>\n
5. Upon such acceptance and recording by Administrative Agent, as
\nof the Effective Date, (i) the Assignee shall be a party to the Credit
\nAgreement and, to the extent provided in this Assignment and Acceptance, have
\nthe Rights and obligations of a Lender thereunder, and (ii) the Assignor shall,
\nto the extent provided in this Assignment and Acceptance, relinquish its Rights
\nand be released from its obligations under the Credit Agreement.<\/p>\n
6. Upon such acceptance and recording by Administrative Agent,
\nfrom and after the Effective Date, Administrative Agent shall make all payments
\nunder the Credit Agreement, the Notes (to the extent the Principal Debt owed to
\nthe Assignee is evidenced by Notes), and loan accounts in respect of the
\ninterest assigned hereby (including, without limitation, all payments of
\nprincipal, interest and commitment fees and other fees with respect thereto) to
\nthe Assignee. The Assignor and Assignee shall make all appropriate adjustments
\nin payments under the Credit Agreement and the other Loan Papers for periods
\nprior to the Effective Date directly between themselves.<\/p>\n
7. Unless the Assignee is a Lender or an Affiliate of a Lender
\n(and this sale and assignment is not made in connection with the sale of such
\nAffiliate), this Assignment and Acceptance is conditioned upon the consent of
\nBorrower and Administrative Agent pursuant to the definition of “Eligible
\nAssignee” in the Credit Agreement. The execution and delivery of this
\nAssignment and Acceptance by Borrower and Administrative Agent is evidence of
\nthis consent.<\/p>\n
8. As contemplated by SECTION 11.13(b)(v) of the Credit
\nAgreement, the Assignor or the Assignee (as determined between the Assignor and
\nthe Assignee) agrees to pay to Administrative Agent for its account on the
\nEffective Date in federal funds a processing fee of $3,500.<\/p>\n
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL
\nBE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
\nWITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.<\/p>\n
10. This Assignment and Acceptance may be executed in any number
\nof counterparts and by different parties hereto in separate counterparts, each
\nof which when so executed shall be deemed to be an original and all of which
\ntaken together shall constitute one and the same agreement. Delivery of an
\nexecuted counterpart of SCHEDULE 1 to this Assignment and Acceptance by
\ntelecopier shall be effective as delivery of a manually executed counterpart of
\nthis Assignment and Acceptance.<\/p>\n
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
\n1 to this Assignment and Acceptance to be executed by their officers thereunto
\nduly authorized as of the date specified thereon.<\/p>\n
2 364-DAY – EXHIBIT E
\n 100
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (364-DAY FACILITY)<\/p>\n
\n
\n1. Assigned Interest:*<\/p>\n (a) Assignor’s Committed Sum prior to giving effect to the Assignment to
\n Assignee $___________________<\/p>\n
(b) Aggregate Borrowings owed to Assignor (inclusive of participations
\n in Swing Line Borrowings, if any), immediately prior to giving
\n effect to the assignment to Assignee $___________<\/p>\n
(c) Aggregate Borrowings owed to Assignor (exclusive of participations
\n in Swing Line Borrowings, if any), immediately prior to giving
\n effect to the assignment to Assignee $___________<\/p>\n
(d) Percentage Interest in Commitment and Borrowings being assigned to
\n Assignee by Assignor (not less than $10,000,000, when aggregated
\n with any concurrent assignments from Assignor to Assignee under
\n Facility A and Facility B, but in no event less than $1,000,000) ___________________%<\/p>\n
2. Adjustments after giving effect to Assignment between Assignor and
\n Assignee:<\/p>\n
(a) Assignor’s Committed Sum $___________<\/p>\n
(b) Assignee’s Committed Sum acquired from Assignor pursuant to this
\n Assignment $___________<\/p>\n
(c) Assignor’s aggregate Borrowings (inclusive of participations in
\n Swing Line Borrowings, if any) $___________________<\/p>\n
(d) Assignee’s Borrowings (inclusive of Swing Line Borrowings, if any)
\n acquired from Assignor pursuant to this Assignment $___________________<\/p>\n
(e) Assignor’s aggregate Borrowings (exclusive of participations in
\n Swing Line Borrowings, if any) $___________________<\/p>\n
(f) Assignee’s Borrowings (exclusive of Swing Line Borrowings if any)
\n acquired from Assignor pursuant to the Assignment $___________________<\/p>\n
3. Effective Date (if other than date of acceptance by Administrative
\n Agent): *_________________, _______
\n<\/c><\/s><\/table>\n
__________________________________<\/p>\n
* Each assignment shall exclude Competitive Borrowings and Swing Line
\n Borrowings unless Assignor is assigning 100% of its interest under
\n Facility A.<\/p>\n
3 364-DAY – EXHIBIT E
\n 101
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (364-DAY FACILITY)
\n (PAGE 2 OF 2)<\/p>\n
[NAME OF ASSIGNOR], as Assignor<\/p>\n
By:
\n ————————————–
\n Title:
\n —————————<\/p>\n
Dated: ,
\n ———————— ——<\/p>\n
[NAME OF ASSIGNEE], as Assignee<\/p>\n
By:
\n ————————————–
\n Title:
\n —————————<\/p>\n
Dated: ,
\n ———————— ——<\/p>\n
4 364-DAY – EXHIBIT E
\n 102
\n If SECTION 11.13(b) and CLAUSE (c) of the definition of “Eligible
\nAssignee” of the Credit Agreement so require, Borrower and Administrative Agent
\nconsent to this Assignment and Acceptance.<\/p>\n
WORLDCOM, INC., as Borrower<\/p>\n
By:
\n ———————————
\n Title:
\n ——————————<\/p>\n
Dated: ,
\n ———————– —-<\/p>\n
NATIONSBANK, N.A., as Administrative
\n Agent<\/p>\n
By:
\n ———————————
\n Title:
\n ——————————<\/p>\n
Dated: ,
\n ———————— —-<\/p>\n
* This date should be no earlier than five Business Days after the delivery
\n of this Assignment and Acceptance to the Administrative Agent under the
\n Credit Agreement.<\/p>\n
5 364-DAY – EXHIBIT E
\n 103
\n EXHIBIT F-1<\/p>\n
FORM OF OPINION OF GENERAL COUNSEL OF BORROWER<\/p>\n
August 6, 1998<\/p>\n
NationsBank, N.A., in its capacity as
\n Administrative Agent<\/p>\n
Each of the Agents and the Lenders named in Schedules 2.1 to the Credit
\nAgreement referred to below<\/p>\n
RE: CREDIT FACILITY OF WORLDCOM, INC.<\/p>\n
Ladies and Gentlemen:<\/p>\n
I am the General Counsel of WorldCom, Inc., a Georgia corporation
\n(“BORROWER”), and have acted as counsel to Borrower and its Restricted
\nSubsidiaries in connection with the 364-Day Revolving Credit and Term Loan
\nAgreement dated as August 6, 1998 (the “CREDIT AGREEMENT”) among Borrower, the
\nlenders named on SCHEDULE 2.1 to the Credit Agreement (“LENDERS”), NationsBank,
\nN.A., as the “Administrative Agent” under the Credit Agreement (in such
\ncapacity, the “ADMINISTRATIVE AGENT”) and the other “Agents” under the Credit
\nAgreement.<\/p>\n
This opinion is delivered pursuant to SECTION 5.1 of the Credit
\nAgreement and PARAGRAPH 8 of SCHEDULE 5.1 to the Credit Agreement. Unless
\notherwise defined, each capitalized term used herein has the meaning given to
\nsuch term in the Credit Agreement.<\/p>\n
In arriving at the opinions expressed below, I or attorneys employed
\nby Borrower and acting under my supervision have examined such corporate
\ndocuments and records of the Consolidated Companies and such certificates of
\npublic officials and of officers of the Consolidated Companies, other
\ndocuments, and matters of law as I deemed necessary or appropriate, including,
\nwithout limitation, originals or copies (or, with respect to the Notes under
\nthe Credit Agreement (collectively, the “NOTES”) only, the forms of Notes
\nattached as Exhibits to the Credit Agreement) of (i) the Credit Agreement, and
\n(ii) to the extent any Notes are executed and delivered on the Closing Date or
\nimmediately subsequent thereto, such Notes (all of the foregoing, collectively,
\nthe “TRANSACTION DOCUMENTS”).<\/p>\n
In rendering the opinions expressed below, I have assumed with your
\npermission, without independent investigation or inquiry, (a) the authenticity
\nof all documents submitted to me as originals, (b) the genuineness of all
\nsignatures on all documents that I have examined (other than those of any
\nofficer of any Consolidated Company who signed in my presence and Bernard J.
\nEbbers, Charles T. Cannada, Scott D. Sullivan, and any other officer signing
\nthe incumbency provisions of officers’ certificates delivered in connection
\nwith the Loan Papers), (c) the conformity to authentic originals of documents
\nsubmitted to me as certified, conformed or photostatic copies, and (d)
\ncompliance by the Administrative Agent, the other Agents, and the Lenders with
\ntheir respective covenants and undertakings contained in the Transaction
\nDocuments.<\/p>\n
As to certain matters of New York law, I understand you will rely
\nsolely upon the opinions of Bryan Cave LLP.<\/p>\n
Based upon the foregoing, and subject to the qualifications and
\nlimitations herein contained, it is my opinion that:<\/p>\n
364-DAY FACILITY – EXHIBIT F-1
\n 104
\n 1. Borrower (a) is a corporation validly existing and in good
\nstanding under the Laws of its state of incorporation (based solely upon my
\nreview of good standing certificates issued by such state with respect to such
\ncorporation), and (b) possesses all requisite corporate authority and power to
\nconduct its business and execute, deliver, and comply with the terms of the
\nTransaction Documents, which have been duly authorized and approved by all
\nnecessary corporate action and for which, to the best of my knowledge, no
\napproval or consent of any Person or Governmental Authority is required which
\nhas not been obtained, except where the failure to obtain would not be a
\nMaterial Adverse Event.<\/p>\n
2. Each of the Transaction Documents have been duly executed and
\ndelivered by Borrower.<\/p>\n
3. The Transaction Documents evidence the valid and legally
\nbinding obligations of Borrower, enforceable against Borrower in accordance
\nwith their terms, except as the enforcement may be limited by Debtor Relief
\nLaws and except that the remedies available with respect thereto may be subject
\nto general principles of equity (regardless of whether such remedies are sought
\nin a proceeding in equity or at law).<\/p>\n
4. The execution, delivery and performance of and compliance with
\nthe terms of the Transaction Documents will not cause Borrower to be in
\nviolation of its Second Amended and Restated Articles or Certificates of
\nIncorporation or Bylaws.<\/p>\n
5. The execution, delivery, and the performance of and compliance
\nwith the terms of the Transaction Documents will not cause Borrower to be in
\nviolation of any Laws applicable to it, other than such violations which will
\nnot, individually or collectively, be a Material Adverse Event.<\/p>\n
6. No Restricted Company is involved in, nor am I aware of the
\nthreat of, any Litigation which is reasonably likely to be determined adversely
\nto any Restricted Company and, if so adversely determined, would be a Material
\nAdverse Event. There are no outstanding orders or judgments for the payment of
\nmoney (not paid or fully covered by insurance) in excess of $100,000,000
\n(individually or collectively) or any warrant of attachment, sequestration, or
\nsimilar proceeding against any Restricted Company’s assets having a value
\n(individually or collectively) of $100,000,000 or more, which is not either (a)
\nstayed on appeal, (b) being diligently contested in good faith by appropriate
\nproceedings with adequate reserves having been set aside on the books of such
\nRestricted Company in accordance with GAAP, or (c) dismissed by a court of
\ncompetent jurisdiction.<\/p>\n
7. To the best of my knowledge, after reasonable investigation,
\nthe execution, delivery, and the performance of and compliance with the terms
\nof the Transaction Documents will not cause Borrower to be in default under any
\nmaterial written or oral agreements, contracts, commitments, or understandings
\nto which any Restricted Company is a party, other than such defaults or
\npotential defaults which will not, individually or collectively, be a Material
\nAdverse Event.<\/p>\n
8. (a) No Employee Plan has incurred an accumulated funding
\ndeficiency (as defined in the Code and ERISA), (b) neither Borrower nor any
\nERISA Affiliate has incurred material liability which is currently due and
\nremains unpaid to the PBGC or to an Employee Plan in connection with any such
\nEmployee Plan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in
\nwhole or in part from participation in a Multiemployer Plan, (d) Borrower has
\nnot engaged in any prohibited transaction (as such term is defined in ERISA or
\nthe Code) which would be a Material Adverse Event, and (e) to the best of my
\nknowledge, after reasonable investigation, no Reportable Event has occurred
\nwhich is likely to result in the termination of any Employee Plan.<\/p>\n
This opinion is limited in all respect to the laws of the State of
\nGeorgia and the federal laws of the United States of America.<\/p>\n
2 364-DAY FACILITY – EXHIBIT F-1
\n 105
\n I note that the Transaction Documents are to be governed by the laws
\nof the State of New York. Accordingly, for purposes of rendering this opinion
\nas to the enforceability of the Transaction Documents, I have assumed that the
\nsubstantive laws of the State of New York are identical to the substantive laws
\nof the State of Georgia.<\/p>\n
The foregoing opinions are also subject to the following exceptions
\nand qualifications: I express no opinion<\/p>\n
(a) with respect to the availability of the remedies of
\n specific performance or injunction, or other remedies requiring the
\n exercise of judicial discretion;<\/p>\n
(b) as to the effect of the compliance or noncompliance
\n of Lenders with any state or federal laws or regulations applicable to
\n any Lender’s legal or regulatory status or the nature of such Lender’s
\n business;<\/p>\n
(c) as to the enforceability of any provisions contained
\n in the Transaction Documents that (i) purport to make void any act in
\n contravention thereof, (ii) purport to authorize a party to act in its
\n sole discretion, (iii) relate to the effect of laws or regulations
\n that may be enacted in the future, (iv) require waivers or amendments
\n to be made only in writing or (v) purport to effect waivers of
\n constitutional, statutory or equitable rights or the effect of
\n applicable laws;<\/p>\n
(d) regarding the enforceability of the waivers in the
\n Transaction Documents of the right to demand a trial by jury and with
\n respect to selection of a venue;<\/p>\n
(e) as to the enforceability of any provisions in the
\n Transaction Documents to the effect that the acceptance of a past due
\n installment or other performance by Borrower shall not be deemed a
\n waiver of the right to accelerate the indebtedness;<\/p>\n
(f) as to the enforceability of any provisions in the
\n Transaction Documents relating to (i) set off, (ii) self help or (iii)
\n evidentiary standards or other standards by which the Transaction
\n Documents are to be construed;<\/p>\n
(g) with regard to any provisions of the Transaction
\n Documents whereby a party purports to indemnify another party against
\n its own negligence or misconduct; and<\/p>\n
(h) as to matters subject to the jurisdiction of the FCC,
\n state public utility commissions, or any other communications or
\n similar regulatory authorities.<\/p>\n
This opinion is addressed to you solely for your use in connection
\nwith the transactions contemplated by the Transaction Documents, and no person
\nother than the Administrative Agent, each other Agent, each Lender, each
\nassignee which hereafter becomes a Lender as permitted by the Credit Agreement
\nand the law firm of Haynes and Boone, L.L.P. is entitled to rely hereon without
\nmy prior written consent. This opinion is given as of the date hereof, and I
\nhave no obligation to revise or update this opinion subsequent to the date
\nhereof or to advise you or any other person of any matter subsequent to the
\ndate hereof which would cause me to modify this opinion in whole or in part.<\/p>\n
Very truly yours,<\/p>\n
William E. Anderson,
\n General Counsel<\/p>\n
364-DAY FACILITY – EXHIBIT F-1
\n 106
\n EXHIBIT F-2<\/p>\n
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
\n [BRYAN CAVE]<\/p>\n
August 6, 1998<\/p>\n
NationsBank, N.A.,
\n as Administrative Agent<\/p>\n
Each of the Agents and Lenders named on SCHEDULE 2.1 to the Credit Agreement
\nreferred to below:<\/p>\n
Ladies and Gentlemen:<\/p>\n
We have acted as special New York counsel to WorldCom, Inc., a Georgia
\ncorporation (the “BORROWER”), in connection with the negotiation, preparation,
\nand execution of the 364-Day Revolving Credit and Term Loan Agreement (the
\n“CREDIT AGREEMENT”) dated as of August 6, 1998, by and among the Borrower, the
\nLenders referred to on SCHEDULE 2.1 of the Credit Agreement (“LENDERS”),
\nNationsBank, N.A. (as successor in interest by merger to NationsBank of Texas,
\nN.A.), as the “Administrative Agent” under the Credit Agreement (the “CREDIT
\nADMINISTRATIVE AGENT”) and the other “Agents” under the Credit Agreement
\n(collectively, “AGENTS”):<\/p>\n
This opinion is furnished to you pursuant to SECTIONS 5.1 of the
\nCredit Agreement and PARAGRAPH 8 of SCHEDULE 5.1 of the Credit Agreement.
\nCapitalized terms used but not otherwise defined herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n
For purposes of the opinions expressed herein, we have examined the
\nfollowing documents:<\/p>\n
(a) A copy of the Credit Agreement;<\/p>\n
(b) A copy of the form of the Notes issuable under the Credit
\n Agreement;<\/p>\n
(c) A copy of a Secretary’s Certificate for the Borrower dated as
\n of the date hereof (the “SECRETARY’S CERTIFICATE”), including
\n the following exhibits appended to each such Secretary’s
\n Certificate:<\/p>\n
Exhibit A Second Amended and Restated Articles of
\n Incorporation
\n Exhibit B Certificate of Existence
\n Exhibit C By-Laws
\n Exhibit D Authorizing Resolutions\/Unanimous Written
\n Consents<\/p>\n
The documents described under Paragraphs (a) and (b) above are
\nsometimes collectively referred to herein as the “TRANSACTION DOCUMENTS”. We
\nhave not made any independent investigation or inquiries as to (i) the accuracy
\nor completeness of any factual matters contained in the exhibits or schedules
\nto any of the Transaction Documents, (ii) any other instruments or other
\ndocuments delivered by the Borrower in connection with any of the Transaction
\nDocuments, or (iii) title to, or ownership of any property, real or personal,
\nor the compliance or non-compliance of such properties with applicable laws,
\nregulations, and codes.<\/p>\n
364-DAY FACILITY – EXHIBIT F-2
\n 107
\n In rendering this opinion, we have assumed the accuracy of, and we
\nhave relied as to matters of fact upon, the representations and warranties made
\nby the Borrower in the Transaction Documents insofar as they relate to factual
\nmatters and upon factual representations as to certain matters contained in the
\nSecretary’s Certificate and other certificates signed by officers of the
\nBorrower and certain of the other Restricted Companies. We have assumed, and
\nwe have relied upon, (i) the genuineness of all signatures on documents,
\ninstruments, and certificates reviewed by us, (ii) the accuracy and
\nauthenticity of all documents, instruments, and certificates reviewed by us,
\n(iii) the legal competence of all natural persons who are signatories thereto,
\n(iv) the conformity to authentic original documents of all documents,
\ninstruments, and certificates submitted to us as certified, conformed or
\nphotostatic copies, and (v) the due execution and delivery of all documents
\n(other than the Transaction Documents) where due execution and delivery are a
\nprerequisite to the effectiveness thereof. We have further assumed that the
\nCredit Agreement have been duly authorized, executed, and delivered by the
\nAdministrative Agent, the Agents, and the Lenders and that the Administrative
\nAgent, the Agents, and the Lenders have the requisite corporate power and
\nauthority to execute, deliver, and perform the Credit Agreement.<\/p>\n
Based on the foregoing and in reliance thereon, and subject to the
\nassumptions, exceptions, limitations and qualifications set forth in this
\nopinion, we are of the opinion that:<\/p>\n
(1) Each of the Transaction Documents constitute the valid and
\n legally binding obligation of the Borrower, enforceable
\n against Borrower in accordance with its terms.<\/p>\n
(2) The execution, delivery, and performance by the Borrower of
\n each of the Transaction Documents to which it is a party will
\n not violate any applicable Law of the State of New York,
\n except for any such violations which could not reasonably be
\n expected to cause, either individually or in the aggregate, a
\n Material Adverse Event.<\/p>\n
(3) The execution, delivery, and performance by Borrower of the
\n Transaction Documents do not require the consent or
\n authorization of, or filing with any New York Governmental
\n Authority.<\/p>\n
(4) No Restricted Company is an “investment company” or a company
\n “controlled” by an “investment company” within the meaning of
\n the Investment Company Act of 1940, as amended.<\/p>\n
(5) No Restricted Company is a “holding company” or a “subsidiary
\n company” of a “holding company” within the meaning of the
\n Public Utility Holding Company Act of 1935, as amended.<\/p>\n
(6) No Restricted Company is subject to regulation under the
\n Interstate Commerce Act, as amended.<\/p>\n
(7) The application of the proceeds of the Borrowings under the
\n Credit Agreement by the Borrower in accordance with the terms
\n of the Credit Agreement will not violate Regulation U.<\/p>\n
This opinion is subject to the additional exceptions, limitations and
\nqualifications set forth below:<\/p>\n
Enforceability of the Transactions Documents are subject to:<\/p>\n
(1) the effect of bankruptcy, insolvency, reorganization,
\n receivership, moratorium and other similar laws affecting the
\n rights and remedies of creditors generally, including:<\/p>\n
(a) the United States Bankruptcy Code of 1978, as
\n amended, and thus comprehends, among others, matters
\n of turn-over, automatic stay, avoiding powers,
\n fraudulent transfer, preference, discharge,
\n conversion of a non-recourse obligation into a
\n recourse claim, limitations on<\/p>\n
2 364-DAY FACILITY – EXHIBIT F-2
\n 108
\n ipso facto and anti-assignment clauses and the
\n coverage of pre-petition security agreements
\n applicable to property acquired after a petition is
\n filed.<\/p>\n
(b) all other federal and state bankruptcy, insolvency,
\n reorganization, receivership, moratorium, arrangement
\n and assignment for the benefit of creditors laws that
\n affect the rights and remedies of creditors
\n generally.<\/p>\n
(c) state fraudulent transfer and conveyance laws.<\/p>\n
(d) judicially developed doctrines relevant to any of the
\n foregoing laws, such as substantive consolidation of
\n entities.<\/p>\n
(2) the effect of general principles of equity, whether applied by
\n a court of law or equity, including principles:<\/p>\n
(a) governing the availability of specific performance,
\n injunctive relief or other equitable remedies, which
\n generally place the award of such remedies, subject
\n to certain guidelines, in the discretion of the court
\n to which application for such relief is made.<\/p>\n
(b) affording equitable defenses (e.g., waiver, laches
\n and estoppel) against a party seeking enforcement.<\/p>\n
(c) requiring good faith and fair dealing in the
\n performance and enforcement of a contract by the
\n party seeking its enforcement.<\/p>\n
(d) requiring reasonableness in the performance and
\n enforcement of an agreement by the party seeking
\n enforcement of the contract.<\/p>\n
(e) requiring consideration of the materiality of a
\n breach and the consequences of the breach to the
\n party seeking enforcement.<\/p>\n
(f) requiring consideration of the impracticability or
\n impossibility of performance at the time of attempted
\n enforcement.<\/p>\n
(g) affording defenses based upon the unconscionability
\n of the enforcing party’s conduct after the parties
\n have entered into the contract.<\/p>\n
(3) the effect of generally applicable rules of law that:<\/p>\n
(a) limit or affect the enforcement of provisions of a
\n contract that purport to require waiver of the
\n obligations of good faith, fair dealing, diligence
\n and reasonableness.<\/p>\n
(b) provide that forum selection clauses in contracts are
\n not necessarily binding on the court(s) in the forum
\n selected.<\/p>\n
(c) limit the availability of a remedy under certain
\n circumstances where another remedy has been elected.<\/p>\n
(d) limit the right of a creditor to use force or cause a
\n breach of the peace in enforcing rights.<\/p>\n
3 364-DAY FACILITY – EXHIBIT F-2
\n 109
\n (e) limit the enforceability of provisions releasing,
\n exculpating or exempting a party from, or requiring
\n indemnification of a party for, liability for its own
\n action or inaction, to the extent public policy
\n limits the enforceability of such indemnification or
\n the action or inaction involves gross negligence,
\n recklessness, willful misconduct or unlawful conduct.<\/p>\n
(f) may, where less than all of a contract may be
\n unenforceable, limit the enforceability of the
\n balance of the contract to circumstances in which the
\n unenforceable portion is not an essential part of the
\n agreed exchange.<\/p>\n
(g) govern and afford judicial discretion regarding the
\n determination of damages and entitlement to
\n attorneys’ fees and other costs.<\/p>\n
(h) may permit a party who has materially failed to
\n render or offer performance required by the contract
\n to cure that failure unless (A) permitting a cure
\n would unreasonably hinder the aggrieved party from
\n making substitute arrangements for performance, or
\n (B) it was important in the circumstances to the
\n aggrieved party that performance occur by the date
\n stated in the contract.<\/p>\n
(i) limit the enforceability of any clause requiring
\n additional interest or additional payments upon
\n default.<\/p>\n
(j) limit the enforceability of any clause authorizing
\n the exercise of set-off rights absent prior notice
\n and demand.<\/p>\n
We express no opinion as to the enforceability of (i) any waiver of
\njury trial, or any waiver of any statutory or constitutional rights, or (ii)
\nthe choice of law provisions in any of the Transaction Documents in courts
\nsitting in jurisdictions other than the State of New York. We express no
\nopinion as to any titles, estates, or interests of the Borrower in and to any
\nproperties, real or personal, fee or leasehold. We express no opinion as to
\n(x) the enforceability of any waiver of any statutory right and (y) the
\nenforceability of the provisions found under clauses A, B, C, E, F and G of
\nSECTION 11.10 of the Credit Agreement. With respect to our opinions provided
\nunder numbered paragraphs 4, 5 and 6 above, we have assumed that the business
\nof the Restricted Companies is limited to the provision of long distance
\ntelecommunications services through a digital fiber optic and digital microwave
\nnetwork, and that the Restricted Companies, individually and collectively, are
\nengaged in no other line of business.<\/p>\n
We express no opinion on any other matters pertaining to the
\ntransactions contemplated by or related to the Transaction Documents, except as
\nhereinabove specifically provided, and no further or other opinion shall be
\nimplied. The opinion above is subject to each and every assumption, exception,
\nqualification and limitation, factual or legal, set forth herein. The matters
\nset forth herein or upon which this opinion is based are as of the date hereof,
\nand we hereby undertake no, and disclaim any, obligation to advise the
\nAdministrative Agent, the Agents, or any Lender of any change in any matters
\nset forth herein or any matters upon which this opinion is based.<\/p>\n
We are qualified to practice law in the State of New York, and we do
\nnot purport to be experts on, or to express any opinion concerning, any laws
\nother than the laws of the State of New York. The opinions above are subject
\nto this limitation in all respects. We express no opinion as to any matters
\ninvolving the Federal Communications Commission and state public utility
\ncommissions or analogous regulatory or governmental authorities or the laws,
\nrules, or regulations relating to any regulatory matters affecting the
\ncompanies, as we understand you will rely solely on special regulatory counsel
\nto the Restricted Companies for such matters.<\/p>\n
4 364-DAY FACILITY – EXHIBIT F-2
\n 110
\n This opinion is addressed solely for your use in connection with the
\ntransactions contemplated by the Credit Agreement, and no Person other than the
\nAdministrative Agent, each Agent, each Lender, each assignee which hereafter
\nbecomes a Lender in accordance with the terms of either of the Credit
\nAgreement, and the law firm of Haynes and Boone, L.L.P., is entitled to rely
\nhereon without our prior written consent.<\/p>\n
Very truly yours,<\/p>\n
BRYAN CAVE LLP<\/p>\n
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