\n Category 1
\n ———-
\nEqual to or higher than BBB+
\nby S&P; Less than 2.00:1.0 0.000% 0.300% 0.070%<\/p>\nEqual to or higher than Baa1
\nby Moody’s
\n—————————————————————————————————————————–
\n Category 2
\n ———-
\n Greater than or equal
\nBBB by S&P; to 2.00:1.0, 0.000% 0.350% 0.090%
\n but less than 2.50:1.0
\nBaa2 by Moody’s
\n—————————————————————————————————————————–
\n Category 3
\n ———-
\n Greater than or equal
\nBBB- by S&P; to 2.50:1.0, 0.000% 0.400% 0.100%
\n but less than 3.50:1.0
\nBaa3 by Moody’s
\n—————————————————————————————————————————–
\n Category 4
\n ———-
\n Greater than or equal
\nBB+ by S&P; to 3.50:1.0, 0.000% 0.500% 0.150%
\n but less than 4.0:1.0
\nBa1 by Moody’s
\n—————————————————————————————————————————–
\n Category 5
\n ———-<\/p>\n
Equal to BB or lower by S&P; Greater than or equal 0.000% 0.750% 0.225%
\n to 4.0:1.0
\nEqual to Ba2 or lower by
\nMoody’s
\n—————————————————————————————————————————–
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
For purposes of determining the Applicable Margin:<\/p>\n
(a) With respect to the debt ratings criteria: (i) if
\n neither Moody’s nor S&P shall have in effect a rating for Index Debt
\n (other than by reason of the circumstances referred to in the last
\n sentence of this definition), then both such rating agencies will be
\n deemed to have established ratings for Index Debt in Category 5; (ii)
\n if only one of Moody’s or S&P shall have in effect a rating for Index
\n Debt, Borrower and the Lenders will negotiate in good faith to agree
\n upon another rating agency to be substituted by an agreement for the
\n rating agency which shall not have a rating in effect, and in the
\n absence of such agreement the Applicable Margin will be determined by
\n reference to the available rating; (iii) if the ratings established by
\n Moody’s and S&P shall differ by one Category, the Applicable Margin
\n shall be determined by reference to the numerically lower Category:
\n (for example, if the rating from S&P is in Category 1 and the rating
\n from 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 Category,
\n the Applicable Margin shall be determined by reference to the Category
\n that is one numerical<\/p>\n
3
\n 10
\n Category lower than the numerically higher of the two Categories
\n corresponding to the ratings established by the two rating agencies:
\n (for example, if the rating from S&P is in Category 2 and the rating
\n from Moody’s is in Category 5, the Applicable Margin shall be
\n determined by reference to Category 4); and (iv) if any rating
\n established by Moody’s or S&P shall be changed (other than as a result
\n of a change in the rating system of either Moody’s or S&P), such
\n change shall be effective as of the date on which such change is first
\n announced by the rating agency making such change. If the rating
\n system of either Moody’s or S&P shall change prior to the payment in
\n full of the Obligation and the cancellation of all commitments to lend
\n hereunder, Borrower and the Lenders shall negotiate in good faith to
\n amend the references to specific ratings in this definition to reflect
\n such changed rating system. If both Moody’s and S&P shall cease to be
\n in the business of rating corporate debt obligations, Borrower and the
\n Lenders shall negotiate in good faith to agree upon a substitute
\n rating agency and to amend the references to specific ratings in this
\n definition to reflect the ratings used by such substitute rating
\n agency.<\/p>\n
(b) Until the second Business Day after the initial
\n Financial Statements and Compliance Certificate for the fiscal quarter
\n ending March 31, 1998, shall have been delivered hereunder, the
\n Applicable Margin for Leverage Ratio purposes shall be deemed to be
\n 0.0% for Base Rate Borrowings, and 0.40% for Eurodollar Rate
\n Borrowings. With respect to any adjustments in the Applicable Margin
\n as a result of changes in the Leverage Ratio, such adjustment shall be
\n effective commencing on the second Business Day after the delivery of
\n Financial Statements (and related Compliance Certificate) pursuant to
\n SECTIONS 7.3(a) and 7.3(b) or the most recent Notice of Borrowing or
\n Permitted Acquisition Compliance Certificate for a Permitted
\n Acquisition, as the case may be.<\/p>\n
(c) During any time that the Applicable Margin is
\n determined with respect to the Leverage Ratio, if Borrower fails to
\n timely furnish to Lenders the Financial Statements and related
\n Compliance Certificates as required to be delivered pursuant to
\n SECTIONS 7.3(a) and 7.3(b), and such failure shall not be remedied
\n within five days after written notice thereof from the Administrative
\n Agent or any Lender, then the Applicable Margin shall be the lesser of
\n (i) the then-effective Applicable Margin with respect to the debt
\n rating criteria, if any, or (ii) the maximum Applicable Margin
\n specified in the table above for Category 5.<\/p>\n
(d) On the 271st day following the Closing Date, the
\n Applicable Margin for all Eurodollar Rate Borrowings shall be
\n increased by 0.125%.<\/p>\n
ARRANGER means NationsBanc Montgomery Securities LLC, and its
\nsuccessors and assigns.<\/p>\n
ASSUMED TAXES means, with respect to any Equity Issuance, an amount
\nequal to such incremental annual increase in franchise Taxes as Borrower
\nestimates in good faith shall be payable as a result of such Equity Issuance.<\/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<\/p>\n
4
\n 11
\nin the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
\nshall be effective on the effective date of such change in the Prime Rate or
\nFederal 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 (under the Competitive Bid Subfacility or
\notherwise), whether such amount constitutes an original disbursement of funds
\nor the continuation of an amount outstanding, or (b) by any Lender in
\naccordance with, and to satisfy the obligations of any Restricted Company
\nunder, any Loan Paper.<\/p>\n
BORROWING DATE is defined in SECTION 2.5(a).<\/p>\n
BROOKS is defined in the recitals to this Agreement.<\/p>\n
BROOKS NOTE TRANSACTION means, the contemplated tender offer, exchange
\noffer, consent solicitation, or other acquisition by Borrower of the Brooks
\nNotes, consummated in a manner and upon terms and conditions reasonably
\nsatisfactory to Administrative Agent.<\/p>\n
BROOKS NOTES means, collectively or individually, (a) the 10% Senior
\nNotes due 2007, issued under the Indenture dated as of May 29, 1997, between
\nBrooks and The Bank of New York, as Trustee, (b) the 10 7\/8% Senior Discount
\nNotes due 2006, issued under the Indenture dated as of February 26, 1996,
\nbetween Brooks and The Bank of New York, as Trustee, and (c) the 11 7\/8% Senior
\nDiscount Notes due 2006, issued under the Indenture dated as of November 7,
\n1996, between Brooks and The Bank of New York, as Trustee.<\/p>\n
BROOKS NOTE AGREEMENTS means, collectively or individually, (a) the
\nIndenture dated as of May 29, 1997, between Brooks and the Bank of New York, as
\nTrustee, pursuant to which the 10% Senior Notes of Brooks were issued (as the
\nsame may have been and may hereafter be supplemented, amended, and modified,
\nsubject to the provisions of SECTION 7.25 on and after the date upon which
\nBrooks and its Subsidiaries are redesignated as Restricted Subsidiaries); (b)
\nthe Indenture dated as of February 26, 1996, between Brooks and the Bank of New
\nYork, as Trustee, pursuant to which the 10 7\/8% Senior Discount Notes of Brooks
\nwere issued (as the same may have been and may hereafter be supplemented,
\namended, and modified, subject to the provisions of SECTION 7.25 on and after
\nthe date upon which Brooks and its Subsidiaries are redesignated as Restricted
\nSubsidiaries); and (c) the Indenture dated as of November 7, 1996, between
\nBrooks and the Bank of New York, as Trustee, pursuant to which the 11 7\/8%
\nSenior Discount Notes of Brooks were issued (as the same may have been and may
\nhereafter be supplemented, amended, and modified, subject to the provisions of
\nSECTION 7.25 on and after the date upon which Brooks and its Subsidiaries are
\nredesignated as Restricted Subsidiaries).<\/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 New York, New York, and (b) in addition to
\nthe foregoing, in respect of any Eurodollar Rate Borrowing, a day on which
\ndealings in United States dollars are conducted in the London interbank market
\nand commercial banks are open for international business in London.<\/p>\n
5
\n 12
\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, Administrative Agent, and Lenders and all conditions
\nprecedent specified in SECTION 5.1 have been satisfied or waived.<\/p>\n
CODE means the Internal Revenue Code of 1986, as amended, together
\nwith rules and regulations promulgated thereunder.<\/p>\n
COMMITMENT means an amount (subject to reduction or cancellation as
\nherein provided) equal to $1,250,000,000.<\/p>\n
COMMITMENT PERCENTAGE means the proportion that any Lender’s Committed
\nSum bears to the Commitment then in effect.<\/p>\n
COMMITTED SUM means the amount stated beside each Lender’s name on the
\nmost-recently amended SCHEDULE 2.1 to the Agreement (which amount is subject to
\nincrease, reduction, or cancellation 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 2.4.<\/p>\n
COMPETITIVE BID AVAILABILITY means, on any date of determination
\nthereof, 100% of the then-effective Commitment.<\/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 2.2, (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 2.2(b) substantially in the form of EXHIBIT B-3.<\/p>\n
COMPETITIVE BID SUBFACILITY means the subfacility described in and
\nsubject to the limitations of SECTION 2.2.<\/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-1.<\/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<\/p>\n
6
\n 13
\nprepayment or payment of such Borrowing or conversion of such Borrowing to a
\nBorrowing of another Type, in each case, prior to the last day of the Interest
\nPeriod 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 INCOME means, for any period, the amount that should,
\nin accordance with GAAP, be reflected on the Consolidated Companies’
\nconsolidated income statement as net income for that period.<\/p>\n
CONSOLIDATED NET WORTH means, for any period, the consolidated
\nstockholders’ equity of the Consolidated 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 either (a) the Financial Statements
\nof Borrower for the fiscal year ended December 31, 1996, and the nine-month
\nperiod ended September 30, 1997, calculated on a consolidated basis for the
\nConsolidated Companies and the Financial Statements of Brooks and its
\nconsolidated Subsidiaries for the nine-month period ending September 30, 1997;
\nor (b) the Financial Statements required to be delivered under SECTIONS 7.3(a)
\nor 7.3(b), as the case may be, separately calculated on a consolidated basis
\nfor the Consolidated Companies.<\/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.<\/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
7
\n 14
\n DETERMINING LENDERS means, on any date of determination occurring
\nprior to the date upon which the Commitment has been terminated, those Lenders
\nwho collectively hold at least 51% of the Commitment (or 51% of the Principal
\nDebt, if the Facility has been terminated or converted to a Term Loan).<\/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 in conjunction with the sale of such
\nAffiliate); and (c) any other Person approved by Administrative Agent (which
\napproval will not be unreasonably withheld or delayed by Administrative Agent)
\nand, unless a Default has occurred and is continuing at the time any assignment
\nis effected in accordance with SECTION 11.14, Borrower, such approval not to be
\nunreasonably withheld or delayed by Borrower and such approval to be deemed
\ngiven by Borrower if no objection is received by the assigning Lender and the
\nAdministrative Agent from Borrower within five Business Days after notice of
\nsuch proposed assignment has been provided by the assigning Lender to Borrower;
\nprovided, however, that neither Borrower nor any Affiliate of Borrower shall
\nqualify as an Eligible Assignee.<\/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
EQUITY ISSUANCE means the issuance by any Restricted Company of any
\nshares of any class of stock, warrants, or other equity interests, other than
\n(a) stock issued by Borrower as payment of all or any portion of the purchase
\nprice for a Permitted Acquisition, (b) present and future shares of stock,
\noptions, or warrants issued to employees, directors or consultants of the
\nRestricted Companies, or stock issued upon their exercise, and (c) stock issued
\nupon the exercise of the existing options and warrants described on SCHEDULE
\n6.3.<\/p>\n
ERISA means the Employee Retirement Income Security Act of 1974, as
\namended, and the regulations and rulings thereunder.<\/p>\n
8
\n 15
\n ERISA AFFILIATE means any company or trade or business (whether or not
\nincorporated) which, for purposes of Title IV of ERISA, is a member of
\nBorrower’s controlled group or which is under common control with Borrower
\nwithin the meaning of Section 414(b) or (c) 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 minus the margin indicated for such
\nCompetitive Borrowing in the related Competitive Bid.<\/p>\n
EXHIBIT means an exhibit to this Agreement unless otherwise specified.<\/p>\n
EXISTING DEBT means the Debt described on SCHEDULE 7.12(d).<\/p>\n
EXISTING LIENS means those Liens described on SCHEDULE 7.13.<\/p>\n
FACILITY means the credit facility described in SECTION 2.1 and
\nsubject to the limitations of the Agreement.<\/p>\n
FACILITY A AGREEMENT means the Facility A Revolving Credit Agreement
\ndated as of July 3, 1997, among Borrower, Administrative Agent, the Agents and
\nCo-Agents (as such terms are defined therein), and the Facility A Lenders (as
\nthe same may be amended, modified, supplemented, or restated from time to
\ntime).<\/p>\n
FACILITY A LENDERS means, on any date of determination, the financial
\ninstitutions named on SCHEDULE 2.1 to the Facility A Agreement (as the same may
\nbe amended from time to time) and their respective successors and assigns, but
\nnot any participant who is not otherwise a party to the Facility A Agreement.<\/p>\n
FACILITY B AGREEMENT means the Facility B Revolving Credit and Term
\nLoan Agreement dated as of July 3, 1997, among Borrower, Administrative Agent,
\nthe Agents and Co-Agents (as such terms are defined therein), and the Facility
\nB Lenders (as the same may be amended, modified, supplemented, or restated from
\ntime to time).<\/p>\n
FACILITY B LENDERS means, on any date of determination, the financial
\ninstitutions named on SCHEDULE 2.1 to the Facility B Agreement (as the same may
\nbe amended from time to time) and their<\/p>\n
9
\n 16
\nrespective successors and assigns, but not any Participant who is not otherwise
\na party to the Facility B Agreement.<\/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
\nfor such day shall be such rate on such transactions on the next preceding
\nBusiness Day as so published on the next succeeding Business Day, and (b) if no
\nsuch rate is so published on such next succeeding Business Day, the Federal
\nFunds Rate for such day shall be the average rate charged to Administrative
\nAgent (in its individual capacity) on such day on such transactions as
\ndetermined by Administrative Agent (which determination shall be conclusive and
\nbinding, absent 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 hedging,
\nor other contract which is intended to reduce or eliminate the market risk of
\nholding currency or a commodity in either the cash or futures markets, which
\nFinancial Hedge under either CLAUSE (a) or CLAUSE (b) is entered into by any
\nRestricted Company with any Lender or an Affiliate of any Lender or any other
\nPerson under the Laws of a jurisdiction in which such contracts are legal and
\nenforceable (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 2.2 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
\ncovenants contained in SECTION 7.28 and the defined terms “ANNUALIZED OPERATING
\nCASH FLOW,” “INTEREST EXPENSE,” “LEVERAGE RATIO,” and “OPERATING CASH FLOW,”
\n(and, to the extent used in or relating to such covenants or such defined
\nterms, any other defined terms), are in effect on the date hereof, and (b) for
\nall other 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<\/p>\n
10
\n 17
\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
INTEREST EXPENSE means, for any period of calculation thereof, for any
\nPerson, all interest (including commitment fees) on all Debt of such Person,
\nwhether paid in cash or accrued as a liability and payable in cash during such
\nperiod (including, without limitation, imputed interest on Capital Lease
\nobligations) and all cash premiums or penalties for repayment, redemption, or
\nrepurchase of Debt.<\/p>\n
INTEREST PERIOD is determined in accordance with SECTION 3.9.<\/p>\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
\ninstitution(s) 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 11.14(c) of this Agreement) and subject to the terms and conditions of
\nthis Agreement, and their respective successors and assigns, but not any
\nParticipant who is not otherwise a party to this Agreement.<\/p>\n
LEVERAGE RATIO means, on any date of determination thereof, the ratio
\nof (a) Total Debt outstanding, minus (i) the amount of any
\nimmediately-available cash or Cash Equivalents owned by the Restricted
\nCompanies, and (ii) the market value (determined as of any date of
\ndetermination) of any immediately-available Marketable Securities owned by the
\nRestricted Companies, to (b) Annualized Operating Cash Flow of the Consolidated
\nCompanies. The Leverage Ratio shall be (x) determined, for purposes of SECTION
\n7.28, as of any such date of determination, and (y) determined for all other
\npurposes under the Loan Papers, from the then most current of (A) the quarterly
\nor annual Financial Statements calculated for the Consolidated Companies on a
\nconsolidated basis and related Compliance Certificate delivered by Borrower
\npursuant to SECTIONS 7.3(a) and 7.3(b), or (B) the most recent Notice of
\nBorrowing for a Permitted Acquisition or any Permitted Acquisition Compliance
\nCertificate, calculating any adjustments to the Leverage Ratio necessitated as
\na result of the Permitted Acquisition. As used in this definition:<\/p>\n
(i) the term “immediately-available” shall mean that any
\n such cash, Cash Equivalents, or Marketable Securities are capable of
\n being liquidated (without premium, penalty, or restriction, other than
\n premiums, penalties, or restrictions not exceeding in the aggregate
\n for any marketable security 3% of the market value of such security on
\n the date of determination) within thirty days of any date of
\n determination, are not subject to any Liens or claims of third
\n persons, and are unconditionally available for payment of the
\n Principal Debt upon liquidation;<\/p>\n
(ii) the term “Cash Equivalent” shall mean any investments
\n of the Restricted Companies which are permitted by SECTION 7.20(a) –
\n (f), and which mature within 30 days of any date of determination, and
\n which are unconditionally available for repayment of the Principal
\n Debt, upon liquidation; and<\/p>\n
(iii) the term “Marketable Securities” shall mean any debt
\n or equity investments in any Person other than a Consolidated Company
\n (or an Affiliate of any Consolidated Company), which is traded on a
\n national securities exchange, which is owned of record legally and
\n beneficially by a Restricted Company, which is free and clear of any
\n Liens, which is not subject to any restriction<\/p>\n
11
\n 18
\n on transfer or sale (other than restrictions imposed by securities
\n Laws and general corporate Laws), and which is unconditionally
\n available for repayment of the Principal Debt upon liquidation.<\/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 Administrative Agent or Lenders (or
\nAdministrative Agent on behalf of Lenders) ever delivered pursuant to this
\nAgreement, or otherwise delivered in connection with all or any part of the
\nObligation, (c) any Financial Hedge between any Restricted Company and any
\nLender or any Affiliate of any Lender, and (d) all renewals, extensions, or
\nrestatements of, or amendments 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, (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, or (d) Default or
\nPotential Default. The phrase “could be a Material Adverse Event” (and any
\nsimilar phrase herein) means that there is a material probability of such
\nMaterial Adverse Event occurring, and the phrase “could not be a Material
\nAdverse Event” (and any similar phrase herein) means that there is not a
\nmaterial probability of such Material Adverse Event occurring.<\/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
MFS means MFS Communications Company, Inc., and its successors and
\nassigns.<\/p>\n
MFS NOTE AGREEMENTS means collectively or individually (i) the
\nIndenture dated as of January 15, 1994, between MFS and IBJ Schroder Bank & Trust Company, as Trustee, pursuant to which the 9-3\/8% Senior Discount Notes
\nof MFS were issued, as supplemented by the First Supplemental Indenture dated
\nas of March 31, 1995 (as the same may be further supplemented, amended, and
\nmodified, subject to the provisions of SECTION 7.25 on and after the date upon
\nwhich MFS and its Subsidiaries are redesignated as Restricted Subsidiaries) and
\n(ii) the Indenture dated as of January 15, 1996, between MFS and IBJ Schroder
\nBank & Trust Company, as Trustee, as supplemented by the First Supplemental
\nIndenture dated as of January 15, 1996, pursuant to which the 8-7\/8% Senior
\nDiscount Notes of MFS were issued (as the same may be further supplemented,
\namended, and modified subject to the provisions of SECTION 7.25 on and after
\nthe date upon which MFS and its Subsidiaries are redesignated as Restricted
\nSubsidiaries).<\/p>\n
MOODY’S means Moody’s Investors Service, Inc. or any successor
\nthereto.<\/p>\n
12
\n 19<\/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
NET CASH PROCEEDS means, with respect to any Equity Issuance, cash
\n(freely convertible into Dollars) (including any cash received by way of
\ndeferred payment pursuant to a promissory note, or otherwise, but only as and
\nwhen received) received, on or after the date of such Equity Issuance, by any
\nRestricted Company from such Equity Issuance, net of usual and customary
\ntransaction costs and expenses and Assumed Taxes.<\/p>\n
NOTE AGREEMENTS means, collectively, any indentures or other
\nagreements pursuant to which notes, debentures, bonds, or debt securities are
\nissued in accordance with the limitations set forth in SECTION 7.12(F).<\/p>\n
NOTES means, at the time of any determination thereof, all outstanding
\nand unpaid Revolving\/Term Notes and Competitive Bid Notes.<\/p>\n
NOTICE OF BORROWING is defined in SECTION 2.5(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 Administrative Agent or any Lender by any Restricted
\nCompany arising from, by virtue of, or pursuant to any Loan Paper, together
\nwith all interest accruing thereon, fees, costs, and expenses (including,
\nwithout limitation, all attorneys’ fees and expenses incurred in the
\nenforcement or collection thereof) payable under the Loan Papers.<\/p>\n
OPERATING CASH FLOW means, for any Person and any period of
\ncalculation thereof, the sum (without duplication and without giving effect to
\nany extraordinary losses or gains during such period) of (a) pre-tax income or
\ndeficit during such period, plus (b) to the extent already deducted in
\ncomputing such pre-tax income, (i) Interest Expense during such period, (ii)
\ndepreciation, amortization, and other non-cash expense items during such
\nperiod, and (iii) any non-recurring cash and non-cash merger and restructuring
\ncharges related solely to Acquisitions occurring on or after July 3, 1997 (so
\nlong as the aggregate amount of all adjustments made pursuant to this CLAUSE
\n(iii) for the entire period on or after July 3, 1997, shall not exceed
\n$100,000,000) less (c) any income (or plus any loss) attributable to any Person
\naccounted for on the “equity” method of accounting (other than dividends or
\ndistributions actually received by any Restricted Company from such Person);
\nprovided that, in calculating Operating Cash Flow for the Consolidated
\nCompanies, no more than 7.5% of such Operating Cash Flow may be comprised of
\nOperating Cash Flow of Unrestricted Subsidiaries. Only for the purpose of the
\ncalculation of the Leverage Ratio with respect to the Consolidated Companies,
\nOperating Cash Flow of the Consolidated Companies shall be calculated after
\ngiving effect to Acquisitions and divestitures of Restricted Companies
\npermitted by the Loan Papers during such period as if such transactions had
\noccurred on the first day of such period, regardless whether the effect is
\npositive or negative. In the case of any Permitted Acquisition during any
\nperiod of calculation, Operating Cash Flow of the Consolidated Companies shall,
\nfor the purposes of the foregoing calculations, be adjusted to give effect to
\nsuch Permitted Acquisition, as if such Permitted Acquisition occurred on the
\nfirst day of such period, by increasing, if positive, or decreasing, if
\nnegative, the Operating Cash Flow of the Consolidated Companies by the
\nOperating Cash Flow of such newly-acquired business during such period of
\ncalculation occurring prior to the date of such Permitted Acquisition. In the
\ncase of any Restricted Company being sold, transferred, or otherwise disposed
\nof by<\/p>\n
13
\n 20<\/p>\n
any Restricted Company as permitted under the Loan Papers (a “PERMITTED
\nDISPOSITION”) during any period of calculation, Operating Cash Flow shall, for
\nthe purposes of the foregoing calculations be adjusted to give effect to such
\nPermitted Disposition, as if such Permitted Disposition occurred on the first
\nday of such period, by decreasing, if positive, or increasing, if negative, the
\nOperating Cash Flow of the Consolidated Companies by the Operating Cash Flow of
\nsuch newly- sold Restricted Companies during such period prior to the date of
\nthe Permitted Disposition. Only for the purpose of the calculation of the
\nLeverage Ratio with respect to the Consolidated Companies, Operating Cash Flow
\nof the Consolidated Companies shall be adjusted to give effect to any
\ndesignation of a Restricted or Unrestricted Subsidiary on the first day of the
\ncalculation period in which such Subsidiaries are so designated pursuant to
\nSECTION 7.27 hereof.<\/p>\n
PARTICIPANT is defined in SECTION 11.14(e).<\/p>\n
PBGC means the Pension Benefit Guaranty Corporation, or any successor
\nthereof, established pursuant to ERISA.<\/p>\n
PERMITTED ACQUISITION means:<\/p>\n
(a) Any Acquisition by a Restricted Company with a
\n Purchase Price of less than $250,000,000, so long as: (i) all
\n representations and warranties under the Loan Papers are true and
\n correct immediately prior to and after giving effect to the
\n Acquisition; and (ii) no Default or Potential Default exists at the
\n time of the Acquisition and after giving effect to the Acquisition;
\n provided that, if the Purchase Price for any Acquisition exceeds
\n $50,000,000 (or, shall exceed $50,000,000 when aggregated with all
\n other Acquisitions under this ITEM (a) consummated during any fiscal
\n quarter of the Restricted Companies), Borrower shall certify in
\n writing (delivered to Administrative Agent) compliance with the
\n requirements of this ITEM (a) on the closing date of such Acquisition,
\n and, to the extent applicable, shall comply with the requirements of
\n SECTION 5.2(b);<\/p>\n
(b) Any Acquisition by a Restricted Company with a
\n Purchase Price of $250,000,000 or more, with respect to which each of
\n the following requirements shall have been satisfied:<\/p>\n
(i) as of the closing of any Acquisition, the
\n Acquisition has been approved and recommended by the board of
\n directors or other similar governing body of the Person to be
\n acquired or from which such business is to be acquired;<\/p>\n
(ii) not later than the closing date of the
\n Acquisition, Borrower shall have delivered to Administrative
\n Agent a written description of the targeted entity to be
\n acquired and its operations and a copy of the related purchase
\n agreement (and, upon the request of Administrative Agent, all
\n of the schedules and exhibits thereto);<\/p>\n
(iii) as of the closing of any Acquisition, after
\n giving effect to such Acquisition, the acquiring party must be
\n Solvent and the Restricted Companies, on a consolidated basis,
\n must be Solvent;<\/p>\n
(iv) prior to consummation of any Acquisition,
\n Borrower shall have satisfied the conditions precedent to a
\n Permitted Acquisition as set forth in SECTION 5.2;<\/p>\n
14
\n 21
\n (v) as of the closing of any Acquisition, no
\n Default or Potential Default shall exist or occur as a result
\n of, and after giving effect to, such Acquisition; and<\/p>\n
(vi) as of the closing of any Acquisition, if such
\n Acquisition is structured as a merger, Borrower or a Permitted
\n Successor Corporation (or if such merger is with any
\n Restricted Company other than Borrower, then a Restricted
\n Company) must be the surviving entity after giving effect to
\n such merger; and<\/p>\n
(c) any other Acquisition for which the prior written
\n consent of Determining Lenders has been obtained; provided that at the
\n request of Administrative Agent, Borrower shall have delivered to
\n Administrative Agent the following: (i) five year income and balance
\n sheet projections in respect of the Restricted Companies and the
\n entity to be acquired, after giving effect to such Acquisition; and
\n (ii) such other information in respect of such Acquisition as
\n Administrative Agent or Determining Lenders shall have reasonably
\n requested. Administrative Agent shall, upon request of Borrower,
\n confirm to Borrower that it has received all such agreements,
\n documents, instruments, and other information so requested by
\n Administrative Agent or Determining Lenders.<\/p>\n
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a certificate
\nsigned by a Responsible Officer of Borrower, substantially in the form of
\nEXHIBIT D-2.<\/p>\n
PERMITTED DEBT means Debt permitted under SECTION 7.12 as described in
\nsuch Section.<\/p>\n
PERMITTED LIENS means Liens permitted under SECTION 7.13 as described
\nin such Section.<\/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, which ratings shall be equal to
\n or higher than the debt ratings of Borrower immediately prior to
\n giving effect to such merger or consolidation;<\/p>\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
15
\n 22
\n (e) No “Change of Control” (as defined in SECTION 8.8)
\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 of Texas, N.A. as its prime rate, which rate may not be
\nthe lowest rate of interest charged by NationsBank of Texas, N.A. to its
\ncustomers.<\/p>\n
PRINCIPAL DEBT means, on any date of determination, the aggregate
\nunpaid principal balance of all Borrowings under this Facility.<\/p>\n
PRO RATA or PRO RATA PART means on any date of determination thereof:<\/p>\n
(a) for each Lender with respect to allocation of any
\n principal or interest payments on any Competitive Borrowing — the
\n proportion that the outstanding principal amount or accrued and unpaid
\n interest (as the case may be) owed to any Lender participating in such
\n Competitive Borrowing bears to the total principal amount outstanding
\n or accrued and unpaid interest (as the case may be) owed to all
\n Lenders participating in such Competitive Borrowing; and<\/p>\n
(b) for all other purposes, for any Lender, (a) at any
\n time prior to the termination of the Commitment, the proportion that
\n such Lender’s Committed Sum bears to the Commitment, or (b) at any
\n time on and after the termination of the Commitment, the proportion
\n that the Principal Debt owed to such Lender bears to the Principal
\n Debt.<\/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
PURCHASE PRICE means with respect to any Acquisition the “purchase
\nprice” as specified and determined in accordance with the purchase agreement
\nand other related acquisition documents evidencing such Acquisition.<\/p>\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
16
\n 23
\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 or owns no
\nother assets, other than those incidental to such Accounts Receivable
\nFinancing.<\/p>\n
REGISTER is defined in SECTION 11.14(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
\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<\/p>\n
17
\n 24
\nSECTION 8.8, any other officer designated from time to time by the Board of
\nDirectors of Borrower, which designated officer is acceptable to Administrative
\nAgent.<\/p>\n
RESTRICTED COMPANIES, at any time of determination thereof, shall mean
\nBorrower and each of its Subsidiaries (other than the Unrestricted
\nSubsidiaries) of which more than 50% (by number of votes) of the Voting Stock
\nis beneficially owned, directly or indirectly, by Borrower or any Restricted
\nSubsidiary.<\/p>\n
RESTRICTED SUBSIDIARIES means the Restricted Companies, other than
\nBorrower.<\/p>\n
REVOLVING\/TERM NOTE means a promissory note in substantially the form
\nof EXHIBIT A-1, and all renewals and extensions of all or any part thereof.<\/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
SALE-LEASEBACK FINANCINGS means those certain transactions pursuant to
\nthe Sale-Leaseback Participation Agreements pursuant to which Williams
\nTelecommunications Company (predecessor in interest to WorldCom Network
\nServices, Inc.) sold (a) its fiber optics telecommunications system from
\nFairfax, Kansas to Salt Lake City, Utah, (b) its fiber optics
\ntelecommunications system from Salt Lake City, Utah to Los Angeles, California,
\nand (c) its digital microwave telecommunications system from Evanston, Wyoming
\nto Portland, Oregon, and the owner participants leased such systems back to
\nWilliams Telecommunications Company (predecessor in interest to WorldCom
\nNetwork Services, Inc.).<\/p>\n
SALE-LEASEBACK PARTICIPATION AGREEMENTS means (a) the First
\nSupplemental Participation Agreement, dated as of April 15, 1987, among
\nWilliams Telecommunications Company (predecessor in interest to WorldCom
\nNetwork Services, Inc.), as lessee, The CIT Group\/Factoring Manufacturers
\nHanover, Inc. (“CIT”), as owner participant, Wilmington Trust Company and
\nWilliam J. Wade, as owner trustee, the purchasers listed in Schedule I thereto,
\nas purchasers, and The Connecticut Trust Company, National Association
\n(“CBT”), as indenture trustee, (b) the Participation Agreement, dated as of
\nApril 15, 1987, among Williams Telecommunications Company (predecessor in
\ninterest to WorldCom Network Services, Inc.), as lessee, Ford Motor Credit
\nCompany, as owner participant, Wilmington Trust Company and William J. Wade as
\nowner trustee, the financial institutions listed in Schedule I thereto as loan
\nparticipants, and CBT, as indenture trustee, and (c) the Participation
\nAgreement, dated as of April 16, 1987, among Williams Telecommunications
\nCompany (predecessor in interest to WorldCom Network Services, Inc.), as
\nlessee, Ford Motor Credit Company, as owner participant, Wilmington Trust
\nCompany and William J. Wade, as owner trustee, the financial institutions
\nlisted in Schedule I thereto, as loan participants, and CBT, as indenture
\ntrustee.<\/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<\/p>\n
18
\n 25
\nPerson has sufficient cash flow to enable it to pay its Debts as they mature,
\nand (c) such Person does not have unreasonably small capital to conduct such
\nPerson’s businesses.<\/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
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 2.3.<\/p>\n
TERM CONVERSION REQUEST is defined in SECTION 2.3(a).<\/p>\n
TERM LOANS means loans made by the Lenders pursuant to SECTION 2.3.<\/p>\n
TERM LOAN MATURITY DATE is defined in SECTION 2.3.<\/p>\n
TERMINATION DATE means the earliest of (a) February 18, 1999 and (b)
\nthe effective date of any other termination or cancellation of Lenders’
\ncommitments to lend under, and in accordance with, this Agreement.<\/p>\n
TOTAL DEBT means (without duplication), all Debt of the Restricted
\nCompanies.<\/p>\n
TYPE means any type of Borrowing determined with respect to the
\ninterest option applicable thereto.<\/p>\n
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
\nmean (a) the Receivables Subsidiary, (b) any Subsidiary of Borrower designated
\nas an “Unrestricted Subsidiary” from time to time in accordance with SECTION
\n7.27, and (c) each of Brooks and its Subsidiaries, until the date upon which
\nsuch Companies are designated as Restricted Subsidiaries pursuant to SECTION
\n7.27. UNRESTRICTED SUBSIDIARY, at any time of determination, shall mean any of
\nthe Unrestricted Subsidiaries.<\/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
WTG means Williams Telecommunications Group, Inc., a Delaware
\ncorporation that merged with and into Borrower effective as of February 22,
\n1995.<\/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<\/p>\n
19
\n 26
\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 not to exceed such Lender’s Committed Sum,
\nwhich, subject to the Loan Papers, Borrower may borrow, repay, and reborrow
\nunder this Agreement; provided that (a) each such Borrowing must occur on a
\nBusiness Day and no later than the Business Day immediately preceding the
\nTermination Date; (b) each such Borrowing shall be in an amount not less than
\n(i) $5,000,000 or a greater integral multiple of $1,000,000 (if a Base Rate
\nBorrowing), (ii) $20,000,000 or a greater integral multiple of $1,000,000 (if a
\nEurodollar Rate Borrowing), or (iii) $20,000,000 or a greater integral multiple
\nof $1,000,000 (if a Competitive Borrowing) and (c) on any date of
\ndetermination, the Principal Debt shall never exceed the Commitment.<\/p>\n
2.2 Competitive Bid Subfacility.<\/p>\n
(a) In addition to Borrowings otherwise provided for
\n herein, but subject to the terms and conditions of the Loan Papers,
\n Borrower may, as set forth in this SECTION 2.2, request Lenders to
\n make offers to make Competitive Borrowings under the Facility.
\n Lenders may, but shall have no obligation to, make any such offers,
\n and Borrower may, but shall have no obligation to, accept any such
\n offers. Any Competitive Borrowings made available to Borrower
\n hereunder shall be subject, however, to the conditions that on any
\n date of determination: (i) the aggregate principal outstanding under
\n all Competitive Borrowings hereunder made by all Lenders shall not
\n exceed the Competitive Bid Availability then in effect; (ii) on any
\n date of determination, the Principal Debt shall not exceed the
\n Commitment; and (iii) each Borrowing under the Competitive Bid
\n Subfacility must occur on a Business Day and prior to the Business Day
\n immediately preceding the Termination Date.<\/p>\n
(b) In order to request Competitive Bids, Borrower shall
\n deliver a Competitive Bid Request to Administrative Agent no later
\n than 10:00 a.m. Dallas, Texas time (i) on the fifth 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<\/p>\n
20
\n 27
\n be comprised of Fixed Rate Borrowings. A Competitive Bid Request that
\n does not conform substantially to the format of EXHIBIT B-3 may be
\n rejected by Administrative Agent, and Administrative Agent shall
\n promptly notify Borrower of such rejection. Each Competitive Bid
\n Request shall specify (i) whether the Competitive Borrowing then being
\n requested will be comprised of Eurodollar Rate Borrowings or Fixed
\n Rate Borrowings, (ii) the Borrowing Date of such Competitive Borrowing
\n (which shall be a Business Day) and the aggregate principal amount
\n thereof (which shall not be less than $20,000,000 or a greater
\n integral multiple of $1,000,000), and (iii) the Interest Period with
\n respect thereto (which may not be more than six months and which may
\n not extend beyond the Termination Date). Promptly after its receipt
\n of a Competitive Bid Request that is not rejected as aforesaid,
\n Administrative Agent shall notify Lenders of the Competitive Bid
\n Request on a form substantially similar to EXHIBIT B-4 hereto,
\n pursuant to which the Lenders are invited to bid, subject to the terms
\n and conditions of this Agreement, to make Competitive Borrowings
\n pursuant to such Competitive Bid Request. Notwithstanding the
\n foregoing, Administrative Agent shall have no obligation to invite any
\n Lender to make a Competitive Bid pursuant to this SECTION 2.2 until
\n such Lender has delivered a completed Administrative Questionnaire to
\n 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-5, (i) no later than 11:00 a.m.
\n Dallas, Texas time on the fourth 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-5 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 principal amount of
\n $5,000,000 or a greater integral multiple of $1,000,000 and which may
\n equal the entire principal amount of the Competitive Borrowing
\n requested by Borrower and may exceed such Lender’s Committed Sum,
\n subject to the limitations set forth in SECTION 2.2(a) hereof) of the
\n Competitive Borrowing such Lender is willing to make to Borrower, (y)
\n specify the Competitive Bid Rate at which such Lender is prepared to
\n make its Competitive Borrowing, and (z) confirm the Interest Period
\n with respect thereto specified by Borrower in its Competitive Bid
\n Request. A Competitive Bid submitted by a Lender pursuant to this
\n SECTION 2.2(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 2.2(e), accept or reject any or all of the Competitive Bids
\n referred to in SECTION 2.2(c); provided, however, that the aggregate
\n amount of the Competitive Bids so accepted by Borrower may not exceed
\n the principal amount of the Competitive Borrowing requested by
\n Borrower (subject to the further limitations of SECTION 2.2(a)
\n hereof). Borrower shall notify Administrative Agent whether and to
\n what extent it has decided to accept or reject any or all of the bids
\n referred to in SECTION 2.2(c), (i) not later than 10:00 a.m. Dallas,
\n Texas time three Business Days before the Borrowing Date specified for
\n a proposed Competitive Borrowing that is deemed a Eurodollar Rate
\n Borrowing or (ii) not later than 11:00 a.m., Dallas, Texas time on the
\n day specified for a proposed Competitive Borrowing<\/p>\n
21
\n 28
\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 2.2(c), (x) Borrower
\n shall not accept a bid in the same or lower principal amount made at a
\n particular Competitive Bid Rate if Borrower has decided to reject a
\n bid made at a lower Competitive Bid Rate, (y) if Borrower shall accept
\n bids made at a particular Competitive Bid Rate but shall be restricted
\n by other conditions hereof from borrowing the principal amount of the
\n Competitive Borrowing in respect of which bids at such Competitive Bid
\n Rate have been made, then Borrower shall accept a ratable portion of
\n each bid made at such Competitive Bid Rate based as nearly as possible
\n on the respective principal amounts of the Competitive Borrowing for
\n which such bids were made, and (z) no bid shall be accepted for a
\n Competitive Borrowing unless the aggregate principal amount to be
\n funded pursuant to all accepted bids 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 made in response to a Competitive Bid Request
\n (whether pursuant to the events specified in CLAUSE (Y) above or
\n otherwise) and the available principal amount of the Competitive
\n Borrowing to be allocated among Lenders submitting Competitive Bids is
\n not sufficient to enable Competitive Borrowings to be allocated to
\n each such Lender in a minimum principal amount of $5,000,000 or a
\n greater integral multiple of $1,000,000, then Borrower shall select
\n the Lenders to be allocated such Competitive Borrowings and shall
\n round allocations up or down to the next higher or lower multiple of
\n $500,000 as it shall deem appropriate. A notice given by Borrower
\n pursuant to this SECTION 2.2(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
\n immediately preceding sentence, Administrative Agent shall notify each
\n bidding Lender of the aggregate principal amount of all Competitive
\n Bids accepted for and the range of Competitive Bid Rates submitted in
\n 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 2.2(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 Borrowing in the amount of such
\n Competitive Borrowing, subject to satisfaction of the conditions
\n specified in SECTIONS 2.1 and 5.3; provided that failure to repay such
\n Competitive Borrowing on the last day of the applicable Interest
\n Period shall not constitute a failure to satisfy such conditions.<\/p>\n
2.3 Conversion of Facility to Term Loans. Borrower shall have the
\noption to convert the Principal Debt outstanding on the Termination Date to a
\nTerm Loan maturing no later than the earlier of (a) July 1, 2004, and (b) one
\nBusiness Day after the later of the “Facility A Termination Date” (as such<\/p>\n
22
\n 29
\nterm is defined in the Facility A Agreement), the “Term Loan Maturity Date” (as
\nsuch term is defined in the Facility B Agreement), and the “Facility B
\nTermination Date” (as such term is defined in the Facility B Agreement) (the
\n“TERM LOAN MATURITY DATE”), subject to and on the terms and conditions set
\nforth below:<\/p>\n
(a) No sooner than 30 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-6, which, among other things, shall (i) specify
\n Borrower’s election to make such conversion to a Term Loan, and (ii)
\n specify the Type of Borrowing or Borrowings to which the Principal
\n Debt shall be converted and the Interest Periods therefor (if
\n 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
2.4 Termination of Commitments. Without premium or penalty, and
\nupon giving not less than ten (10) Business Days prior written and irrevocable
\nnotice to Administrative Agent, Borrower may terminate in whole or in part the
\nunused portion of the Commitment; provided that: (a) each partial termination
\nshall be in an amount of not less than $5,000,000 or a greater integral
\nmultiple of $1,000,000; (b) the amount of the Commitment may not be reduced
\nbelow the Principal Debt then outstanding; and (c) each reduction shall be
\nallocated Pro Rata among the Lenders in accordance with their respective Pro
\nRata Parts. Promptly after receipt of such notice of termination or reduction,
\nAdministrative Agent shall notify each Lender of the proposed cancellation or
\nreduction. Such termination or partial reduction of the Commitment shall be
\neffective on the Business Day specified in Borrower’s notice (which date must
\nbe at least ten Business Days after Borrower’s delivery of such notice). In
\nthe event that the Commitment is reduced to zero at a time when there shall be
\nno outstanding Principal Debt, this Agreement shall be terminated to the extent
\nspecified in SECTION 11.15, and all commitment fees and other fees then earned
\nand unpaid hereunder and all other amounts of the Obligation then due and owing
\nshall be immediately due and payable, without notice or demand by
\nAdministrative Agent or any Lender.<\/p>\n
2.5 Borrowing Procedure. The following procedures apply to
\nBorrowings (other than Competitive Borrowings):<\/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, in funds which are or will be available for immediate use by
\n Administrative Agent by 1:00 p.m. Dallas time on the Borrowing Date
\n therefor. Subject to receipt of such funds, Administrative Agent
\n shall (unless to its actual knowledge any of the conditions precedent
\n therefor have not been satisfied by Borrower or waived by<\/p>\n
23
\n 30
\n Determining Lenders) make such funds available to Borrower by causing
\n such funds to be deposited to Borrower’s account as designated to
\n Administrative Agent by Borrower. Notwithstanding the foregoing,
\n unless Administrative Agent shall have been notified by a Lender prior
\n to a Borrowing Date that such Lender does not intend to make available
\n to Administrative Agent such Lender’s Pro Rata Part of the applicable
\n Borrowing, Administrative Agent may assume that such Lender has made
\n such proceeds available to Administrative Agent on such date, as
\n required herein, and Administrative Agent may (unless to its actual
\n knowledge any of the conditions precedent therefor have not been
\n satisfied by Borrower or waived by Determining Lenders), in reliance
\n upon such assumption (but shall not be required to), make available to
\n Borrower a corresponding amount in accordance with the foregoing
\n terms, but, if such corresponding amount is not in fact made available
\n to Administrative Agent by such Lender on such Borrowing Date,
\n Administrative Agent shall be entitled to recover such corresponding
\n amount on demand (i) from such Lender, together with interest at the
\n Federal Funds Rate during the period commencing on the date such
\n corresponding amount was made available to Borrower and ending on (but
\n excluding) the date Administrative Agent recovers such corresponding
\n amount from such Lender, or (ii) if such Lender fails to pay such
\n corresponding amount forthwith upon such demand, then from Borrower,
\n together with interest at a rate per annum equal to the applicable
\n rate for such Borrowing during the period commencing on such Borrowing
\n Date and ending on (but excluding) the date Administrative Agent
\n recovers such corresponding amount from Borrower. No Lender shall be
\n responsible for the failure of any other Lender to make its Pro Rata
\n Part of any Borrowing.<\/p>\n
SECTION 3 TERMS OF PAYMENT.<\/p>\n
3.1 Loan Accounts, Notes, and Payments.<\/p>\n
(a) The Principal Debt owed to each Lender shall be
\n evidenced by one or more loan accounts or records maintained by such
\n Lender in the ordinary course of business. The loan accounts or
\n records maintained by the Administrative Agent (including, without
\n limitation, the Register) and each Lender shall be conclusive evidence
\n absent manifest error of the amount of the Borrowings made by Borrower
\n from each Lender (and the Competitive Bid Subfacility 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\/Term Note (with respect to Principal Debt other than
\n Principal Debt arising and outstanding under the Competitive Bid
\n Subfacility); and (ii) a Competitive Bid Note (with respect to
\n Principal Debt arising and outstanding under the Competitive Bid
\n Subfacility).<\/p>\n
(c) Each payment or prepayment on the Obligation is due
\n and must be paid at Administrative Agent’s principal office in Dallas
\n in funds which are or will be available for immediate use by
\n Administrative Agent by 12:00 noon Dallas, Texas time on the day due.
\n Payments made after 12:00 noon, Dallas, Texas, time shall be deemed
\n made on the Business Day next following. Administrative Agent shall
\n pay to each Lender any payment or prepayment to which such Lender is
\n entitled hereunder on the same day Administrative Agent shall have
\n received the same from Borrower; provided such payment or prepayment
\n is received by Administrative<\/p>\n
24
\n 31
\n Agent prior to 12:00 noon Dallas, Texas time, and otherwise before
\n 12:00 noon Dallas time on the Business Day next following. If and to
\n the extent Administrative Agent shall not make such payments to
\n Lenders when due as set forth in the preceding sentence, such unpaid
\n amounts shall accrue interest, payable by Administrative Agent, at the
\n Federal Funds Rate from the due date until (but not including) the
\n date on which Administrative 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
\n and 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, as applicable.<\/p>\n
(b) Unless the Principal Debt is converted to a Term Loan
\n on or prior to the Termination Date, Borrower shall pay on such
\n Termination Date all outstanding Principal Debt, together with all
\n accrued and unpaid interest and fees.<\/p>\n
(c) In the event the Principal Debt is converted to a
\n Term Loan, the Principal Debt outstanding under the Term Loan shall be
\n due and payable in a single installment on the Term Loan Maturity
\n Date.<\/p>\n
(d) On any date of determination, if the Principal Debt
\n exceeds the Commitment then in effect, then Borrower shall make a
\n mandatory prepayment of the Principal Debt in at least the amount of
\n such excess, together with (i) all accrued and unpaid interest on the
\n principal amount so prepaid and (ii) any Consequential Loss arising as
\n 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); (iii) all accrued
\n interest on the Obligation must also be paid in full, to the date of
\n such prepayment; and (iv) Borrower shall pay any related Consequential
\n Loss within ten (10) days after demand therefor. Each notice of
\n prepayment shall specify the prepayment date, whether the Facility or
\n the Competitive Bid Subfacility is 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
(f) This SECTION 3.2(F) shall apply in the event of an
\n asset disposition by any Restricted Company, as a result of which
\n Borrower is required to prepay, or to offer to prepay, all or any part
\n of the Debt under any Note Agreement. In the event that any
\n Restricted Company shall consummate such an asset disposition,
\n Borrower shall provide Administrative Agent and each<\/p>\n
25
\n 32
\n Lender with written notice of such asset disposition and the amount of
\n the aggregate net proceeds thereof. Borrower shall, within ten (10)
\n Business Days after the consummation of such disposition, prepay the
\n Obligation in an amount equal to the aggregate net proceeds received
\n by Borrower or any Restricted Company from such asset disposition
\n multiplied by a fraction, the numerator of which fraction shall be the
\n outstanding principal amount of the Principal Debt on the date of such
\n disposition, and the denominator of which fraction shall be the
\n outstanding consolidated aggregate pari passu Debt on such date.
\n Prepayments on the Obligation under this SECTION 3.2(f) shall be
\n applied in such order and manner as set forth in SECTION 3.11(b).<\/p>\n
(g) In the event that Facility A and Facility B are
\n refinanced or repaid in full, including, without limitation, any
\n repayment or refinancing in connection with the closing of the merger
\n between Borrower, TC Investments Corp., a wholly-owned Subsidiary of
\n Borrower, and MCI Communications Corp., then on the date of such
\n repayment or refinancing of Facility A and Facility B, Borrower shall
\n repay the outstanding Obligation in full and the Commitment shall be
\n permanently terminated.<\/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, or any Competitive Bid Rate, as the case
\nmay be, and (b) the Maximum Rate. Each change in the Base Rate and the Maximum
\nRate, subject to the terms of this Agreement, will become effective, without
\nnotice to Borrower or any other Person, upon the effective date of such change.<\/p>\n
3.4 Quotation of Rates. It is hereby acknowledged that a
\nResponsible Officer or other appropriately designated officer 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 rates shall neither be binding upon
\nAdministrative Agent or Lenders nor affect the rate of interest which
\nthereafter is actually in effect when the Notice of Borrowing 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.<\/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
26
\n 33
\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 (unless such calculation would result in the
\n interest on the Borrowings exceeding the Maximum Rate in which event
\n such interest shall be calculated on the basis of a year of 365 or 366
\n days, as the case may be) and 365 or 366 days, as the case may be, in
\n the case of a Base Rate Borrowing calculated with reference to Prime
\n Rate. All interest rate determinations and calculations by
\n Administrative Agent shall be conclusive and binding absent manifest
\n error.<\/p>\n
(b) The provisions of this Agreement relating to
\n calculation of the Base Rate, the Adjusted Eurodollar Rate, and
\n Competitive Bid Rates are included only for the purpose of determining
\n the rate of interest or other amounts to be paid hereunder that are
\n 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 interest received for the
\nactual period of existence thereof exceeds the Maximum Amount, Lenders shall
\nrefund such excess, and, in such event, Lenders shall not, to the extent
\npermitted by Law, be subject to any penalties provided by any Laws for
\ncontracting for, charging, taking, reserving, or receiving interest in excess
\nof 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 (in respect of any Eurodollar Rate
\nBorrowing) and any period of up to six (6) months (with respect to any Fixed
\nRate Borrowing); provided, however, that: (a) the initial Interest Period for a
\nEurodollar Rate Borrowing shall commence on the date of such Borrowing
\n(including the date of any conversion thereto), and each Interest Period
\noccurring thereafter in respect of such Borrowing shall commence on the day on
\nwhich the next preceding Interest Period applicable thereto expires; (b) if any
\nInterest Period for a Eurodollar Rate Borrowing begins on a day for which there
\nis no numerically corresponding Business Day in the calendar month at the end
\nof such Interest Period, such Interest Period shall end on the next Business
\nDay immediately following what otherwise would have been such numerically
\ncorresponding day in the calendar month at the end of such Interest Period
\n(unless such date would be in a different calendar month from what would have
\nbeen the month at the end of such Interest Period, or unless there is no
\nnumerically corresponding day in the calendar month at the end of the Interest
\nPeriod; whereupon, such Interest Period shall end on the last Business Day in
\nthe calendar month at the end of such Interest Period); (c) no Interest Period
\nmay be chosen with respect to any portion of the Principal Debt which would
\nextend beyond the scheduled<\/p>\n
27
\n 34
\nrepayment date (including any dates on which mandatory prepayments are required
\nto be made) for such portion of the Principal Debt; and (d) no more than an
\naggregate of seven (7) Interest Periods (including, without limitation,
\nInterest Periods for Competitive Borrowings) 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 $20,000,000 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 among Lenders in proportion to their respective Pro
\n Rata Parts appropriate for the Facilities (or subfacilities
\n thereunder) in respect of which such payments were made.<\/p>\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:
\n (i) to the ratable payment of all fees and expenses for which
\n Administrative Agent or Lenders have not been paid or reimbursed in
\n accordance with the Loan Papers; (as used in this SECTION 3.11(b), a
\n “ratable payment” for any Lender or Administrative Agent shall be, on
\n any date of determination, that proportion which the portion of the
\n total fees and indemnities owed to such Lender or Administrative Agent
\n bears to the total aggregate fees and indemnities owed to all Lenders
\n and Administrative Agent on such date of determination); (ii) to the
\n Pro Rata payment of all accrued and unpaid interest on the Principal
\n Debt; (iii) to the Pro Rata payment of the remaining Principal Debt in
\n such order as Determining Lenders may elect (provided that,
\n Determining Lenders will apply such proceeds in an order that will
\n minimize any Consequential Loss); and (iv) to the payment of the
\n remaining Obligation in the order and manner Determining Lenders deem
\n 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<\/p>\n
28
\n 35
\nas to any apportionment or distribution contemplated hereby, Administrative
\nAgent shall promptly distribute such amounts to each Lender in accordance with
\nthe Agreement and the 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 amount of
\nthe 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 3.16 than the transferor Lender would have been entitled to receive
\nwith respect to such Borrowings.<\/p>\n
3.15 Basis Unavailable or Inadequate for Eurodollar Rate. If, on
\nor before any date on which a Eurodollar Rate is to be determined for a
\nBorrowing, Administrative Agent determines that the basis for determining any
\nsuch rate is not available or Determining Lenders determine that the resulting
\nrate does not accurately reflect the cost to Lenders of making, maintaining, or
\nconverting Borrowings at such rate for the applicable Interest Period, then
\nAdministrative Agent shall promptly give notice of such determination to
\nBorrower and Lenders (and such determination shall be conclusive and binding on
\nBorrower, absent manifest error) and such Borrowing shall bear interest at the
\nsum of the Base Rate plus the Applicable Margin for Base Rate Borrowings.
\nUntil Administrative Agent notifies Borrower that the circumstances giving rise
\nto such condition no longer exist, Lenders’ commitments hereunder to make or
\nmaintain, or to convert to, Eurodollar Rate Borrowings shall be suspended and
\nsuch Borrowings shall be made or maintained at the sum of the Base Rate plus
\nthe Applicable Margin for Base Rate Borrowings. Subject to the terms and
\nconditions of this Agreement, if Administrative Agent notifies Borrower that
\nthe circumstances giving rise to the suspension of Lenders’ obligations to make
\nor maintain Eurodollar Rate Borrowings no longer exist, Borrower shall be
\nentitled to request Eurodollar Rate Borrowings and convert Base Rate Borrowings
\nto Eurodollar Rate Borrowings as if the provisions of this Section had never
\napplied.<\/p>\n
3.16 Additional Costs.<\/p>\n
(a) If, in respect of all or any portion of any Lender’s
\n commitment hereunder, any Eurodollar Rate Borrowing, or any Fixed Rate
\n Borrowing owed to any Lender (i) any present or future Law shall
\n impose, modify, or deem applicable, or compliance by such Lender with
\n any requirement (whether or not having the force of Law) of any
\n Governmental Authority shall result in, any requirement that any
\n reserves (including, without limitation, any marginal, emergency,<\/p>\n
29
\n 36
\n supplemental, special, or other reserves) be maintained, and (ii) any
\n of the same results in a reduction in any sums receivable by such
\n Lender hereunder or an increase in the costs incurred by such Lender
\n in advancing or maintaining any portion of any Eurodollar Rate
\n Borrowing or any Fixed Rate Borrowing, then (A) such Lender (through
\n Administrative Agent) shall notify Borrower upon becoming aware of
\n same and deliver to Borrower a certificate setting forth in reasonable
\n detail the amount necessary to compensate such Lender for such
\n reduction or such increase (which certificate shall be conclusive and
\n binding as to such amount, absent manifest error), and (B) Borrower
\n shall promptly pay such amount to such Lender within ten (10) days
\n after demand therefor.<\/p>\n
(b) If with respect to all or any portion of any
\n Borrowing, any present or future Law regarding capital adequacy or
\n compliance by Administrative Agent or any Lender or its holding
\n company with any request, directive, or requirement now existing or
\n hereafter imposed by any Governmental Authority regarding capital
\n adequacy (whether or not having the force of Law), or any change in
\n the risk category of this transaction shall result in a reduction in
\n the rate of return on any Lender’s or Administrative Agent’s capital
\n as a consequence of its obligations under this Agreement to a level
\n below that which it otherwise could have achieved by an amount deemed
\n by it to be material (and it may, in determining such amount, utilize
\n such assumptions and allocations of costs and expenses as it shall
\n deem reasonable and may use any reasonable averaging or attribution
\n method), then (unless the effect of such event is already reflected in
\n the rate of interest then applicable hereunder) Administrative Agent
\n or such Lender (through Administrative Agent) shall notify Borrower
\n and deliver to Borrower a certificate setting forth in reasonable
\n detail the calculation of the amount necessary to compensate
\n Administrative Agent or such Lender or its holding company therefor,
\n which certificate shall be conclusive and binding absent manifest
\n error, and Borrower shall promptly pay such amount to Administrative
\n Agent (for the account of such Lender) or such Lender within ten (10)
\n days after demand therefor. The provisions of and undertakings and
\n indemnifications set forth in this SECTION 3.16 shall survive the
\n satisfaction and payment of the Obligation and termination of this
\n Agreement.<\/p>\n
3.17 Change in Laws. If at any time any Law shall make it unlawful
\nfor any Lender to make or maintain Eurodollar Rate Borrowings, then such Lender
\n(through Administrative Agent) shall promptly notify Borrower and
\nAdministrative Agent, and (a) in respect of undisbursed funds, such Lender
\nshall not be obligated to make any requested Borrowing which would be unlawful,
\nand (b) in respect of any outstanding Borrowing (i) if maintaining such
\nBorrowing until the last day of the Interest Period applicable thereto is
\nunlawful, such Borrowing shall be converted to a Base Rate Borrowing as of the
\ndate of such notice, and Borrower shall pay any related Consequential Loss, or
\n(ii) if not so prohibited by Law, such Borrowing shall be converted to a Base
\nRate Borrowing as of the last day of the Interest Period then applicable
\nthereto, or (iii) if any such conversion will not resolve such unlawfulness,
\nBorrower shall prepay promptly such Eurodollar Rate Borrowing, without penalty,
\nbut with any related Consequential Loss.<\/p>\n
3.18 Consequential Loss. Borrower shall indemnify each Lender
\nagainst, and shall pay to such Lender within ten (10) days after demand, any
\nConsequential Loss of such Lender. Such Consequential Loss shall include,
\nwithout limitation, an amount equal to the excess, if any, of (a) the amount of
\ninterest which otherwise would have accrued on the principal amount so paid,
\nconverted, or not borrowed for the period from the date of such payment,
\nconversion, or failure to borrow to the last day of the Interest Period for
\nsuch Eurodollar Rate Borrowing (or, in the case of a failure to borrow, the
\nInterest Period for such Eurodollar Rate Borrowing which would have commenced
\non the date specified for such Borrowing) at the applicable rate of interest
\nfor such Eurodollar Rate Borrowing provided for in this Agreement over (b) the
\ninterest component of the amount such Lender would have bid in the London
\ninterbank market for<\/p>\n
30
\n 37
\nDollar deposits of leading banks in amounts comparable to such principal amount
\nand with maturities comparable to such period. When any Lender demands that
\nBorrower pay any Consequential Loss, such Lender shall deliver to Borrower and
\nAdministrative Agent a certificate setting forth in reasonable detail the basis
\nfor imposing such Consequential Loss and the calculation of such amount
\nthereof, which calculation shall be conclusive and binding absent manifest
\nerror. The provisions of and undertakings and indemnifications set forth in
\nthis SECTION 3.18 shall survive the satisfaction and payment of the Obligation
\nand termination of this Agreement.<\/p>\n
3.19 Negative Pledge. Borrower hereby covenants and agrees (and
\nagrees to cause each Restricted Company) not to directly or indirectly create,
\nincur, grant, suffer, or permit to be created or incurred any Lien on any of
\nthe respective assets of such Restricted Companies, other than Permitted Liens.
\nFurthermore, in the event that, notwithstanding the foregoing, any such Liens
\n(other than Permitted Liens) are granted, incurred, or created, then (unless
\nDetermining Lenders shall consent to such grant, incurrence or creation), in
\naddition to other Rights granted to Lenders hereunder or under applicable Law,
\n(a) Borrower (for itself and on behalf of the Restricted Companies) hereby
\ngrants to Lenders an equal and ratable Lien in and to the Property so
\nencumbered, (b) any Person receiving the benefit of any such additional Liens
\nshall be deemed to receive any such grant or conveyance of Liens for the
\nratable and pari passu benefit of Lenders and Administrative Agent and shall be
\ndeemed the bailee and agent for such Lenders for the sole purpose of holding
\nany such collateral and Liens and perfecting Lenders’ Liens therein; and (c)
\nupon the request of Administrative Agent, Borrower (for itself and on behalf of
\nthe Restricted Companies) shall execute, and shall request the other Party to
\nexecute, all such documents and take all actions requested by Determining
\nLenders to more fully evidence and create such ratable, pari passu Liens in
\nfavor of Lenders and Administrative Agent.<\/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 February 13, 1998, between Borrower, Administrative
\nAgent, and Arranger, which payments shall be made on the dates specified, and
\nin amounts calculated in accordance with, such letter agreement.<\/p>\n
4.3 Competitive Bid Fee. Each Competitive Bid Request submitted
\nby Borrower to Administrative Agent shall be accompanied by a competitive bid
\nfee of $1500 (payable solely to Administrative Agent for its own account) and
\nshall only request bids for a single Borrowing Date.<\/p>\n
4.4 Commitment Fees. Following the Closing Date and until the
\nearlier to occur of either the Termination Date or the Term Conversion Date,
\nBorrower shall pay to Administrative Agent, for the ratable account of Lenders,
\na commitment fee, payable in installments in arrears, on each March 31,<\/p>\n
31
\n 38
\nJune 30, September 30, and December 31 and on the earlier to occur of the
\nTermination Date or the Term Conversion Date, commencing March 31, 1998. Each
\ninstallment shall be in an amount equal to the Applicable Margin 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 4.4,
\n(i) determinations of the average daily Principal Debt shall exclude the
\nPrincipal Debt of all Competitive Borrowings; and (ii) “ratable” shall mean,
\nfor any period of calculation, with respect to any Lender, that proportion
\nwhich (x) the average daily unused Committed Sum of such Lender during such
\nperiod bears to (y) the amount of the average daily unused Commitment during
\nsuch period.<\/p>\n
SECTION 5 CONDITIONS PRECEDENT.<\/p>\n
5.1 Conditions Precedent to Closing. This Agreement shall not
\nbecome effective unless Administrative Agent has received all of the
\nagreements, documents, instruments, and other items described on SCHEDULE 5.1
\n(with sufficient copies for the Lenders).<\/p>\n
5.2 Conditions Precedent to a Permitted Acquisition.<\/p>\n
(a) Prior to the consummation of any Acquisition pursuant
\n to ITEM (A) of the definition of “Permitted Acquisition” (whether or
\n not the purchase price for such Acquisition is funded by Borrowings),
\n Borrower shall deliver to Administrative Agent a written certification
\n that (i) all representations and warranties under the Loan Papers are
\n true and correct immediately prior to and after giving effect to the
\n Acquisition, and (ii) no Default or Potential Default exists at the
\n time of the Acquisition and after giving effect to the Acquisition;
\n provided that, no such written certification shall be required if the
\n Purchase Price for the Acquisition does not exceed $50,000,000 (and
\n does not exceed $50,000,000 when aggregated with all other Permitted
\n Acquisitions satisfying the requirements of ITEM (a) under the
\n definition of “Permitted Acquisition” consummated during the fiscal
\n quarter of Borrower and its Restricted Subsidiaries in which the
\n Acquisition occurs) so long as Borrower confirms in its next quarterly
\n or annual Compliance Certificates required to be delivered pursuant to
\n SECTIONS 7.3(a) and 7.3(b) its compliance with CLAUSES (i) and (ii)
\n above with respect to such Acquisition consummated during the subject
\n period.<\/p>\n
(b) Prior to the consummation of any Acquisition (whether
\n or not the purchase price for such Acquisition is funded by
\n Borrowings), Borrower shall deliver to Administrative Agent all
\n supplements to, or revisions of, SCHEDULES 6.13, 7.12, 7.13, and 7.20
\n which are required to make the disclosures in such Schedules accurate
\n after giving effect to such Acquisition, so long as, on or prior to
\n the date of consummation of such Acquisition, the consent of
\n Determining Lenders with respect to such revised or supplemental
\n Schedules have been obtained. In addition, prior to the consummation
\n of any Acquisition pursuant to ITEMS (b) and (c) of the definition of
\n “Permitted Acquisition” (whether or not the purchase price for such
\n Acquisition is funded by Borrowings), Borrower shall have delivered to
\n Administrative Agent a Permitted Acquisition Compliance Certificate
\n (substantially in the form of EXHIBIT D-2 and otherwise acceptable to
\n Administrative Agent).<\/p>\n
5.3 Conditions Precedent to Each Borrowing. In addition to the
\nconditions stated in SECTION 5.1 and SECTION 5.2, Lenders will not be obligated
\nto fund (as opposed to continue or convert) any Borrowing (including any
\nCompetitive Borrowing) unless on the date of such Borrowing (and after giving<\/p>\n
32
\n 39
\neffect thereto): (a) Administrative Agent shall have timely received therefor
\na Notice of Borrowing or Notice of Competitive Borrowing as the case may be;
\n(b) Administrative Agent shall have received the Competitive Bid fees as
\nprovided for in SECTION 4.3 hereof, if applicable; (c) all of the
\nrepresentations and warranties of any Consolidated Company set forth in the
\nLoan Papers are true and correct in all material respects (except to the extent
\nthat (i) the representations and warranties speak to a specific date or (ii)
\nthe facts on which such representations and warranties are based have been
\nchanged by transactions contemplated or permitted by the Loan Papers and, if
\napplicable, supplemental Schedules have been delivered with respect thereto;
\nprovided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be
\napproved by Determining Lenders); (d) no change in the financial condition of
\nany Consolidated Company which is a Material Adverse Event shall have occurred;
\n(e) no Default or Potential Default shall have occurred and be continuing; (f)
\nthe funding of such Borrowings is permitted by Law; (g) in the event all or any
\npart of the proceeds of the Borrowing will be used to finance a Permitted
\nAcquisition contemplated by ITEMS (b) or (c) of the definition of Permitted
\nAcquisition, Administrative Agent shall have timely received certified copies
\nof any and all purchase agreements (together with, upon the request of
\nAdministrative Agent, all schedules and exhibits thereto) executed by any
\nConsolidated Company in connection with such Permitted Acquisition, accompanied
\nby all financial information, projections, and certifications required by the
\nLoan Papers in connection with a Permitted Acquisition, including, without
\nlimitation, all items required in SECTION 5.2; (h) all matters related to such
\nBorrowing must be satisfactory to Determining Lenders and their respective
\ncounsel in their reasonable determination, and upon the reasonable request of
\nAdministrative Agent, Borrower shall deliver to Administrative Agent evidence
\nsubstantiating any of the matters in the Loan Papers which are necessary to
\nenable Borrower to qualify for such Borrowing; and (i) in the event that all or
\nany part of the proceeds of the Borrowing will be advanced by Borrower to
\nBrooks, the Borrowing by Borrower and the related advance by Borrower to Brooks
\nshall be made in compliance with the terms and conditions of the Brooks Notes.
\nEach Notice of Borrowing delivered to Administrative Agent shall constitute the
\nrepresentation and warranty by Borrower to Administrative Agent that the
\nstatements in CLAUSES (c), (d), (e), (f), and (i) above are true and correct in
\nall respects. Each condition precedent in this Agreement is material to the
\ntransactions contemplated in this Agreement, and time is of the essence in
\nrespect of each thereof. Subject to the prior approval of Determining Lenders,
\nLenders may fund any Borrowing without all conditions being satisfied, but, to
\nthe extent permitted 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, unless Determining Lenders specifically waive each
\nsuch item in writing.<\/p>\n
SECTION 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 proceeds of
\nBorrowings to fund the purchase price and other costs associated with the
\nBrooks Note Transaction; provided, that up to $300,000,000 of the proceeds may
\nbe used by Borrower to make loans, advances, or investments in or to Brooks for
\nuse by Brooks as working capital or for other general corporate purposes. No
\nConsolidated 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 G, T, U, or X (as enacted by the Board of Governors of the
\nFederal Reserve System, as amended). Without the prior written consent of
\nDetermining Lenders, no part of the proceeds of any Borrowing will be used to
\nmake any prepayments on, or redemptions of, any Debt evidenced by or associated
\nwith any Note Agreement except any payments or redemptions of any Debt under
\nthe Brooks Notes or any Debt of Borrower issued in exchange for the Brooks
\nNotes to the extent such Debt is permitted by SECTION 7.12(f).<\/p>\n
33
\n 40
\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 (such jurisdictions being
\nidentified on SCHEDULE 6.2, as supplemented and modified in writing from time
\nto time to reflect any changes to such Schedule as a result of transactions
\npermitted by the Loan Papers). Except where failure could not be a Material
\nAdverse Event, each Restricted Company (a) is duly qualified to transact
\nbusiness and is in good standing in each jurisdiction where the nature and
\nextent of its business and properties require the same, and (b) possesses all
\nrequisite authority, power, licenses, permits, Authorizations, and franchises
\nto use its assets and conduct its business as is now being, or is contemplated
\nherein to be, conducted, except where failure could not be a Material Adverse
\nEvent. No Authorization is required to authorize, or is required in connection
\nwith, the execution, delivery, legality, validity, binding effect, performance,
\nor enforceability of the Loan Papers or any Permitted Acquisition (including
\nany change of control occurring as a result thereof) consummated on or prior to
\nthe date this representation or warranty (or reconfirmation thereof) is made
\nunder the Loan Papers, except (i) as shall have been obtained upon or prior to
\nthe consummation of the relevant Permitted Acquisition, and (ii) those
\nAuthorizations the failure of which to be obtained or made could not be a
\nMaterial Adverse Event and, in the case of the relevant Permitted Acquisition,
\nwould not reasonably be expected to materially impair the value to the
\nRestricted Companies of, or the benefits to be derived by the Restricted
\nCompanies from, the relevant Permitted Acquisition. The Restricted Companies
\nhave obtained all Authorizations of the FCC and any applicable PUC necessary to
\nconduct their businesses, and all such Authorizations are in full force and
\neffect, without conditions, except such conditions as are generally applicable
\nto holders of such Authorizations. There are no violations of any such
\nAuthorizations which could, individually or collectively, be a Material Adverse
\nEvent, nor are there any proceedings pending or, to the knowledge of Borrower,
\nthreatened against the Restricted Companies to revoke or limit any such
\nAuthorization which could, individually or collectively, be a Material Adverse
\nEvent, and Borrower has no knowledge that any such Authorizations will not be
\nrenewed in the ordinary course, except for any nonrenewals that could not be a
\nMaterial Adverse Event.<\/p>\n
6.3 Subsidiaries; Capital Stock. Borrower has no Subsidiaries
\nexcept as disclosed on SCHEDULE 6.2 (as supplemented and modified in writing
\nfrom time to time to reflect any changes to such Schedule as a result of
\ntransactions permitted by the Loan Papers). Each Unrestricted Subsidiary is
\nidentified as such on SCHEDULE 6.2. All of the outstanding shares of capital
\nstock (or similar voting interests) of each Restricted Subsidiary are duly
\nauthorized, validly issued, fully paid, and nonassessable and are owned of
\nrecord and beneficially as set forth on SCHEDULE 6.2 (as supplemented and
\nmodified in writing from time to time to reflect any changes to such Schedule
\nas a result of transactions permitted by the Loan Papers), free and clear of
\nany Liens, restrictions, claims, or Rights of another Person, other than
\nPermitted Liens, and none of such shares owned by any Restricted Company is
\nsubject to any restriction on transfer thereof except for restrictions imposed
\nby securities Laws and general corporate Laws. No Restricted Subsidiary has
\noutstanding any warrant, option, or other Right of any Person to acquire any of
\nits capital stock or similar equity interests, except as set forth on SCHEDULE
\n6.3 (as supplemented and modified in writing from time to time to reflect any
\nchanges to such Schedule as a result of transactions permitted by the Loan
\nPapers). The Receivables Subsidiary is not engaged in any activity, nor does
\nit own any asset, other than those incidental to Accounts Receivable
\nFinancings.<\/p>\n
6.4 Authorization and Contravention. The execution and delivery
\nby each Restricted Company of each Loan Paper to which it is a party and the
\nperformance by such Restricted Company of its obligations thereunder (a) are
\nwithin the corporate power of such Restricted Company, (b) will have been duly
\nauthorized by all necessary corporate action on the part of such Restricted
\nCompany when such Loan Paper is executed and delivered, (c) require no action
\nby or in respect of, or filing with, any Governmental Authority, which action
\nor filing has not been taken or made on or prior to the Closing Date (or if
\nlater,<\/p>\n
34
\n 41
\nthe date of execution and delivery of such Loan Paper), (d) will not violate
\nany provision of the charter or bylaws of such Restricted Company, (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. The
\nRestricted Companies have (or will have upon consummation thereof) all
\nnecessary consents and approvals of any Person or Governmental Authority
\nrequired to be obtained in order to effect any asset transfer, change of
\ncontrol, merger, or consolidations permitted by the Loan Papers.<\/p>\n
6.5 Binding Effect. Upon execution and delivery by all parties
\nthereto, each Loan Paper will constitute a legal, valid, and binding obligation
\nof each Restricted Company party thereto, enforceable against each such
\nRestricted Company in accordance with its terms, except as enforceability may
\nbe limited by applicable Debtor Relief Laws and general principles of equity.<\/p>\n
6.6 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. Except for transactions directly related to, or
\nspecifically contemplated by, the Loan Papers, there have been no changes in
\nthe consolidated financial condition of the Consolidated Companies from that
\nshown in the Current Financials after such date which could be a Material
\nAdverse Event, nor has Borrower or any Restricted Company or Consolidated
\nCompany (as the case may be) incurred any liability (including, without
\nlimitation, any liability under any Environmental Law), direct or indirect,
\nfixed or contingent, after such date which could be a Material Adverse Event.<\/p>\n
6.7 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 outstanding orders or
\njudgments for the payment of money in excess of $100,000,000 (individually or
\ncollectively) or any warrant of attachment, sequestration, or similar
\nproceeding against any Restricted Company’s assets having a value (individually
\nor collectively) of $100,000,000 or more which is not either (i) stayed on
\nappeal or (ii) being diligently contested in good faith by appropriate
\nproceedings and adequate reserves have been set aside on the books of such
\nRestricted Company in accordance with GAAP. There are no formal complaints,
\nsuits, claims, investigations, or proceedings initiated at or by any
\nGovernmental Authority pending or threatened by or against any Restricted
\nCompany which could be a Material Adverse Event, nor any judgments, decrees, or
\norders of any Governmental Authority outstanding against any Restricted Company
\nthat could be a Material Adverse Event.<\/p>\n
6.8 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 Permitted Liens (as specified in SECTION
\n7.13(B)(VII)) have been satisfied or for which nonpayment thereof could not
\nconstitute a Material Adverse Event.<\/p>\n
35
\n 42
\n 6.9 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
6.10 Employee Benefit Plans. (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 1996 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 1996 plan year of each such Plan,
\nexceed the value of the assets of all such plans.<\/p>\n
6.11 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 Permitted Liens, there is no Lien on any property of any Restricted
\nCompany, and the execution, delivery, performance, or observance of the Loan
\nPapers will not require or result in the creation of any Lien on such property.<\/p>\n
6.12 Government Regulations. No Consolidated 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 G, T, U, and X of the Board of Governors of the Federal Reserve
\nSystem and the requirements of any PUC or public service commission) which
\nregulates the incurrence of Debt.<\/p>\n
6.13 Transactions with Affiliates. Except as disclosed on SCHEDULE
\n6.13, no Consolidated Company is a party to a material transaction with any of
\nits Affiliates (excluding transactions between or among Restricted Companies),
\nother than transactions in the ordinary course of business and upon fair and
\nreasonable terms not materially less favorable than such Consolidated Company
\ncould obtain or could become entitled to in an arm’s-length transaction with a
\nPerson that was not its Affiliate. For purposes of this SECTION 6.13, a
\ntransaction is “material” if it requires any Consolidated Company to pay more
\nthan $50,000,000 during the term of the agreement governing such transaction.<\/p>\n
36
\n 43
\n 6.14 Debt. No Restricted Company is an obligor on any Debt other
\nthan Permitted Debt. The Receivables Subsidiary is not an Obligor on any Debt
\nother than any Debt arising under the Accounts Receivable Financing permitted
\nby the Loan Papers.<\/p>\n
6.15 Material Agreements. There are no failures of any material
\nwritten or oral agreements, contracts, commitments, or understandings to which
\nany Restricted Company is a party to be in full force and effect which could be
\na Material Adverse Event, and no default or potential default exists on the
\npart of any Restricted Company thereunder, which could be a Material Adverse
\nEvent. All of the Obligation constitutes “senior debt” under the terms of any
\ndocuments evidencing subordinated Debt incurred in accordance with SECTION
\n7.12(H) or any subordinated Debt issued pursuant to any Note Agreement.<\/p>\n
6.16 Insurance. Each Restricted Company maintains with financially
\nsound, responsible, and reputable insurance companies or associations (or, as
\nto workers’ compensation or similar insurance, with an insurance fund or by
\nself-insurance authorized by the jurisdictions in which it operates) insurance
\nconcerning its properties and businesses against such casualties and
\ncontingencies and of such types and in such amounts (and with co-insurance and
\ndeductibles) as is customary in the case of same or similar businesses.<\/p>\n
6.17 Labor Matters. There are no actual or threatened strikes,
\nlabor disputes, slow downs, walkouts, or other concerted interruptions of
\noperations by the employees of any Restricted Company that could be a Material
\nAdverse Event. Hours worked by and payment made to employees of the Restricted
\nCompanies have not been in violation of the Fair Labor Standards Act or any
\nother applicable Law dealing with such matters, other than any such violations,
\nindividually or collectively, which could not constitute a Material Adverse
\nEvent. All payments due from any Restricted Company on account of employee
\nhealth and welfare insurance have been paid or accrued as a liability on its
\nbooks, other than any such nonpayments which could not, individually or
\ncollectively, constitute a Material Adverse Event.<\/p>\n
6.18 Solvency. At the time of each Borrowing hereunder and on the
\ndate of each Permitted Acquisition, each Restricted Company is (and after
\ngiving effect to the transactions contemplated by the Loan Papers, any
\nPermitted Acquisition, and any incurrence of additional Debt will be) Solvent.<\/p>\n
6.19 Intellectual Property. Each Restricted Company owns or has
\nsufficient and legally enforceable rights to use all material licenses,
\npatents, patent applications, copyrights, service marks, trademarks, trademark
\napplications, and trade names necessary to continue to conduct its businesses
\nas heretofore conducted by it, now conducted by it, and now proposed to be
\nconducted by it. Each Restricted Company is conducting its business without
\ninfringement or claim of infringement of any license, patent, copyright,
\nservice mark, trademark, trade name, trade secret, or other intellectual
\nproperty right of others, other than any such infringements or claims which, if
\nsuccessfully asserted against or determined adversely to any Restricted
\nCompany, could not, individually or collectively, constitute a Material Adverse
\nEvent.<\/p>\n
6.20 Compliance with Laws. No Consolidated Company is in violation
\nof any Laws, other than such violations which could not, individually or
\ncollectively, be a Material Adverse Event. No Consolidated Company has
\nreceived notice alleging any noncompliance with any Laws, except for such
\nnoncompliance which no longer exists, or which could not constitute a Material
\nAdverse Event.<\/p>\n
6.21 Regulation U. “Margin Stock” (as defined in Regulation U)
\nconstitutes less than 25% of those assets of the Consolidated Companies which
\nare subject to any limitation on sale, pledge, or other restriction hereunder,
\nif any.<\/p>\n
37
\n 44
\n 6.22 Full Disclosure. There is no material fact or condition
\nrelating to the Loan Papers or the financial condition, business, or property
\nof any Consolidated Company which could be a Material Adverse Event and which
\nhas not been related, in writing, to Administrative Agent. All information
\nheretofore furnished by any Consolidated Company to any Lender or
\nAdministrative Agent in connection with the Loan Papers was, and all such
\ninformation hereafter furnished by any Consolidated Company to any Lender or
\nAdministrative Agent will be, true and accurate in all material respects or
\nbased on reasonable estimates on the date as of which such information is
\nstated or certified.<\/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
\nand thereafter until the payment in full of the Principal Debt and payment in
\nfull of all other interest, fees, and other amounts of the Obligation then due
\nand owing, unless Borrower receives a prior written consent to the contrary by
\nAdministrative 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.<\/p>\n
7.3 Items to be Furnished. Borrower shall cause the following to
\nbe furnished to Administrative Agent for delivery to Lenders:<\/p>\n
(a) Promptly after preparation, and no later than 90 days
\n 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 (and calculated
\n separately with respect to the Unrestricted Subsidiaries designated
\n from time to time pursuant to SECTION 7.27 for any fiscal year of
\n Borrower in which either (i) the Operating Cash Flow of the
\n Unrestricted Subsidiaries is greater than 7.5% of total Operating Cash
\n Flow of the Consolidated Companies, or (ii) the value of the assets
\n (determined in accordance with GAAP) of the Unrestricted Subsidiaries
\n (excluding the Receivables Subsidiary) is greater than 7.5% of the
\n aggregate value of all assets (determined in accordance with GAAP) of
\n the Consolidated Companies) as of, and for the year ended on, such
\n day, accompanied 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) any management letter prepared by such
\n accounting firm;<\/p>\n
(iii) 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;<\/p>\n
38
\n 45
\n (iv) a letter from such accounting firm addressed
\n to Borrower, with a copy to Administrative Agent,
\n acknowledging that (A) Borrower plans to provide
\n Administrative Agent with such audited Financial Statements
\n and accompanying audit report, (B) Administrative Agent has
\n informed Borrower that Administrative Agent and Lenders intend
\n to rely on such firm’s audit report accompanying such
\n Financial Statements, and (C) Borrower intends for
\n Administrative Agent and Lenders to so rely; and<\/p>\n
(v) a Compliance Certificate with respect to such
\n Financial Statements.<\/p>\n
(b) Promptly after preparation, and no later than 45 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 (and calculated separately
\n with respect to the Unrestricted Subsidiaries designated from time to
\n time pursuant to SECTION 7.27 for any fiscal year of Borrower in which
\n either (i) the Operating Cash Flow of the Unrestricted Subsidiaries is
\n greater than 7.5% of total Operating Cash Flow of the Consolidated
\n Companies, or (ii) the value of the assets (determined in accordance
\n with GAAP) of the Unrestricted Subsidiaries (excluding the Receivables
\n Subsidiary) is greater than 7.5% of the aggregate value of all assets
\n (determined in accordance with GAAP) of the Consolidated Companies)
\n for such fiscal quarter and for the period from the beginning of the
\n then-current fiscal year to, such last day, accompanied by a
\n Compliance Certificate with respect to such Financial Statements.<\/p>\n
(c) On or prior to March 31 of each fiscal year of
\n Borrower, the financial budget for such fiscal year, accompanied by a
\n certificate executed by a Responsible Officer certifying that such
\n budget was prepared by Borrower based on assumptions which, in light
\n of the historical performance of the Restricted Companies and their
\n prospects for the future, are realistic and achievable.<\/p>\n
(d) Notice, promptly after Borrower knows or has reason
\n to know of (i) the existence and status of any Litigation against any
\n Consolidated Company which could be a Material Adverse Event, or of
\n any order or judgment for the payment of money which (individually or
\n collectively) is in excess of $100,000,000, or any warrant of
\n attachment, sequestration or similar proceeding against a Consolidated
\n Company’s assets having a value (individually or collectively) of
\n $100,000,000, (ii) any material change in any material fact or
\n circumstance represented or warranted in any Loan Paper, (iii) a
\n Default or Potential Default, specifying the nature thereof and what
\n action Borrower or any other Consolidated Company has taken, is
\n taking, or proposes to take with respect thereto, (iv) the receipt by
\n any Consolidated Company of any notice from any Governmental Authority
\n of the expiration without renewal, termination, material modification
\n or suspension of, or institution of any proceedings to terminate,
\n materially modify, or suspend, any Authorization granted by the FCC or
\n any applicable PUC, or any other Authorization which any Consolidated
\n Company is required to hold in order to operate its business in
\n compliance with all applicable Laws, other than such expirations,
\n terminations, suspensions, or modifications which individually or in
\n the aggregate would not constitute a Material Adverse Event, (v) any
\n federal, state, or local statute, regulation, or ordinance or judicial
\n or administrative order limiting or controlling the operations of any
\n Consolidated Company which has been issued or adopted hereafter and
\n which is of material adverse importance or effect in relation to the
\n operation of any Consolidated Company, (vi) the receipt by any
\n Consolidated Company of notice of any violation or alleged violation
\n of any Environmental Law, which violation or alleged violation could
\n individually or collectively with other such violations or
\n allegations, constitute a Material Adverse Event, or (vii) (A) the
\n occurrence of a Reportable Event that, alone or together with any
\n other<\/p>\n
39
\n 46
\n Reportable Event, could reasonably be expected to result in liability
\n of 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 $10,000,000 or of the impending termination
\n or reorganization of such Multiemployer Plan.<\/p>\n
(e) Promptly after any of the information or disclosures
\n provided on any of the Schedules delivered pursuant to this Agreement
\n becomes outdated or incorrect in any material respect, such revised or
\n updated Schedule(s) as may be necessary or appropriate to update or
\n correct such information or disclosures; provided that in the case of
\n updates to SCHEDULES 6.13, 7.12, 7.13, and 7.20, the information
\n thereon shall not be deemed accepted for purposes of this Agreement or
\n become part of the Loan Papers unless approved by Determining Lenders.<\/p>\n
(f) Promptly after preparation, true, correct, and
\n complete copies of all material reports or filings filed by or on
\n behalf of any Consolidated Company with any Governmental Authority
\n (including the FCC and the Securities and Exchange Commission).<\/p>\n
(g) Promptly after the filing thereof, a true, correct,
\n and complete copy of each Form 10-K, Form 10-Q, and Form 8-K filed by
\n or on behalf of Borrower or any Consolidated Company with the
\n Securities and Exchange Commission.<\/p>\n
(h) Promptly upon request therefor by Administrative
\n Agent or Lenders holding at least 25% of the Commitment (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
7.4 Inspections. Upon reasonable notice, the Consolidated
\nCompanies shall allow Administrative Agent or any Lender (or their respective
\nRepresentatives) to inspect any of their properties, to review reports, files,
\nand other records and to make and take away copies thereof, to conduct tests or
\ninvestigations, and to discuss any of their affairs, conditions, and finances
\nwith the Consolidated Companies’ other creditors, directors, officers, or
\nemployees, or other representatives, and at any time after the occurrence and
\nduring the continuance of a Default, with the Consolidated Companies’
\nindependent accountants, from time to time, during reasonable business hours;
\nprovided that, notwithstanding the foregoing, prior to the occurrence of a
\nDefault or Potential Default, Administrative Agent or any Lender (or their
\nrespective Representatives) will obtain the prior approval of a Responsible
\nOfficer prior to any such discussions with officers or employees of the
\nConsolidated Companies; provided, further, that, if a Default or Potential
\nDefault has occurred and is continuing, no such prior approval from a
\nResponsible Officer shall be required to have been obtained by any Lender,
\nAdministrative Agent or their respective Representatives.<\/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 of
\nwhich 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<\/p>\n
40
\n 47
\nto pay the wages of employees unless a timely payment to or deposit with the
\nappropriate Governmental Authorities of all amounts of Tax required to be
\ndeducted and withheld with respect 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 (a) 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), and (b) shall not (i) at any time a Default or
\nPotential Default exists or would be caused by such payment, make any voluntary
\nprepayment of principal of, or interest on, any other Debt (other than the
\nObligation), whether subordinate to the Obligation or not or (ii) use proceeds
\nfrom the Facility to make any voluntary prepayment of principal of, or interest
\non, or sinking fund payment in respect of any Note Agreement, other than
\nprepayments or redemptions of any Debt under the Brooks Notes.<\/p>\n
7.7 Maintenance of Existence, Assets, and Business. Except as
\notherwise permitted by SECTION 7.26, 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; 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. Each Consolidated Company shall deliver to
\nAdministrative Agent certificates of insurance for each such policy of
\ninsurance and evidence of payment of all premiums thereon.<\/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 $50,000,000.<\/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<\/p>\n
41
\n 48
\nany non-compliance with any Environmental Law, (b) shall promptly investigate
\nand remediate any known Release or threatened Release of any Hazardous
\nSubstance on any property owned by any Consolidated Company or at any facility
\noperated by any Consolidated Company to the extent and degree necessary to
\ncomply with Law and to assure that any Release or threatened Release does not
\nresult in a substantial endangerment to human health or the environment, and
\n(c) establish and maintain a management system designed to ensure compliance
\nwith applicable Environmental Laws and minimize financial and other risks to
\neach Consolidated Company arising under applicable Environmental Laws or as a
\nresult of environmentally-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 hereunder, the “Obligation” as defined
\n in the Facility A Agreement, and the “Obligation” as defined in the
\n Facility B Agreement;<\/p>\n
(b) Debt incurred by Borrower under any Financial Hedge;<\/p>\n
(c) Debt between Restricted Companies, or Debt of any
\n Restricted Company to the Receivables Subsidiary;<\/p>\n
(d) Debt existing on July 3, 1997, as more particularly
\n described on SCHEDULE 7.12 (or such later date as such Schedule is
\n revised or supplemented with the consent of Determining Lenders) (the
\n “EXISTING DEBT”);<\/p>\n
(e) Debt not otherwise permitted by this SECTION 7.12
\n (including, without limitation, Capital Leases or Debt assumed or
\n created in connection with any Permitted Acquisition) of any
\n Restricted Company, so long as (a) no Default or Potential Default
\n exists on the date any such Debt is created, incurred, or assumed or
\n arises as a result of or after giving effect to any such Debt
\n incurrence; and (b) the aggregate amount of all such additional Debt
\n of the Restricted Companies, when aggregated with the principal amount
\n of Existing Debt then outstanding, does not exceed, at the time of any
\n determination thereof, 7.5% of the amount of Total Debt for which the
\n Restricted Companies may be obligated without violating the Leverage
\n Ratio requirements set forth in SECTION 7.28(a); provided that, the
\n additional Debt permitted by this SECTION 7.12(e) is further limited
\n as it relates to such Debt of the Restricted Subsidiaries, such that
\n the Restricted Subsidiaries may not be obligated for, or create,
\n incur, or assume Debt (including, without limitation, amounts
\n outstanding on any date of determination under Capital Leases, Debt
\n assumed or created in connection with any Permitted Acquisition and
\n any Existing Debt pursuant to SECTION 7.12(d)) which, after giving
\n effect to the incurrence thereof, would cause the aggregate amount of
\n such Debt for all such Restricted Subsidiaries on any date of
\n determination to exceed the lesser of (i) $100,000,000 or (ii) an
\n amount which, when aggregated with the Debt of Borrower incurred
\n pursuant to SECTION 7.12(d) and outstanding on any such date of
\n determination, does not exceed 7.5% of the amount of Total Debt for
\n which the Restricted Companies may be obligated without violating the
\n Leverage Ratio requirement set forth in SECTION 7.28(a);<\/p>\n
(f) Debt of Borrower not otherwise permitted by this
\n SECTION 7.12 arising under or in connection with public or
\n privately-placed notes, debentures, bonds, debt securities, or related
\n indentures, or credit arrangements or other agreements, so long as (i)
\n no Default or Potential Default exists on the date any such Debt is
\n created or arises as a result of any borrowing thereunder; (ii) the
\n provisions of the documents evidencing such Debt are not materially
\n more<\/p>\n
42
\n 49
\n restrictive (as reasonably determined by Administrative Agent) than
\n the provisions of the Loan Papers, including, without limitation, any
\n requirements for mandatory prepayments or redemptions at any time
\n where similar payments are not required under the Loan Papers; (iii)
\n such Debt is unsecured senior or unsecured subordinated Debt; and (iv)
\n the documents pursuant to which such Debt is issued are reasonably
\n satisfactory to Administrative Agent and its counsel;<\/p>\n
(g) Debt (including any Debt of the Receivables
\n Subsidiary to any Restricted Company) arising under or in connection
\n with any Accounts Receivable Financing to the extent such Accounts
\n Receivable Financing and the related Accounts Receivable Financing
\n Amount is permitted by SECTION 7.23(e);<\/p>\n
(h) Debt of any Restricted Company to any Unrestricted
\n Company (other than the Receivables Subsidiary) so long as (i) such
\n Debt is subordinate in right of payment to the Obligation upon terms
\n satisfactory to Administrative Agent and its counsel and (ii) such
\n Debt is incurred and maintained in compliance with SECTIONS 7.12(e)
\n and 7.14 (it being understood that such subordinated Debt shall be
\n included in Debt for purposes of the calculations and determinations
\n made in accordance with SECTION 7.12(e));<\/p>\n
(i) Debt of MFS and its Subsidiaries arising under the
\n MFS Note Agreements; and<\/p>\n
(j) On and after the date that Brooks and its
\n Subsidiaries are designated as Restricted Subsidiaries pursuant to
\n SECTION 7.27 (the “DESIGNATION DATE”), Debt of Brooks and its
\n Subsidiaries arising under the Brooks Note Agreements, so long as (i)
\n no Default or Potential Default exists hereunder or arises as a result
\n of such designation, (ii) no “default” or “potential default” exists
\n or arises as a result of such designation under the Facility A
\n Agreement or the Facility B Agreement; (iii) the provisions of the
\n Brooks Note Agreements are not materially more restrictive (as
\n reasonably determined by Administrative Agent) than the provisions of
\n the Loan Papers, including, without limitation, any requirements for
\n mandatory prepayments or redemptions at any time where similar
\n payments are not required under the Loan Papers; (iv) such Debt is
\n unsecured; (v) the Brooks Note Agreements are reasonably satisfactory
\n to Administrative Agent and its counsel; and (vi) the aggregate
\n principal amount of the Brooks Notes outstanding on and after the
\n Designation Date shall never exceed an amount equal to 49.9% of the
\n outstanding indebtedness under the Brooks Notes immediately prior to
\n consummation of the Brooks Note Transaction.<\/p>\n
7.13 Liens. No Restricted Company will, directly or indirectly,
\n(a) enter into or permit to exist any arrangement or agreement which directly
\nor indirectly prohibits any Restricted Company from creating or incurring any
\nLien on any of its assets, other than the Loan Papers, any Note Agreement, or
\nany Receivables Documents evidencing Accounts Receivable Financings permitted
\nby SECTION 7.23(e) (so long as any such Lien prohibition under such Receivables
\nDocuments is limited to the Receivables Program Assets transferred by such
\nReceivables Documents), operating leases or Capital Leases (so long as any such
\nLien prohibition under such leases is limited to the property being leased
\nthereunder), any arrangements or agreements relating to the Rights of Way and
\nexisting on January 5, 1995 (so long as any such Lien prohibition under any
\nsuch arrangement or agreement is limited to the Rights of Way and related
\ninterests), and any other arrangements or agreements entered into by WTG or any
\nSubsidiary thereof on or before January 5, 1995, which arrangements or
\nagreements are permitted under this Agreement, or (b) create, incur, or suffer
\nor permit to be created or incurred or to exist any Lien upon any of its
\nassets, except:<\/p>\n
43
\n 50
\n (i) Liens existing on the Closing Date as more
\n particularly described on SCHEDULE 7.13 (collectively, the “EXISTING
\n LIENS”), together with renewals and extensions thereof but not
\n increases in the principal Debt secured thereby;<\/p>\n
(ii) Additional Liens (herein so called) securing Debt
\n permitted under SECTION 7.12(e) so long as (i) no Default or Potential
\n Default exists on the date any such Lien is granted or created and
\n (ii) the aggregate amount of all Debt secured by any such Additional
\n Lien, does not exceed the amount of additional Debt permitted in
\n SECTION 7.12(e) on any date of determination;<\/p>\n
(iii) 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
\n pursuant to SECTION 7.23(e);<\/p>\n
(iv) Good-faith pledges or deposits made to secure
\n performance of bids, tenders, insurance or other contracts (other than
\n 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
(v) Encumbrances consisting of zoning restrictions,
\n easements, or other restrictions on the use of real property, none of
\n which impair in any material respect the use of such property by the
\n Person in question in the operation of its business, and none of which
\n is violated by existing or proposed structures or land use;<\/p>\n
(vi) Liens of landlords or of mortgages of landlords,
\n arising solely by operation of law, on fixtures and movable property
\n located on premises leased in the ordinary course of business;<\/p>\n
(vii) 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
(viii) Liens on the Receivables Program Assets created
\n pursuant to any Receivables Documents evidencing Accounts Receivables
\n Financings permitted by SECTION 7.23(e); and<\/p>\n
(ix) 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 6.13, no Restricted Company shall enter into any material
\ntransaction with any of its Affiliates (excluding transactions among or between
\nRestricted Companies), other than 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 sales and
\ncontributions of Receivables Program Assets from Borrower or certain Restricted<\/p>\n
44
\n 51
\nSubsidiaries to the Receivables Subsidiary pursuant to an Accounts Receivable
\nFinancing permitted by SECTION 7.23(E). For purposes of this SECTION 7.14, a
\ntransaction is “material” if it requires any Consolidated Company to pay more
\nthan $50,000,000 during the term of the agreement governing such transaction.<\/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 Permitted Acquisitions. In connection with each Permitted
\nAcquisition (other than any Permitted Acquisition meeting the requirements of
\nITEM (A) under the definition of “Permitted Acquisition” with respect to which
\nno written compliance certification is required on the closing date of such
\nAcquisition), Borrower shall within 10 days following the consummation of such
\nPermitted Acquisition deliver, or cause to be delivered to, Administrative
\nAgent (with sufficient copies for Lenders) each of the following items: (a) if
\nthe information on any Schedule changes or is incomplete as a result of such
\nPermitted Acquisition (other than revisions or supplements to SCHEDULES 6.13,
\n7.12, 7.13, and 7.20, which revised or supplemental Schedules must be submitted
\nand approved by Determining Lenders in accordance with SECTION 5.2), revised or
\nsupplemental Schedules to the Agreement which are required to make the
\ndisclosures in such Schedules accurate after giving effect to such Acquisition;
\n(b) copies of any lien searches or certificates of authority and good standing
\nand any filing officer certificates (or commercial reports similar thereto)
\nobtained by or delivered to Borrower in connection with the Acquisition; (c)
\nsuch other agreements, documents, instruments, opinions, certificates, and
\nevidences as Administrative Agent may reasonably request. Administrative Agent
\nshall, upon request of Borrower, confirm to Borrower that it has received all
\nsuch items so requested and that all matters required to be satisfactory to the
\nAdministrative Agent are satisfactory.<\/p>\n
7.17 Assignment. Borrower shall not assign or transfer any of its
\nRights, duties, or obligations under any of the Loan Papers.<\/p>\n
7.18 Fiscal Year and Accounting Methods. No Consolidated Company
\nwill change its fiscal year for book accounting purposes or its method of
\naccounting other than (i) immaterial changes in methods or as required by GAAP,
\nor (ii) in connection with a Permitted Acquisition, such changes to the
\nnewly-acquired entity so as to conform its fiscal year and its method of
\naccounting to those of the Consolidated Companies.<\/p>\n
7.19 Government Regulations. No Restricted Company will conduct
\nits business in such a way that it will become subject to regulation under the
\nInvestment Company Act of 1940, as amended, the Public Utility Holding Company
\nAct of 1935, as amended, or any other Law (other than Regulations G, T, U, and
\nX of the Board of Governors of the Federal Reserve System and the requirements
\nof any PUC or public service commission) which regulates the incurrence of
\nDebt.<\/p>\n
7.20 Loans, Advances, and Investments. Except as permitted by
\nSECTIONS 7.21 or 7.26, no Restricted Company shall make any loan, advance,
\nextension of credit, or capital contribution to, make any investment in, or
\npurchase or commit to purchase any stock or other securities or evidences of
\nDebt of, or interests in, any other Person, other than (a) readily marketable,
\ndirect, full faith and credit<\/p>\n
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\n 52
\nobligations of the United States of America, or obligations guaranteed by the
\nfull faith and credit of the United States of America, maturing within one year
\nfrom the date of acquisition, (b) readily marketable obligations (including
\nrepurchase obligations) of any agency, instrumentality of, or corporation
\nowned, controlled, or sponsored by, the United States of America, that are
\ngenerally considered in the securities industry to be implicit obligations of
\nthe United States of America, maturing within one year from the date of
\nacquisition; (c) short term certificates of deposit and time deposits, which
\nmature within one year from the date of issuance and which are fully insured by
\nthe Federal Deposit Insurance Corporation or are issued by commercial banks
\norganized under the Laws of the United States or any state thereof, Canada,
\nwestern Europe, or Japan, with a long term debt rating of “A” or better by S&P
\nor of “A2” or better by Moody’s or with a short term commercial paper rating of
\n“A-1” or better by S&P or “P-1” or better by Moody’s; (d) commercial paper
\nmaturing in 270 days or less from the date of issuance and rated either “P-1”
\nor “P-2” by Moody’s, or “A-1” or “A-2” by S&P; (e) readily marketable tax-free
\nmunicipal bonds of a domestic issuer maturing in three years or less from the
\ndate of acquisition thereof, which are rated “Aaa” or better by Moody’s, or
\n“AAA” or better by S&P; (f) demand deposit accounts or readily redeemable
\n“money market mutual funds” sponsored by a bank meeting the requirements of
\nCLAUSE (c) above, that has and maintains an investment policy limiting its
\ninvestments primarily to instruments of the types otherwise permitted in CLAUSE
\n(a)-(e) hereof and which demand deposit accounts or money market mutual funds
\nare maintained in the ordinary course of business; (g) loans, advances,
\nextensions of credit, capital contributions and other investments between
\nRestricted Companies or between Restricted Companies and the Receivables
\nSubsidiary; provided that, any loans, advances, extensions of credit, capital
\ncontributions, and other investments by any Restricted Company in or to the
\nReceivables Subsidiary shall be made solely in connection with an Accounts
\nReceivable Financing permitted by SECTION 7.23(e); (h) Permitted Acquisitions;
\n(i) trade accounts receivable (including, without limitation, trade accounts
\nreceivable evidenced by promissory notes) which are for goods furnished or
\nservices rendered in the ordinary course of business and are payable in
\naccordance with customary trade terms; (j) other investments or commitments to
\nmake investments existing on July 3, 1997, and described on SCHEDULE 7.20; and
\n(k) other loans, advances, and investments (including, without limitation,
\nloans, advances, investments in or to Brooks prior to the designation of Brooks
\nby Borrower as a Restricted Subsidiary of Borrower), so long as (x) the
\naggregate principal amount or market value of such loans, advances, or
\ninvestments (as the case may be) does not exceed 5% of the Consolidated Net
\nWorth of the Restricted Companies on any date of determination, (y) no Default
\nor Potential Default exists, and (z) no Restricted Company makes any investment
\nunder this CLAUSE (k) whereby it incurs any liability as a general partner.<\/p>\n
7.21 Permitted Distributions. So long as any Default or Potential
\nDefault exists or will exist as a result of any such Distribution, no
\nRestricted Company may directly or indirectly declare, make, or pay any
\nDistribution, other than Distributions made or paid, directly or indirectly, to
\nBorrower. Any Distribution permitted hereunder is permitted only to the extent
\nsuch Distribution is made in accordance with applicable Law and constitutes a
\nvalid, non-voidable transaction.<\/p>\n
7.22 Restrictions on Subsidiaries. No Restricted Subsidiary shall
\nenter into or permit to exist any material arrangement or agreement (other than
\nthe Loan Papers) which directly or indirectly prohibits any such Restricted
\nSubsidiary from (a) declaring, making, or paying, directly or indirectly, any
\nDistribution to Borrower or any other Restricted Subsidiary, (b) paying any
\nDebt owed to Borrower or any other Restricted Subsidiary, (c) making loans,
\nadvances, or investments to Borrower or any other Restricted Subsidiary, or (d)
\ntransferring any of its property or assets to Borrower or any other Restricted
\nSubsidiary.<\/p>\n
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\n 53
\n 7.23 Sale of Assets. No Restricted Company shall sell, assign,
\ntransfer, or otherwise dispose of any of its assets other than (a) sales of
\ninventory in the ordinary course of business, (b) the sale, discount, or
\ntransfer of delinquent accounts receivable in the ordinary course of business
\nfor purposes of collection, (c) occasional sales of immaterial assets for
\nconsideration not less than the fair market value thereof, (d) dispositions of
\nobsolete assets, (e) the sale, assignment, transfer, or other disposition of
\nundivided percentage interests in the Receivables Program Assets pursuant to
\nany Accounts Receivables Financing, so long as the aggregate Accounts
\nReceivable Financing Amount payable from the Receivables Program Assets to the
\npurchasers under all such Accounts Receivables Financings does not exceed
\n$750,000,000, and (f) if no Default or Potential Default then exists or arises
\nas a result thereof, sales of other assets (including sales of accounts
\nreceivable to the extent such accounts receivable are sold in conjunction with
\nthe sale of a business but excluding all other sales of accounts receivable);
\nprovided that, the aggregate fair market value of all assets sold on or after
\nJuly 3, 1997, pursuant to this CLAUSE (f) shall not exceed, on any date of
\ndetermination, 49% of the Annualized Operating Cash Flow of the Restricted
\nCompanies determined as of the fiscal quarter then most recently ended.<\/p>\n
7.24 Sale-Leaseback Financings. Except for the Sale-Leaseback
\nFinancings and any extensions, amendments, or modifications thereto, no
\nRestricted Company will enter into any sale-leaseback arrangement with any
\nPerson pursuant to which such Restricted Company shall lease any asset (whether
\nnow owned or hereafter acquired) if such asset has been or is to be sold or
\ntransferred by any Restricted Company to any other Person.<\/p>\n
7.25 Amendments to Agreements. With respect to any Note Agreement,
\nany MFS Note Agreement, any Brooks Note Agreement (except in connection with
\nany amendment of the Brooks Note Agreements arising in connection with the
\nBrooks Note Transaction and occurring on or before the date Brooks and its
\nSubsidiaries are designated as Restricted Subsidiaries pursuant to SECTION
\n7.27) and any agreement evidencing subordinated Debt permitted pursuant to
\nSECTION 7.12(h) without the prior written consent of Determining Lenders, no
\nRestricted Company will (a) execute any material amendment, modification, or
\nsupplement thereto, or (b) consent to any material departure therefrom.<\/p>\n
7.26 Mergers and Dissolutions; Sale of Capital Stock. No
\nRestricted Company will, directly or indirectly, merge or consolidate with any
\nother Person, other than (a) as a result of a Permitted Acquisition, (b)
\nmergers or consolidations involving Borrower if Borrower or a Permitted
\nSuccessor Corporation is the surviving entity, (c) mergers among Wholly-owned
\nRestricted Companies; provided that, in any merger involving Borrower
\n(including a Permitted Acquisition effected as a merger), Borrower or a
\nPermitted Successor Corporation must be the surviving entity, and, in any
\nmerger involving any other Restricted Company (including a Permitted
\nAcquisition effected as a merger), a Restricted Subsidiary must be the
\nsurviving entity, (d) as previously approved by Determining Lenders, and (e)
\nmergers between Restricted Companies and Unrestricted Subsidiaries; provided
\nthat, in any merger under this CLAUSE (e) involving Borrower (including a
\nPermitted Acquisition effected as a merger), Borrower or a Permitted Successor
\nCorporation must be the surviving entity, and, in any merger involving any
\nother Restricted Company (including a Permitted Acquisition effected as a
\nmerger), a Restricted Subsidiary must be the surviving entity. No Restricted
\nCompany shall liquidate, wind up, or dissolve (or suffer any liquidation or
\ndissolution), other than (x) liquidations, wind ups, or dissolutions incident
\nto mergers permitted under this SECTION 7.26, or (y) liquidations, wind ups, or
\ndissolutions of a Restricted Subsidiary if no Default or Potential Default
\nexists or would result therefrom and its assets are transferred to another
\nRestricted Company. No Restricted Company may sell, assign, lease, transfer,
\nor otherwise dispose of the capital stock (or other ownership interests) of any
\nother Restricted Company, except for sales, leases, transfers, or other such
\ndistributions to another Restricted Company.<\/p>\n
47
\n 54
\n 7.27 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 change the designation of any Subsidiary from a Restricted
\nSubsidiary to an Unrestricted Subsidiary, or vice versa; provided that, (a)
\nBorrower shall provide Administrative Agent written notification of such
\ndesignation, and (b) Borrower amends SCHEDULE 6.2 to reflect the change in
\ndesignation. Brooks and its Subsidiaries shall not be redesignated as
\n“Restricted Subsidiaries” until the date upon which (i) more than 50% of the
\nDebt outstanding under the Brooks Note Agreements is (A) assumed in whole or in
\npart by Borrower and such assumed Debt satisfies the requirements of SECTION
\n7.12(f) and\/or (B) reduced or repaid in whole by Brooks; provided that, if not
\nrepaid in full or assumed by Borrower, any remaining Debt under the Brooks Note
\nAgreements must satisfy the requirement of SECTION 7.12(j); (ii) Borrower
\ndelivers to Administrative Agent a Compliance Certificate demonstrating
\npro-forma compliance with SECTIONS 7.12 and 7.28 immediately prior to and after
\ngiving effect to such redesignation; (iii) Borrower amends SCHEDULE 6.2 to
\nreflect the change in designation and delivers such amended SCHEDULE 6.2 to
\nAdministrative Agent; and (iv) no Default or Potential Default exists or arises
\nafter giving effect to such redesignation. Any other redesignation from an
\nUnrestricted Subsidiary to a Restricted Subsidiary shall be effective upon
\nreceipt by Administrative Agent of a notice of redesignation and a revised
\nSCHEDULE 6.2.<\/p>\n
7.28 Financial Covenants. As calculated on a consolidated basis
\n for the Consolidated Companies:<\/p>\n
(a) Borrower shall never permit the Leverage Ratio for
\n any 3-month period ending on the date of determination to exceed 4.50
\n to 1.00.<\/p>\n
(b) Borrower shall never permit the sum of (i) the
\n Consolidated Net Worth of the Consolidated Companies as calculated at
\n the end of each of its fiscal quarters plus (ii) to the extent
\n deducted in the calculation of Consolidated Net Worth, up to
\n $100,000,000 in non-recurring cash and non-cash charges made by the
\n Consolidated Companies in connection with any mergers or corporate
\n restructurings related solely to Acquisitions occurring on or after
\n July 3, 1997, to be less than the sum of the following:<\/p>\n
(A) 75% of the Consolidated Net Worth of the
\n Consolidated Companies as of December 31, 1996, plus<\/p>\n
(B) 50% of the Consolidated Net Income of the
\n Consolidated Companies for each fiscal quarter of the
\n Consolidated Companies ending after December 31, 1996, and
\n added to Consolidated Net Worth on the last day of each such
\n successive fiscal quarter (provided that if the Consolidated
\n Net Income for any fiscal quarter is less than $0, then the
\n incremental amount added to required Consolidated Net Worth
\n for that fiscal quarter shall be $0), plus<\/p>\n
(C) 75% of the Net Cash Proceeds of any Equity
\n Issuance occurring on or after the Closing Date.<\/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 any
\nRestricted Company to pay (a) Principal Debt when the same becomes due in
\naccordance with the Loan Papers, or (b) interest, fees, or any other part of
\nthe Obligation within five days after the same becomes due and payable in
\naccordance<\/p>\n
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\n 55
\nwith the Loan Papers; (c) the indemnifications and reimbursements provided for
\nin SECTIONS 3.16 and 3.18 within ten days after demand therefor as required by
\nsuch Sections; or (d) the failure of the Restricted Company to punctually and
\nproperly perform, observe, and comply with SECTION 9.12 or with any other
\nprovision in the Loan Papers setting forth indemnification or reimbursement
\nobligations (other than pursuant to SECTIONS 3.16 and 3.18) of the Restricted
\nCompanies, and such failure or refusal continues 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:<\/p>\n
(a) Any covenant, agreement, or condition contained in
\n SECTIONS 7.1, 7.6 (first sentence thereof), 7.6(b), 7.12, 7.13, 7.14,
\n 7.16, 7.17, 7.18, and 7.19 through 7.28; and<\/p>\n
(b) Any other covenant, agreement, or condition contained
\n in any Loan Paper (other than the covenants to pay the Obligation set
\n forth in SECTION 8.1 and the covenants in CLAUSE (a)), and such
\n failure or refusal continues for 30 days.<\/p>\n
8.3 Debtor Relief. Borrower or any Restricted Subsidiary (a)
\nshall not be Solvent, (b) fails to pay its Debts generally as they become due,
\n(c) voluntarily 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, bond, or otherwise discharge any judgment
\nor order for the payment of money in excess of $100,000,000 (individually or
\ncollectively) or any warrant of attachment, sequestration, or similar
\nproceeding against any Restricted Company’s assets having a value (individually
\nor collectively) of $100,000,000, which is not either (a) stayed on appeal or
\n(b) being diligently contested in good faith by appropriate proceedings and
\nadequate reserves have been set aside on the books of such Restricted Company
\nin accordance with GAAP.<\/p>\n
8.5 Government Action. (a) A final non-appealable order is issued
\nby any Governmental Authority, including, but not limited to, the FCC or the
\nUnited States Justice Department, seeking to cause any Consolidated Company to
\ndivest a significant portion of its assets pursuant to any antitrust, restraint
\nof trade, unfair competition, industry regulation, or similar Laws, or (b) any
\nGovernmental Authority shall condemn, seize, or otherwise appropriate, or take
\ncustody or control of all or any substantial portion of the assets of any
\nConsolidated Company.<\/p>\n
8.6 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
8.7 SEC Reporting Requirements. Any Consolidated Company fails to
\ncomply with any reporting requirements of the Securities Exchange Act of 1934,
\nas amended, for which the failure to report could constitute a Material Adverse
\nEvent.<\/p>\n
49
\n 56
\n 8.8 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
8.9 Authorizations. (a) Any Authorization necessary for the
\nownership or operations of any Consolidated Company shall expire, and on or
\nprior to such expiration, the same shall not have been renewed or replaced by
\nanother Authorization authorizing substantially the same operations by such
\nConsolidated Company; or (b) any Authorization necessary for the ownership or
\noperations of any Consolidated Company shall be canceled, revoked, terminated,
\nrescinded, annulled, suspended, or modified in a materially adverse respect, or
\nshall no longer be in full force and effect, or the grant or the effectiveness
\nthereof shall have been stayed, vacated, reversed, or set aside, and such
\naction shall be no longer subject to further administrative or judicial review
\n(provided, however, that neither of the foregoing events described in CLAUSE
\n(a) or (b) shall constitute a Default if such loss of any such Authorization
\ncould not be a Material Adverse Event).<\/p>\n
8.10 Default Under Other Agreements. (a) Any Restricted Company
\nfails to pay when due (after lapse of any applicable grace periods) any Debt of
\nsuch Restricted Company (other than the Obligation) in excess (individually or
\ncollectively) of $50,000,000; (b) any default exists under any agreement to
\nwhich a Restricted Company is a party, the effect of which is to cause, or to
\npermit any Person to cause, an amount of Debt of such Restricted Company in
\nexcess (individually or collectively) of $50,000,000 to become due and payable
\nby any Restricted Company prior to the stated maturity thereof; (c) any Debt in
\nexcess (individually or collectively) of $50,000,000 shall be declared to be
\ndue and payable or required to be prepaid by any Restricted Company prior to
\nthe stated maturity thereof; (d) any default exists under any material written
\nor oral agreement, contract, commitment, or understanding to which a Restricted
\nCompany is a party, the effect of which would be a Material Adverse Event,
\nunless, in the case of this CLAUSE (d), and so long as, such default is being
\ncontested by such Restricted Company in good faith by appropriate proceedings
\nand adequate reserves in respect thereof have been established on the books of
\nsuch Restricted Company to the extent required by GAAP; or (e) any “Default”
\nexists under the Facility A Agreement or the Facility B Agreement.<\/p>\n
8.11 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 $50,000,000
\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<\/p>\n
50
\n 57
\nPBGC, or the appointment by the appropriate United States district court of a
\ntrustee 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 such termination will exceed $50,000,000; or (c) a trustee shall be
\nappointed by a United States district court to administer any such Employee
\nPlan; or (d) the PBGC shall institute proceedings (including giving notice of
\nintent thereof) to terminate any such Employee Plan; or (e)(i) Borrower or any
\nERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan
\nthat it has incurred withdrawal liability (within the meaning of section 4201
\nof ERISA) to such Multiemployer Plan, (ii) Borrower or such ERISA Affiliate
\ndoes not have reasonable grounds for contesting such withdrawal liability or is
\nnot contesting 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 $50,000,000; or (f) Borrower or any ERISA Affiliate
\nshall have been notified by the sponsor of a Multiemployer Plan that such
\nMultiemployer 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 $50,000,000.<\/p>\n
8.12 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
8.13 Payment of Certain Other Debt. The payment (including,
\nwithout limitation, any payment by any Restricted Company in respect of any
\nsinking fund, defeasance, or redemption) by any Restricted Company of any
\nprincipal amount of any Debt arising under any Note Agreement, the MFS Note
\nAgreements, or the Brooks Note Agreements, in a manner or at a time during
\nwhich such payment is not permitted under the terms of the Loan Papers, the
\nNote Agreements, the MFS Note Agreements, or the Brooks Note Agreements.<\/p>\n
8.14 Default or Acceleration under any Certain Other Debt. (a) The
\noccurrence of any default or event of default under any Note Agreement, any MFS
\nNote Agreement, or any Brooks Note Agreement, or (b) the trustee with respect
\nto, or any holder of, any Note Agreement, any MFS Note Agreement, or any Brooks
\nNote Agreement shall effectively declare all or any portion of that Debt due
\nand payable prior to the stated maturity thereof; or (c) Debt under any Note
\nAgreement, any MFS Note Agreement, or any Brooks Note Agreement becomes due
\nbefore its stated maturity by acceleration of the maturity thereof.<\/p>\n
8.15 Redemption of Certain Other Debt. If an event shall occur,
\nincluding, without limitation, a “Change in Control” as defined in any Note
\nAgreement, any MFS Note Agreement, or any Brooks Note Agreement, and (a) the
\ntrustee or the holders of any Note Agreement, any MFS Note Agreement, or any
\nBrooks Note Agreement shall initiate notice to request or require (or any
\nRestricted Company shall automatically be so required) to redeem or repurchase
\nany Debt arising under any Note Agreement, the MFS Note Agreements, or the
\nBrooks Note Agreement, or (b) any Restricted Company shall initiate notice<\/p>\n
51
\n 58
\nto the holders of any Debt arising under any Note Agreement, any MFS Note
\nAgreement, or any Brooks Note Agreement, in connection with a redemption of any
\nDebt arising under any Note Agreement, any MFS Note Agreement, or any Brooks
\nNote Agreement (except as permitted by this Agreement).<\/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 shall
\n automatically become due and payable without any action or notice of
\n 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 has not already
\n been accelerated under SECTION 9.1(a), declare the entire unpaid
\n balance of the Obligation, 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); (v)
\n exercise any and all other legal or equitable Rights afforded by the
\n Loan Papers, the Laws of the State of Texas or any other applicable
\n jurisdiction as Administrative Agent shall deem appropriate, or
\n otherwise, including, but not limited to, the Right to bring suit or
\n other proceedings before any Governmental Authority either for
\n specific performance of any covenant or condition contained in any of
\n the Loan Papers or in aid of the exercise of any Right granted to
\n Administrative Agent or any Lender in 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
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\n 59
\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 or any Lender the Right to exercise
\ncontrol over the assets (including real property), affairs, or management of
\nany Consolidated Company, (b) preclude or interfere with compliance by any
\nConsolidated Company with any Law, or (c) require any act or omission by any
\nConsolidated Company that may be harmful to Persons or property. Any “Material
\nAdverse Event” or other materiality qualifier in any representation, warranty,
\ncovenant, or other provision of any Loan Paper is included for credit
\ndocumentation purposes only and shall not, and shall not be deemed to, mean
\nthat Administrative Agent or any Lender acquiesces in any non-compliance by any
\nConsolidated Company with any Law or document, or that Administrative Agent or
\nany Lender does not expect the Consolidated Companies to promptly, diligently,
\nand continuously carry out all appropriate removal, remediation, and
\ntermination activities required or appropriate in accordance with all
\nEnvironmental Laws. Neither the Administrative Agent nor any Lender has any
\nfiduciary relationship with or fiduciary duty to Borrower or any Consolidated
\nCompany arising out of or in connection with the Loan Papers, and the
\nrelationship between the Administrative Agent and the Lenders, on the one hand,
\nand Borrower, on the other hand, in connection with the Loan Papers is solely
\nthat of debtor and creditor. The power of Administrative Agent and Lenders
\nunder the Loan Papers is limited to the Rights provided in the Loan Papers,
\nwhich Rights exist solely to assure payment and performance of the Obligation
\nand may be exercised in a manner calculated by Administrative Agent and Lenders
\nin 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 other or further exercise
\nthereof, or the exercise of any other Right under the Loan 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
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\n 60
\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 Lender under any Loan Paper which would
\naffect the operational, voting, or other control of any Consolidated Company,
\nshall be pursuant to Section 310(d) of the Communications Act of 1934 (as
\namended), any applicable state Law, and the applicable rules and regulations
\nthereunder and, if and to the extent required thereby, subject to the prior
\nconsent 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 AND EACH LENDER AND THEIR RESPECTIVE AFFILIATES, PARENTS, AND
\nSUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES’ RESPECTIVE DIRECTORS,
\nOFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND
\nATTORNEYS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST
\nANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
\nJUDGMENTS, SUITS, CLAIMS, AND PROCEEDINGS AND ALL REASONABLE AND NECESSARY
\nCOSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS’ FEES
\nAND LEGAL EXPENSES INCLUDING ALLOCATED COST OF INTERNAL COUNSEL, AND AMOUNTS
\nPAID IN SETTLEMENT WHETHER OR NOT SUIT IS BROUGHT), AND DISBURSEMENTS OF ANY
\nKIND OR NATURE WHATSOEVER, AND AMOUNTS PAID IN SETTLEMENT (THE “INDEMNIFIED
\nLIABILITIES”) WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY, OR ASSERTED
\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); (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; OR (D) ANY PERMITTED ACQUISITION
\nOR THE RELATED ACQUISITION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
\nTHEREBY; (PROVIDED THAT, NONE OF THE RESTRICTED COMPANIES SHALL HAVE ANY
\nOBLIGATION HEREUNDER TO ANY INDEMNIFIED PARTY WITH RESPECT TO ANY INDEMNIFIED
\nLIABILITY ARISING FROM (I) THE FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT
\nOF SUCH INDEMNIFIED PARTY OR ANY ASSOCIATED PERSON OF SUCH<\/p>\n
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\n 61
\nINDEMNIFIED PARTY, OR (II) LEGAL PROCEEDINGS COMMENCED AGAINST ANY INDEMNIFIED
\nPARTY BY ANY SECURITY HOLDER OR CREDITOR THEREOF ARISING OUT OF AND BASED UPON
\nRIGHTS AFFORDED TO SUCH PERSON SOLELY IN SUCH CAPACITY). AS USED IN THIS
\nPARAGRAPH, THE TERM “ASSOCIATED PERSON” MEANS, WITH RESPECT TO ANY PERSON, THE
\nAFFILIATES, PARENTS, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES,
\nREPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS OF SUCH PERSON, OR
\nOF ANOTHER PERSON OF WHICH SUCH PERSON IS ALSO AN ASSOCIATED PERSON. THE
\nPROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH
\nSHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF
\nTHIS AGREEMENT. AN INDEMNIFIED PARTY WILL PROMPTLY NOTIFY THE RESTRICTED
\nCOMPANIES UPON RECEIPT OF WRITTEN NOTICE OF ANY CLAIM, ACTION, SUIT, OR
\nPROCEEDING MADE, COMMENCED, OR THREATENED THAT COULD GIVE RISE TO AN
\nINDEMNIFIED LIABILITY AND AFFORD THE RESTRICTED COMPANIES FIRST RIGHT TO DEFEND
\nOR RESOLVE THE SAME (WITH COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED
\nPARTY); PROVIDED THAT, ANY FAILURE BY SUCH INDEMNIFIED PARTY TO GIVE SUCH
\nNOTICE SHALL NOT RELIEVE THE RESTRICTED COMPANIES FROM THEIR OBLIGATIONS TO
\nINDEMNIFY THE INDEMNIFIED PARTY TO THE EXTENT SUCH FAILURE DOES NOT PREJUDICE
\nTHE ABILITY OF THE RESTRICTED COMPANIES TO DEFEND OR RESOLVE ANY SUCH CLAIM,
\nACTION, SUIT, OR PROCEEDING. THE RESTRICTED COMPANIES SHALL NOT SETTLE ANY
\nSUCH CLAIM OR ACTION WITHOUT THE CONSENT OF SUCH INDEMNIFIED PARTY, WHICH
\nCONSENT 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 hereby appoints NationsBank of Texas,
\n N.A. (and NationsBank of Texas, N.A. 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<\/p>\n
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\n 62
\n under the Loan Papers); (iv) to receive all documents and items to be
\n furnished to Lenders under the Loan Papers; (v) to be the secured
\n party, mortgagee, beneficiary, and similar party in respect of, and to
\n receive, as the case may be, any collateral for the benefit of
\n Lenders; (vi) to timely distribute, and Administrative Agent agrees to
\n so distribute, to each Lender all material information, requests,
\n documents, and items received from Borrower under the Loan Papers;
\n (vii) to promptly distribute to each Lender its ratable part of each
\n payment or prepayment (whether voluntary, as proceeds of collateral
\n upon or after foreclosure, as proceeds of insurance thereon, or
\n otherwise) in accordance with the terms of the Loan Papers; (viii) to
\n deliver to the appropriate Persons requests, demands, approvals, and
\n consents received from Lenders; and (ix) to execute, on behalf of
\n Lenders, such releases or other documents or instruments as are
\n permitted by the Loan Papers or as directed by Lenders from time to
\n time; provided, however, Administrative Agent shall not be required to
\n take any action which exposes Administrative Agent to personal
\n liability or which is contrary to the Loan Papers or 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<\/p>\n
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\n 63
\n (collectively, the “OTHER ACTIVITIES”) not the subject of the Loan
\n Papers. Without limiting the Rights of Lenders specifically set forth
\n in the Loan Papers, Administrative Agent and its Affiliates shall not
\n be 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. Each Lender acknowledges that, and consents to,
\n NationsBank of Texas, N.A.’s also serving as the “Administrative
\n Agent” under both the Facility A Agreement and the Facility B
\n Agreement and related loan papers.<\/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 11.14, 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<\/p>\n
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\n 64
\nby Administrative Agent and shall not be liable for any action taken or omitted
\nto be taken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts.<\/p>\n
10.5 Limitation of Liability.<\/p>\n
(a) Neither Administrative Agent nor its Representatives
\n shall be liable for any action taken or omitted to be taken by it or
\n them under the Loan Papers in good faith and reasonably believed by it
\n or them to be within the discretion or power conferred upon it or them
\n by the Loan Papers or be responsible for the consequences of any error
\n of judgment, except for fraud, gross negligence, or willful
\n misconduct; and neither Administrative Agent nor its Representatives
\n has a fiduciary relationship with any Lender by virtue of the Loan
\n Papers (provided that nothing herein shall negate the obligation of
\n Administrative Agent to account for funds received by it for the
\n account of any Lender).<\/p>\n
(b) Unless indemnified to its satisfaction against loss,
\n cost, liability, and expense, Administrative Agent shall not be
\n compelled to do any act under the Loan Papers or to take any action
\n toward the execution or enforcement of the powers thereby created or
\n to prosecute or defend any suit in respect of the Loan Papers. If
\n Administrative Agent requests instructions from Lenders or Determining
\n Lenders, as the case may be, with respect to any act or action
\n (including, but not limited to, any failure to act) in connection with
\n any Loan Paper, or Loan Paper, Administrative Agent shall be entitled
\n (but shall not be required) to refrain (without incurring any
\n liability to any Person by so refraining) from such act or action
\n unless and until it has received such instructions. In no event,
\n however, shall Administrative 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 Administrative Agent as
\n a result of Administrative Agent’s acting or refraining from acting
\n hereunder in accordance with the instructions of Determining Lenders.<\/p>\n
(c) Administrative Agent shall not be responsible in any
\n manner to any Lender or any Participant for, and each Lender
\n represents and warrants that it has not relied upon Administrative
\n Agent in respect of, (i) the creditworthiness of any Restricted
\n Company and the risks involved to such Lender, (ii) the effectiveness,
\n enforceability, genuineness, validity, or the due execution of any
\n Loan Paper, (iii) any representation, warranty, document, certificate,
\n report, or statement made therein or furnished thereunder or in
\n connection therewith, (iv) the existence, priority, or perfection of
\n any Lien hereafter granted or purported to be granted under any Loan
\n Paper, or (v) observation of or compliance with any of the terms,
\n covenants, or conditions of any Loan Paper on the part of any
\n Restricted Company. Each Lender agrees to indemnify Administrative
\n Agent and its respective Representatives and hold them harmless from
\n and against (but limited to such Lender’s Pro Rata Part of) any and
\n all liabilities, obligations, losses, damages, penalties, actions,
\n judgments, suits, costs, reasonable expenses, and reasonable
\n disbursements of any kind or nature whatsoever which may be imposed
\n on, asserted against, or incurred by them in any way relating to or
\n arising out of the Loan Papers or any action taken or omitted by them
\n under the Loan Papers, to the extent Administrative Agent and its
\n respective Representatives are not reimbursed for such amounts by any
\n Restricted Company (provided that, Administrative Agent and its
\n respective Representatives shall not have the right to be indemnified
\n hereunder for its or their own fraud, gross negligence, or willful
\n misconduct).<\/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<\/p>\n
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\n 65
\ncourse of action for the enforcement of the Rights of Lenders; and
\nAdministrative Agent shall be entitled to refrain from taking any action
\n(without incurring any liability to any Person for so refraining) unless and
\nuntil Administrative Agent shall have received instructions from Determining
\nLenders. In actions with respect to any property of Borrower, Administrative
\nAgent is acting for the ratable benefit of each Lender. Any and all agreements
\nto subordinate (whether made heretofore or hereafter) other indebtedness or
\nobligations of Borrower to the Obligation shall be construed as being for the
\nratable benefit of each Lender. If Administrative Agent acquires any security
\nfor the Obligation or any guaranty of the Obligation upon or in lieu of
\nforeclosure, the same shall be held for the ratable benefit of all Lenders in
\nproportion to the Principal Debt respectively owed to each Lender.<\/p>\n
10.7 Limitation of Liability. To the extent permitted by Law, (a)
\nAdministrative Agent shall not incur any liability to any other Lender or
\nParticipant except for acts or omissions resulting from its own fraud, gross
\nnegligence or wilful misconduct, and (b) neither Administrative Agent nor any
\nLender or Participant shall incur any liability to any other Person for any act
\nor 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 Administrative Agent and Lenders
\nor among Lenders.<\/p>\n
10.9 Foreign Lenders. Each Lender that is organized under the laws
\nof any jurisdiction other than the United States of America or any State
\nthereof (a) represents to Administrative Agent and Borrower that (i) under
\napplicable Laws and treaties no Taxes are presently required to be withheld by
\nAdministrative Agent or Borrower with respect to any payments to be made to
\nsuch Lender in respect of the Obligation and (ii) it has furnished to
\nAdministrative Agent and Borrower two duly completed copies of U.S. Internal
\nRevenue Service Form 4224, or Form 1001, Form W-8 or Form W-9, as applicable
\n(wherein such Lender claims entitlement to complete exemption from U.S. federal
\nwithholding Tax on all interest payments hereunder), and (b) covenants to (i)
\nprovide, so long as it is entitled to use such form, Administrative Agent and
\nBorrower a new Form 4224, Form 1001, Form W-8, or Form W-9, as applicable, upon
\nthe expiration or obsolescence of any previously delivered form in accordance
\nwith applicable Laws, duly executed and completed by such Lender, (ii) provide
\nany other form or certificate required by any taxing entity (including any
\ncertificate required by Sections 871(h) and 881(c) of the Code, certifying that
\nsuch Lender is entitled to an exemption from or a reduced rate of Tax on
\npayments pursuant to this Agreement or any of the other Loan Papers, and (iii)
\notherwise comply from time to time with all applicable Laws with regard to such
\nwithholding Tax exemption.<\/p>\n
10.10 Benefits of Agreement. Except for the representations and
\ncovenants in SECTIONS 10.1(c) and 10.9 in favor of Borrower, none of the
\nprovisions of this SECTION 10 shall inure to the benefit of any Restricted
\nCompany or any other Person other than Lenders; 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 to
\ncomply with such provisions.<\/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<\/p>\n
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\n 66
\nBusiness Day, but interest and fees shall continue to accrue in respect of any
\npayment to which it is applicable until such payment is in fact made; provided
\nthat, if in the case of any such payment in respect of a Eurodollar Rate
\nBorrowing the next-succeeding Business Day is in the next calendar month, then
\nsuch payment shall be made on the 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 postal service, or (d) if by any other means, when
\nactually delivered to such party. Until changed by notice pursuant hereto, the
\naddress (and telex and telecopy numbers, if any) for Administrative 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 or any Lender shall survive termination of this Agreement and payment in
\nfull of the Obligation.<\/p>\n
11.7 Governing Law. THE LAWS (OTHER THAN CONFLICT-OF-LAWS
\nPROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA
\nSHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO THE LOAN PAPERS AND THE
\nVALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF 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
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\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 AND ADMINISTRATIVE AGENT,
\n(TOGETHER WITH ALL COMMITMENT LETTERS AND FEE LETTERS AS THEY RELATE TO THE
\nPAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN
\nTHE RESTRICTED COMPANIES, LENDERS AND 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 or Hereafter Have to the Laying of Venue of Any Litigation Arising
\nout of or in Connection with the Loan Papers and the Obligation Brought in Any
\nSuch Court, (C) irrevocably Waives Any Claims That Any Litigation Brought in
\nAny Such Court Has Been Brought in an Inconvenient Forum, (D) agrees to
\nDesignate and Maintain an Agent for Service of Process in New York, New York in
\nConnection with Any Such Litigation and to Deliver to Administrative Agent
\nEvidence Thereof, If Requested, (E) irrevocably Consents to the Service of
\nProcess out of Any of the Aforementioned Courts in Any Such Litigation by the
\nMailing of Copies Thereof by Certified Mail, Return Receipt Requested, Postage
\nPrepaid, at its Address Set Forth Herein, (F) irrevocably Agrees That Any Legal
\nProceeding Against Any Party Hereto Arising out of or in Connection with the
\nLoan Papers or the Obligation Shall Be Brought in One of the Aforementioned
\nCourts, and (G) irrevocably Waives, to the Fullest Extent Permitted by Law, its
\nRespective Rights to a Jury Trial of Any Claim or Cause of Action Based upon or
\nArising out of Any Loan Paper or the Transactions Contemplated Thereby. The
\nscope of each of the foregoing waivers is intended to be all-encompassing of
\nany and all disputes that may be filed in any court and that relate to the
\nsubject matter of this transaction, including, without limitation, contract
\nclaims, tort claims, breach of duty claims, and all other common law and
\nstatutory claims. Borrower (for itself and on behalf of each of its
\nSubsidiaries) acknowledges that the selection of venue in this SECTION 11.10 is
\nconsistent with similar venue selections set forth in SECTIONS 11.10 of both
\nthe Facility A Agreement and the Facility B Agreement, and is intended to
\neffect the orderly administration and resolution of matters addressed under the
\nFacility A Agreement, the Facility B Agreement, and this Agreement. Borrower
\n(for itself and on behalf of each of its Subsidiaries) and each other party to
\nthis Agreement acknowledge that this waiver is a material inducement to the
\nagreement of each party hereto to enter into a business relationship, that each
\nhas already relied on this waiver in entering into Facility A, Facility B, and
\nthis Agreement, and each will continue to rely on each of such waivers in
\nrelated future dealings. Borrower (for itself and on behalf of each of its
\nSubsidiaries) and each other party to this Agreement warrant and represent that
\nthey have reviewed these waivers with their legal counsel, and that they
\nknowingly and voluntarily agree to each such waiver following consultation with
\nlegal counsel. THE WAIVERS IN THIS SECTION 11.10 ARE IRREVOCABLE, MEANING THAT
\nTHEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
\nAPPLY TO ANY SUBSEQUENT AMENDMENTS,<\/p>\n
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\nSUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN PAPER. In the
\nevent of Litigation, this Agreement may be filed as a written consent to a
\ntrial 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 (other than mandatory prepayments) of the Obligation
\n arising under Loan Papers beyond the date specified in the Loan
\n Papers; (ii) reduces the interest rate or decreases the amount of
\n interest, fees, or other sums payable to Administrative Agent or
\n Lenders hereunder (except such reductions as are contemplated by this
\n Agreement); (iii) changes the definition of “APPLICABLE MARGIN” (other
\n than changes having the effect of increasing such Applicable Margin),”
\n “DETERMINING LENDERS,” “COMMITMENT,” “PRO RATA,” or “PRO RATA PART,”
\n or (iv) increases any one or more Lender’s Committed Sum; or (v)
\n except as otherwise permitted by any Loan Paper, waives compliance
\n with, amends, or releases (in whole or in part) any guaranty (if any)
\n or releases (in whole or in part) any collateral, if any, for the
\n Obligation; or (vi) changes this CLAUSE (b) or any other matter
\n specifically requiring the consent of all Lenders hereunder. No
\n amendment or waiver with respect to the definition of “TERMINATION
\n DATE” or “TERM LOAN MATURITY DATE” may be made without the consent of
\n all Lenders. Without the consent of such Lender, no Lender’s
\n “COMMITTED SUM” under 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<\/p>\n
62
\n 69
\ndelivered to Administrative Agent by each Lender, Administrative Agent, and
\nBorrower, or, when Administrative Agent shall have received telecopied,
\ntelexed, or other evidence satisfactory to it that such party has executed and
\nis delivering to Administrative Agent a counterpart hereof.<\/p>\n
11.13 Taxes. Any Taxes payable by Administrative Agent or any
\nLender or ruled (by a Governmental Authority) payable by Administrative Agent
\nor any Lender in respect of this Agreement or any other Loan Paper shall be
\npaid by Borrower, together with interest and penalties, if any (except for
\nTaxes payable on the overall net income of any such Lender or Administrative
\nAgent and except for interest and penalties incurred as a result of the gross
\nnegligence or wilful misconduct of Administrative Agent or any Lender).
\nAdministrative Agent or such Lender (through Administrative Agent) shall notify
\nBorrower and deliver to Borrower a certificate setting forth in reasonable
\ndetail the calculation of the amount of such Taxes, which certificate shall be
\nconclusive and binding, and Borrower shall promptly pay such amount (including
\nany additional Taxes applicable to the additional sums paid under this SECTION
\n11.13, such that Administrative Agent or such Lender receives an amount equal
\nto the sum it would have received had no such Taxes been payable by
\nAdministrative Agent or any Lender with respect to this Agreement or any Loan
\nPaper) to Administrative Agent for its account or the account of such Lender,
\nas the case may be. If Administrative Agent or such Lender subsequently
\nreceives a refund of such Taxes paid to it by Borrower, then such recipient
\nshall promptly pay such refund to Borrower. The provisions of and undertakings
\nand indemnifications set forth in this SECTION 11.13 shall survive the
\nsatisfaction and payment of the Obligation and termination of this Agreement.<\/p>\n
11.14 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) Borrower may not, directly or indirectly,
\n assign or transfer, or attempt to assign or transfer, any of its
\n Rights, duties or obligations under any Loan Papers without the
\n express written consent of all Lenders, and (ii) except as permitted
\n under this 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 shall be in an amount at
\n least equal to $10,000,000;<\/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
(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; and<\/p>\n
63
\n 70
\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 (unless
\n otherwise specified by Administrative Agent).<\/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 10.9.<\/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 11.14,
\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) Subject to the provisions of this section and in
\n accordance with applicable Law, any Lender may, in the ordinary course
\n of its commercial banking business and in accordance with applicable
\n Law, at any time sell to one or more Persons (each a “PARTICIPANT”)
\n participating interests in its portion of the Obligation. In the
\n event of any such sale to a Participant, (i) such Lender shall remain
\n a “Lender” under this Agreement and the Participant shall not
\n constitute a “Lender” hereunder, (ii) such Lender’s obligations under
\n this Agreement shall remain unchanged, (iii) such Lender shall remain
\n solely responsible for the performance thereof, (iv) such Lender shall
\n remain the holder of its share of the Principal Debt for all purposes
\n under this Agreement, (v) Borrower and Administrative Agent shall
\n continue to deal solely and directly with such Lender in connection
\n with such Lender’s Rights and obligations under the Loan Papers, and
\n (vi) such Lender shall be solely responsible for any withholding taxes
\n or any filing or reporting<\/p>\n
64
\n 71
\n requirements relating to such participation and shall hold Borrower
\n and Administrative Agent and their respective successors, permitted
\n assigns, officers, directors, employees, agents, and representatives
\n harmless against the same. Participants shall have no Rights under
\n the Loan Papers, other than certain voting Rights as provided below.
\n Subject to the following, each Lender shall be entitled to obtain (on
\n behalf of its Participants) the benefits of SECTION 3 with respect to
\n all participations in its part of the Obligation under outstanding
\n from time to time so long as Borrower shall not be obligated to pay
\n any amount in excess of the amount that would be due to such Lender
\n under SECTION 3 calculated as though no participations have been made.
\n No Lender shall sell any participating interest under which the
\n Participant shall have any Rights to approve any amendment,
\n modification, or waiver of any Loan Paper, except to the extent such
\n amendment, modification, or waiver extends the due date for payment of
\n any amount in respect of principal (other than mandatory prepayments),
\n interest, or fees due under the Loan Papers, reduces the interest rate
\n or the amount of principal or fees applicable to the Obligation
\n (except such reductions as are contemplated by this Agreement), or
\n releases any guaranty or collateral, if any, for the Obligation
\n (except such releases as are contemplated by this Agreement); provided
\n that in those cases where a Participant is entitled to the benefits of
\n SECTION 3 or a Lender grants Rights to its Participants to approve
\n amendments to or waivers of the Loan Papers respecting the matters
\n previously described in this sentence, such Lender must include a
\n voting mechanism in the relevant participation agreement or
\n agreements, as the case may be, whereby a majority of such Lender’s
\n portion of the Obligation (whether held by such Lender or
\n participated) shall control the vote for all of such Lender’s portion
\n of the Obligation. Except in the case of the sale of a participating
\n interest to another Lender, the relevant participation agreement shall
\n not permit the Participant to transfer, pledge, assign, sell
\n participations in, or otherwise encumber its portion of the
\n Obligation, unless the consent of the transferring Lender (which
\n consent will not be unreasonably withheld) has been 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 11.16 hereof.<\/p>\n
11.15 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, except that SECTIONS 3.16, 3.18,
\nSECTION 9, and SECTION 11, and any other provisions under the Loan Papers
\nexpressly intended to survive by the terms hereof or by the terms of the
\napplicable Loan Papers, shall survive such termination. If at any time any
\npayment of the principal of or interest on any Note or any other amount payable
\nby Borrower under any Loan Paper is rescinded or must be otherwise restored or
\nreturned upon the insolvency, bankruptcy, or reorganization of Borrower or
\notherwise, the obligations of each Restricted Company under the Loan Papers
\nwith respect to such payment shall be reinstated as though such payment had
\nbeen due but not made at such time.<\/p>\n
65
\n 72
\n 11.16 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 Lender, and each Participant
\n(collectively, the “LENDER PARTIES”) in accordance with its customary
\nprocedures for handling confidential information of this nature and in
\naccordance with safe and sound banking practices, and no Lender Party shall
\ndisclose any of such information to any other Person; provided that any Lender
\nor Participant may make disclosure (a) to its attorneys or accountants,
\nprovided that such Lender or Participant shall direct such attorneys or
\naccountants to maintain such information in confidence in accordance with the
\nprovisions of this SECTION 11.16, and shall be responsible if such attorneys
\nfail to do so, (b) to any affiliate of any Lender Party or as reasonably
\nrequired by any prospective bona fide assignee or Participant in connection
\nwith the contemplated transfer of any interest in the Obligation or
\nparticipation, so long as any such contemplated assignee or Participant has
\nagreed in writing (with a copy to Borrower) to be bound by the provisions of
\nthis SECTION 11.16, (c) as required or requested by any Governmental Authority
\nor representative thereof or as required pursuant to any Law or legal process,
\nprovided that, unless prohibited by Law or court order, such Lender or
\nParticipant shall give prior notice to Borrower of such disclosure as far in
\nadvance thereof as is practicable (other than disclosure in connection with an
\nexamination of the financial condition of such Person by a Governmental
\nAuthority), (d) in connection with proceedings to enforce the obligation of any
\nRestricted Company under the Loan Papers, or (e) of any such information that
\nhas become generally available to the public other than through a breach of
\nthis SECTION 11.16 (or of any agreement or obligation to be bound by this
\nSECTION 11.16) by any Lender Party, any affiliate of any Lender Party, any
\nprospective 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
66
\n 73
\n Signature Page to that certain 365-Day Revolving Credit and Term Loan
\nAgreement dated as of February 19, 1998, among WorldCom, Inc., as Borrower,
\nNationsBank of Texas, N.A., as Administrative Agent, and certain Lenders now or
\nhereafter party thereto, including the undersigned.<\/p>\n
WORLDCOM, INC.
\n as Borrower<\/p>\n
By: \/s\/ SCOTT D. SULLIVAN
\n ———————————–
\n Scott D. Sullivan
\n Chief Financial Officer<\/p>\n
NATIONSBANK OF TEXAS, N.A.,
\n as Administrative Agent and a Lender<\/p>\n
By: \/s\/ KEITH M. WILSON
\n —————————————–
\n (Name) Keith M. Wilson
\n ————————————–
\n (Title) Vice President
\n ————————————-<\/p>\n
364-DAY REVOLVING CREDIT
\n SIGNATURE PAGE AND TERM LOAN AGREEMENT<\/p>\n
74
\n Signature Page to that certain 365-Day Revolving Credit and Term Loan
\nAgreement dated as of February 19, 1998, among WorldCom, Inc., as Borrower,
\nNationsBank of Texas, N.A., as Administrative Agent, and certain Lenders now or
\nhereafter party thereto, including the undersigned.<\/p>\n
NATIONSBANK OF TEXAS, N.A.,
\n as a Lender<\/p>\n
By: \/s\/ KEITH M. WILSON
\n —————————————
\n (Name) Keith M. Wilson
\n ————————————–
\n (Title) Vice President
\n ————————————-<\/p>\n
364-DAY REVOLVING CREDIT
\n SIGNATURE PAGE AND TERM LOAN AGREEMENT
\n 75
\n SCHEDULE 2.1<\/p>\n
LENDERS AND COMMITMENTS<\/p>\n
\n\n====================================================================================================================
\n NAME AND ADDRESS OF LENDERS COMMITTED SUMS COMMITMENT
\n PERCENTAGE
\n====================================================================================================================
\n
\n NationsBank of Texas, N.A. $150,000,000.00 12.000000000000000%
\n Communications Finance Division
\n Attn: Mr. Keith Wilson
\n 901 Main Street, 64th Floor
\n Dallas, Texas 75202
\n——————————————————————————————————————–
\n NationsBank, N.A. $1,100,000,000.00 88.000000000000000%
\n Communications Finance Division
\n Attn: Mr. Keith Wilson
\n 901 Main Street, 64th Floor
\n Dallas, Texas 75202
\n——————————————————————————————————————–
\n Totals $1,250,000,000.00 100.00%
\n====================================================================================================================
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n SCHEDULE 2.1
\n 76
\n SCHEDULE 5.1<\/p>\n
CONDITIONS PRECEDENT TO CLOSING<\/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 the Closing Date, and all terms used with their initial letters
\ncapitalized are used herein with their meanings as defined in the Agreement):<\/p>\n
1. The Agreement. The Agreement (together with all Schedules and Exhibits
\n thereto) executed by Borrower, each Lender, and Administrative Agent.<\/p>\n
2. Notes. With respect to any Lender requesting Notes pursuant to SECTION
\n 3.1(b), a Revolving\/Term Note and a Competitive Bid Note in the forms of
\n EXHIBIT A-I and EXHIBIT A-2, respectively, one payable to each such
\n requesting Lender.<\/p>\n
3. Articles of Incorporation. A copy of the Second Amended and Restated
\n Articles of Incorporation of Borrower, accompanied by a certificate that
\n such copy is correct and complete, executed by the President or Vice
\n President and the Secretary or Assistant Secretary of Borrower.<\/p>\n
4. Bylaws. A copy of the Bylaws of Borrower and all amendments thereto,
\n accompanied by a certificate that such copy is correct and complete, and
\n executed by the President or Vice President and the Secretary or Assistant
\n Secretary of Borrower.<\/p>\n
5. Good Standing and Authority. Certificates (or photocopies thereof) from the
\n Georgia Secretary of State, dated a Current Date (as used herein, the term
\n “CURRENT DATE” means any date not more than 60 days prior to the Closing
\n Date), to the effect that Borrower is in good standing with respect to the
\n payment of franchise and similar Taxes (to the extent such information is
\n available) and is duly qualified to transact business in such jurisdiction.<\/p>\n
6. Incumbency. Certificates of incumbency with respect to all officers and
\n “authorized representatives” of Borrower who will be authorized to execute
\n or attest any of the Loan Papers on behalf of Borrower, executed by the
\n President, a Vice President, the Secretary or an Assistant Secretary of
\n Borrower.<\/p>\n
7. Resolutions. Copies of resolutions duly adopted by the Board of Directors
\n of Borrower approving this Agreement and the other Loan Papers and
\n authorizing the transactions contemplated in such Loan Papers, accompanied
\n by a certificate of the Secretary or an Assistant Secretary of Borrower
\n certifying that such copy is a true and correct copy of resolutions duly
\n adopted at a meeting of (which may be held by conference telephone or
\n similar communications equipment by means of which all Persons
\n participating in a meeting can hear each other if permitted by applicable
\n Law and, if required by such Law, by its Bylaws), or by the unanimous
\n written consent of (if permitted by applicable Law and, if required by such
\n Law, by its Bylaws), the Board of Directors of Borrower, and that such
\n resolutions constitute all the resolutions adopted with respect to such
\n transactions, have not been amended, modified, or revoked in any respect
\n (except as any such resolution may be modified by any such other
\n resolution), and are in full force and effect as of the Closing Date.<\/p>\n
1 SCHEDULE 5.1
\n 77
\n8. Opinions of Counsel to the Companies. The opinion of counsel to the
\n Companies, addressed to Administrative Agent and Lenders, substantially in
\n the form of EXHIBIT F-1, and the opinion of FCC counsel to the Restricted
\n Companies, substantially in the form of EXHIBIT F-2.<\/p>\n
9. Payment of Closing Fees and Expenses. Payment of all fees payable on or
\n prior to the Closing Date to Administrative Agent as provided for in
\n SECTION 4 of the Agreement, together with reimbursements to Administrative
\n Agent for all reasonable fees and expenses incurred in connection with the
\n negotiation, preparation, and closing of the transactions evidenced by the
\n Loan Papers (including, without limitation, attorneys’ fees and expenses).<\/p>\n
10. Notice of Borrowing. A Notice of Borrowing is delivered to Administrative
\n Agent, together with calculations demonstrating compliance with SECTION
\n 7.28(a) on the Closing Date after giving effect to any Borrowings made on
\n such date.<\/p>\n
11. Current Financials. True and correct copies of the Current Financials have
\n been delivered to Administrative Agent.<\/p>\n
12. Other Documents. Such other agreements, documents, instruments, opinions,
\n certificates, and evidences as Administrative Agent may reasonably request.
\n Administrative Agent shall, upon request of Borrower, confirm to Borrower
\n that it has received all such items so requested.<\/p>\n
2 SCHEDULE 5.1
\n 78<\/p>\n
EXHIBIT A-1<\/p>\n
FORM OF REVOLVING\/TERM NOTE<\/p>\n
$_____________ ____________ __, ____<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n____________________ (the “LENDER”), at the offices of NATIONSBANK OF TEXAS,
\nN.A., as Administrative Agent for the Lender and others as hereinafter
\ndescribed, on the Termination Date (or if Borrower has elected to convert to a
\nTerm Loan pursuant to SECTION 2.3 of the Credit Agreement, the Term Loan
\nMaturity Date), the lesser of (i) __________________________ ($___________) and
\n(ii) the aggregate Principal Debt (other than under the Competitive Bid
\nSubfacility) disbursed by the Lender to Borrower and outstanding and unpaid on
\nthe Termination Date (together with accrued 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 February ____, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among Borrower, the Lender
\nand other lenders named therein, and the Administrative Agent, and is one of
\nthe “Revolving\/Term 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
\nTHE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS
\nAND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION,
\nENFORCEMENT, AND INTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n (Name)
\n ————————————–
\n (Title)
\n ————————————-
\n 79<\/p>\n
EXHIBIT A-2<\/p>\n
FORM OF COMPETITIVE BID 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 OF TEXAS,
\nN.A., as Administrative Agent for the Lender and others as hereinafter
\ndescribed:<\/p>\n
(1) on the last day of the Interest Period for any
\n Competitive Borrowing disbursed by the Lender to Borrower under the
\n Credit Agreement, 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 the Lender to
\n Borrower under the Credit Agreement 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
\nsubject to the terms of, the 364-Day Revolving Credit and Term Loan Agreement,
\ndated as of February ____, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “CREDIT AGREEMENT”), among Borrower, the Lender
\nand other lenders named therein, and the Administrative Agent, and is one of
\nthe “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
\nTHE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS
\nAND 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
EXHIBIT A-2
\n 80<\/p>\n
EXHIBIT B-1<\/p>\n
FORM OF NOTICE OF BORROWING
\n (OTHER THAN COMPETITIVE BORROWING)<\/p>\n
______________ __, ____<\/p>\n
NationsBank of Texas, N.A.
\n as Administrative Agent for the Lenders
\n under 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 February ____, 1998 (as amended, modified, supplemented,
\nor restated from time to time, the “CREDIT AGREEMENT”), among the undersigned,
\nthe Lenders named therein, and the Administrative Agent. Capitalized terms
\nused herein and not otherwise defined herein shall have the meanings assigned
\nto such 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) under the Credit Agreement, and in that connection sets
\nforth below the terms on which such Borrowing is requested to be made:<\/p>\n
\n
\n————————————————————————————————–
\n (A) Borrowing Date of Borrowing*
\n————————————————————————————————–
\n (B) Amount of Borrowing**
\n————————————————————————————————–
\n (C) Type of Borrowing***
\n————————————————————————————————–
\n (D) For a Eurodollar Rate Borrowing, the Interest Period and the
\n last day thereof****
\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 and, if
\n applicable, supplemental Schedules have been delivered with respect
\n thereto and, when necessary, approved by Determining Lenders);<\/p>\n
EXHIBIT B-1
\n 1
\n 81<\/p>\n
(c) no change in the financial condition of any
\n Consolidated Company which is a Material Adverse Event has occurred;<\/p>\n
(d) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
(e) 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
Rate:
\n ————
\nConfirmed by:
\n ——————————<\/p>\n
* Must be a Business Day occurring prior to the Termination Date and be
\n at least (a) three Business Days following receipt by Administrative
\n Agent of this Notice of Borrowing for any Eurodollar Rate Borrowing,
\n and (b) one Business Day following receipt by Administrative Agent of
\n this Notice of Borrowing for any Base Rate Borrowing.
\n ** Not less than $5,000,000 or a greater integral multiple of $1,000,000
\n (if a Base Rate Borrowing); not less than $20,000,000 or a greater
\n integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing).
\n *** Eurodollar Rate Borrowing or Base Rate Borrowing.
\n **** Eurodollar Rate Borrowing — 1, 2, 3, or 6 months.<\/p>\n
EXHIBIT B-1
\n 2
\n 82<\/p>\n
EXHIBIT B-2<\/p>\n
FORM OF NOTICE OF CONVERSION<\/p>\n
______________ __, ____<\/p>\n
NationsBank of Texas, N.A.
\n as Administrative Agent for the Lenders
\n under 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 February ____, 1998 (as amended, modified, supplemented,
\nor restated from time to time, the “CREDIT AGREEMENT”), among the undersigned,
\nthe Lenders named therein, and the Administrative Agent. Capitalized terms
\nused herein and not otherwise defined herein shall have the meanings assigned
\nto such terms in the Credit Agreement. The undersigned hereby gives you notice
\npursuant to SECTION 3.10 of the Credit Agreement that it elects to convert a
\nBorrowing (other than a Competitive Borrowing) under the 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————————————————————————————————————-
\n (A) Date of conversion or last day of applicable Interest Period*
\n————————————————————————————————————-
\n (B) Type and principal amount of existing Borrowing being converted or continued**
\n————————————————————————————————————-
\n (C) New Type of Borrowing selected (or Type of Borrowing continued)***
\n————————————————————————————————————-
\n (D) For conversion to, or continuation of, a Eurodollar Rate Borrowing, Interest
\n Period selected and the last day thereof****
\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
Rate:_____________________<\/p>\n
EXHIBIT B-2
\n 83<\/p>\n
Confirmed by:______________________________<\/p>\n
* Must be a Business Day at least (a) three Business Days following
\n receipt by Administrative Agent of this Notice of Conversion from a
\n Base Rate Borrowing to a Eurodollar Rate Borrowing or a continuation
\n of a Eurodollar Rate Borrowing for an additional Interest Period, and
\n (b) one Business Day following receipt by Administrative Agent of this
\n Notice of Conversion for a conversion from a Eurodollar Rate Borrowing
\n to a Base Rate Borrowing.
\n ** Not less than $5,000,000 or a greater integral multiple of $1,000,000
\n (if a Base Rate Borrowing); not less than $20,000,000 or a greater
\n integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing).
\n *** Eurodollar Rate Borrowing or Base Rate Borrowing.
\n**** Eurodollar Rate Borrowing — 1, 2, 3, or 6 months.<\/p>\n
2
\n EXHIBIT B-2
\n 84<\/p>\n
EXHIBIT B-3<\/p>\n
FORM OF COMPETITIVE BID REQUEST
\n (1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)
\n ______________ __, ____<\/p>\n
NationsBank of Texas, N.A.
\n as Administrative Agent for the Lenders
\n under 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 February ______, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “CREDIT AGREEMENT”), among the
\nundersigned, the Lenders named therein, and the Administrative Agent.
\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 2.2(B) of the Credit Agreement that
\nit requests a Competitive Borrowing under the Credit Agreement, and in that
\nconnection sets forth below the terms on which such Competitive Borrowing is
\nrequested to be made:<\/p>\n
\n
\n————————————————————————————————————–
\n (A) Borrowing Date of Competitive Borrowing*
\n————————————————————————————————————–
\n (B) Principal amount of Competitive Borrowing**
\n————————————————————————————————————–
\n (C) Type of Borrowing***
\n————————————————————————————————————–
\n (D) Interest Period and the last day thereof****
\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 4.3 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 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 and, if
\n applicable, supplemental Schedules have been delivered with respect
\n thereto and, when necessary, approved by Determining Lenders);<\/p>\n
EXHIBIT B-3
\n 85<\/p>\n
(c) no change in the financial condition of any
\n Consolidated Company which is a Material Adverse Event has occurred;<\/p>\n
(d) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
(e) 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
* Must be a Business Day occurring prior to the Termination Date and be
\n at least (a) five Business Days following receipt by Administrative
\n Agent of this Competitive Bid Request for any Competitive Borrowing
\n that will be comprised of Eurodollar Rate Borrowings, and (b) one
\n Business Day following receipt by Administrative Agent of this
\n Competitive Bid Request for any Competitive Borrowing that will be
\n comprised of Fixed Rate Borrowings.
\n ** Not less than $20,000,000 (and in integral multiples of $1,000,000
\n thereafter), and not greater than the lesser of (a) the unused and
\n available portion of the Credit Agreement, and (b) an amount which,
\n when added to the aggregate outstanding principal amount of
\n Competitive Borrowings made by all Lenders under the Credit Agreement,
\n does not exceed the Competitive Bid Availability then in effect for
\n the Credit Agreement.
\n *** Eurodollar Rate Borrowing or Fixed Rate Borrowing.
\n**** Eurodollar Rate Borrowing — 1, 2, 3 or 6 months. Fixed Rate
\n Borrowing — up to 6 months. In no event may the Interest Period end
\n after the Termination Date.<\/p>\n
2
\n EXHIBIT B-3
\n 86<\/p>\n
EXHIBIT B-4<\/p>\n
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
\n (1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)<\/p>\n
______________ __, ____<\/p>\n
[Name of Lender]
\n[Address of Lender]
\nAttention: ______________________<\/p>\n
Reference is made to the 364-Day Revolving Credit and Term Loan
\nAgreement, dated as of February ____, 1998 (as amended, modified, supplemented,
\nor restated from time to time, the “CREDIT AGREEMENT”), among WorldCom, Inc.,
\nas Borrower (“BORROWER”), the Lenders named therein, and the undersigned, as
\nAdministrative Agent. 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 2.2(B) of the Credit Agreement, and in that connection you are
\ninvited to submit a Competitive Bid by [Date] \/ [Time] .* Your
\nCompetitive Bid must comply with SECTION 2.2(C) of the Credit Agreement and the
\nterms set forth below on which the Competitive Bid Request was made:<\/p>\n
\n
\n————————————————————————————————————–
\n (A) Borrowing Date of Competitive Borrowing (a Business Day)
\n————————————————————————————————————–
\n (B) Principal amount of Competitive Borrowing
\n————————————————————————————————————–
\n (C) Type of Borrowing
\n————————————————————————————————————–
\n (D) Interest Period and the last day thereof
\n————————————————————————————————————–
\n<\/c><\/c><\/s><\/table>\n Very truly yours,<\/p>\n
NATIONSBANK OF TEXAS, N.A., as
\n Administrative Agent<\/p>\n
By
\n ——————————————
\n (Name)
\n ————————————–
\n (Title)
\n ————————————-<\/p>\n
* The Competitive Bid must be received by the Administrative Agent (a)
\n in the case of Eurodollar Rate Borrowings, not later than 11:00 a.m.,
\n Dallas, Texas time, four Business Days before the Borrowing Date of
\n the proposed Competitive Borrowing, and (b) in the case of Fixed Rate
\n Borrowings, not later than 10:00 a.m., Dallas, Texas time, on the
\n Borrowing Date of the proposed Competitive Borrowing.<\/p>\n
EXHIBIT B-4
\n 87<\/p>\n
EXHIBIT B-5<\/p>\n
FORM OF COMPETITIVE BID
\n (1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)<\/p>\n
______________ __, ____
\nNationsBank of Texas, N.A.,
\n as Administrative Agent
\n under 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
The undersigned, [Name of Lender] , refers to the 364-Day
\nRevolving Credit and Term Loan Agreement, dated as of February ______, 1998 (as
\namended, modified, supplemented, or restated from time to time, the “CREDIT
\nAGREEMENT”), among WorldCom, Inc., as Borrower (“BORROWER”), the Lenders named
\ntherein, and the Administrative Agent. Capitalized terms used herein and not
\notherwise defined herein shall have the meanings assigned to such terms in the
\nCredit Agreement. The undersigned hereby makes a Competitive Bid pursuant to
\nSECTION 2.2(C) of the Credit Agreement, in response to the Competitive Bid
\nRequest made by Borrower on _____________, ____, and in that connection sets
\nforth below the terms on which such Competitive Bid is made:<\/p>\n
\n
\n————————————————————————————————————–
\n (A) Principal amount*
\n————————————————————————————————————–
\n (B) Competitive Bid Rate**
\n————————————————————————————————————–
\n (D) Interest Period and the last day thereof***
\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
\n2.2(E) of the Credit Agreement.<\/p>\n
Very truly yours,<\/p>\n
[NAME OF LENDER]<\/p>\n
By
\n ——————————————
\n Name:
\n —————————————
\n Title:
\n ————————————–<\/p>\n
* 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 Lender’s Committed Sum (subject to the limitations set forth in
\n SECTION 2.2(A) of the Credit Agreement). Multiple bids will be
\n accepted by the Administrative Agent.
\n ** Eurodollar Rate + ____________ % or – ____________%, in the case of
\n Eurodollar Rate Borrowings; or ________%, in the case of Fixed Rate
\n Borrowings (in each case, expressed in the form of a decimal to no
\n more than four decimal places).<\/p>\n
*** The Interest Period must be the Interest Period specified in the
\n Competitive Bid Request.<\/p>\n
EXHIBIT B-5
\n 88<\/p>\n
EXHIBIT B-6<\/p>\n
FORM OF TERM CONVERSION REQUEST<\/p>\n
______________ __, ____*<\/p>\n
NationsBank of Texas, N.A.
\n as Administrative Agent for the Lenders
\n under 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 February _____, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “CREDIT AGREEMENT”), among the
\nundersigned, the Lenders named therein, and the Administrative Agent.
\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 of the Credit Agreement that it
\nrequests the Principal Debt be converted to a Term Loan. In connection with
\nthis request, Borrower hereby sets forth below the terms on which such
\nconversion is requested to be made:<\/p>\n
\n
\n————————————————————————————————————–
\n (A) Type of Borrowing(s)**
\n————————————————————————————————————–
\n (B) For Eurodollar Rate Borrowings, the Interest Period(s) and the last
\n day(s) thereof***
\n————————————————————————————————————–
\n (C) Term Conversion Date
\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 on
\nthe date hereof and will be true and correct on the Term Conversion Date
\nspecified herein after giving effect to the Term Loan Conversion:<\/p>\n
(a) no Default or Potential Default has occurred and is
\n continuing; and<\/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<\/p>\n
EXHIBIT B-6
\n 89<\/p>\n
Papers and, if applicable, supplemental Schedules have been delivered
\n with respect thereto and, when necessary, approved by Determining
\n Lenders).<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————————
\n (Name)
\n ————————————–
\n (Title)
\n ————————————-<\/p>\n
Rate:________<\/p>\n
Confirmed by:_________________________<\/p>\n
* This Term Conversion Request must be delivered by Borrower to
\n Administrative Agent no sooner than 30 days (and not later than 10
\n days) preceding the Termination Date.
\n ** Eurodollar Rate Borrowing(s) or Base Rate Borrowing(s).
\n *** Eurodollar Rate Borrowing — 1, 2, 3, or 6 months.<\/p>\n
2
\n EXHIBIT B-6
\n 90<\/p>\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
\n ________________________________.<\/p>\n
2) Name and address of Person to Receive Drafts of Loan Papers at
\n Lender:________________________________________________________
\n _______________________________________________________________
\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
\n NAME:
\n ————– —————— ————-
\n TITLE:
\n ————– —————— ————-
\n ADDRESS:
\n ————– —————— ————-
\n ————– —————— ————-
\n ————– —————— ————-
\n ————– —————— ————-
\n TELEPHONE:
\n ————– —————— ————-
\n FACSIMILE #:
\n ————– —————— ————-
\n ANSWERBACK:
\n ————– —————— ————-
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n EXHIBIT C
\n 91<\/p>\n
PAYMENT 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><\/c><\/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 EXHIBIT C<\/p>\n
92<\/p>\n
EXHIBIT D-1<\/p>\n
FORM OF COMPLIANCE CERTIFICATE<\/p>\n
FOR _______________ ENDED ________________________________, __________<\/p>\n
DATE: ___________________________________, __________<\/p>\n
ADMINISTRATIVE AGENT: NationsBank of Texas, N.A.<\/p>\n
BORROWER: WorldCom, Inc.
\n________________________________________________________________________________<\/p>\n
This certificate is delivered under the 364-Day Revolving Credit and
\nTerm Loan Agreement, dated as of February ___, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “CREDIT AGREEMENT”) among
\nBorrower, the Lenders named therein, and the Administrative Agent. Capitalized
\nterms used herein and not otherwise defined herein shall have the meaning given
\nto 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 (and
\neach Unrestricted Subsidiary, as applicable) attached to this certificate were
\nprepared in accordance with GAAP, and present fairly in all material respects
\nthe consolidated financial condition and results of operations of those
\ncompanies as of, and for the (three, six, or nine months, or fiscal year) ended
\non, ____________________________________________, ___________ (the “SUBJECT
\nPERIOD”) [(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 SECTIONS 7.28(A) and (B) of the Credit Agreement at the end of
\nthe Subject Period is as set forth on ANNEX I to this certificate;<\/p>\n
(e) as of the date hereof, to my knowledge, the aggregate Debt
\n(including, without limitation, the amounts outstanding as of the date hereof
\nunder Capital Leases and Debt assumed or created in connection with any
\nPermitted Acquisition) of the Restricted Companies restricted by SECTIONS
\n7.12(D) and 7.12(E) of the Credit Agreement is $_________ ___, which amount is
\nequal to or less than $_____________________<\/p>\n
EXHIBIT D-1
\n 93<\/p>\n
[7.5% of the amount of Total Debt for which the Restricted Companies may be
\nobligated without violating the Leverage Ratio requirements of SECTION 7.28(A)
\nof the Credit Agreement];<\/p>\n
(f) as of the date hereof, to my knowledge, the aggregate Debt
\n(including, without limitation, the amounts outstanding as of the date hereof
\nunder Capital Leases and Debt assumed or created in or created in connection
\nwith any Permitted Acquisition) of the Restricted Subsidiaries restricted by
\nSECTIONS 7.12(D) and 7.12(E) of the Credit Agreement is $ , which
\namount is equal to or less than $100,000,000; and<\/p>\n
(g) with respect to any Permitted Acquisition consummated during
\nthe Subject Period that met the requirements of ITEM (A) of the definition of
\n“Permitted Acquisition” (and for which no prior written certification to the
\nfollowing matters has been delivered by Borrower to Administrative Agent), (i)
\nall representations and warranties under the Loan Papers were true and correct
\nimmediately prior to and after giving effect to each such Acquisition, (ii) no
\nDefault or Potential Default existed at the time of any such Acquisition or
\nafter giving effect to any such Acquisition, (iii) prior to the consummation of
\nany such Acquisition, Borrower delivered to Administrative Agent and all
\nsupplements to, or revisions of, SCHEDULES 6.13, 7.12, 7.13 and 7.20 to the
\nCredit Agreement which were required to make the disclosures in such Schedules
\naccurate after giving effect to such Acquisition and obtained (prior to the
\ndate of consummation of such Acquisition), the consent of Determining Lenders
\nwith respect to such revised or Supplemental Schedules ([ ] check here if no
\nsuch revised or supplemental schedules were required as a result of such
\nAcquisitions); and (iv) attached hereto are revised or supplemental SCHEDULES
\n6.2 and 6.3 which are required to make the disclosures accurate after giving
\neffect to such Acquisition.<\/p>\n
By
\n —————————————–
\n (Name)
\n ————————————-
\n (Title)
\n ————————————<\/p>\n
2 EXHIBIT D-1<\/p>\n
94<\/p>\n
ANNEX I TO COMPLIANCE CERTIFICATE<\/p>\n
Status of Compliance with SECTIONS
\n 7.28(A) and (B) of the Credit Agreement(1)<\/p>\n
(All on consolidated basis for the Restricted Companies at
\nthe end of Subject Period)<\/p>\n
1. SECTION 7.28(A) – LEVERAGE RATIO<\/p>\n
\n
\n a. Total Debt* $
\n —————-<\/p>\n b. Amount of immediately-available cash or Cash
\n Equivalents owned by the Restricted Companies* $
\n —————-<\/p>\n
c. Market value of any immediately-available Marketable
\n Securities owned by the Restricted Companies* $
\n —————-<\/p>\n
d. Total Debt (adjusted)* [Line (a) less Line (b) and (c)] $
\n —————-<\/p>\n
e. Pre-tax income** $
\n —————-<\/p>\n
f. Interest Expense** $
\n —————-<\/p>\n
g. Depreciation expense** $
\n —————-<\/p>\n
h. Amortization expense** $
\n —————-<\/p>\n
i. Other non-cash charges** $
\n —————-<\/p>\n
j. Non-recurring cash and non-cash merger and
\n restructuring charges related solely to Acquisitions
\n occurring during the Subject Period* (not to exceed
\n $100,000,000 in the aggregate from the Closing Date
\n to the end of the Subject Period)** $
\n —————-<\/p>\n
k. Extraordinary Losses** $
\n —————-<\/p>\n
l. Losses accounted for on the “equity” method of
\n accounting (other than dividends actually received
\n by any Restricted Company from such Person)** $
\n —————-<\/p>\n
m. Extraordinary gains** $
\n —————-<\/p>\n
n. Gains accounted for on the “equity” method of
\n accounting (other than dividends actually received
\n by any Restricted Company from such Person)** $
\n —————-<\/p>\n
o. Operating Cash Flow**
\n Sum of Lines e through l minus
\n Lines m and n $
\n —————-<\/p>\n
p. Operating Cash Flow from Unrestricted Subsidiaries** $
\n —————-<\/p>\n
q. 7.5% of Line (o) $
\n —————-<\/p>\n
r. If positive, the amount by which Line (p) exceeds Line (q) $
\n —————-<\/p>\n
s. Operating Cash Flow (adjusted) (Line (o) minus (r)) $
\n —————-<\/p>\n
t. Annualized Operating Cash Flow —
\n Line s multiplied by 4<\/p>\n
u. Actual Leverage Ratio — The ratio of (Line d to Line t) :
\n —————-
\n<\/c><\/c><\/s><\/table>\n
__________________________________<\/p>\n
(1)All as more particularly determined in accordance with the terms of
\nthe Credit Agreement, which control in the event of conflicts with this form.<\/p>\n
3
\nEXHIBIT D-1
\n 95<\/p>\n
\n
\n v. Maximum ratio for Subject Period 4.50 : 1.00
\n ————–<\/p>\n2. SECTION 7.28(B) – CONSOLIDATED NET WORTH
\n —————————————-<\/p>\n
a. Consolidated Net Worth*** $
\n —————-<\/p>\n
b. To the extent deducted in the calculation of
\n Consolidated Net Worth, non-recurring cash and
\n non-cash charges made by the Restricted Companies
\n in connection with any mergers or corporate
\n restructurings relating solely to Acquisitions
\n occurring on or after the Closing Date
\n (maximum of $100,000,000 for all periods
\n following the Closing Date) $
\n —————-<\/p>\n
c. Consolidated Net Worth (adjusted) – Line a plus Line b $
\n —————-<\/p>\n
d. Consolidated Net Worth at 12\/31\/96 $
\n —————-<\/p>\n
e. 75% of Line (d) $
\n —————-<\/p>\n
f. Consolidated Net Income of the Restricted $
\n —————-
\n Companies for each fiscal quarter of the Restricted
\n Companies ending after 12\/31\/96<\/p>\n
g. 50% of Line (f) $
\n —————-<\/p>\n
h. Net Cash Proceeds from Equity Issuance occurring on or $
\n —————-
\n after the Closing Date<\/p>\n
i. 75% of Item h $
\n —————-<\/p>\n
j. Minimum Consolidated Net Worth (sum of Items (e), (g), $
\n —————-
\n and (i)<\/p>\n
k. Consolidated Net Worth equals or exceeds Minimum Yes \/No
\n Consolidated Net Worth (Item (c) equals or exceeds —— —–
\n Item (j)
\n<\/c><\/c><\/s><\/table>\n
* As of the last day of the Subject Period.
\n ** For the three month period ending on the last day of the
\n Subject Period.
\n *** At the end of the fiscal quarter.<\/p>\n
4
\n EXHIBIT D-1
\n 96<\/p>\n
ANNEX II TO COMPLIANCE CERTIFICATE<\/p>\n
[ATTACH REVISED OR SUPPLEMENTAL SCHEDULES 6.2 AND 6.3 (AS APPLICABLE)
\n IN CONNECTION WITH PERMITTED ACQUISITIONS
\n DESCRIBED IN ITEM (g) OF COMPLIANCE CERTIFICATE]<\/p>\n
5
\n EXHIBIT D-1
\n 97<\/p>\n
EXHIBIT D-2<\/p>\n
FORM OF PERMITTED ACQUISITION COMPLIANCE CERTIFICATE<\/p>\n
ADMINISTRATIVE AGENT: NationsBank of Texas, N.A. DATE:_______________<\/p>\n
BORROWER: WorldCom, Inc.
\n________________________________________________________________________________<\/p>\n
This certificate is delivered under SECTION 5.2(b) of the 364-Day
\nRevolving Credit and Term Loan Agreement dated as of February _____, 1998 (as
\namended, modified, supplemented, or restated from time to time, the “CREDIT
\nAGREEMENT”) among Borrower, the Lenders named therein, and the Administrative
\nAgent. Capitalized terms used herein and not otherwise defined herein shall
\nhave the meanings given to such terms in the Credit Agreement.<\/p>\n
_________________ [name of Company] intends to acquire _____________
\n(the “SUBJECT ACQUISITION”), on ________ __, ____ (the “ACQUISITION DATE”). In
\nconnection with such Subject Acquisition, Borrower hereby confirms the
\nfollowing:<\/p>\n
(a) all of the representations and warranties under the Loan
\nPapers are true and correct immediately prior to and after giving effect to the
\nSubject Acquisition;<\/p>\n
(b) the Subject Acquisition meets all of the requirements to
\nqualify as a Permitted Acquisition under SECTION 5.2(b) of the Credit
\nAgreement, including, without limitation, that (i) as of the Acquisition Date,
\nthe Subject Acquisition has been approved and recommended by the board of
\ndirectors or other similar governing body of the Person to be acquired or from
\nwhich such business is to be acquired, (ii) not later than the Acquisition
\nDate, Borrower has delivered to Administrative Agent a written description of
\nthe targeted entity to be acquired and its operations and a copy of the related
\npurchase agreement, (iii) as of the Acquisition Date, after giving effect to
\nthe Subject Acquisition, the acquiring party is or will be Solvent and the
\nRestricted Companies, on a consolidated basis, are or will be Solvent, (iv) as
\nof the Acquisition Date, no Default or Potential Default exists or will occur
\nas a result of, and after giving effect to, the Subject Acquisition, (v) as of
\nthe Acquisition Date, if the Subject Acquisition is structured as a merger,
\nBorrower or a Permitted Successor Corporation (or if such merger is with a
\nRestricted Company other than Borrower, then a Restricted Company) is the
\nsurviving entity after giving effect to such merger, and (vi) if required, the
\nconsent of Determining Lenders to the Subject Acquisition has been obtained and
\nBorrower has delivered to Administrative Agent all information regarding the
\nAcquisition requested by Administrative Agent, including, without limitation,
\nall of the information specifically referred to in ITEM (c) of the definition
\nof “Permitted Acquisition” in the Credit Agreement;<\/p>\n
(c) after giving effect to the Subject Acquisition, any Debt (if
\nany) incurred or assumed by the Restricted Companies in connection with the
\nSubject Acquisition will be permitted by SECTION 7.12 of the Credit Agreement
\n(and to the extent any such Debt is permitted by SECTION 7.12(e) of the Credit
\nAgreement calculations supporting compliance with such Sections are set forth
\non the attached Schedule) and the status of compliance by the Restricted
\nCompanies with SECTION 7.28(a) after giving effect to the Subject Acquisition
\nis as set forth on the attached Schedule; and<\/p>\n
EXHIBIT D-2
\n 98<\/p>\n
(d) prior to the consummation of the Subject Acquisition, Borrower
\nhas delivered to Administrative Agent all supplements to, or revisions of,
\nSCHEDULES 6.13, 7.12, 7.13 and 7.20 to the Credit Agreement which are required
\nto make the disclosures in such Schedules accurate after giving effect to the
\nSubject Acquisition, and has obtained the consent of Determining Lenders with
\nrespect to such revised or supplemental Schedules ([ ] check here if no such
\nrevised or supplemental Schedules are required as a result of the Subject
\nAcquisition).<\/p>\n
WORLDCOM, INC.<\/p>\n
*By
\n —————————————–
\n (Name)
\n ————————————–
\n (Title)
\n ————————————-<\/p>\n
* Must be a Responsible Officer of Borrower.<\/p>\n
2 EXHIBIT D-2
\n ———–
\n 99<\/p>\n
SCHEDULE TO PERMITTED ACQUISITION
\n COMPLIANCE CERTIFICATE<\/p>\n
Status of compliance with the Credit Agreement1<\/p>\n
1. The Purchase Price of the Subject Acquisition is $__________.
\n [This Permitted Acquisition Compliance Certificate only needs
\n to be completed with respect to Acquisitions with a Purchase
\n Price of $250,000,000 or more.]<\/p>\n
2. SECTION 7.28(a) – LEVERAGE RATIO<\/p>\n
\n
\n a. Total Debt $
\n —————-<\/p>\n b. Amount of immediately-available cash or Cash
\n Equivalents owned by the Restricted Companies $
\n —————-<\/p>\n
c. Market value of any immediately-available Marketable
\n Securities owned by the Restricted Companies $
\n —————-<\/p>\n
d. Total Debt (adjusted) [Line (a) less Line (b) and (c)] $
\n —————-<\/p>\n
e. Pre-tax income $
\n —————-<\/p>\n
f. Interest Expense $
\n —————-<\/p>\n
g. Depreciation expense $
\n —————-<\/p>\n
h. Amortization expense $
\n —————-<\/p>\n
i. Other non-cash charges $
\n —————-<\/p>\n
j. Non-recurring cash and non-cash merger and
\n restructuring charges related solely to Acquisitions
\n occurring during the Subject Period (not to exceed
\n $100,000,000 in the aggregate from the Closing Date
\n to the end of the Subject Period) $
\n —————-<\/p>\n
k. Extraordinary Losses $
\n —————-<\/p>\n
l. Losses accounted for on the “equity” method of
\n accounting (other than dividends actually received
\n by any Restricted Company from such Person) $
\n —————-<\/p>\n
m. Extraordinary gains $
\n —————-<\/p>\n
n. Gains accounted for on the “equity” method of
\n accounting (other than dividends actually received
\n by any Restricted Company from such Person) $
\n —————-<\/p>\n
o. Operating Cash Flow
\n Sum of Lines e through l minus
\n Lines m and n $
\n —————-<\/p>\n
p. Operating Cash Flow from Unrestricted Subsidiaries $
\n —————-<\/p>\n
q. 7.5% of Line (o) $
\n —————-<\/p>\n
r. If positive, the amount by which Line (p) exceeds Line (q) $
\n —————-<\/p>\n
s. Operating Cash Flow (adjusted) (Line (o) minus (r)) $
\n —————-<\/p>\n
t. Annualized Operating Cash Flow —
\n Line s multiplied by 4
\n<\/c><\/c><\/s><\/table>\n
__________________________________<\/p>\n
(1)All as more particularly determined in accordance with the terms of
\nthe Credit Agreement, which control in the event of conflicts with this form.<\/p>\n
3
\n EXHIBIT D-2
\n 100<\/p>\n
\n
\n u. Actual Leverage Ratio — The ratio of (Line d to Line t) :
\n —————-<\/p>\n v. Maximum applicable ratio 4.50 : 1.00
\n ————–
\n<\/c><\/c><\/s><\/table>\n
3. If any Debt is being assumed or incurred in connection with the
\n Subject Acquisition, then after giving effect to such Subject
\n Acquisition, the aggregate Debt of the Restricted Companies incurred
\n pursuant to SECTIONS 7.12(e) of the Credit Agreement (including,
\n without limitation, amounts outstanding on the date of consummation of
\n the Subject Acquisition under Capital Leases, Debt assumed or created
\n in connection with any Permitted Acquisition, and any Existing Debt
\n pursuant to SECTIONS 7.12(d) of the Credit Agreement) is $_________,
\n which is less than or equal to 7.5% of the amount of Total Debt for
\n which the Restricted Companies may be obligated without violating the
\n Leverage Ratio requirements of SECTIONS 7.28(a) of the Credit
\n Agreement.<\/p>\n
4. After giving effect to the Subject Acquisition, the aggregate Debt of
\n the Restricted Subsidiaries incurred pursuant to SECTIONS 7.12(e) of
\n the Credit Agreement, including, without limitation, the amounts
\n outstanding as of the date hereof under Capital Leases, Debt assumed
\n or created in connection with any Permitted Acquisition, and any
\n Existing Debt incurred pursuant to SECTION 7.12(d) of the Credit
\n Agreement, is $__________, which amount is equal to or less than
\n $100,000,000.<\/p>\n
4
\n EXHIBIT D-2
\n 101<\/p>\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 February _____, 1998 (as amended, modified, supplemented,
\nor restated from time to time, the “CREDIT AGREEMENT”) among WORLDCOM, INC., a
\nGeorgia corporation (“BORROWER”), the Lenders (as defined in the Credit
\nAgreement), and NATIONSBANK OF TEXAS, N.A., as Administrative Agent for the
\nLenders (“ADMINISTRATIVE AGENT”). Capitalized terms used herein and not
\notherwise defined herein shall have the meanings assigned to such terms in the
\nCredit 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 [unless the Assignor is selling all
\nof its Rights and obligations under the Loan Papers]. After giving effect to
\nsuch sale and assignment, the Assignor’s and the Assignee’s Committed Sums and
\nthe amount of the Borrowings under the Credit Agreement owing to each of them
\nwill be 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 Credit Agreement; (iii)
\nconfirms that it is an Eligible Assignee; (iv) appoints and authorizes
\nAdministrative Agent to take such action as “Administrative Agent” on its
\nbehalf and to exercise such powers and discretion under the Credit Agreement as
\nare delegated to Administrative Agent by the terms thereof, together with such
\npowers and discretion as are reasonably incidental thereto; (v) agrees that it
\nwill perform in accordance<\/p>\n
EXHIBIT E
\n 102<\/p>\n
with their terms all of the obligations that by the terms of the Credit
\nAgreement are required to be performed by it as a Lender; and (vi) attaches any
\nU.S. Internal Revenue Service or other forms required under SECTION 10.9 of the
\nCredit Agreement.<\/p>\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 11.14(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 (unless otherwise
\nspecified by Administrative Agent).<\/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 TEXAS
\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
\n EXHIBIT E
\n 103<\/p>\n
SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT<\/p>\n
\n
\n1. Assigned Interest:<\/p>\n (a) Assignor’s Committed Sum prior
\n to giving effect to the Assignment to Assignee $
\n ———————————–<\/p>\n
(b) Aggregate Borrowings owed to Assignor,
\n immediately prior to giving effect to the
\n assignment to Assignee $
\n ———————————–<\/p>\n
(c) Percentage Interest in Commitment
\n and Borrowings being assigned to Assignee by
\n Assignor %
\n ———————————– <\/p>\n
2. Adjustments after giving effect to Assignment between
\n Assignor and Assignee:<\/p>\n
(a) Assignor’s Committed Sum $
\n ———————————–<\/p>\n
(b) Assignee’s Committed Sum acquired
\n from Assignor pursuant to this Assignment $
\n ———————————–<\/p>\n
(c) Assignor’s aggregate Borrowings $
\n ———————————–<\/p>\n
(d) Assignee’s Borrowings acquired
\n from Assignor pursuant to this Assignment $
\n ———————————–<\/p>\n
3. Effective Date (if other than date of acceptance
\n by Administrative Agent): *______________ ___, ______
\n<\/c><\/c><\/s><\/table>\n
3
\n 104<\/p>\n
SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT<\/p>\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 EXHIBIT E<\/p>\n
105<\/p>\n
If SECTION 11.14(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 OF TEXAS, N.A.,
\n as Administrative 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
\n the delivery of this Assignment and Acceptance to
\n Administrative Agent.<\/p>\n
5 EXHIBIT E<\/p>\n
106<\/p>\n
EXHIBIT F-1<\/p>\n
FORM OF OPINION OF GENERAL COUNSEL OF BORROWER<\/p>\n
February ___, 1998<\/p>\n
NationsBank of Texas, N.A., in its capacity as
\n Administrative Agent<\/p>\n
Each of the Lenders named in SCHEDULES 2.1 to the Credit Agreement referred to
\nbelow<\/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 of February __, 1998 (the “CREDIT AGREEMENT”), among
\nBorrower, the lenders named on SCHEDULE 2.1 to the Credit Agreement
\n(“LENDERS”), and NationsBank of Texas, N.A., as the “Administrative Agent”
\nunder the Credit Agreement (in such capacity, the “ADMINISTRATIVE AGENT”).<\/p>\n
This opinion is delivered pursuant to SECTIONS 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 (as listed on SCHEDULE 6.2
\nto the Credit Agreement) and such certificates of public officials and of
\nofficers of the Consolidated Companies, other documents, and matters of law as
\nI deemed necessary or appropriate, including, without limitation, originals or
\ncopies (or, with respect to the Notes under the Credit Agreement (collectively,
\nthe “NOTES”) only, the forms of Notes attached as Exhibits to the Credit
\nAgreement) of (i) the Credit Agreement, and (ii) to the extent any Notes are
\nexecuted and delivered on the Closing Date or immediately subsequent thereto,
\nsuch Notes (all of the foregoing, collectively, the “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 and the Lenders with their respective
\ncovenants and undertakings contained in the Transaction Documents.<\/p>\n
EXHIBIT F-1
\n 107<\/p>\n
With respect to matters involving the Federal Communications
\nCommission (the “FCC”) and state public utility commissions or analogous
\nregulatory or governmental authorities, the Communications Act of 1934, as
\namended, and the rules and regulations of the FCC and such other state public
\nutility commission or analogous regulatory or governmental authorities, I refer
\nto the separate opinions of Kelley Drye & Warren, L.L.P., regulatory counsel to
\nthe Consolidated Companies, and I understand that you will rely solely upon the
\nopinions of such counsels with respect to such matters. I express no opinion
\nherein with respect to any of the matters opined on by such regulatory counsel.<\/p>\n
Based upon the foregoing, and subject to the qualifications and
\nlimitations herein contained, it is my opinion that:<\/p>\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 [or comparable documents] issued by such
\nstate with respect to such corporation), and (b) possesses all requisite
\ncorporate authority and power to conduct its business and execute, deliver, and
\ncomply with the terms of the Transaction Documents, which have been duly
\nauthorized and approved by all necessary corporate action and for which, to the
\nbest of my knowledge, no approval or consent of any Person or Governmental
\nAuthority is required which has not been obtained, except where the failure to
\nobtain would not be a Material 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
\nwith the terms of the Transaction Documents will not cause any Borrower to be
\nin violation 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, other than such violations which will not, individually
\nor 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 that would be a Material Adverse Event. There are no
\noutstanding orders or judgments for the payment of money in excess of
\n$100,000,000 (individually or collectively) or any warrant of attachment,
\nacquisition, or similar proceeding against any Restricted Company’s assets
\nhaving a value (individually or collectively) of $100,000,000 or more.<\/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
\nunderstandings to which any Restricted Company is a party, other than such
\ndefaults or potential defaults which will not, individually or collectively, be
\na Material Adverse Event.<\/p>\n
2
\n EXHIBIT F-1
\n 108<\/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
9. No Restricted Company is an “investment company” or a company
\n“controlled” by an “investment company” within the meaning of the Investment
\nCompany Act of 1940, as amended.<\/p>\n
10. No Restricted Company is a “holding company” or a “subsidiary
\ncompany” of a “holding company” within the meaning of the Public Utility
\nHolding Company Act of 1935, as amended.<\/p>\n
11. The application of the proceeds of the Borrowings under the
\nCredit Agreement by the Borrower in accordance with the terms of the Credit
\nAgreement will not violate Regulation U.<\/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
I note that the Transaction Documents are to be governed by the laws
\nof the State of Texas. Accordingly, for purposes of rendering this opinion as
\nto the enforceability of the Transaction Documents, I have assumed that the
\nsubstantive laws of the State of Texas are identical to the substantive laws of
\nthe 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
3
\n EXHIBIT F-1
\n 109<\/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; and<\/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.<\/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 Lender, and each assignee which
\nhereafter becomes a Lender as permitted by the Credit Agreement and the law
\nfirm of Haynes and Boone, LLP is entitled to rely hereon without my prior
\nwritten consent. This opinion is given as of the date hereof, and I have no
\nobligation to revise or update this opinion subsequent to the date hereof or to
\nadvise you or any other person of any matter subsequent to the date hereof
\nwhich 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
4
\n EXHIBIT F-1
\n 110<\/p>\n
EXHIBIT F-2<\/p>\n
FORM OF OPINION OF SPECIAL COMMUNICATIONS COUNSEL
\n [KELLEY DRYE & WARREN, L.L.P.]<\/p>\n
February ___, 1998<\/p>\n
NationsBank of Texas, N.A.
\n as Administrative Agent<\/p>\n
Each of the Lenders named on SCHEDULE 2.1 to the Credit Agreement referred to
\nbelow<\/p>\n
Ladies and Gentlemen:<\/p>\n
We have acted as special communications regulatory counsel to
\nWorldCom, Inc. (the “BORROWER”), a Georgia corporation, and each of its
\nRestricted Subsidiaries (Borrower and its Restricted Subsidiaries are
\ncollectively referred to herein as the “RESTRICTED COMPANIES”), in connection
\nwith the 364-Day Revolving Credit and Term Loan Agreement (the “CREDIT
\nAGREEMENT”), dated as of February ___, 1998, and the related Loan Papers by an
\namong Borrower, the Lenders referred to on SCHEDULE 2.1 of the Credit Agreement
\n(“LENDERS”), and NationsBank of Texas, N.A., as the “Administrative Agent”
\nunder the Credit Agreement (the “ADMINISTRATIVE AGENT”).<\/p>\n
Except as otherwise defined herein, capitalized terms defined in the
\nCredit Agreement are used herein as defined therein. This opinion is being
\ndelivered pursuant to SECTION 5.1 and PARAGRAPH 8 of SCHEDULE 5.1 of the Credit
\nAgreement.<\/p>\n
As special communications regulatory counsel for the Restricted
\nCompanies, we address only matters within the jurisdiction of the Federal
\nCommunications Commission (“FCC”) and each state public utility commission
\n(“PUC”) that, on the date of this opinion, exercises jurisdiction over the
\nRestricted Companies. We express no opinion as to matters of local, municipal,
\nor county regulation and their applicability to or effect upon the transactions
\nor the Restricted Companies.<\/p>\n
In rendering the opinions expressed herein, we have examined the
\nexecution form of the Credit Agreement and all Schedules and Exhibits thereto.
\nWe assume that the documents will be executed and delivered in the same form
\nprovided to us. We also have assumed, with your permission and without
\nindependent investigation, that: (a) the signatures on all documents examined
\nby us are genuine and that, where any such signature purports to have been made
\nin a corporate, governmental, fiduciary, or other capacity, the person who
\naffixed such signature to such documents had authority to do so; (b) the
\ndocuments submitted to us as originals are authentic, and that all documents
\nsubmitted to us as certified, conformed, or photostatic copies conform to
\nauthentic original documents; and (c) public files, records and certificates
\nof, or furnished by, governmental or regulatory agencies or authorities are
\ncorrect. In addition, we have assumed the due execution and delivery, pursuant
\nto due authorization, of each of the Loan Papers by Borrower.<\/p>\n
As to matters of fact relevant to the opinions expressed herein, we
\nhave relied upon information supplied to us by the Restricted Companies,
\nexamination of our own files and records, appropriate<\/p>\n
EXHIBIT F-2
\n 111<\/p>\n
examination of public records, files, and certificates on file with the FCC and
\nPUCs as of the date of this opinion, and as to the Restricted Companies’
\nownership and operations, review of documents, records, and instruments,
\nprovided by the Restricted Companies and pertinent disclosures of appropriate
\nrepresentatives of the Companies. The following opinions are based upon and
\nexpressly limited to the Communications Act of 1934, as amended, the rules,
\nregulations, and published policies of the FCC (the “COMMUNICATIONS ACT”), and
\nall laws administered by, and all rules, regulations, and published policies
\nof, each PUC (the “PUC LAWS”) in effect on the date hereof. Subject to the
\nlimitations set forth herein, we have reviewed such materials and law as we
\nhave deemed necessary for purposes of this opinion.<\/p>\n
When, in this opinion, we use the phrase “of which we have knowledge”
\nor “to the best of our knowledge,” we have not made any independent
\ninvestigation of the applicable facts, but have relied upon the representations
\nmade in the documents referred to in this opinion, in the certificates of the
\nRestricted Companies and their respective officers or representatives and are
\nnot aware of any facts inconsistent therewith. Opinions expressed herein as
\nbeing “to the best of our knowledge” or incorporating the phrase “of which we
\nhave knowledge” refer to present actual knowledge of the attorneys who are
\npresently with this firm and who our records indicate have worked on matters
\nfor the Restricted Companies during the past two years.<\/p>\n
Based upon the foregoing and subject to the qualifications,
\nassumptions and limitations set forth herein, we are of the opinion that:<\/p>\n
1. No authorization of the FCC is required for the
\n execution, delivery, or performance by the Borrower
\n of the Credit Agreement, or for the legality,
\n validity, or enforceability thereof against the
\n Borrower. Similarly, no authorization of any PUC is
\n required for the execution, delivery, or performance
\n by the Borrower of the Credit Agreement, or for the
\n legality, validity or enforceability thereof.<\/p>\n
2. The execution and delivery, and the performance and
\n compliance with the terms and provisions by Borrower,
\n of the Credit Agreement: (a) will not result in a
\n violation of the Communications Act or any PUC Laws,
\n except where such violation would not have a material
\n adverse effect on the Borrower and its affiliates
\n taken as a whole or the Lenders; (b) will not cause
\n any cancellation, termination, revocation,
\n forfeiture, or material impairment of any FCC or PUC
\n authorization, certificate, or license, except where
\n such cancellation, termination, revocation, or
\n forfeiture would not have a material adverse effect
\n on the Borrower and its affiliates taken as a whole;
\n and (c) will not require further notice to or the
\n approval of the FCC or any PUC, except where the
\n failure to provide such notice would not result in
\n any material adverse effect on the Borrower and its
\n affiliates taken as a whole or the Lenders.<\/p>\n
3. To the best of our knowledge based solely upon
\n inquiry to the Restricted Companies and review of
\n records in our possession and the publicly-available
\n files and records of the FCC and each PUC: (a) there
\n is no outstanding decree or order that has been
\n issued by the FCC or any PUC against any Restricted
\n Company and no pending or threatened litigation,
\n proceedings, notice of violation, order to show
\n cause, complaint, inquiry, or investigation before
\n the FCC or any PUC relating to any Restricted Company
\n or relating to its Network Facilities or business
\n operations that might result in cancellation,
\n termination, revocation, forfeiture, or any material
\n impairment of any of their FCC or PUC authorizations,
\n certificates, or licenses, or have any material
\n adverse effect upon, or<\/p>\n
2
\n EXHIBIT F-2
\n 112<\/p>\n
cause material disruption to, any Restricted Company
\n or the ownership or operation of such Network
\n Facilities or business operations; and (b) no action
\n has been taken by the FCC or any PUC which might now,
\n or after notice or lapse of time or both, result in a
\n cancellation, termination, revocation, forfeiture, or
\n any material impairment of any of their FCC or PUC
\n authorizations, certificates, or licenses, or have
\n any material adverse effect upon, or material
\n disruption to, any Restricted Company or the
\n ownership or operation of their Network Facilities or
\n business operations.<\/p>\n
The opinions expressed in this letter are subject in all respects to
\nthe following qualifications: (a) no opinion is rendered as to matters not
\nspecifically referred to herein or to events which have not yet occurred and
\nunder no circumstances are you to infer from anything stated or not stated
\nherein any opinion with respect thereto; and (b) except as expressly provided
\nherein, all opinions expressed in this letter are limited solely to the effect
\non the Loan Papers of the rules and regulations of the FCC and PUCs, and we
\nexpress no opinion as to the effect of any other federal or state statute or
\nequitable doctrine or of the regulations of any other agencies or
\nadministrative body, or to the effect of any laws, rules, or regulations
\nimposed by any foreign nation (including, without limitation, the laws of
\nCanada). We are admitted to the District of Columbia Bar and, with respect to
\nany matters concerning the laws of any other State, we draw your attention to
\nthe fact that the members of the firm involved in the preparation of this
\nopinion letter are not admitted to the Bars of those States and are not experts
\nin the laws of those jurisdictions, and that any such opinions concerning the
\nlaws of such States are based upon our reasonable familiarity with the common
\ncarrier telecommunications laws of such States as a result of our prior
\ninvolvement in matters concerning such laws as they pertain to compliance with
\ncommon carrier telecommunications regulatory requirements concerning the
\napprovals and notices required for borrowing by common carriers of
\ntelecommunications services. This opinion is given as of the date hereof, and
\nwe assume no obligation to assess the likelihood of, or to update or supplement
\nthis opinion to reflect, any facts or circumstances that may hereafter occur or
\ncome to our attention.<\/p>\n
At the request of our clients, this opinion letter is provided to the
\nAdministrative Agent and the Lenders by us in our capacity as special
\ncommunications regulatory counsel to the Restricted Companies and may not be
\nrelied upon by any Person for any purpose other than in connection with the
\ntransactions contemplated by the Loan Papers without, in each instance, our
\nprior written consent, except that it may be relied upon as of the date hereof
\nby any successor or permitted assignee or participant of the Lenders as
\nprovided in the Loan Papers.<\/p>\n
Very truly yours,<\/p>\n
KELLEY DRYE & WARREN LLP<\/p>\n
By:
\n ———————————–
\n Brad E. Mutschelknaus
\n Member of the Firm<\/p>\n
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