\n Category 1
\n ———-
\n BBB+ or higher by S&P; 0.0000% 0.3500% 0.1100%
\n Baa1 or higher by Moody’s
\n———————————————————————————————————
\n Category 2
\n ———-
\n BBB by S&P; 0.0000% 0.4000% 0.1250%
\n Baa2 by Moody’s
\n———————————————————————————————————
\n Category 3
\n ———-
\n BBB- by S&P; 0.0000% 0.4500% 0.1500%
\n Baa3 by Moody’s
\n———————————————————————————————————
\n Category 4
\n ———-
\n BB+ by S&P; 0.0000% 0.5000% 0.1750%
\n Ba1 by Moody’s
\n———————————————————————————————————
\n Category 5
\n ———-
\n BB or lower by S&P; 0.0000% 0.7500% 0.2500%
\n Ba2 or lower by Moody’s
\n———————————————————————————————————
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n (a) For purposes of determining the Applicable Margin, (i) if neither
\n 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
\n last sentence of this definition), then both such rating agencies
\n will be deemed to have established ratings for Index Debt in
\n Category 5; (ii) if only one of Moody’s or S&P shall have in
\n effect a rating for Index Debt, Borrower and the Facility A
\n Lenders will negotiate in good faith to agree upon another rating
\n agency to be substituted by an agreement for the rating agency
\n which shall not have a rating in effect, and in the absence of
\n such agreement the Applicable Margin will be determined by
\n reference to the available rating; (iii) if the ratings
\n established by Moody’s and S&P shall differ by one Category, the
\n Applicable Margin shall be determined by reference to the
\n numerically lower Category: (for example, if the rating from S&P
\n is in Category 1 and the rating from Moody’s is in Category 2,
\n the Applicable Margin shall be determined by reference to
\n Category 1); (iv) if the ratings established by Moody’s and S&P
\n shall differ by more than one Category, the Applicable Margin
\n shall be determined by reference to the Category that is one
\n numerical Category lower than the numerically higher of the two
\n Categories corresponding to the ratings established by the two
\n rating agencies: (for example, if the rating from S&P is in
\n Category 2 and the rating from Moody’s is in Category 5, the
\n Applicable Margin shall be determined by reference to Category
\n 4); and (v) if any rating established by Moody’s or S&P shall be
\n changed (other than as a result of a change in the rating system
\n of either Moody’s or S&P),<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 3
\n 9
\n such change shall be effective as of the date on which such
\n change is first announced by the rating agency making such
\n change. If the rating system of either Moody’s or S&P shall
\n change prior to the payment in full of the Obligation and the
\n cancellation of all commitments to lend hereunder, Borrower and
\n the Facility A Lenders shall negotiate in good faith to amend the
\n references to specific ratings in this definition to reflect such
\n changed rating system. If both Moody’s and S&P shall cease to be
\n in the business of rating corporate debt obligations, Borrower
\n and the Facility A Lenders shall negotiate in good faith to agree
\n upon a substitute rating agency and to amend the references to
\n specific ratings in this definition to reflect the ratings used
\n by such substitute rating agency.<\/p>\n
(b) On any date of determination of the Applicable Margin for
\n Eurodollar Rate Borrowings, if the sum of the Facility A
\n Commitment Usage, the Facility B Principal Debt, and the 364-Day
\n Principal Debt exceeds 33 1\/3% (but less than 66 2\/3%) of the
\n Total Commitment, then the Applicable Margin for Eurodollar Rate
\n Borrowings shall be increased by 0.05% (the “UTILIZATION FEE”);
\n provided that, if the Facility A Commitment Usage, the Facility B
\n Principal Debt, and the 364-Day Principal Debt equals or exceeds
\n 66 2\/3% of the Total Commitment, then such Utilization Fee shall
\n be increased to 0.10%.<\/p>\n
ARRANGER means NationsBanc Montgomery Securities LLC, and its successors
\nand assigns, in its capacity as “Lead Arranger” under the Loan Papers.<\/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 of
\n(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
\n(b) the Prime Rate for such day. Any change in the Base Rate due to a change
\nin the Prime Rate or the Federal Funds Rate shall be effective on the effective
\ndate of such change in the Prime Rate or Federal Funds Rate.<\/p>\n
BASE RATE BORROWING means a Borrowing bearing interest at the sum of the
\nBase Rate plus the Applicable Margin for Base Rate Borrowings.<\/p>\n
BORROWER is defined in the preamble to this Facility A Agreement.<\/p>\n
BORROWING means any amount disbursed (a) by one or more Facility A
\nLenders to Borrower under the Facility A Loan Papers (whether under the LC
\nSubfacility, the Competitive Bid Subfacility, or the Swing Line Subfacility, or
\notherwise), whether such amount constitutes an original disbursement of funds,
\nthe continuation of an amount outstanding, or payment of a draft under an LC,
\nor (b) by any Facility A Lender in accordance with, and to satisfy the
\nobligations of any Restricted Company under, any Facility A Loan Paper.<\/p>\n
BORROWING DATE is defined in SECTION 2.6(a).<\/p>\n
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
\nSunday, and any other day on which commercial banking institutions are required
\nor authorized by Law to be closed in Dallas, Texas, or New York, New York, (b)
\nin addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
\nday on which dealings in<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 4
\n 10
\nUnited States dollars are conducted in the London interbank market and
\ncommercial banks are open for international business in London, and (c) in
\naddition to the foregoing, for purposes of any fundings in, or conversions to
\nor from, Foreign Currency, a day when commercial banks are open for
\ninternational business in the principal financial center in the country which
\nissues such Foreign Currency, as determined by Administrative Agent.<\/p>\n
CAPITAL LEASE means any capital lease or sublease which should be
\ncapitalized on a balance sheet in accordance with GAAP.<\/p>\n
CLOSING DATE means the date upon which this Facility A Agreement has
\nbeen executed by Borrower and Determining Lenders, and all conditions precedent
\nspecified in SECTION 5.1 have been satisfied or waived.<\/p>\n
CO-SYNDICATION AGENTS means Bank of America NT & SA, Barclays Bank PLC,
\nThe Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of New
\nYork, and Royal Bank of Canada.<\/p>\n
CODE means the Internal Revenue Code of 1986, as amended, together with
\nrules and regulations promulgated thereunder.<\/p>\n
COMMITMENT PERCENTAGE means, at the time of any determination, the
\nproportion which any Facility A Lender’s Committed Sum bears to the Facility A
\nCommitment then in effect.<\/p>\n
COMMITTED SUM means, on any date of determination for any Facility A
\nLender, the amount stated beside its name on the most recently amended SCHEDULE
\n2.1 to the Facility A Agreement (which amount is subject to availability,
\nincrease, reduction, or cancellation in accordance with this Facility A
\nAgreement.)<\/p>\n
COMPETITIVE BID means an offer by a Facility A Lender to fund a
\nBorrowing under the Competitive Bid Subfacility pursuant to SECTION 2.4.<\/p>\n
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Facility
\nA Lender pursuant to SECTION 2.4, (a) in the case of a Eurodollar Rate
\nBorrowing, the margin which shall be added to or subtracted from the Adjusted
\nEurodollar Rate, and (b) in the case of a Fixed Rate Borrowing, the fixed rate
\nof interest, in each case, offered by the Facility A Lender making such
\nCompetitive Bid.<\/p>\n
COMPETITIVE BID REQUEST means a request for Competitive Bids made
\npursuant to SECTION 2.4(B) substantially in the form of EXHIBIT B-4.<\/p>\n
COMPETITIVE BID SUBFACILITY means a subfacility of Facility A as
\ndescribed in and subject to the limitations of SECTION 2.4.<\/p>\n
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
\nSubfacility.<\/p>\n
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
\nOfficer, substantially in the form of EXHIBIT D.<\/p>\n
CONSEQUENTIAL LOSS means any loss or expense which any Facility A Lender
\nmay reasonably 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 Facility A
\nLender) to accept or utilize such Borrowing after Borrower shall have requested
\nit under this Facility A Agreement, or (b) any prepayment or payment of such
\nBorrowing or conversion of such Borrowing to a Borrowing of another Type, in
\neach<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 5
\n 11
\ncase, prior to the last day of the Interest Period therefor.<\/p>\n
CONSOLIDATED COMPANIES means, at any date of determination thereof,
\nBorrower and each of its Subsidiaries (including the Unrestricted
\nSubsidiaries).<\/p>\n
CONSOLIDATED NET WORTH means, for any period, the consolidated
\nstockholders’ equity of the Restricted Companies as determined in accordance
\nwith GAAP.<\/p>\n
CURRENT FINANCIALS means, at the time of any determination thereof, the
\nmore recently delivered to Facility A Lenders of (a) as applicable, either (i)
\nprior to the MCI Merger Date, the Financial Statements for the fiscal year
\nended December 31, 1997, and the three-month period ended March 31, 1998,
\ncalculated on a consolidated basis for Borrower and the Consolidated Companies;
\nor (ii) on or after the MCI Merger Date, the combined consolidated financial
\nstatements of Borrower and MCI and their consolidated Subsidiaries as then most
\nrecently filed with the Securities and Exchange Commission; or (b) the
\nFinancial Statements required to be delivered under SECTIONS 7.3(a) or 7.3(b),
\nas the case may be, calculated on a consolidated basis for the Consolidated
\nCompanies; provided that, for purposes of SECTION 5.1(b), “Current Financials”
\nshall mean both the Financial Statements described in ITEMS (i) and (ii)
\npreceding, whether or not the MCI Merger Date has occurred on or prior to such
\ndate of determination.<\/p>\n
DEBT means (without duplication), for any Person, the sum of the
\nfollowing: (a) all liabilities, obligations, and indebtedness of such Person
\nwhich in accordance with GAAP should be classified upon such Person’s balance
\nsheet as liabilities in respect of (i) money borrowed, including, without
\nlimitation, the Principal Debt, (ii) obligations of such Person under Capital
\nLeases, and (iii) obligations of such Person issued or assumed as the deferred
\npurchase price of property, all conditional sale obligations, and obligations
\nunder any title retention agreement (but excluding trade accounts payable
\narising in the ordinary course of business); (b) all obligations of the type
\nreferred to in CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
\nthe payment of which such Person is responsible or liable as obligor,
\nguarantor, or otherwise; (c) all obligations of the type referred to in CLAUSES
\n(a)(i) through CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons
\nsecured by any Lien on any property or asset of such Person (whether or not
\nsuch obligation is assumed by such Person), the amount of such obligation being
\ndeemed to be the lesser of the value of such property or assets or the amount
\nof the obligation so secured; (d) the face amount of all letters of credit and
\nbanker’s acceptances issued for the account of such Person, and without
\nduplication, all drafts drawn and unpaid thereunder; and (e) obligations
\narising under any Accounts Receivable Financing which in accordance with GAAP
\nshould be classified upon such Person’s balance sheet as liabilities; provided,
\nhowever, that Debt shall not include obligations of Borrower which are owed to
\na trust or other special purpose entity, all of whose common equity is
\nbeneficially owned by Borrower, so long as such obligations are held by such
\ntrusts or their representatives and are subordinate in right of payment to the
\nObligation.<\/p>\n
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
\nAmerica and all other applicable liquidation, conservatorship, bankruptcy,
\nmoratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
\ntransfer or conveyance, suspension of payments or similar Laws from time to
\ntime in effect affecting the Rights of creditors generally.<\/p>\n
DEFAULT is defined in SECTION 8.<\/p>\n
DEFAULT RATE means a per annum rate of interest equal from day to day to
\nthe lesser of (a) the sum of the Base Rate plus the Applicable Margin for Base
\nRate Borrowings plus 2% and (b) the Maximum Rate.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 6
\n 12
\n DETERMINING LENDERS means:<\/p>\n
(a) For purposes of waiving or amending any conditions
\n precedent under SECTION 5.2 of this Facility A Agreement, those Facility
\n A Lenders who collectively hold, on any date of determination, at least
\n 51% of the Facility A Commitment; or<\/p>\n
(b) For all other purposes under the Loan Papers, (i) on any
\n date of determination occurring prior to the date upon which the
\n Facility A Commitment has been terminated, those Lenders who
\n collectively hold at least 51% of the sum of (A) the Facility A
\n Commitment and (B) the Facility B Principal Debt; and (ii) on any date
\n of determination occurring on or after the date upon which the Facility
\n A Commitment has been terminated, those Lenders who collectively hold at
\n least 51% of the Principal Debt and the LC Exposure.<\/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
DOLLAR-EQUIVALENT, at any time, means, (a) any amount denominated in
\nDollars and (b) for any amount denominated in a Foreign Currency, an amount of
\nDollars into which Administrative Agent determines that it could convert the
\nrelevant amount of that Foreign Currency by using the applicable-quoted-spot
\nrate reported on the appropriate page of the Reuters Screen at 11:00 a.m.
\n(London time) three Business Days before the day on which the calculation is
\nmade.<\/p>\n
DOLLARS and the symbol $ shall mean lawful money of the United States of
\nAmerica.<\/p>\n
ELIGIBLE ASSIGNEE means (a) a Facility A Lender; (b) an Affiliate of a
\nFacility A Lender (so long as such assignment is not made in conjunction with
\nthe sale of such Affiliate); and (c) any other Person approved by
\nAdministrative Agent (which approval will not be unreasonably withheld or
\ndelayed by Administrative Agent) and, unless a Default has occurred and is
\ncontinuing at the time any assignment is effected in accordance with SECTION
\n11.13, Borrower, such approval not to be unreasonably withheld or delayed by
\nBorrower and such approval to be deemed given by Borrower if no objection is
\nreceived by the assigning Facility A Lender and the Administrative Agent from
\nBorrower within five Business Days after notice of such proposed assignment has
\nbeen provided by the assigning Lender to Borrower; provided, however, that
\nneither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
\nAssignee.<\/p>\n
EMPLOYEE PLAN means an employee pension benefit plan covered by Title IV
\nof ERISA and established or maintained by Borrower or any ERISA Affiliate, but
\nnot 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 U.S.C.
\nSection 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section
\n2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7
\nU.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<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 7
\n 13
\n401 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.) and
\nanalogous state and local Laws, as any of the foregoing may have been and may
\nbe amended or supplemented from time to time, and any analogous future enacted
\nor adopted Law, or (d) the Release or threatened Release of Hazardous
\nSubstances.<\/p>\n
ERISA means the Employee Retirement Income Security Act of 1974, as
\namended, and the regulations and rulings thereunder.<\/p>\n
ERISA AFFILIATE means, with respect to Borrower or any of its
\nSubsidiaries, any company, trade, or business (whether or not incorporated)
\nwhich, for purposes of Title IV of ERISA, is a member of Borrower’s controlled
\ngroup or which is under common control with Borrower within the meaning of
\nSection 414(b), (c) or (m) of the Code.<\/p>\n
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
\nInterest Period therefor, the rate per annum (rounded upwards, if necessary, to
\nthe nearest 1\/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
\nsuccessor page) as the London interbank offered rate for deposits in Dollars at
\napproximately 11:00 a.m. (London time) two Business Days prior to the first day
\nof such Interest Period for a term comparable to such Interest Period. If for
\nany reason such rate is not available, the term “Eurodollar Rate” shall mean,
\nfor any Eurodollar Rate Borrowing for any Interest Period therefor, the rate
\nper annum (rounded upwards, if necessary, to the nearest 1\/100 of 1%) appearing
\non Reuters Screen LIBO Page as the London interbank offered rate for deposits
\nin Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
\nthe 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 Facility A Agreement unless otherwise
\nspecified.<\/p>\n
EXISTING AGREEMENT is defined in the Recitals to this Facility A
\nAgreement.<\/p>\n
EXISTING DEBT means on any date of determination, (a) the secured and
\nunsecured Debt of Borrower and its Restricted Subsidiaries existing on the
\nClosing Date and described in PART A of SCHEDULE 7.12 (but expressly excluding
\nthe WorldCom\/Brooks Fiber Loan on and after the earlier of (i) the date of
\nrepayment thereof in full and termination of the commitment thereunder and (ii)
\nthe thirtieth (30th) day after the closing date of the 364-Day Facility); (b)
\non and after the MCI Merger Date, the secured and unsecured Debt of MCI and its
\nSubsidiaries existing on the MCI Merger Date and described in PART B of
\nSCHEDULE 7.12 (but expressly excluding the MCI Revolving Facility, which shall
\nbe repaid in full and the commitment thereunder terminated on or before the MCI
\nMerger Date); and (c) renewals, extensions, and refinancings of any of the
\nExisting Debt described in CLAUSES (a) and (b) to the extent that the principal
\namount under (or the maximum principal amount that may be borrowed under) such
\nExisting Debt is not increased on or after the Closing Date (with respect to
\nExisting Debt listed in PART A of SCHEDULE 7.12) or on or after the MCI Merger
\nDate (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).<\/p>\n
EXISTING FACILITY A LENDERS is defined in the Recitals to this Facility
\nA Agreement.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 8
\n 14
\n FACILITIES means, collectively, Facility A and Facility B; “FACILITY”
\nmeans either Facility A or Facility B, whichever the context requires.<\/p>\n
FACILITY A means the credit facility described in and subject to the
\nlimitations of the Facility A Agreement.<\/p>\n
FACILITY A AGENTS means, collectively, Administrative Agent and Co-
\nSyndication Agents under the Facility A Agreement.<\/p>\n
FACILITY A AGREEMENT means this Amended and Restated Facility A
\nRevolving Agreement, and all Exhibits and Schedules hereto, as each may be
\namended, modified, supplemented, or restated from time to time.<\/p>\n
FACILITY A COMMITMENT means an amount (subject to availability,
\nreduction, or cancellation as herein provided) equal to $3,750,000,000.<\/p>\n
FACILITY A COMMITMENT USAGE means, at the time of any determination
\nthereof, the sum of (a) the aggregate Facility A Principal Debt (whether under
\nthe Competitive Bid Subfacility, the Swing Line Subfacility, or otherwise),
\nplus (b) the LC Exposure.<\/p>\n
FACILITY A COMPETITIVE BID NOTE means a promissory note in substantially
\nthe form of EXHIBIT A-2 and all renewals and extensions of all or any part
\nthereof.<\/p>\n
FACILITY A LENDERS means, on any date of determination, the financial
\ninstitutions named on SCHEDULE 2.1 (as the same may be amended from time to
\ntime by Administrative Agent to reflect the assignments made in accordance with
\nSECTION 11.13(C) of this Facility A Agreement) to this Facility A Agreement,
\nand subject to the terms and conditions of this Facility A Agreement, their
\nrespective successors and assigns, but not any Participant who is not otherwise
\na party to this Facility A Agreement<\/p>\n
FACILITY A LOAN PAPERS means those Loan Papers evidencing the Obligation
\narising under, in connection with, or pursuant to, Facility A, and all
\nrenewals, extensions, or restatements of or amendments or supplements to, any
\nsuch Facility A Loan Papers.<\/p>\n
FACILITY A NOTE means a promissory note substantially in the form of
\nEXHIBIT A-1, and all renewals and extensions of all or any part thereof.<\/p>\n
FACILITY A PRINCIPAL DEBT means, on any date of determination, the
\naggregate unpaid principal balance of all Borrowings under Facility A.<\/p>\n
FACILITY A TERMINATION DATE means the earliest of (a) June 30, 2002, and
\n(b) the effective date of any other termination or cancellation of Facility A
\nLenders’ commitments to lend under, and in accordance with, this Facility A
\nAgreement.<\/p>\n
FACILITY B means the term loan facility described in and subject to the
\nlimitations of the Facility B Agreement.<\/p>\n
FACILITY B ADMINISTRATIVE AGENT means the “Administrative Agent” under
\nFacility B and its permitted successors and assigns under Facility B.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 9
\n 15
\n FACILITY B AGENTS means, collectively, Facility B Administrative Agent
\nand the “Co-Syndication Agents” appointed under the Facility B Agreement.<\/p>\n
FACILITY B AGREEMENT means the Amended and Restated Term Loan Agreement
\ndated the date hereof among Borrower, Facility B Administrative Agent, and the
\nFacility B Lenders (as the same may be amended, modified, supplemented, or
\nrestated from time to time).<\/p>\n
FACILITY B LENDERS means, on any date of determination, the financial
\ninstitutions named on SCHEDULE 2.1 (as the same may be amended from time to
\ntime by Administrative Agent to reflect the assignments made in accordance with
\nSECTION 11.13(c) of the Facility B Agreement) to the Facility B Agreement, and
\nsubject to the terms and conditions of the Facility B Agreement, their
\nrespective successors and assigns, but not any Participant who is not otherwise
\na party to the Facility B Agreement.<\/p>\n
FACILITY B LOAN PAPERS means those Loan Papers evidencing the Obligation
\narising under, in connection with, or pursuant to, Facility B, and all
\nrenewals, extensions, or restatements of or amendments or supplements to, any
\nsuch Facility B Loan Papers.<\/p>\n
FACILITY B PRINCIPAL DEBT means, on any date of determination, the
\naggregate unpaid principal balance under Facility B.<\/p>\n
FCC means the Federal Communications Commission and any successor
\nregulatory body.<\/p>\n
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
\nupwards, if necessary, to the nearest 1\/100 of 1%) determined (which
\ndetermination shall be conclusive and binding, absent manifest error) by
\nAdministrative Agent to be equal to the weighted average of the rates on
\novernight Federal funds transactions with member banks of the Federal Reserve
\nSystem arranged by Federal funds brokers on such day, as published by the
\nFederal Reserve Bank of New York on the Business Day next succeeding such day;
\nprovided that (a) if such day is not a Business Day, the Federal Funds Rate for
\nsuch day shall be such rate on such transactions on the next preceding Business
\nDay as so published on the next succeeding Business Day, and (b) if no such
\nrate is so published on such next succeeding Business Day, the Federal Funds
\nRate for such day shall be the average rate charged to the Administrative Agent
\n(in its individual capacity) on such day on such transactions as determined by
\nthe Administrative Agent (which determination shall be conclusive and binding,
\nabsent manifest error).<\/p>\n
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
\ncontract which is intended to reduce or eliminate the risk of fluctuations in
\ninterest rates, or (b) a foreign exchange, currency hedging, commodity 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
\nFacility A Lender pursuant to<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 10
\n 16
\nSECTION 2.4 based upon an actual percentage rate per annum offered by such
\nFacility A Lender, expressed as a decimal (to no more than four decimal places)
\nand accepted by Borrower.<\/p>\n
FOREIGN CURRENCY means any freely-convertible lawful currency acceptable
\nto Administrative Agent, so long as (a) such currency is dealt with in the
\nLondon interbank deposit market, (b) such currency is freely transferable and
\nconvertible into Dollars in the London foreign exchange market, and (c) no
\ncentral bank or other governmental authorization in the country of issue of
\nsuch currency is required to permit use of such currency by Administrative
\nAgent for issuing LCs or honoring drafts presented under LCs in such currency;
\nprovided, that if, after the issuance of an LC in a Foreign Currency, the
\nForeign Currency denominated in such LC ceases to be lawful currency freely-
\nconvertible into Dollars and is replaced by a European single or common
\ncurrency (the “EURO”), then thereafter the Foreign Currency for purposes of
\nsuch LC shall be the Euro.<\/p>\n
GAAP means generally accepted accounting principles of the Accounting
\nPrinciples Board of the American Institute of Certified Public Accountants and
\nthe Financial Accounting Standards Board which (a) with respect to the covenant
\ncontained in SECTION 7.22 (and, to the extent used in or relating to such
\ncovenant, any defined terms), are in effect on the date hereof, and (b) for all
\nother purposes hereunder, are applicable from time to time.<\/p>\n
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or federal
\njudicial, executive, or legislative instrumentality, (b) private arbitration
\nboard or panel, or (c) central bank.<\/p>\n
HAZARDOUS SUBSTANCE means (a) any substance that is designated, defined
\nor classified as a hazardous waste, hazardous material, pollutant, contaminant
\nor toxic or hazardous substance under any Environmental Law, including without
\nlimitation, any hazardous substance within the meaning of Section 101(14) of
\nCERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste
\noil, diesel fuel, jet fuel, and other petroleum hydrocarbons, (c) regulated
\nasbestos and asbestos-containing materials in any form, (d) polychlorinated
\nbiphenyls, or (e) urea formaldehyde foam.<\/p>\n
INDENTURES means any indentures or other agreements pursuant to which
\nnotes, debentures, bonds, or debt securities are issued by any Restricted
\nCompany, including, without limitation, the following: Indenture dated as of
\nMarch 1, 1997, between Borrower and The Chase Manhattan Trust Company, N.A., as
\nsuccessor trustee; Indenture dated as of January 26, 1994, between MFS
\nCommunications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
\nIndenture dated as of January 23, 1996 between MFS Communications Company, Inc.
\nand IBJ Schroder Bank & Trust Co., as trustee; Indenture dated as of February
\n26, 1996, between Brooks Fiber Properties, Inc. and The Bank of New York, as
\ntrustee; and Indenture dated as of May 29, 1997, between Brooks Fiber
\nProperties, Inc. and The Bank of New York, as trustee, in each case as the same
\nhave been or may be amended, modified, supplemented or restated from time to
\ntime; and on and after the MCI Merger Date, references to “INDENTURES” shall
\nalso include the Indenture dated as of October 15, 1989, between MCI and
\nCitibank, N.A., as trustee; Indenture dated as of February 17, 1995, between
\nMCI and Citibank, N.A., as trustee; and Junior Subordinated Indenture dated as
\nof May 29, 1996, between MCI and Wilmington Trust Company, as trustee, in each
\ncase as the same have been or may be amended, modified, supplemented, or
\nrestated from time to time.<\/p>\n
INTEREST PERIOD is determined in accordance with SECTION 3.9.<\/p>\n
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
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 11
\n 17
\n LC means any standby letter of credit issued by Administrative Agent
\nunder this Facility A Agreement or under the Existing Agreement pursuant to an
\nLC Agreement.<\/p>\n
LC AGREEMENT means a standby letter of credit application and agreement
\n(in form and substance satisfactory to Administrative Agent) submitted by
\nBorrower to Administrative Agent for an LC for its own account (and for its
\nbenefit or the benefit of any other Restricted Company); provided that this
\nFacility A Agreement shall control any conflict between this Facility A
\nAgreement and any such LC Agreement.<\/p>\n
LC COMMITMENT means an amount (subject to availability, reduction, or
\ncancellation as herein provided) equal to the Dollar-Equivalent of $75,000,000.<\/p>\n
LC EXPOSURE means, at any time and without duplication, the sum of the
\nDollar-Equivalent of (a) the aggregate undrawn portion of all uncancelled and
\nunexpired LCs plus (b) the aggregate unpaid reimbursement obligations of
\nBorrower in respect of drawings of drafts under any LC.<\/p>\n
LC SUBFACILITY means a subfacility for the issuance of LCs (the LC
\nExposure in connection with which may never exceed $75,000,000), as described
\nin and subject to the limitations of SECTION 2.2.<\/p>\n
LENDERS means, collectively, on any date of determination, the Facility
\nA Lenders and the Facility B Lenders.<\/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 Facility A Agreement, certificates delivered
\npursuant to this Facility A Agreement, and Exhibits and Schedules hereto, (b)
\nthe Facility B Agreement, certificates delivered pursuant to the Facility B
\nAgreement, and exhibits and schedules thereto, (c) all agreements, documents,
\nor instruments in favor of Administrative Agent or Lenders (or Administrative
\nAgent on behalf of Lenders) ever delivered pursuant to this Facility A
\nAgreement or the Facility B Agreement, or otherwise delivered in connection
\nwith all or any part of the Obligation, (d) all LCs and LC Agreements, (e) any
\nFinancial Hedge between any Restricted Company and any Lender or any Affiliate
\nof any Lender, and (f) all renewals, extensions, or restatements of, or
\namendments or supplements to, any of the foregoing.<\/p>\n
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
\nevents which, individually or collectively, could reasonably be expected to
\nresult in any (a) material impairment of the ability of any Restricted Company
\nto perform any of its payment or other material obligations under the Loan
\nPapers or the ability of Administrative Agent or any Lender to enforce any such
\nobligations or any of their respective Rights under the Loan Papers, (b)
\nmaterial and adverse effect on the business, properties, condition (financial
\nor otherwise) or results of operations of the Restricted Companies, in each
\ncase considered as a whole, or (c) material and adverse effect on the business,
\nproperties, condition (financial or otherwise) or results of operations of the
\nConsolidated Companies, in each case considered as a whole. The phrase “could
\nbe a Material Adverse Event” (and any similar phrase herein) means that there
\nis a material probability of such Material Adverse Event occurring, and the
\nphrase “could not be a Material Adverse Event” (and any similar phrase herein)
\nmeans that there is not a material probability of such Material Adverse Event
\noccurring.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 12
\n 18
\n MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary
\nof Borrower (or any group of Subsidiaries of Borrower) that individually or
\ncollectively own 10% or more of the book value of the consolidated assets of
\nthe Restricted Companies determined as of the date of, and with respect to, the
\nCurrent Financials and the related Compliance Certificate.<\/p>\n
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
\nmaximum non-usurious amount and the maximum non-usurious rate of interest
\nwhich, under applicable Law, such Lender is permitted to contract for, charge,
\ntake, reserve, or receive on the Obligation.<\/p>\n
MCI means MCI Communications Corporation.<\/p>\n
MCI MERGER means the merger of MCI with and into TC Investments Corp., a
\nwholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
\nMerger Agreement.<\/p>\n
MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as of
\nNovember 9, 1997, among Borrower, MCI, and TC Investments Corp. (as amended to
\ndate and as hereinafter amended subject to the consent of Administrative Agent
\nto any material amendment thereof, which consent shall not be unreasonably
\nwithheld).<\/p>\n
MCI MERGER DATE means the date upon which the MCI Merger closes in
\naccordance with the MCI Merger Agreement.<\/p>\n
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
\nFacility dated as of April 30, 1997, among MCI and the lenders party thereto,
\nas amended by that certain First Amendment to Revolving Credit Agreement dated
\nas of April 28, 1998.<\/p>\n
MOODY’S means Moody’s Investors Service, Inc. or any successor thereto.<\/p>\n
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
\n3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
\nRestricted Company or any ERISA Affiliate is making, or has made, or is
\naccruing, or has accrued, an obligation to make contributions.<\/p>\n
NATIONSBANK means NationsBank, N.A. (successor in interest by merger to
\nNationsBank of Texas, N.A.), in its individual capacity as a Lender, and its
\nsuccessors and assigns.<\/p>\n
NOTES means, at the time of any determination thereof, all outstanding
\nand unpaid Facility A Notes, Facility A Competitive Bid Notes, and the Swing
\nLine Note.<\/p>\n
NOTICE OF BORROWING is defined in SECTION 2.6(a).<\/p>\n
NOTICE OF CONVERSION is defined in SECTION 3.10.<\/p>\n
NOTICE OF LC is defined in SECTION 2.2(a).<\/p>\n
OBLIGATION means all present and future indebtedness, liabilities, and
\nobligations, and all renewals and extensions thereof, or any part thereof, now
\nor hereafter owed to any Facility A Agent or Facility B Agent, or any Lender by
\nany Restricted Company arising from, by virtue of, or pursuant to any Loan
\nPaper, together with all interest accruing thereon, fees, costs, and expenses
\n(including, without limitation, all reasonable attorneys’ fees and expenses
\nincurred in the enforcement or collection thereof) payable under the Loan
\nPapers.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 13
\n 19
\n PARTICIPANT is defined in SECTION 11.13(E).<\/p>\n
PBGC means the Pension Benefit Guaranty Corporation, or any successor
\nthereof, established pursuant to ERISA.<\/p>\n
PERCENTAGE PART means, at the time of any determination, the proportion
\nwhich any Swing Line Lender’s Swing Line Committed Sum bears to the Swing Line
\nCommitment then in effect.<\/p>\n
PERMITTED SUCCESSOR CORPORATION means any corporation into which
\nBorrower is merged or consolidated, so long as:<\/p>\n
(a) immediately after giving effect to such merger or
\n consolidation, the surviving corporation shall have then-effective
\n ratings (or implied ratings) published by Moody’s and S&P applicable to
\n such surviving corporation’s senior, unsecured, non-credit-enhanced,
\n long term Debt, equal to or higher than BBB- by S&P, and Baa3 by
\n Moody’s;<\/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 of
\n the Obligation and the performance or observance of the Loan 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 a
\n certificate signed by a Responsible Officer of Borrower and a written
\n opinion of counsel satisfactory to the Administrative Agent (and its
\n counsel), each stating that such merger or consolidation complies with
\n the requirements for a Permitted Successor Corporation and that all
\n conditions precedent herein provided for relating to such merger or
\n consolidation have been satisfied;<\/p>\n
(e) No “Change of Control” (as described in SECTION 8.6) has
\n 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 any
\ncircumstance which, with the giving of notice or lapse of time or both, would
\nbecome a Default.<\/p>\n
PRIME RATE means the per annum rate of interest established from time to
\ntime by NationsBank, N.A. as its prime rate, which rate may not be the lowest
\nrate of interest charged by NationsBank, N.A. to its customers.<\/p>\n
PRINCIPAL DEBT means, on any date of determination, the sum of the
\nFacility A Principal Debt and the Facility B Principal Debt.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 14
\n 20
\n PRO RATA or PRO RATA PART means:<\/p>\n
(a) for each Facility A Lender with respect to any commitment
\n to fund (or to purchase participations pursuant to SECTIONS 2.2 and 2.3,
\n as the case may be), any reductions of commitments, conversions or
\n continuations of Borrowings under Facility A, or any payment or
\n prepayment under Facility A, or any expense reimbursements pursuant to
\n SECTION 10.2 — the Commitment Percentage stated opposite such Facility
\n A Lender’s name as set forth on SCHEDULE 2.1 to the Facility A Agreement
\n or the most recently-amended SCHEDULE 2.1, if any (or, if the Facility A
\n Commitments shall have expired or been terminated, then the proportion
\n that the Facility A Principal Debt owed to such Facility A Lender under
\n Facility A or any subfacility thereunder (except the Competitive Bid
\n Subfacility), as applicable, bears to the Facility A Principal Debt owed
\n to all Facility A Lenders under Facility A or any such subfacility
\n thereunder (except the Competitive Bid Subfacility), as applicable;<\/p>\n
(b) for each Facility B Lender with respect to any commitment
\n to fund, any reductions of commitments, conversions or continuations of
\n borrowings under Facility B, or any payment or prepayment under Facility
\n B, or any expense reimbursements pursuant to SECTION 10.2 of the
\n Facility B Agreement — the proportion that the Facility B Principal
\n Debt owed to such Facility B Lender bears to the Facility B Principal
\n Debt owed to all Facility B Lenders;<\/p>\n
(c) for each Facility A Lender with respect to any principal
\n or interest payments on any Competitive Borrowing — the proportion that
\n the outstanding principal amount or accrued and unpaid interest (as the
\n case may be) owed to any Facility A Lender participating in such
\n Competitive Borrowing bears to the total principal amount outstanding or
\n accrued and unpaid interest (as the case may be) owed to all Facility A
\n Lenders participating in such Competitive Borrowing;<\/p>\n
(d) for all other purposes with respect to any Lender — (i)
\n for so long as the Facility A Commitment has not terminated, the
\n proportion that the sum of such Lender’s Committed Sum under Facility A
\n plus the Facility B Principal Debt owed to such Lender bears to the sum
\n of the Facility A Commitment plus the Facility B Principal Debt, or (ii)
\n at any time on and after the Facility A Termination Date, the proportion
\n that the sum of (A) the Principal Debt owed to such Lender plus (B) such
\n Lender’s proportionate part (whether held directly or through a
\n participation therein and determined after giving effect to any
\n participations) of the LC Exposure bears to the sum of (x) the Principal
\n Debt plus (y) the LC Exposure.<\/p>\n
PUC means any state or local regulatory agency or governmental authority
\nthat exercises jurisdiction over the rates or services or the ownership,
\nconstruction, or operation of network facilities or telecommunications systems
\nor over Persons who own, construct, or operate network facilities or
\ntelecommunications systems.<\/p>\n
QUOTED SWING LINE BORROWINGS has the meaning as defined in SECTION
\n2.3(a).<\/p>\n
QUOTED SWING LINE RATE has the meaning as defined in SECTION 2.3(a).<\/p>\n
RECEIVABLES means all Rights of any Consolidated Company (as a “Seller”
\nunder Receivables Documents) to payments (whether constituting accounts,
\nchattel paper, instruments, general intangibles, or otherwise, and including
\nthe Right to payment of any interest or finance charges) with respect to
\ndedicated telecommunications services provided by any such Consolidated Company
\nto its customers between designated customer premises.<\/p>\n
RECEIVABLES DOCUMENTS means one or more receivables purchase agreements
\nentered into by one or more Consolidated Companies and each other instrument,
\nagreement, and document entered into by such Consolidated Companies evidencing
\nAccounts Receivable Financings.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 15
\n 21
\n RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which undivided
\npercentage interests are transferred by any Consolidated Company pursuant to
\nthe Receivables Documents, (b) all Receivables Related Assets with respect to
\nthe Receivables described in CLAUSE (A) of this definition, and (c) all
\ncollections (including recoveries) and other proceeds of the assets described
\nin the foregoing clauses.<\/p>\n
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
\ndocumentation governing or relating to Receivables (including Rights in respect
\nof Liens securing such Receivables and other credit support in respect of such
\nReceivables), (b) any proceeds of such Receivables and any lockboxes or
\naccounts in which such proceeds are deposited, and (c) spread accounts and
\nother similar accounts (and any amounts on deposit therein) established in
\nconnection with an Accounts Receivable Financing.<\/p>\n
RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
\ncreated in connection with the transactions contemplated by an Accounts
\nReceivable Financing, which Subsidiary engages in no activities, has no
\nmaterial liabilities, or owns no other assets, other than those incidental to
\nsuch Accounts Receivable Financing.<\/p>\n
REGISTER is defined in SECTION 11.13(c).<\/p>\n
REGULATION D means Regulation D of the Board of Governors of the Federal
\nReserve System, as amended.<\/p>\n
REGULATION U means Regulation U of the Board of Governors of the Federal
\nReserve 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 SECTION 8.6,
\nany other officer designated from time to time by the Board of Directors of
\nBorrower, which designated officer is acceptable to Administrative Agent.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 16
\n 22
\n RESTRICTED COMPANIES, at any time of determination thereof, means
\nBorrower and the Restricted Subsidiaries.<\/p>\n
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower
\n(other than the Unrestricted Subsidiaries).<\/p>\n
RIGHTS means rights, remedies, powers, privileges, and benefits.<\/p>\n
RIGHTS OF WAY means the easements, rights of way, and other rights
\nentitling the Restricted Companies to own, use, operate, and maintain the
\nnetwork facilities.<\/p>\n
S&P means Standard & Poor’s Rating Group, a division of McGraw Hill,
\nInc., a New York corporation.<\/p>\n
SCHEDULE means, unless specified otherwise, a schedule attached to this
\nFacility A Agreement, as the same may be supplemented and modified from time to
\ntime in accordance with the terms of the Facility A Loan Papers.<\/p>\n
SOLVENT means, as to a Person, that (a) the aggregate fair market value
\nof such Person’s assets exceeds its liabilities (whether contingent,
\nsubordinated, unmatured, unliquidated, or otherwise), (b) such Person has
\nsufficient cash flow to enable it to pay its Debts as they mature, and (c) such
\nPerson does not have unreasonably small capital to conduct such Person’s
\nbusinesses.<\/p>\n
SUBSIDIARY of any Person means any entity of which an aggregate of more
\nthan 50% (in number of votes) of the stock (or equivalent interests) is owned
\nof record or beneficially, directly or indirectly, by such Person.<\/p>\n
SWING LINE BORROWING means any Borrowing under the Swing Line
\nSubfacility, including Alternate Rate Swing Line Borrowings and Quoted Rate
\nSwing Line Borrowings.<\/p>\n
SWING LINE COMMITMENT means an amount (subject to availability,
\nreduction, or cancellation as herein provided) equal to $175,000,000.<\/p>\n
SWING LINE COMMITTED SUM means, on any date of determination for any
\nSwing Line Lender, the amount stated beside its name on the most-recently
\namended SCHEDULE 2.3 to the Facility A Agreement (which amount is subject to
\navailability, increase, reduction, or cancellation in accordance with this
\nFacility A Agreement).<\/p>\n
SWING LINE LENDERS means, collectively, NationsBank, those Lenders
\nlisted on SCHEDULE 2.3, and any Facility A Lender designated by borrower as a
\n“Swing Line Lender” pursuant to and in accordance with SECTION 2.3(G), and
\ntheir respective permitted successors and assigns.<\/p>\n
SWING LINE NOTE means a promissory note in substantially the form of
\nEXHIBIT A-3, and all renewals and extensions of all or any part thereof.<\/p>\n
SWING LINE PRINCIPAL DEBT means, on any date of determination, that
\nportion of the Principal Debt outstanding under the Swing Line Subfacility.<\/p>\n
SWING LINE SUBFACILITY means the subfacility under Facility A described
\nin, and subject to the limitations of, SECTION 2.3.<\/p>\n
TAXES means, for any Person, taxes, assessments, or other governmental
\ncharges or levies imposed upon<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 17
\n 23
\nsuch Person, its income, or any of its properties, franchises, or assets.<\/p>\n
TOTAL CAPITALIZATION means, on any date of determination, the sum of
\nTotal Debt and Consolidated Net Worth.<\/p>\n
TOTAL COMMITMENT means, on any date of determination, the sum of the
\nFacility A Commitment, the Facility B Principal Debt, and the 364-Day Facility
\nCommitment.<\/p>\n
TOTAL DEBT means (without duplication) all Debt of the Restricted
\nCompanies; provided that, in determining “Total Debt,” Debt arising under the
\n8.00% Junior Subordinated Deferrable Interest Debentures (the “DEBENTURES”)
\nissued by MCI pursuant to Supplemental Indenture No. 1 to the Junior
\nSubordinated Indenture dated as of May 29, 1996, between MCI and Wilmington
\nTrust Company, as Trustee (as the same has been or may be amended, modified,
\nsupplemented, or restated, but not increased from time to time) shall not be
\nincluded, so long as no “Event of Default” under such Debentures or the related
\nIndenture has occurred and is continuing on any date of determination.<\/p>\n
TYPE means any type of Borrowing determined with respect to the interest
\noption applicable thereto.<\/p>\n
UNREFUNDED SWING LINE BORROWINGS has the meaning set forth in SECTION
\n2.3(d).<\/p>\n
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
\nmean (a) the Receivables Subsidiary and (b) any Subsidiary of Borrower
\ndesignated as an “Unrestricted Subsidiary” from time to time in accordance with
\nSECTION 7.21. UNRESTRICTED SUBSIDIARY, at any time of determination, shall
\nmean any of the Unrestricted Subsidiaries.<\/p>\n
UTILIZATION FEE has the meaning set forth in CLAUSE (B) of the
\ndefinition of “Applicable Margin” in this SECTION 1.1.<\/p>\n
VOTING STOCK shall mean securities (as such term is defined in Section
\n2(1) of the Securities Act of 1933, as amended) of any class or classes, the
\nholders of which are ordinarily, in the absence of contingencies, entitled to
\nelect a majority of the corporate directors (or Persons performing similar
\nfunctions).<\/p>\n
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
\nSubsidiary of which all of the issued and outstanding shares of stock (except
\nshares required as directors’ qualifying shares) shall be owned by Borrower or
\none or more of its Wholly-owned Subsidiaries.<\/p>\n
WORLDCOM\/BROOKS FIBER LOAN means the loans under that certain
\n$1,250,000,000 364-Day Revolving Credit and Term Loan Agreement dated as of
\nFebruary 19, 1998, among Borrower, NationsBank N.A. (in its capacity as
\n“Administrative Agent” thereunder and as a lender), and the other lenders party
\nthereto (as amended, restated and modified from time to time).<\/p>\n
1.2 Number and Gender of Words; Other References. Unless otherwise
\nspecified, in the Loan Papers (a) where appropriate, the singular includes the
\nplural and vice versa, and words of any gender include each other gender, (b)
\nheading and caption references may not be construed in interpreting provisions,
\n(c) monetary references are to currency of the United States of America, (d)
\nsection, paragraph, annex, schedule, exhibit, and similar references are to the
\nparticular Loan Paper in which they are used, (e) references to “telecopy,”
\n“facsimile,” “fax,” or similar terms are to facsimile or telecopy
\ntransmissions, (f) references to “including”<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 18
\n 24
\nmean including without limiting the generality of any description preceding
\nthat word, (g) the rule of construction that references to general items that
\nfollow references to specific items are limited to the same type or character
\nof those specific items is not applicable in the Loan Papers, (h) references to
\nany Person include that Person’s heirs, personal representatives, successors,
\ntrustees, receivers, and permitted assigns, (i) references to any Law include
\nevery amendment 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 used
\nin 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 Facility A Loan Papers, each
\nFacility A Lender severally and not jointly agrees to lend to Borrower such
\nFacility A Lender’s Pro Rata Part of one or more Borrowings under this Facility
\nA Agreement not to exceed such Facility A Lender’s Committed Sum under this
\nFacility A Agreement, which, subject to the Facility A Loan Papers, Borrower
\nmay borrow, repay, and reborrow under this Facility A Agreement; provided that
\n(i) each such Borrowing must occur on a Business Day and no later than the
\nBusiness Day immediately preceding the Facility A Termination Date; (ii) each
\nsuch Borrowing shall be in an amount not less than (A) $5,000,000 or a greater
\nintegral multiple of $1,000,000 (if a Base Rate Borrowing), (B) $10,000,000 or
\na greater integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing), (C)
\n$5,000,000 or a greater integral multiple of $1,000,000 (if a Competitive
\nBorrowing), or (D) $1,000,000 or an integral multiple of $250,000 if in excess
\nthereof (if a Swing Line Borrowing); and (iii) on any date of determination,
\nthe Facility A Commitment Usage shall never exceed the Facility A Commitment.<\/p>\n
2.2 LC Subfacility.<\/p>\n
(a) Subject to the terms and conditions of this Facility A
\n Agreement and applicable Law, Administrative Agent agrees to issue LCs
\n upon Borrower’s application therefor (denominated in Dollars or, upon
\n Borrower’s request and subject to this SECTION 2.2, in a Foreign
\n Currency) by delivering to Administrative Agent a properly completed
\n notice (a “NOTICE OF LC,” substantially in the form of EXHIBIT B-3) and
\n an LC Agreement with respect thereto no later than 10:00 a.m. Dallas,
\n Texas time three Business Days before such LC is to be issued; provided
\n that (i) on any date of determination and after giving effect to any LC
\n to be issued on such date, the Facility A Commitment Usage (calculated
\n at the then Dollar-Equivalent of that amount) shall never exceed the
\n Facility A Commitment then in effect, (ii) on any date of determination
\n and after giving effect to any LC to be issued on such date, the LC
\n Exposure (calculated at the then Dollar-Equivalent of that amount) shall
\n never exceed the LC Commitment, (iii) at the time of issuance of such
\n LC, no Default or Potential Default shall have occurred and be
\n continuing, and (iv) each LC must expire no later than the earlier of
\n the thirtieth (30th) day prior to the Facility A Termination Date and
\n two years from its issuance; provided that any LC may provide for
\n automatic renewal for successive twelve month periods (but no renewal
\n period may extend beyond the thirtieth (30th) day prior to the Facility
\n A Termination Date) unless Administrative Agent has given prior notice
\n to the applicable beneficiary of its election not to extend such LC.<\/p>\n
(b) Immediately upon the issuance by Administrative Agent of
\n any LC, Administrative Agent<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 19
\n 25
\n shall be deemed to have sold and transferred to each other Facility A
\n Lender, and each other such Facility A Lender shall be deemed
\n irrevocably and unconditionally to have purchased and received from
\n Administrative Agent, without recourse or warranty, an undivided
\n interest and participation, to the extent of such Facility A Lender’s
\n Pro Rata Part in such LC (calculated from time to time at the Dollar-
\n Equivalent amount of such LC) and all Rights of Administrative Agent in
\n respect thereof (other than Rights to receive certain fees provided for
\n in SECTION 2.2(c)).<\/p>\n
(c) In order to induce Administrative Agent to issue and
\n maintain LCs and Facility A Lenders to participate therein, Borrower
\n agrees to pay or reimburse Administrative Agent (i) on the date on which
\n any draft is presented under any LC, the Dollar-Equivalent amount
\n (calculated at the then Dollar-Equivalent of such amount) of any draft
\n paid or to be paid by Administrative Agent and (ii) promptly, upon
\n demand, the amount of any fees in addition to the fees described in
\n SECTION 4 Administrative Agent customarily charges to a Person similarly
\n situated in the ordinary course of its business for amending LC
\n Agreements, for honoring drafts, and taking similar action in connection
\n with letters of credit; provided that, (x) if Borrower has not
\n reimbursed Administrative Agent for any drafts paid or to be paid within
\n 24 hours of demand therefor by Administrative Agent, Administrative
\n Agent is hereby irrevocably authorized to fund such reimbursement
\n obligations (calculated at the then Dollar-Equivalent of such amount) as
\n a Borrowing under this Facility A Agreement to the extent of
\n availability under this Facility A Agreement; the proceeds of such
\n Borrowing under this Facility A Agreement shall be advanced directly to
\n Administrative Agent in payment of Borrower’s reimbursement obligation
\n with respect to the draft under the LC; and (y) if for any reason, funds
\n are not advanced pursuant to this Facility A Agreement, then Borrower’s
\n reimbursement obligation shall continue to be due and payable.
\n Borrower’s obligations under this SECTION 2.2(c) shall be absolute and
\n unconditional under any and all circumstances and irrespective of any
\n setoff, counterclaim, or defense to payment which Borrower may have at
\n any time against Administrative Agent or any other Person, and shall be
\n made in accordance with the terms and conditions of this Facility A
\n Agreement under all circumstances, including, without limitation, any of
\n the following circumstances: (A) any lack of validity or enforceability
\n of this Facility A Agreement or any of the Facility A Loan Papers; (B)
\n the existence of any claim, setoff, defense, or other Right which
\n Borrower may have at any time against a beneficiary named in a LC, any
\n transferee of any LC (or any Person for whom any such transferee may be
\n acting), Administrative Agent, any Facility A Lender, or any other
\n Person, whether in connection with this Facility A Agreement, any LC,
\n the transactions contemplated herein, or any unrelated transactions
\n (including any underlying transaction between Borrower and the
\n beneficiary named in any such LC); (C) any draft, certificate, or any
\n other document presented under the LC proving to be forged, fraudulent,
\n invalid, or insufficient in any respect or any statement therein being
\n untrue or inaccurate in any respect; and (D) the occurrence of any
\n Potential Default or Default. To the extent any funding of a draft has
\n been made by Facility A Lenders pursuant to SECTION 2.2(e) or under this
\n Facility A Agreement, Administrative Agent shall promptly distribute any
\n such payments received from Borrower with respect to such draft to all
\n Facility A Lenders funding such draft according to their ratable share.
\n Interest on any amounts remaining unpaid by Borrower (and unfunded by a
\n Borrowing under this Facility A Agreement) under this clause at any time
\n from and after the date such amounts become payable until paid in full
\n shall be payable by Borrower to Administrative Agent at the Default
\n Rate. In the event any payment by Borrower received by Administrative
\n Agent with respect to an LC and distributed to Facility A Lenders on
\n account of their participations therein is thereafter set aside,
\n avoided, or recovered from Administrative Agent in connection with any
\n receivership, liquidation, or bankruptcy proceeding, each Facility A
\n Lender which received such distribution shall, upon demand by
\n Administrative Agent, contribute such Facility A Lender’s ratable
\n portion of the amount (calculated at the then Dollar-Equivalent of such
\n amount) set aside, avoided, or recovered, together with interest at the
\n rate required to be paid by Administrative Agent upon the amount
\n required to be repaid by it.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 20
\n 26
\n (d) If any draft shall be presented for honor under any LC,
\n Administrative Agent shall promptly notify Borrower of the date and
\n amount of such draft (calculated at the then Dollar- Equivalent of such
\n amount); provided that, failure to give any such notice shall not affect
\n the obligations of Borrower hereunder. Administrative Agent shall make
\n payment (calculated at the then Dollar-Equivalent of such amount) upon
\n presentment of a draft for honor unless it appears that presentment on
\n its face does not comply with the terms of such LC, regardless of
\n whether (i) any default or potential default under any other agreement
\n has occurred and (ii) the obligations under any other agreement have
\n been performed by the beneficiary or any other Person (and
\n Administrative Agent shall not be liable for any obligation of any
\n Person thereunder). Administrative Agent and Facility A Lenders shall
\n not be responsible for, and Borrower’s reimbursement obligations for
\n honored drafts shall not be affected by, any matter or event whatsoever
\n (including, without limitation, the validity or genuineness of documents
\n or of any endorsements thereof, even if such documents should in fact
\n prove to be in any respect invalid, fraudulent, or forged), or any
\n dispute among any Consolidated Company, the beneficiary of any LC, or
\n any other Person to whom any LC may be transferred, or any claims
\n whatsoever of any Consolidated Company against any beneficiary of any LC
\n or any such transferee; provided that, nothing in this Facility A
\n Agreement shall constitute a waiver of Borrower’s Rights to assert any
\n claim based upon the gross negligence or wilful misconduct of
\n Administrative Agent or any Facility A Lender.<\/p>\n
(e) If Borrower fails to reimburse Administrative Agent as
\n provided in SECTION 2.2(c) within 24 hours of the demand therefor by
\n Administrative Agent, Administrative Agent shall promptly notify each
\n Facility A Lender of such failure, of the date and amount of the draft
\n (calculated at the then Dollar-Equivalent of such amount) paid, and of
\n such Facility A Lender’s Pro Rata Part thereof. Each Facility A Lender
\n shall promptly and unconditionally make available to Administrative
\n Agent in immediately available funds such Facility A Lender’s Pro Rata
\n Part of such unpaid reimbursement obligation (calculated at the then
\n Dollar-Equivalent of such amount), which funds shall be paid to
\n Administrative Agent on or before the close of business on the Business
\n Day on which such notice was given by Administrative Agent (if given
\n prior to 1:00 p.m., Dallas, Texas time) or on the next succeeding
\n Business Day (if notice was given after 1:00 p.m., Dallas, Texas time).
\n All such amounts payable by any such Facility A Lender shall include
\n interest thereon accruing at the Federal Funds Rate from the day the
\n applicable draft is paid by Administrative Agent to (but not including)
\n the date such amount is paid by such Facility A Lender to Administrative
\n Agent. The obligations of Facility A Lenders to make payments to
\n Administrative Agent with respect to LCs shall be irrevocable and not
\n subject to any qualification or exception whatsoever (other than the
\n gross negligence or wilful misconduct of Administrative Agent) and shall
\n be made in accordance with the terms and conditions of this Facility A
\n Agreement under all circumstances, including, without limitation, any of
\n the following circumstances: (i) any lack of validity or enforceability
\n of this Facility A Agreement or any of the Facility A Loan Papers; (ii)
\n the existence of any claim, setoff, defense, or other Right which
\n Borrower may have at any time against a beneficiary named in a LC, any
\n transferee of any LC (or any Person for whom any such transferee may be
\n acting), Administrative Agent, any Facility A Lender, or any other
\n Person, whether in connection with this Facility A Agreement, any LC,
\n the transactions contemplated herein, or any unrelated transactions
\n (including any underlying transaction between Borrower and the
\n beneficiary named in any such LC); (iii) any draft, certificate, or any
\n other document presented under the LC proving to be forged, fraudulent,
\n invalid, or insufficient in any respect or any statement therein being
\n untrue or inaccurate in any respect; and (iv) the occurrence of any
\n Potential Default or Default.<\/p>\n
(f) Borrower acknowledges that each LC will be deemed issued
\n upon delivery to its beneficiary or Borrower. If Borrower requests any
\n LC be delivered to Borrower rather than the beneficiary, and Borrower
\n subsequently cancels such LC, Borrower agrees to return it to
\n Administrative<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 21
\n 27
\n Agent together with Borrower’s written certification that it has never
\n been delivered to such beneficiary. If any LC is delivered to its
\n beneficiary pursuant to Borrower’s instructions, no cancellation thereof
\n by Borrower shall be effective without written consent of such
\n beneficiary to Administrative Agent and return of such LC to
\n Administrative Agent. Borrower hereby agrees that if Administrative
\n Agent becomes involved in any dispute as a result of Borrower’s
\n cancellation of any LC, it shall indemnify Administrative Agent and
\n Facility A Lenders for all losses, costs, damages, expenses, and
\n reasonable attorneys’ fees suffered or incurred by Administrative Agent
\n and Facility A Lenders as a direct result thereof.<\/p>\n
(g) Administrative Agent agrees with each Facility A Lender
\n that it will exercise and give the same care and attention to each LC as
\n it gives to its other letters of credit, and Administrative Agent’s sole
\n liability to each Facility A Lender with respect to such LCs (other than
\n liability arising from the gross negligence or willful misconduct of
\n Administrative Agent) shall be to distribute promptly to each Facility A
\n Lender who has acquired a participating interest therein such Facility A
\n Lender’s ratable portion of any payments made to Administrative Agent by
\n Borrower pursuant to SECTION 2.2(c). Each Facility A Lender and
\n Borrower agree that, in paying any draw under any LC, Administrative
\n Agent shall not have any responsibility to obtain any document (other
\n than any documents required by the respective LC) or to ascertain or
\n inquire as to the validity or accuracy of any such document or the
\n authority of the Person delivering any such document. Administrative
\n Agent, Facility A Lenders, and their respective Representatives shall
\n not be liable to any other Facility A Lender or any Consolidated Company
\n for the use which may be made of any LC or for any acts or omissions of
\n any beneficiary thereof in connection therewith. Any action, inaction,
\n error, delay, or omission taken or suffered by Administrative Agent or
\n any of its Representatives under or in connection with any LC, the
\n draws, drafts, or documents relating thereto, or the transmission,
\n dispatch, or delivery of any message or advice related thereto, if in
\n good faith and in conformity with such Laws as Administrative Agent or
\n any of its Representatives may deem applicable and in accordance with
\n the standards of care specified in the Uniform Customs and Practice for
\n Documentary Credits, as in effect on the date of issue of such LC by the
\n International Chamber of Commerce, shall be binding upon the
\n Consolidated Companies and Facility A Lenders and shall not place
\n Administrative Agent or any of its Representatives under any resulting
\n liability to any Consolidated Company or any Facility A Lender. Any
\n action taken or omitted to be taken by Administrative Agent under or in
\n connection with any LC if taken or omitted in the absence of gross
\n negligence or wilful misconduct shall not create for Administrative
\n Agent any resulting liability to any Facility A Lender or any
\n Consolidated Company.<\/p>\n
(h) On the Facility A Termination Date or upon any demand by
\n Administrative Agent upon the occurrence and during continuance of a
\n Default, Borrower shall provide to Administrative Agent, for the benefit
\n of Facility A Lenders, (i) cash collateral in an amount equal to the LC
\n Exposure existing on such date (calculated at the then Dollar-Equivalent
\n of such amount) and (ii) such additional cash collateral as
\n Administrative Agent may from time to time require to adjust for
\n fluctuations in exchange rates, so that the cash collateral amount shall
\n at all times equal or exceed the LC Exposure (calculated at the then
\n Dollar-Equivalent of such amount).<\/p>\n
(i) IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE PROVIDED IN
\n THIS FACILITY A AGREEMENT, BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY,
\n PAY (CALCULATED AT THE THEN DOLLAR-EQUIVALENT OF SUCH AMOUNT) AND SAVE
\n ADMINISTRATIVE AGENT AND EACH FACILITY A LENDER HARMLESS FROM AND
\n AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF,
\n OR OWED TO THIRD PARTIES, AND ANY AND ALL RELATED COSTS, CHARGES, AND
\n EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES, INCLUDING ALLOCATED COST
\n OF INTERNAL COUNSEL), WHICH ADMINISTRATIVE AGENT, OR ANY FACILITY A
\n LENDER MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR INDIRECT,
\n OF (A) THE ISSUANCE OF ANY LC, OR (B) THE FAILURE OF ADMINISTRATIVE
\n AGENT<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 22
\n 28
\n TO HONOR A DRAFT UNDER SUCH LC AS A RESULT OF ANY ACT OR OMISSION,
\n WHETHER RIGHTFUL OR WRONGFUL, OF ANY PRESENT OR FUTURE GOVERNMENTAL
\n AUTHORITY; PROVIDED THAT, BORROWER SHALL HAVE NO LIABILITY TO INDEMNIFY
\n ADMINISTRATIVE AGENT OR ANY FACILITY A LENDER IN RESPECT OF ANY
\n LIABILITY ARISING OUT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF
\n SUCH PARTY OR ANY REPRESENTATIVES OF SUCH PARTY. THE PROVISIONS OF AND
\n UNDERTAKINGS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 2.2(I) SHALL
\n SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION
\n OF THIS FACILITY A AGREEMENT.<\/p>\n
(j) Although referenced in any LC, terms of any particular
\n agreement or other obligation to the beneficiary are not in any manner
\n incorporated herein. The fees and other amounts payable with respect to
\n each LC shall be as provided in this Facility A Agreement, drafts under
\n any LC shall be deemed part of the Obligation, and in the event of any
\n conflict between the terms of this Facility A Agreement and any LC
\n Agreement, the terms of this Facility A Agreement shall be controlling.<\/p>\n
2.3 Swing Line Subfacility.<\/p>\n
(a) Subject to the terms and conditions hereof and relying
\n upon the representations and warranties herein set forth, each Swing
\n Line Lender agrees, severally and not jointly, on and after the Closing
\n Date and until the earlier of the Business Day immediately preceding the
\n Facility A Termination Date or the termination of the Swing Line
\n Committed Sum of such Swing Line Lender, (i) to make available to
\n Borrower requested Swing Line Borrowings (“QUOTED SWING LINE
\n BORROWINGS”) on the basis of quoted interest rates (each, a “QUOTED
\n SWING LINE RATE”) furnished by such Swing Line Lender from time to time
\n in its discretion to Borrower (through Administrative Agent) and
\n accepted by Borrower in its discretion and (ii) to lend to Borrower such
\n Swing Line Lender’s Percentage Part of any requested Swing Line
\n Borrowing (“ALTERNATE RATE SWING LINE BORROWINGS”), bearing interest at
\n a rate equal to the Alternate Rate; provided that, (A) the aggregate
\n Swing Line Principal Debt outstanding on any date of determination shall
\n not exceed the Swing Line Commitment; (B) on any date of determination,
\n the Facility A Commitment Usage shall never exceed the Facility A
\n Commitment; (C) at the time of such Swing Line Borrowing, no Default or
\n Potential Default shall have occurred and be continuing; (D) no Swing
\n Line Borrowing may be made on any date on which a Borrowing under
\n Facility A pursuant to SECTION 2.1 is being made; (E) no additional
\n Swing Line Borrowing shall be made at any time after any Facility A
\n Lender has refused, notwithstanding the requirements of SECTIONS 2.3(c)
\n and (d), to either fund a Borrowing under Facility A or to purchase a
\n participation in the Swing Line Principal Debt as required in such
\n Sections (such unavailability of the Swing Line Subfacility shall
\n continue until such funding or purchase shall occur or until the Swing
\n Line Principal Debt has been repaid); and (F) at any time after Facility
\n A Lenders are deemed to have purchased a participation in any Unrefunded
\n Swing Line Borrowing pursuant to SECTION 2.3(d), such Unrefunded Swing
\n Line Borrowings shall bear interest at the Default Rate. On any date of
\n determination, (i) as a result of Quoted Swing Line Borrowings, the
\n Swing Line Principal Debt owed to any Swing Line Lender may exceed such
\n Swing Line Lender’s Swing Line Committed Sum and (ii) as a result of
\n Swing Line Borrowings, the Facility A Principal Debt owed to any Swing
\n Line Lender may exceed its Facility A Commitment. Each Quoted Swing
\n Line Borrowing shall be made only by the Swing Line Lender furnishing
\n the relevant Quoted Swing Line Rate. Each Alternate Rate Swing Line
\n Borrowing shall be made by all Swing Line Lenders ratably in accordance
\n with their respective Percentage Parts. Swing Line Borrowings shall be
\n made in a minimum aggregate principal amount of $1,000,000 or an
\n integral multiple of $250,000 if in excess thereof (or an aggregate
\n principal amount equal to the remaining balance of the available Swing
\n Line Commitment). Each Swing Line Lender shall make the portion of each
\n Swing Line Borrowing to be made by it available to Borrower by means of
\n a credit to the general deposit account of Borrower with Administrative
\n Agent or by a wire transfer, at the expense of Borrower, to an account
\n designated in writing by Borrower, in each case by 2:30 p.m, Dallas,
\n Texas time, on the date such Swing Line Borrowing is requested to be
\n made pursuant to SECTION 2.3(b) below, in immediately available funds.
\n Borrower may borrow, prepay, and reborrow Swing Line Borrowings on<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 23
\n 29
\n or after the Closing Date and prior to the Facility A Termination Date
\n (or such earlier date on which the Swing Line Commitment shall terminate
\n in accordance herewith) on the terms and subject to the conditions and
\n limitations set forth herein.<\/p>\n
(b) Borrowings under the Swing Line Subfacility shall be
\n subject to those terms and conditions applicable to Borrowings as set
\n forth in SECTIONS 5.2(c), (d), (e), and (f). Borrower shall give
\n Administrative Agent telephonic, written, or telecopy notice
\n substantially in the form of EXHIBIT B-7 (provided that, in the case of
\n telephonic notice, such notice shall be promptly confirmed by telecopy)
\n no later than 1:30 p.m., Dallas, Texas time (or, in the case of a
\n proposed Quoted Swing Line Borrowing, 11:00 a.m., Dallas, Texas time),
\n on the day of a proposed Swing Line Borrowing. Such notice shall be
\n delivered on a Business Day, shall be irrevocable (subject, in the case
\n of Quoted Swing Line Borrowings, to receipt by Borrower of Quoted Swing
\n Line Rates acceptable to it) and shall refer to this Facility A
\n Agreement and shall specify the requested Borrowing Date (which shall be
\n a Business Day) and the amount of such requested Swing Line Borrowing.
\n Administrative Agent shall promptly advise the Swing Line Lenders of any
\n notice received from Borrower pursuant to this SECTION 2.3(b). In the
\n event that Borrower accepts a Quoted Swing Line Rate in respect of a
\n requested Quoted Swing Line Borrowing, Borrower shall notify
\n Administrative Agent (which shall in turn notify the relevant Swing Line
\n Lender) of such acceptance no later than 1:30 p.m., Dallas, Texas time,
\n on the relevant Borrowing Date.<\/p>\n
(c) Upon the occurrence of a Default or in the event that any
\n Swing Line Borrowing shall be outstanding for more than five Business
\n Days, Administrative Agent shall, on behalf of Borrower (which hereby
\n irrevocably directs and authorizes Administrative Agent to act on its
\n behalf), request a Base Rate Borrowing from the Facility A Lenders,
\n including the Swing Line Lenders (and each Facility A Lender shall fund
\n its Pro Rata Part of), in an amount sufficient to repay the Swing Line
\n Principal Debt outstanding under such Swing Line Borrowing; provided
\n that, such Borrowings under Facility A shall be made notwithstanding
\n Borrower’s noncompliance with SECTION 5.2. Each Facility A Lender will
\n remit its Pro Rata Part of such Borrowing to Administrative Agent for
\n the account of the Swing Line Lenders at the office of Administrative
\n Agent prior to 12:00 Noon, Dallas, Texas time, in funds immediately
\n available on the Business Day next succeeding the date such notice is
\n given. The proceeds of such Borrowings under Facility A shall be
\n immediately applied to repay such Swing Line Borrowing.<\/p>\n
(d) If, for any reason, Borrowings under Facility A may not be
\n (as determined by Administrative Agent in its sole discretion), or are
\n not, made pursuant to SECTION 2.3(c) to repay any Swing Line Borrowing
\n as required by such Section, then, effective on the date such Borrowing
\n under Facility A would otherwise have been made, each Lender severally,
\n unconditionally, and irrevocably agrees that it shall be deemed to have
\n purchased an undivided participating interest in such Swing Line
\n Borrowings (“UNREFUNDED SWING LINE BORROWINGS”) to the extent of such
\n Facility A Lender’s Pro Rata part thereof. Each Facility A Lender shall
\n fund a Borrowing under Facility A or a participation in the Unrefunded
\n Swing Line Borrowings no later than the close of business on the date
\n notice of such funding requirement is given by Administrative Agent if
\n such notice was given prior to 12:00 noon, Dallas, Texas time, on any
\n Business Day, or if made at any other time, on the next Business Day
\n following the date of such notice. All such amounts payable by any
\n Facility A Lender under this SECTION 2.3(d) shall include interest
\n thereon from the date on which such payment is payable by such Facility
\n A Lender to, but not including, the date such amount is paid by such
\n Facility A Lender to Administrative Agent, at the Federal Funds Rate.
\n If such Facility A Lender does not promptly pay such amount upon
\n Administrative Agent’s demand therefor, and until such time as such
\n Facility A Lender makes the required payment, each Swing Line Lender
\n shall be deemed to continue to have outstanding its ratable portion of
\n the Swing Line Principal Debt in the amount of such unpaid obligation.
\n Each payment by Borrower of all or any part of any Swing<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 24
\n 30
\n Line Borrowings shall be paid to Administrative Agent for the benefit of
\n the applicable Swing Line Lender (in the case of a Quoted Swing Line
\n Borrowing) or (in the case of Alternate Rate Swing Line Borrowings) for
\n the benefit of the Swing Line Lenders and those Facility A Lenders who
\n hold funded participations in such Unrefunded Swing Line Borrowings
\n under this SECTION 2.3(d); provided that, with respect to any such
\n participation, all interest on the Swing Line Principal Debt to which
\n such participation relates, accruing prior to the date of funding such
\n participation, shall be payable solely to Administrative Agent for the
\n account of the Swing Line Lenders (and all Facility A Lenders holding
\n funded participations in any Unrefunded Swing Line Borrowing prior to
\n such date). Any Lender holding a participation in any Unrefunded Swing
\n Line Borrowing may exercise any and all Rights of banker’s lien, setoff,
\n or counterclaim with respect to any and all moneys owing by Borrower to
\n such Facility A Lender by reason thereof as fully as if such Facility A
\n Lender had extended such Borrowing under Facility A directly to Borrower
\n in the amount of such participation.<\/p>\n
(e) Whenever, at any time after any Swing Line Lender has
\n received from any Facility A Lender such Facility A Lender’s
\n participating interest in any Swing Line Borrowing, such Swing Line
\n Lender receives any payment on account thereof, such Swing Line Lender
\n will promptly distribute to such Facility A Lender its participating
\n interest in such amount (appropriately adjusted, in the case of interest
\n payments, to reflect the period of time during which such Facility A
\n Lender’s participating interest was outstanding and funded); provided,
\n however, that in the event that such payment received by such Swing Line
\n Lender is required to be returned, such Facility A Lender will return to
\n such Swing Line Lender any portion thereof previously distributed by
\n such Swing Line Lender to it.<\/p>\n
(f) Notwithstanding anything to the contrary in this Facility
\n A Agreement, each Facility A Lender’s obligation to fund the Facility A
\n Borrowings referred to in SECTION 2.3(c) and to purchase and fund
\n participating interests pursuant to SECTION 2.3(d) shall be absolute and
\n unconditional and shall not be affected by any circumstance, including,
\n without limitation, (i) any setoff, counterclaim, recoupment, defense,
\n or other right which such Facility A Lender or Borrower may have against
\n any Swing Line Lender, Borrower, or any other Person for any reason
\n whatsoever; (ii) the occurrence or continuance of a Potential Default or
\n a Default or the failure to satisfy any of the conditions specified in
\n SECTION 5; (iii) any adverse change in the condition (financial or
\n otherwise) of Borrower or any of its Subsidiaries; (iv) any breach of
\n this Facility A Agreement by Borrower or any Facility A Lender; or (v)
\n any other circumstance, happening, or event whatsoever, whether or not
\n similar to any of the foregoing.<\/p>\n
(g) Upon written or telecopy notice to the Swing Line Lenders
\n and to Administrative Agent, Borrower may at any time terminate, or
\n from time to time reduce in part or increase (with the approval of the
\n relevant Swing Line Lender), the Swing Line Committed Sum of any Swing
\n Line Lender, so long as the Swing Line Commitment is not increased. At
\n any time when there shall be fewer than seven Swing Line Lenders,
\n Borrower may appoint from among the Facility A Lenders a new Swing Line
\n Lender, subject to the prior consent of such new Swing Line Lender and
\n prior notice to Administrative Agent, so long as at no time shall there
\n be more than seven Swing Line Lenders. Notwithstanding anything to the
\n contrary in this Facility A Agreement, (i) if any Alternate Rate Swing
\n Line Borrowings shall be outstanding at the time of any termination,
\n reduction, increase, or appointment pursuant to the preceding two
\n sentences, Borrower shall on the date thereof prepay or borrow Alternate
\n Rate Swing Line Borrowings to the extent necessary to ensure that at all
\n times the outstanding Alternate Rate Swing Line Borrowings held by the
\n Swing Line Lenders shall be ratable according to the respective Swing
\n Line Committed Sums of the Swing Line Lenders and (ii) in no event may
\n the aggregate Swing Line Committed Sums of the Swing Line Lenders exceed
\n the Swing Line Commitment then in effect. On the date of any
\n termination or reduction of Swing Line Committed<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 25
\n 31
\n Sums pursuant to this SECTION 2.3(g), Borrower shall pay or prepay so
\n much of the Swing Line Principal Debt as shall be necessary in order
\n that, after giving effect to such termination or reduction, (i) the
\n aggregate outstanding principal amount of the Alternate Rate Swing Line
\n Borrowings of any Swing Line Lender will not exceed the Swing Line
\n Committed Sum of such Swing Line Lender and (ii) the aggregate
\n outstanding principal amount of all Swing Line Borrowings will not
\n exceed the Swing Line Commitment then in effect.<\/p>\n
(h) Borrower may prepay any Swing Line Borrowing in whole or
\n in part at any time without premium or penalty; provided that, Borrower
\n shall have given the Administrative Agent written or telecopy notice (or
\n telephone notice promptly confirmed in writing or by telecopy) of such
\n prepayment not later than 9:30 a.m., Dallas, Texas time, on the Business
\n Day designated by Borrower for such prepayment; and provided further
\n that, each partial prepayment shall be in a minimum principal amount of
\n $1,000,000 or an integral multiple of $250,000 if in excess thereof.
\n Each notice of prepayment under this SECTION 2.3(h) shall specify the
\n prepayment date and the principal amount of each Swing Line Borrowing
\n (or portion thereof) to be prepaid, shall be irrevocable, and shall
\n commit Borrower to prepay such Swing Line Borrowing (or portion thereof)
\n by the amount stated therein on the date stated therein. All accrued
\n interest on Swing Line Borrowings is payable quarterly in arrears. Each
\n payment of principal of or interest on Alternate Rate Swing Line
\n Borrowings shall be allocated, as between the Swing Line Lenders,
\n ratably in accordance with their respective Swing Line Committed Sums.<\/p>\n
2.4 Competitive Bid Subfacility.<\/p>\n
(a) In addition to Borrowings under Facility A otherwise
\n provided for herein, but subject to the terms and conditions of the
\n Facility A Loan Papers, Borrower may, as set forth in this SECTION 2.4,
\n request Facility A Lenders to make offers to make Competitive Borrowings
\n under Facility A. Facility A Lenders may, but shall have no obligation
\n to, make any such offers, and Borrower may, but shall have no obligation
\n to, accept any such offers. Any Competitive Borrowings made available
\n to Borrower hereunder shall be subject, however, to the conditions that
\n on any date of determination: (i) the aggregate principal outstanding
\n under all Competitive Borrowings under Facility A made by all Facility A
\n Lenders shall not exceed the Facility A Commitment then in effect; (ii)
\n on any date of determination, the Facility A Commitment Usage shall not
\n exceed the Facility A Commitment; and (iii) each Borrowing under the
\n Competitive Bid Subfacility in respect of Facility A must occur on a
\n Business Day and prior to the Business Day immediately preceding the
\n Facility A Termination Date.<\/p>\n
(b) In order to request Competitive Bids, Borrower shall
\n deliver a Competitive Bid Request to Administrative Agent (i) not later
\n than 10:00 a.m. Dallas, Texas time on the fourth Business Day preceding
\n the Borrowing Date for any requested Competitive Borrowing that will be
\n comprised of Eurodollar Rate Borrowings, or (ii) not later than 10:00
\n a.m. Dallas, Texas time one Business Day before the Borrowing Date for
\n any requested Competitive Borrowing that will be comprised of Fixed Rate
\n Borrowings. A Competitive Bid Request that does not conform
\n substantially to the format of EXHIBIT B-4 may be rejected by
\n Administrative Agent, and Administrative Agent shall promptly notify
\n Borrower of such rejection. Each Competitive Bid Request shall refer to
\n this Facility A Agreement and shall specify (i) whether the Competitive
\n Borrowing then being requested will be comprised of Eurodollar Rate
\n Borrowings or Fixed Rate Borrowings, (ii) the Borrowing Date of such
\n Competitive Borrowing (which shall be a Business Day) and the aggregate
\n principal amount thereof (which shall not be less than $5,000,000 or a
\n greater integral multiple of $1,000,000), and (iii) the Interest Period
\n with respect thereto (which may not be more than six months and which
\n may not extend beyond the Facility A Termination Date). Promptly after
\n its receipt of a Competitive Bid Request that is not rejected as
\n aforesaid, Administrative Agent shall notify<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 26
\n 32
\n Facility A Lenders of the Competitive Bid Request on a form
\n substantially similar to EXHIBIT B-5 hereto, pursuant to which the
\n Facility A Lenders are invited to bid, subject to the terms and
\n conditions of this Facility A 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 Facility A Lender to make a Competitive Bid pursuant to this SECTION 2.4
\n until such Facility A Lender has delivered a completed Administrative
\n Questionnaire to Administrative Agent.<\/p>\n
(c) Each Facility A Lender may make one or more Competitive
\n Bids to Borrower responsive to each respective Competitive Bid Request.
\n Each Competitive Bid by a Facility A Lender must be received by
\n Administrative Agent substantially in the form of EXHIBIT B-6, (i) no
\n later than 11:00 a.m. Dallas, Texas time on the third Business Day
\n preceding the Borrowing Date for any requested Competitive Borrowing
\n that will be comprised of Eurodollar Rate Borrowings, or (ii) prior to
\n 10:00 a.m. Dallas, Texas time on the Borrowing Date for any requested
\n Competitive Borrowing that will be comprised of Fixed Rate Borrowings.
\n Competitive Bids that do not conform substantially to the format of
\n EXHIBIT B-6 may be rejected by Administrative Agent after conferring
\n with, and upon the instruction of, Borrower, and Administrative Agent
\n shall notify the appropriate Facility A Lender of such rejection as soon
\n as practicable. Each Competitive Bid shall refer to this Facility A
\n Agreement and shall (x) specify the principal amount (which shall be in
\n a minimum principal amount of $5,000,000 or a greater integral multiple
\n of $1,000,000 and which may equal the entire principal amount of the
\n Competitive Borrowing requested by Borrower and may exceed such Facility
\n A Lender’s Committed Sum under Facility A, subject to the limitations
\n set forth in SECTION 2.4(A) hereof) of the Competitive Borrowing such
\n Facility A Lender is willing to make to Borrower, (y) specify the
\n Competitive Bid Rate at which such Facility A Lender is prepared to make
\n its Competitive Borrowing, and (z) confirm the Interest Period with
\n respect thereto specified by Borrower in its Competitive Bid Request. A
\n Competitive Bid submitted by a Facility A Lender pursuant to this
\n SECTION 2.4(C) shall be irrevocable.<\/p>\n
(d) Administrative Agent shall promptly notify Borrower of all
\n Competitive Bids made and the Competitive Bid Rate and the principal
\n amount of each Competitive Borrowing in respect of which a Competitive
\n Bid was made and the identity of the Facility A Lender that made each
\n bid.<\/p>\n
(e) Borrower may, subject only to the provisions of this
\n SECTION 2.4(e), accept or reject any or all of the Competitive Bids for
\n Facility A referred to in SECTION 2.4(c); provided, however, that the
\n aggregate amount of the Competitive Bids so accepted by Borrower may not
\n exceed the principal amount of the Competitive Borrowing requested by
\n Borrower (subject to the further limitations of SECTION 2.4(a) hereof).
\n Borrower shall notify Administrative Agent whether and to what extent it
\n has decided to accept or reject any or all of the bids referred to in
\n SECTION 2.4(c), (i) not later than 10:45 a.m. Dallas, Texas time three
\n Business Days before the Borrowing Date specified for a proposed
\n Competitive Borrowing that is deemed a Eurodollar Rate Borrowing or (ii)
\n not later than 11:00 a.m., Dallas, Texas time on the day specified for a
\n proposed Competitive Borrowing that is deemed a Fixed Rate Borrowing;
\n provided, however, that (w) the failure by Borrower to give such notice
\n shall be deemed to be a rejection of all the bids referred to in SECTION
\n 2.4(c), (x) Borrower shall not accept a bid under Facility A in the same
\n or lower principal amount made at a particular Competitive Bid Rate if
\n Borrower has decided to reject a bid made at a lower Competitive Bid
\n Rate, (y) if Borrower shall accept bids made at a particular Competitive
\n Bid Rate but shall be restricted by other conditions hereof from
\n borrowing the principal amount of the Competitive Borrowing in respect
\n of which bids at such Competitive Bid Rate have been made, then Borrower
\n shall accept a ratable portion of each bid made at such Competitive Bid
\n Rate based as nearly as possible on the respective principal amounts of
\n the Competitive Borrowing for which such bids were made, and (z) no bid
\n shall be accepted for a Competitive Borrowing under Facility A unless
\n the aggregate principal amount to<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 27
\n 33
\n be funded pursuant to all accepted bids under this Facility A shall be
\n in a minimum amount of $5,000,000 or a greater integral multiple of
\n $1,000,000 for each respective Facility A Lender whose bid is accepted.
\n Notwithstanding the foregoing, if it is necessary for Borrower to accept
\n a ratable allocation of the bids for Facility A made in response to a
\n Competitive Bid Request (whether pursuant to the events specified in
\n CLAUSE (y) above or otherwise) and the available principal amount of the
\n Competitive Borrowing to be allocated among the Facility A Lenders
\n submitting Competitive Bids is not sufficient to enable Competitive
\n Borrowings to be allocated to each such Facility A Lender in a minimum
\n principal amount of $5,000,000 or a greater integral multiple of
\n $1,000,000, then Borrower shall select the Facility A Lenders to be
\n allocated such Competitive Borrowings and shall round allocations up or
\n down to the next higher or lower multiple of $500,000 as it shall deem
\n appropriate. A notice given by Borrower pursuant to this SECTION 2.4(e)
\n shall be irrevocable.<\/p>\n
(f) Administrative Agent shall promptly notify each bidding
\n Facility A Lender whether or not its Competitive Bid has been accepted
\n (which notice to those Facility A Lenders whose Competitive Bids have
\n been 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 Facility A Lender of the aggregate principal amount of all
\n Competitive Bids under Facility A accepted for and the range of
\n Competitive Bid Rates submitted in connection with that Competitive
\n Borrowing.<\/p>\n
(g) If Administrative Agent shall at any time elect to submit
\n a Competitive Bid in its capacity as a Facility A Lender, it shall
\n submit such bid directly to Borrower one-half hour earlier than the
\n latest time at which the other Facility A Lenders are required to submit
\n their bids to Administrative Agent pursuant to SECTION 2.4(c).<\/p>\n
(h) Each Competitive Borrowing shall be due and payable on the
\n last day of the applicable Interest Period; provided that if Borrower
\n fails to repay any Competitive Borrowing on such day, Borrower shall be
\n deemed to have given a Notice of Borrowing requesting the Facility A
\n Lenders to make a Base Rate Borrowing under Facility A in the amount of
\n such Competitive Borrowing, subject to satisfaction of the conditions
\n specified in SECTIONS 2.1 and 5.2; provided that failure to repay such
\n Competitive Borrowing on the last day of the applicable Interest Period
\n shall not constitute a failure to satisfy such conditions.<\/p>\n
2.5 Termination of Commitments. Without premium or penalty, and upon
\ngiving not less than three (3) Business Days prior written and irrevocable
\nnotice to Administrative Agent, Borrower may terminate in whole or in part the
\nunused portion of the Facility A Commitment; provided that: (a) each partial
\ntermination shall be in an amount of not less than $5,000,000 or a greater
\nintegral multiple of $1,000,000; (b) the amount of the Facility A Commitment
\nmay not be reduced below the Facility A Commitment Usage; and (c) each
\nreduction shall be allocated Pro Rata among the Facility A Lenders in
\naccordance with their respective Pro Rata Parts. Promptly after receipt of
\nsuch notice of termination or reduction, Administrative Agent shall notify each
\nFacility A Lender of the proposed cancellation or reduction. Such termination
\nor partial reduction of the Facility A Commitment shall be effective on the
\nBusiness Day specified in Borrower’s notice (which date must be at least three
\n(3) Business Days after Borrower’s delivery of such notice). In the event that
\nthe Facility A Commitment is reduced to zero at a time when there shall be no
\noutstanding LCs or Facility A Principal Debt, this Facility A Agreement shall
\nbe terminated to the extent specified in SECTION 11.14, and all commitment fees
\nand other fees then earned and unpaid hereunder and all other amounts of the
\nObligation relating to Facility A then due and owing shall be immediately due
\nand payable,<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 28
\n 34
\nwithout notice or demand by Administrative Agent or any Facility A Lender. The
\nSwing Line Commitment and the LC Commitment shall each be automatically and
\npermanently reduced from time to time in accordance with Borrower’s
\ninstructions on the date of each reduction in the Facility A Commitment such
\nthat the Swing Line Commitment and the LC Commitment do not exceed the Facility
\nA Commitment after giving effect to such reduction of the Facility A
\nCommitment. Each reduction in the Swing Line Commitment will be allocated
\namong the Swing Line Lenders in accordance with their respective Percentage
\nParts.<\/p>\n
2.6 Borrowing Procedure. The following procedures apply to
\nBorrowings under Facility A (other than Competitive Borrowings, Swing Line
\nBorrowings, and Borrowings pursuant to SECTIONS 2.2(c) and 2.3(d)):<\/p>\n
(a) Each Borrowing shall be made on Borrower’s notice (a
\n “NOTICE OF BORROWING,” substantially in the form of EXHIBIT B-1) to
\n Administrative Agent requesting that Facility A Lenders fund a Borrowing
\n on a 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 the
\n third Business Day preceding the Borrowing Date for any Eurodollar Rate
\n Borrowing or on the Business Day immediately preceding the Borrowing
\n Date for any Base Rate Borrowing. Administrative Agent shall timely
\n notify each Facility A Lender with respect to each Notice of Borrowing
\n relating to Facility A.<\/p>\n
(b) Each Facility A Lender shall remit its Pro Rata Part of
\n each requested Borrowing to Administrative Agent’s principal office in
\n Dallas, Texas, in funds which are or will be available for immediate use
\n by Administrative Agent by 1:00 p.m. Dallas, Texas time on the Borrowing
\n Date 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 Determining
\n Lenders) make such funds available to Borrower by causing such funds to
\n be deposited to Borrower’s account as designated to Administrative Agent
\n by Borrower. Notwithstanding the foregoing, unless Administrative Agent
\n shall have been notified by a Facility A Lender prior to a Borrowing
\n Date that such Facility A Lender does not intend to make available to
\n Administrative Agent such Facility A Lender’s Pro Rata Part of the
\n applicable Borrowing, Administrative Agent may assume that such Facility
\n A Lender has made such proceeds available to Administrative Agent on
\n such date, as required herein, and Administrative Agent may (unless to
\n its actual knowledge any of the conditions precedent therefor have not
\n been satisfied by Borrower or waived by Determining Lenders), in
\n reliance upon such assumption (but shall not be required to), make
\n available to Borrower a corresponding amount in accordance with the
\n foregoing terms, but, if such corresponding amount is not in fact made
\n available to Administrative Agent by such Facility A Lender on such
\n Borrowing Date, Administrative Agent shall be entitled to recover such
\n corresponding amount on demand (i) from such Facility A Lender, together
\n with interest at the Federal Funds Rate during the period commencing on
\n the date such corresponding amount was made available to Borrower and
\n ending on (but excluding) the date Administrative Agent recovers such
\n corresponding amount from such Facility A Lender, or (ii) if such
\n Facility A Lender fails to pay such corresponding amount forthwith upon
\n such demand, then from Borrower, together with interest at a rate per
\n annum equal to the applicable rate for such Borrowing during the period
\n commencing on such Borrowing Date and ending on (but excluding) the date
\n Administrative Agent recovers such corresponding amount from Borrower.
\n No Facility A Lender shall be responsible for the failure of any other
\n Facility A Lender to make its Pro Rata Part of any Borrowing.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 29
\n 35
\nSECTION 3 TERMS OF PAYMENT.<\/p>\n
3.1 Loan Accounts, Notes, and Payments.<\/p>\n
(a) The Facility A Principal Debt owed to each Facility A
\n Lender shall be evidenced by one or more loan accounts or records
\n maintained by such Facility A Lender in the ordinary course of business.
\n The loan accounts or records maintained by the Administrative Agent
\n (including, without limitation, the Register) and each Facility A Lender
\n shall be conclusive evidence absent manifest error of the amount of the
\n Borrowings made by Borrower from each Facility A Lender under Facility A
\n (and subfacilities thereunder) and the interest and principal payments
\n thereon. Any failure to so record or any error in doing so shall not,
\n however, limit or otherwise affect the obligation of Borrower under the
\n Loan Papers to pay any amount owing with respect to the Obligation.<\/p>\n
(b) Upon the request of any Facility A Lender made through the
\n Administrative Agent, the Facility A Principal Debt owed to such
\n Facility A Lender may be evidenced by one or more of the following Notes
\n (as the case may be): (i) a Facility A Note (with respect to Facility A
\n Principal Debt other than under the Swing Line Subfacility or the
\n Competitive Bid Subfacility); (ii) a Facility A Competitive Bid Note
\n (with respect to Principal Debt arising and outstanding under the
\n Competitive Bid Subfacility under Facility A); and (iii) a Swing Line
\n Note (with respect to Facility A Principal Debt arising under the Swing
\n Line Subfacility).<\/p>\n
(c) All payments of principal, interest, and other amounts to
\n be made by Borrower under this Facility A Agreement and the other
\n Facility A Loan Papers shall be made to Administrative Agent at its
\n principal office in Dallas, Texas in Dollars and in funds which are or
\n will be available for immediate use by Administrative Agent by 12:00
\n noon Dallas, Texas time on the day due, without setoff, deduction, or
\n counterclaim. Subject to the definition of “Interest Period” herein,
\n whenever any payment under this Facility A Agreement or any other Loan
\n Paper shall be stated to be due on a day that is not a Business Day,
\n such payment may be made on the next succeeding Business Day, and such
\n extension of time in such case shall be included in the computation of
\n interest and fees, as applicable and as the case may be. Payments made
\n after 12:00 noon, Dallas, Texas, time shall be deemed made on the
\n Business Day next following. Administrative Agent shall pay to each
\n Facility A Lender any payment of principal, interest, or other amount to
\n which such Facility A Lender is entitled hereunder on the same day
\n Administrative Agent shall have received the same from Borrower;
\n provided such payment is received by Administrative Agent prior to 12:00
\n noon Dallas, Texas time, and otherwise before 12:00 noon Dallas, Texas
\n time on the Business Day next following. If and to the extent
\n Administrative Agent shall not make such payments to Facility A Lenders
\n when due as set forth in the preceding sentence, such unpaid amounts
\n shall accrue interest, payable by Administrative Agent, at the Federal
\n Funds Rate from the due date until (but not including) the date on which
\n Administrative Agent makes such payments to Facility A 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 last
\n day of its respective Interest Period and on the Facility A Termination
\n Date, as applicable; provided that if any Interest Period is a period
\n greater than three (3) months, then accrued interest shall also be due
\n and payable on the date three (3) months after the commencement of such
\n Interest Period. Interest on each Base Rate Borrowing shall be due and
\n payable as it accrues on each March 31, June 30, September 30, and
\n December 31, and on the Facility A Termination Date.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 30
\n 36
\n (b) The Facility A Commitment shall be permanently canceled
\n and reduced to $0 on the Facility A Termination Date, and Borrower shall
\n pay on such Facility A Termination Date all outstanding Facility A
\n Principal Debt, together with all accrued and unpaid interest and fees.<\/p>\n
(c) On any date of determination, if the Facility A Commitment
\n Usage exceeds the Facility A Commitment then in effect (whether as a
\n result of fluctuations in exchange rates or otherwise), or if the Swing
\n Line Principal Debt exceeds the Swing Line Commitment then in effect,
\n then Borrower shall make a mandatory prepayment of the Facility A
\n Principal Debt in at least the amount of such excess, together with (i)
\n all accrued and unpaid interest on the principal amount so prepaid and
\n (ii) any Consequential Loss arising as a result thereof.<\/p>\n
(d) After giving Administrative Agent advance written notice
\n of the intent to prepay, Borrower may voluntarily prepay all or any part
\n of the Facility A Principal Debt from time to time and at any time, in
\n whole or in part, without premium or penalty; provided that: (i) such
\n notice must be received by Administrative Agent by 12:00 noon Dallas,
\n Texas time on (A) the third Business Day preceding the date of
\n prepayment of a Eurodollar Rate Borrowing, and (B) one Business Day
\n preceding the date of prepayment of a Base Rate Borrowing; (ii) each
\n such partial prepayment must be in a minimum amount of at least
\n $5,000,000 or a greater integral multiple of $1,000,000 thereof (if a
\n Eurodollar Rate Borrowing or a Base Rate Borrowing), or $250,000 or an
\n integral multiple thereof (if a Swing Line Borrowing); (iii) all accrued
\n interest on the Obligation must also be paid in full, to the date of
\n such prepayment; (iv) Borrower shall pay any related Consequential Loss
\n within ten (10) days after demand therefor; and (v) notwithstanding the
\n provisions of this SECTION 3.2(d), prepayments of any Swing Line
\n Borrowing shall be made in accordance with SECTION 2.3(h). Each notice
\n of prepayment shall specify the prepayment date, the facility or the
\n subfacility hereunder being prepaid, the Type of Borrowing(s) and
\n amount(s) of such Borrowing(s) to be prepaid and shall constitute a
\n binding obligation of Borrower to make a prepayment on the date stated
\n therein. Notwithstanding the foregoing, Borrower shall not voluntarily
\n prepay any Competitive Borrowing prior to the last day of the Interest
\n Period therefor.<\/p>\n
3.3 Interest Options. Except where specifically otherwise provided,
\nBorrowings shall bear interest at a rate per annum equal to the lesser of (a)
\nas to the respective Type of Borrowing (as designated by Borrower in accordance
\nwith this Facility A Agreement), the Base Rate plus the Applicable Margin for
\nBase Rate Borrowings, the Adjusted Eurodollar Rate plus the Applicable Margin
\nfor Eurodollar Rate Borrowings, any Competitive Bid Rate, the Quoted Swing Line
\nRate, or the Alternate Rate, as the case may be, and (b) the Maximum Rate.
\nEach change in the Base Rate, the Maximum Rate, the Quoted Swing Line Rate, or
\nthe Alternate Rate, subject to the terms of this Facility A Agreement, will
\nbecome effective, without notice to Borrower or any other Person, upon the
\neffective date of such change.<\/p>\n
3.4 Quotation of Rates. It is hereby acknowledged that a Responsible
\nOfficer or other appropriately designated employee of Borrower may call
\nAdministrative Agent on or before the date on which a Notice of Borrowing is to
\nbe delivered by Borrower in order to receive an indication of the rates then in
\neffect, but such indicated rates shall neither be binding upon Administrative
\nAgent or Facility A Lenders nor affect the rate of interest which thereafter is
\nactually 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; provided that the Default Rate shall automatically
\napply in the case of SECTIONS 2.2(c) and 2.3(a) where the Default Rate is
\nspecified.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 31
\n 37
\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 Facility A Principal Debt, the total
\namount of interest paid or accrued is less than the amount of interest which
\nwould have accrued if such designated rates had at all times been in effect,
\nthen, at such time and to the extent permitted by Law, Borrower shall pay an
\namount equal to the difference between (a) the lesser of the amount of interest
\nwhich would have accrued if such designated rates had at all times been in
\neffect and the amount of interest which would have accrued if the Maximum Rate
\nhad at all times been in effect, and (b) the amount of interest actually paid
\nor accrued on the Facility A Principal Debt.<\/p>\n
3.7 Interest Calculations.<\/p>\n
(a) All payments of interest shall be calculated on the basis
\n of actual number of days (including the first day but excluding the last
\n day) elapsed but computed as if each calendar year consisted of 360 days
\n in the case of a Eurodollar Rate Borrowing, a Fixed Rate Borrowing, Base
\n Rate Borrowings calculated with reference to the Federal Funds Rate or
\n Swing Line Borrowings accruing interest at the Quoted Swing Line Rate or
\n the Alternate Rate (unless such calculation would result in the interest
\n on the Borrowings exceeding the Maximum Rate in which event such
\n interest shall be calculated on the basis of a year of 365 or 366 days,
\n as the case may be) and 365 or 366 days, as the case may be, in the case
\n of a Base Rate Borrowing calculated with reference to Prime Rate. All
\n interest rate determinations and calculations by Administrative Agent
\n shall be conclusive and binding absent manifest error.<\/p>\n
(b) The provisions of this Facility A Agreement relating to
\n calculation of the Base Rate, the Adjusted Eurodollar Rate, the Quoted
\n Swing Line Rate, the Alternate Rate, and Competitive Bid Rates are
\n included only for the purpose of determining the rate of interest or
\n other amounts to be paid hereunder that are based upon such rate.<\/p>\n
3.8 Maximum Rate. Regardless of any provision contained in any Loan
\nPaper, no Lender shall ever be entitled to contract for, charge, take, reserve,
\nreceive, or apply, as interest on the Obligation, or any part thereof, any
\namount in excess of the Maximum Rate, and, if Facility A Lenders ever do so,
\nthen such excess shall be deemed a partial prepayment of principal and treated
\nhereunder as such and any remaining excess shall be refunded to Borrower. In
\ndetermining if the interest paid or payable exceeds the Maximum Rate, Borrower
\nand Facility A Lenders shall, to the maximum extent permitted under applicable
\nLaw, (a) treat all Borrowings as but a single extension of credit (and Facility
\nA Lenders and Borrower agree that such is the case and that provision herein
\nfor multiple Borrowings is for convenience only), (b) characterize any
\nnonprincipal payment as an expense, fee, or premium rather than as interest,
\n(c) exclude voluntary prepayments and the effects thereof, and (d) amortize,
\nprorate, allocate, and spread the total amount of interest throughout the
\nentire contemplated term of the Obligation; provided that, if the Obligation is
\npaid and performed in full prior to the end of the full contemplated term
\nthereof, and if the interest received for the actual period of existence
\nthereof exceeds the Maximum Amount, Facility A Lenders shall refund such
\nexcess, and, in such event, Facility A 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 or, if available to all Facility A
\nLenders, nine or twelve<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 32
\n 38
\nmonths (in respect of any Eurodollar Rate Borrowing) and any period of up to
\nsix (6) months (with respect to any Fixed Rate Borrowing); provided, however,
\nthat: (a) the initial Interest Period for a Eurodollar Rate Borrowing shall
\ncommence on the date of such Borrowing (including the date of any conversion
\nthereto), and each Interest Period occurring thereafter in respect of such
\nBorrowing shall commence on the day on which the next preceding Interest Period
\napplicable thereto expires; (b) if any Interest Period for a Eurodollar Rate
\nBorrowing begins on a day for which there is no numerically corresponding
\nBusiness Day in the calendar month at the end of such Interest Period, such
\nInterest Period shall end on the next Business Day immediately following what
\notherwise would have been such numerically corresponding day in the calendar
\nmonth at the end of such Interest Period (unless such date would be in a
\ndifferent calendar month from what would have been the month at the end of such
\nInterest Period, or unless there is no numerically corresponding day in the
\ncalendar month at the end of the Interest Period; whereupon, such Interest
\nPeriod shall end on the last Business Day in the calendar month at the end of
\nsuch Interest Period); (c) no Interest Period may be chosen with respect to any
\nportion of the Facility A Principal Debt which would extend beyond the
\nscheduled repayment date (including any dates on which mandatory prepayments
\nare required to be made) for such portion of the Principal Debt; and (d) no
\nmore than an aggregate of twenty (20) Interest Periods (including, without
\nlimitation, Interest Periods under Facility B) shall be in effect at one time.<\/p>\n
3.10 Conversions. Borrower may (a) convert a Eurodollar Rate
\nBorrowing on the last day of an Interest Period to a Base Rate Borrowing, (b)
\nconvert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
\n(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing),
\nby giving notice (a “NOTICE OF CONVERSION,” substantially in the form of
\nEXHIBIT B-2) of such intent no later than 10:00 a.m. Dallas, Texas time on the
\nthird Business Day prior to the date of conversion or the last day of the
\nInterest Period, as the case may be (in the case of a conversion to a
\nEurodollar Rate Borrowing or an election of a new Interest Period), and no
\nlater than 10:00 a.m. Dallas, Texas time one Business Day prior to the last day
\nof the Interest Period (in the case of a conversion to a Base Rate Borrowing);
\nprovided that the principal amount converted to, or continued as, a Eurodollar
\nRate Borrowing shall be in an amount not less than $10,000,000 or a greater
\nintegral multiple of $1,000,000. Administrative Agent shall timely notify each
\nFacility A Lender with respect to each Notice of Conversion. Absent Borrower’s
\nNotice of Conversion or election of a new Interest Period, a Eurodollar Rate
\nBorrowing shall be deemed converted to a Base Rate Borrowing effective as of
\nthe expiration 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 occurred
\n and is continuing, payments and prepayments of the Obligation shall be
\n applied in the order and manner as Borrower may direct; provided that,
\n each such payment or prepayment (other than payments of fees payable
\n solely to Administrative Agent, Facility B Administrative Agent, or a
\n specific Lender) shall be allocated to each Lender in the proportion
\n that the Principal Debt owed to such Lender bears to the Principal Debt
\n owed to all Lenders under the Facility (or Subfacility thereunder) in
\n respect of which such payment was 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 the
\n exercise of any Rights) shall be applied in the following order:<\/p>\n
(i) to the ratable payment of all fees and reasonable
\n expenses for which Facility A Agents, Facility B Agents, or
\n Lenders have not been paid or reimbursed in accordance with the<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 33
\n 39
\n Loan Papers; (as used in this SECTION 3.11(b)(I), a “ratable
\n payment” for any Lender, Facility A Agent, or Facility B Agent
\n shall be, on any date of determination, that proportion which the
\n portion of the total fees and indemnities owed to such Lender,
\n Facility A Agent, or Facility B Agent bears to the total
\n aggregate fees and indemnities owed to all Lenders, Facility A
\n Agents, and Facility B Agents on such date of determination);<\/p>\n
(ii) to the Pro Rata payment of all accrued and unpaid
\n interest on the Principal Debt;<\/p>\n
(iii) to the ratable payment of the Swing Line Principal
\n Debt which is due and payable and which remains unfunded by any
\n Borrowing under Facility A; provided that, such payments shall be
\n allocated among the Swing Line Lenders and the Facility A Lenders
\n which have funded their participation in the Swing Line Principal
\n Debt;<\/p>\n
(iv) to the ratable payment of any reimbursement
\n obligation with respect to any LC issued pursuant to Facility A
\n which is due and payable and which remains unfunded by any
\n Borrowing under Facility A; provided that, such payments shall be
\n allocated ratably among NationsBank and the Facility A Lenders
\n which have funded their participation in such LC;<\/p>\n
(v) to the Pro Rata payment of the remaining Principal
\n Debt in such order as Determining Lenders may elect (provided
\n that, Determining Lenders will apply such proceeds in an order
\n that will minimize any Consequential Loss);<\/p>\n
(vi) as a deposit with Administrative Agent, for the
\n benefit of Facility A Lenders, as security for, and to provide
\n for the payment of, any reimbursement obligations, if any,
\n thereafter arising with respect to any issued and outstanding LCs
\n issued pursuant to Facility A; and<\/p>\n
(vii) to the payment of the remaining Obligation in the
\n order and manner Determining Lenders deem appropriate.<\/p>\n
Subject to the provisions of SECTION 10 and provided that Administrative Agent
\nshall in any event not be bound to inquire into or to determine the validity,
\nscope, or priority of any interest or entitlement of any Lender and may suspend
\nall payments or seek appropriate relief (including, without limitation,
\ninstructions from Determining Lenders or an action in the nature of
\ninterpleader) in the event of any doubt or dispute as to any apportionment or
\ndistribution contemplated hereby, Administrative Agent shall (i) promptly
\ndistribute such amounts to each Facility A Lender in accordance with the
\nFacility A Agreement and the related Facility A Loan Papers, and (ii) promptly
\ndistribute all payments allocable to Facility B or the Facility B Lenders to
\nthe Facility B Administrative Agent for distribution in accordance with
\nFacility B and the related Facility B Loan Papers.<\/p>\n
3.12 Sharing of Payments, Etc. If any Lender shall obtain any payment
\n(whether voluntary, involuntary, or otherwise, including, without limitation,
\nas a result of exercising its Rights under SECTION 3.13) which is in excess of
\nits ratable share of any such payment, such Lender shall purchase from the
\nother 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<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 34
\n 40
\n(including the Right of offset) with respect to such participation as fully as
\nif such Lender were the direct creditor of Borrower in the amount of such
\nparticipation.<\/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 Facility
\nA Lender may make, carry, or transfer its Borrowings at, to, or for the account
\nof any of its branch offices or the office of any of its Affiliates; provided
\nthat no Affiliate shall be entitled to receive any greater payment under
\nSECTION 3.15 than the transferor Facility A Lender would have been entitled to
\nreceive with respect to such Borrowings.<\/p>\n
3.15 Increased Cost and Reduced Return.<\/p>\n
(a) If, after the date hereof, the adoption of any applicable
\n Law or any change in any applicable Law, or any change in the
\n interpretation or administration thereof by any Governmental Authority,
\n or compliance by any Facility A Lender (or its Applicable Lending
\n Office) with any request or directive (whether or not having the force
\n of law) of any such Governmental Authority:<\/p>\n
(i) shall subject such Facility A Lender (or its
\n Applicable Lending Office) to any Tax with respect to any
\n Eurodollar Rate Borrowing, its Notes, or its obligation to loan
\n Eurodollar Rate Borrowings, or change the basis of taxation of
\n any amounts payable to such Facility A Lender (or its Applicable
\n Lending Office) under the Facility A Loan Papers in respect of
\n any Eurodollar Rate Borrowings (other than with respect to Taxes
\n imposed on the overall net income of such Facility A Lender by
\n any jurisdiction and other than liabilities, interest, and
\n penalties incurred as a result of the gross negligence or wilful
\n misconduct of such Facility A Lender);<\/p>\n
(ii) shall impose, modify, or deem applicable any
\n reserve, special deposit, assessment, or similar requirement
\n (other than the Reserve Requirement utilized in the determination
\n of the Adjusted Eurodollar Rate) relating to any extensions of
\n credit or other assets of, or any deposits with or other
\n liabilities or commitments of, such Facility A Lender (or its
\n Applicable Lending Office), including the commitment of such
\n Facility A Lender hereunder; or<\/p>\n
(iii) shall impose on such Facility A Lender (or its
\n Applicable Lending Office) or the London interbank market any
\n other condition affecting the Facility A Loan Papers or any of
\n such extensions of credit or liabilities or commitments;<\/p>\n
and the result of any of the foregoing is to increase the actual cost to
\n such Facility A Lender (or its Applicable Lending Office) of making,
\n converting into, continuing, or maintaining any Eurodollar Rate
\n Borrowings or to reduce any sum received or receivable by such Facility
\n A Lender (or its Applicable Lending Office) under the Facility A Loan
\n Papers with respect to any Eurodollar Rate Borrowing, then Borrower
\n shall pay to such Facility A Lender on demand such amount or amounts as
\n will compensate such Facility A Lender for such increased cost or
\n reduction as provided in SECTION 3.15(c) below. If any Facility A
\n Lender requests compensation by Borrower under this SECTION 3.15(a),
\n Borrower may, by notice<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 35
\n 41
\n to such Facility A Lender (with a copy to Administrative Agent), suspend
\n the obligation of such Facility A Lender to loan or continue Borrowings
\n of the Type with respect to which such compensation is requested, or to
\n convert Borrowings of any other Type into Borrowings of such Type, until
\n the event or condition giving rise to such request ceases to be in
\n effect (in which case the provisions of SECTION 3.18 shall be
\n applicable); provided, that such suspension shall not affect the Right
\n of such Facility A Lender to receive the compensation so requested.<\/p>\n
(b) If, after the date hereof, any Facility A Lender shall
\n have determined that the adoption of any applicable Law regarding
\n capital adequacy or any change therein or in the interpretation or
\n administration thereof by any Governmental Authority charged with the
\n interpretation or administration thereof, or any request or directive
\n regarding capital adequacy (whether or not having the force of law) of
\n any such Governmental Authority has or would have the effect of reducing
\n the rate of return by an amount deemed by it to be material on the
\n capital of such Facility A Lender or any corporation controlling such
\n Facility A Lender as a consequence of such Facility A Lender’s
\n obligations hereunder to a level below that which such Facility A Lender
\n or such corporation could have achieved but for such adoption, change,
\n request, or directive (taking into consideration its policies with
\n respect to capital adequacy), then from time to time upon demand
\n Borrower shall pay to such Facility A Lender such additional amount or
\n amounts as will compensate such Facility A Lender for such reduction.<\/p>\n
(c) Each Facility A Lender shall promptly notify Borrower and
\n Administrative Agent of any event of which it has knowledge, occurring
\n after the date hereof, which will entitle such Facility A Lender to
\n compensation pursuant to this Section and will designate a different
\n Applicable Lending Office if such designation will avoid the need for,
\n or reduce the amount of, such compensation and will not, in the
\n reasonable judgment of such Facility A Lender, be otherwise
\n disadvantageous to it. Any Facility A Lender claiming compensation
\n under this Section shall furnish to Borrower and Administrative Agent a
\n statement setting forth in reasonable detail the additional amount or
\n amounts to be paid hereunder which shall be presumed correct in the
\n absence of manifest error. In determining such amount, such Facility A
\n Lender may use any reasonable averaging and attribution methods.<\/p>\n
3.16 Limitation on Types of Loans. If on or prior to the first day of
\nany Interest Period for any Eurodollar Rate Borrowing:<\/p>\n
(a) Administrative Agent determines (which determination shall
\n be conclusive absent manifest error) that by reason of circumstances
\n affecting the relevant market, adequate and reasonable means do not
\n exist for ascertaining the Eurodollar Rate for such Interest Period; or<\/p>\n
(b) Determining Lenders determine (which determination shall
\n be conclusive absent manifest error) and notify Administrative Agent
\n that the Adjusted Eurodollar Rate will not adequately and fairly reflect
\n the cost to the Facility A Lenders of funding Eurodollar Rate Borrowings
\n for such Interest Period;<\/p>\n
then Administrative Agent shall give Borrower prompt notice thereof specifying
\nthe relevant amounts or periods, and so long as such condition remains in
\neffect, the Facility A Lenders shall be under no obligation to fund additional
\nEurodollar Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert
\nBase Rate Borrowings into Eurodollar Rate Borrowings, and Borrower shall, on
\nthe last day(s) of the then current Interest Period(s) for the outstanding
\nEurodollar Rate Borrowings, either prepay such Borrowings or convert such
\nBorrowings into Base Rate Borrowings in accordance with the terms of this
\nFacility A Agreement.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 36
\n 42
\n 3.17 Illegality. Notwithstanding any other provision of this Facility
\nA Agreement, in the event that it becomes unlawful for any Facility A Lender or
\nits Applicable Lending Office to make, maintain, or fund Eurodollar Rate
\nBorrowings hereunder, then such Facility A Lender shall promptly notify
\nBorrower thereof and such Facility A Lender’s obligation to make or continue
\nEurodollar Rate Borrowings and to convert other Base Rate Borrowings into
\nEurodollar Rate Borrowings shall be suspended until such time as such Facility
\nA Lender may again make, maintain, and fund Eurodollar Rate Borrowings (in
\nwhich case the provisions of SECTION 3.18 shall be applicable); provided that,
\nsuch Facility A Lender will use best efforts (consistent with legal and
\nregulatory restrictions) to change the jurisdiction of its Applicable Lending
\nOffice so as to eliminate any illegality, if such change, in the reasonable
\njudgment of such Facility A Lender, is not otherwise disadvantageous to such
\nFacility A Lender.<\/p>\n
3.18 Treatment of Affected Loans. If the obligation of any Facility A
\nLender to fund Eurodollar Rate Borrowings or to continue, or to convert Base
\nRate Borrowings into Eurodollar Rate Borrowings, shall be suspended pursuant to
\nSECTIONS 3.15, 3.16, or 3.17 hereof, such Facility A Lender’s Eurodollar Rate
\nBorrowings shall be automatically converted into Base Rate Borrowings on the
\nlast day(s) of the then current Interest Period(s) for Eurodollar Rate
\nBorrowings (or, in the case of a conversion required by SECTION 3.17 hereof, on
\nsuch earlier date as such Facility A Lender may specify to Borrower with a copy
\nto Administrative Agent) and, unless and until such Facility A Lender gives
\nnotice as provided below that the circumstances specified in SECTIONS 3.15,
\n3.16, or 3.17 hereof that gave rise to such conversion no longer exist:<\/p>\n
(a) to the extent that such Facility A Lender’s Eurodollar
\n Rate Borrowings have been so converted, all payments and prepayments of
\n principal that would otherwise be applied to such Facility A Lender’s
\n Eurodollar Rate Borrowings shall be applied instead to its Base Rate
\n Borrowings; and<\/p>\n
(b) all Borrowings that would otherwise be made or continued
\n by such Facility A Lender as Eurodollar Rate Borrowings shall be made or
\n continued instead as Base Rate Borrowings, and all Borrowings of such
\n Facility A Lender that would otherwise be converted into Eurodollar Rate
\n Borrowings shall be converted instead into (or shall remain as) Base
\n Rate Borrowings.<\/p>\n
If such Facility A Lender gives notice to Borrower (with a copy to
\nAdministrative Agent) that the circumstances specified in SECTIONS 3.15, 3.16,
\nor 3.17 hereof that gave rise to the conversion of such Facility A Lender’s
\nEurodollar Rate Borrowings pursuant to this SECTION 3.18 no longer exist (which
\nsuch Facility A Lender agrees to do promptly upon such circumstances ceasing to
\nexist) at a time when Eurodollar Rate Borrowings made by other Facility A
\nLenders are outstanding, such Facility A Lender’s Base Rate Borrowings shall be
\nautomatically converted, on the first day(s) of the next succeeding Interest
\nPeriod(s) for such outstanding Eurodollar Rate Borrowings, to the extent
\nnecessary so that, after giving effect thereto, all Eurodollar Rate Borrowings
\nheld by the Facility A Lenders and by such Facility A Lender are held Pro Rata
\n(as to principal amounts, Types, and Interest Periods) in accordance with their
\nrespective Commitments.<\/p>\n
3.19 Compensation; Replacement of Facility A Lenders.<\/p>\n
(a) Upon the request of any Facility A Lender, Borrower shall
\n pay to such Facility A Lender such amount or amounts as shall be
\n sufficient (in the reasonable opinion of such Facility A Lender) to
\n compensate it for any Consequential Loss; provided that, in each case,
\n the Person claiming such Consequential Loss has furnished Borrower with
\n a reasonably detailed statement of such loss, which statement shall be
\n conclusive in the absence of manifest error.<\/p>\n
(b) If any Facility A Lender requests compensation under
\n SECTION 3.15 or if Borrower is<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 37
\n 43
\n required to pay additional amounts to or for the account of any Facility
\n A Lender pursuant to SECTION 3.20 (collectively, “ADDITIONAL AMOUNTS”),
\n then Borrower may, at its sole expense and effort, upon written notice
\n to such Facility A Lender and Administrative Agent, require such
\n Facility A Lender to assign and delegate, without recourse, all its
\n interests, Rights, and obligations under this Facility A Agreement and
\n the other Facility A Loan Papers (other than any outstanding Competitive
\n Borrowings held by such Facility A Lender) to an Eligible Assignee that
\n shall assume such obligations; provided that, (i) Borrower shall have
\n received the prior written consent of Administrative Agent to any such
\n assignment; (ii) such Facility A Lender shall have received payment from
\n Borrower of any Additional Amounts owed to such Facility A Lender by
\n Borrower for periods prior to the replacement of such Facility A Lender
\n and any actual costs incurred as a result of such replacement of a
\n Facility A Lender; (iii) such assignment will result in reduction or
\n elimination of the Additional Amounts; and (iv) such assignment and
\n acceptance shall be made in accordance with, and subject to the
\n requirements and restrictions contained in, SECTION 11.13(b). A
\n Facility A Lender shall not be required to make any such assignment and
\n delegation if, prior thereto, as a result of a waiver by such Facility A
\n Lender or otherwise, the circumstances entitling such Borrowing to
\n require such assignment and delegation cease to apply.<\/p>\n
3.20 Taxes.<\/p>\n
(a) Any and all payments by Borrower to or for the account of
\n any Facility A Lender or Administrative Agent hereunder or under any
\n other Loan Paper shall be made free and clear of and without deduction
\n for any and all present or future Taxes, excluding, in the case of each
\n Facility A Lender and Administrative Agent, Taxes imposed on its income
\n and franchise Taxes imposed on it by any jurisdiction and other
\n liabilities, interest, and penalties incurred as a result of the gross
\n negligence or wilful misconduct of such Facility A Lender or
\n Administrative Agent (all such Non-Excluded Taxes referred to as “NON-
\n EXCLUDED TAXES”). If Borrower shall be required by law to deduct any
\n Non-Excluded Taxes from or in respect of any sum payable under this
\n Facility A Agreement or any other Facility A Loan Paper to any Facility
\n A Lender or Administrative Agent, (i) the sum payable shall be increased
\n as necessary so that after making all required deductions (including
\n deductions applicable to additional sums payable under this SECTION
\n 3.20) such Facility A Lender or Administrative Agent receives an amount
\n equal to the sum it would have received had no such deductions been
\n made, (ii) Borrower shall make such deductions, (iii) Borrower shall pay
\n the full amount deducted to the relevant taxation authority or other
\n authority in accordance with applicable law, and (iv) Borrower shall
\n furnish to Administrative Agent, at its address listed in SCHEDULE 2.1,
\n the original or a certified copy of a receipt evidencing payment
\n thereof.<\/p>\n
(b) In addition, Borrower agrees to pay any and all present or
\n future stamp or documentary taxes and any other excise or property Taxes
\n which arise from any payment made under this Facility A Agreement or any
\n other Facility A Loan Paper or from the execution or delivery of, or
\n otherwise with respect to, this Facility A Agreement or any other
\n Facility A Loan Paper (hereinafter referred to as “OTHER TAXES”).<\/p>\n
(c) BORROWER AGREES TO INDEMNIFY EACH FACILITY A LENDER AND
\n ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED TAXES THAT
\n SHOULD HAVE BEEN WITHHELD BY BORROWER AND OTHER TAXES (INCLUDING,
\n WITHOUT LIMITATION, ANY NON-EXCLUDED TAXES THAT SHOULD HAVE BEEN
\n WITHHELD BY BORROWER OR OTHER TAXES IMPOSED OR ASSERTED BY ANY
\n JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 3.20) PAID BY SUCH
\n FACILITY A LENDER OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) AND ANY
\n LIABILITY (INCLUDING PENALTIES, INTEREST, AND EXPENSES OTHER THAN THOSE
\n INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF
\n SUCH FACILITY A LENDER OR ADMINISTRATIVE AGENT) ARISING THEREFROM OR
\n WITH RESPECT THERETO.<\/p>\n
(d) Each Facility A Lender organized under the Laws of a
\n jurisdiction outside the United<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 38
\n 44
\n States, on or prior to the date of its execution and delivery of this
\n Facility A Agreement in the case of each Facility A Lender listed on the
\n signature pages hereof and on or prior to the date on which it becomes a
\n Facility A Lender in the case of each other Facility A Lender, and from
\n time to time thereafter, including, without limitation, upon the
\n expiration or obsolescence of any previously delivered form or upon the
\n written request of Borrower or Administrative Agent (but only so long as
\n such Facility A Lender remains lawfully able to do so) shall provide
\n Borrower and Administrative Agent with (i) Internal Revenue Service Form
\n 1001 or 4224, as appropriate, or any successor form prescribed by the
\n Internal Revenue Service, certifying that such Facility A Lender is
\n entitled to benefits under an income tax treaty to which the United
\n States is a party which reduces the rate of withholding tax on payments
\n of interest or certifying that the income receivable pursuant to this
\n Facility A Agreement is effectively connected with the conduct of a
\n trade or business in the United States, (ii) Internal Revenue Service
\n Form W-8 or W-9, as appropriate, or any successor form prescribed by the
\n Internal Revenue Service, and (iii) any other form or certificate
\n required by any taxing authority (including any certificate required by
\n Sections 871(h) and 881(c) of the Internal Revenue Code), certifying
\n that such Facility A Lender is entitled to an exemption from or a
\n reduced rate of tax on payments pursuant to this Facility A Agreement or
\n any of the other Facility A Loan Papers.<\/p>\n
(e) For any period with respect to which a Facility A Lender
\n has failed to provide Borrower and Administrative Agent with the
\n appropriate form pursuant to SECTION 3.20(d) (unless such failure is due
\n to a change in Law, occurring subsequent to the date on which a form
\n originally was required to be provided), such Facility A Lender shall
\n not be entitled to indemnification under this SECTION 3.20 with respect
\n to Taxes imposed by the United States; provided, however, that should a
\n Facility A Lender, which is otherwise exempt from or subject to a
\n reduced rate of withholding tax, become subject to Taxes because of its
\n failure to deliver a form required hereunder, Borrower shall take such
\n steps as such Facility A Lender shall reasonably request to assist such
\n Facility A Lender to recover such Taxes.<\/p>\n
(f) If Borrower is required to pay additional amounts to or
\n for the account of any Facility A Lender pursuant to this SECTION 3.20,
\n then such Facility A Lender will use best efforts (consistent with legal
\n and regulatory restrictions) to change the jurisdiction of its
\n Applicable Lending Office so as to eliminate or reduce any such
\n additional payment which may thereafter accrue if such change, in the
\n judgment of such Facility A Lender, is not otherwise disadvantageous to
\n such Facility A Lender.<\/p>\n
(g) Within thirty (30) days after the date of any payment of
\n Non-Excluded Taxes or Other Taxes, Borrower shall furnish to
\n Administrative Agent the original or a certified copy of a receipt
\n evidencing such payment.<\/p>\n
(h) Without prejudice to the survival of any other agreement
\n of Borrower hereunder, the agreements and obligations of Borrower
\n contained in this SECTION 3.20 shall survive the termination of the
\n Commitment and the payment in full of the Obligation.<\/p>\n
SECTION 4 FEES.<\/p>\n
4.1 Treatment of Fees. Except as otherwise provided by Law, the fees
\ndescribed in this SECTION 4: (a) do not constitute compensation for the use,
\ndetention, or forbearance of money, (b) are in addition to, and not in lieu of,
\ninterest and expenses otherwise described in this Facility A Agreement, (c)
\nshall be payable in accordance with SECTION 3.1, (d) shall be non- refundable,
\n(e) shall, to the fullest extent permitted by Law, bear interest, if not paid
\nwhen due, at the Default Rate, and (f) shall be calculated on the basis of
\nactual number of days (including the first day, but excluding the last day)
\nelapsed, but computed as if each calendar year<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 39
\n 45
\nconsisted of 360 days, unless such computation would result in interest being
\ncomputed in excess of the Maximum Rate in which event such computation shall be
\nmade on the basis of a year of 365 or 366 days, as the case may be.<\/p>\n
4.2 Fees of Administrative Agent and Arranger. Borrower shall pay to
\nAdministrative Agent or Arranger, as the case may be, solely for their
\nrespective accounts, the fees described in that certain separate letter
\nagreement dated as of June 30, 1998 (as thereafter amended or modified from
\ntime to time), among Borrower, Administrative Agent, and Arranger, which
\npayments shall be made on the dates specified, and in amounts calculated in
\naccordance with, such letter agreement.<\/p>\n
4.3 Standby LC Fees. Borrower shall pay to Administrative Agent, for
\nthe ratable benefit of Facility A Lenders, in accordance with their respective
\nPro Rata Parts, a fee for each LC, payable in installments in arrears, so long
\nas such LC remains outstanding. Such installments shall be paid for the period
\nfrom and including the date of issuance of the applicable LC to but excluding
\nthe next quarterly payment date (as hereinafter specified), and thereafter for
\nthe period from and including such quarterly payment date to but excluding the
\nnext quarterly payment date or (if earlier) the expiry date of such LC. Such
\ninstallments shall be paid on each March 31, June 30, September 30, and
\nDecember 31. Each such installment shall be in an amount equal to the product
\nof (a) (i) the Applicable Margin for Eurodollar Rate Borrowings (inclusive of
\nany Utilization Fee, if any) in effect on the date of payment of such fee (and
\napplied on a per annum basis), multiplied by (b) the face amount (on a Dollar-
\nEquivalent basis) of such LC, and pro rated (in accordance with SECTION 4.1(f))
\nfor the period for which such installment is due.<\/p>\n
4.4 Facility A Commitment Fees. Following the Closing Date, Borrower
\nshall pay to Administrative Agent, for the ratable account of Facility A
\nLenders, a commitment fee, payable in installments in arrears, on each March
\n31, June 30, September 30, and December 31 and on the Facility A Termination
\nDate, commencing September 30, 1998. Each installment shall be in an amount
\nequal to the Applicable Margin designated in SECTION 1.1 for commitment fees
\nmultiplied by the amount by which (i) the average daily Facility A Commitment
\nexceeds (ii) the average daily Facility A Commitment Usage, in each case during
\nthe period from and including the last payment date to and excluding the
\npayment date for such installment; provided that each such installment shall be
\ncalculated in accordance with SECTION 4.1(f). Solely for the purposes of this
\nSECTION 4.4, (i) determinations of the average daily Facility A Commitment
\nUsage shall exclude the Facility A Principal Debt of all Competitive Borrowings
\nand Swing Line Borrowings; and (ii) “ratable” shall mean, for any period of
\ncalculation, with respect to any Facility A Lender, that proportion which (x)
\nthe average daily unused Facility A Committed Sum of such Facility A Lender
\nduring such period bears to (y) the amount of the average daily unused Facility
\nA Commitment during such period.<\/p>\n
SECTION 5 CONDITIONS PRECEDENT.<\/p>\n
5.1 Conditions Precedent to Closing. This Facility A Agreement shall
\nnot become effective unless and until (a) Administrative Agent has received all
\nof the agreements, documents, instruments, and other items described on
\nSCHEDULE 5.1, (b) there has been no change in the consolidated financial
\ncondition of the Consolidated Companies from that shown in the respective
\nCurrent Financials of such companies which could be a Material Adverse Event;
\nand (c) Determining Lenders have indicated their consent to this amendment and
\nrestatement of the Existing Agreement by execution and delivery of a
\ncounterpart signature page to this Facility A Agreement; upon satisfaction of
\nsuch conditions of closing, the Facility A Loan Papers shall be deemed
\neffective and binding upon Borrower, Facility A Agents, and all Facility A
\nLenders, whether or not such Facility A Lender (other than Determining Lenders)
\nhas executed this Facility A Agreement.<\/p>\n
5.2 Conditions Precedent to Each Borrowing. In addition to the
\nconditions stated in SECTION 5.1<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 40
\n 46
\n(except SECTION 5.1(b)), Facility A Lenders will not be obligated to fund (as
\nopposed to continue or convert) any Borrowing (including any Competitive
\nBorrowing), and Administrative Agent will not be obligated to issue any LC, as
\nthe case may be, unless on the date of such Borrowing or issuance (and after
\ngiving effect thereto), as the case may be:<\/p>\n
(a) Administrative Agent shall have timely received therefor a
\n Notice of Borrowing, a Notice of LC (together with the applicable LC
\n Agreement), or Notice of Competitive Borrowing as the case may be;<\/p>\n
(b) Administrative Agent shall have received, as applicable,
\n the LC fees provided for in SECTION 4.3 and 4.4 hereof or any fees then
\n payable as provided for in SECTION 4.2, if applicable;<\/p>\n
(c) all of the representations and warranties of any
\n Consolidated Company set forth in the Loan Papers are true and correct
\n in all material respects (except to the extent that (i) the
\n representations and warranties speak to a specific date or (ii) the
\n facts on which such representations and warranties are based have been
\n changed by transactions contemplated or permitted by the Loan Papers);<\/p>\n
(d) no Default or Potential Default shall have occurred and be
\n continuing;<\/p>\n
(e) the funding of such Borrowings and issuance of such LC, as
\n the case may be, is permitted by Law; and<\/p>\n
(f) all matters related to such Borrowing must be satisfactory
\n to Determining Lenders and their respective counsel in their reasonable
\n determination, and upon the reasonable request of Administrative Agent,
\n Borrower shall deliver to Administrative Agent evidence substantiating
\n any of the matters in the Loan Papers which are necessary to enable
\n Borrower to qualify for such Borrowing.<\/p>\n
Each Notice of Borrowing and LC Agreement delivered to Administrative Agent
\nshall constitute the representation and warranty by Borrower to Administrative
\nAgent that the statements in CLAUSES (c), (d), and (e) above are true and
\ncorrect in all respects. Each condition precedent in this Facility A Agreement
\nis material to the transactions contemplated in this Facility A Agreement, and
\ntime is of the essence in respect of each thereof. Subject to the prior
\napproval of Determining Lenders, Lenders may fund any Borrowing, and
\nAdministrative Agent may issue any LC, without all conditions being satisfied,
\nbut, to the extent permitted by Law, the same shall not be deemed to be a
\nwaiver of the requirement that each such condition precedent be satisfied as a
\nprerequisite for any subsequent funding or issuance, unless Determining Lenders
\nspecifically waive each such item in writing.<\/p>\n
SECTION 6 REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
\nto Administrative Agent and Facility A Lenders as follows:<\/p>\n
6.1 Purpose of Credit Facility. Borrower will use all proceeds of
\nBorrowings for general corporate purposes of the Restricted Companies,
\nincluding, without limitation, liquidity support for commercial paper. No
\nRestricted Company is engaged principally, or as one of its important
\nactivities, in the business of extending credit for the purpose of purchasing
\nor carrying any “margin stock” within the meaning of Regulation U. No part of
\nthe proceeds of any Borrowing will be used, directly or indirectly, for a
\npurpose which violates any Law, including, without limitation, the provisions
\nof Regulations T, U, or X (as enacted by the Board of Governors of the Federal
\nReserve System, as amended). “Margin Stock” (as defined in Regulation U)
\nconstitutes less than 25% of those assets of the Restricted Companies which are
\nsubject to any limitation on sale, pledge, or other similar restrictions
\nhereunder.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 41
\n 47
\n 6.2 Existence, Good Standing, Authority, and Authorizations. Each
\nRestricted Company is duly organized, validly existing, and in good standing
\nunder the Laws of its jurisdiction of organization. Except where failure could
\nnot be a Material Adverse Event, each Restricted Company (a) is duly qualified
\nto transact business and is in good standing in each jurisdiction where the
\nnature and extent of its business and properties require the same, and (b)
\npossesses all requisite authority, power, licenses, approvals, permits,
\nAuthorizations, and franchises to use its assets and conduct its business as is
\nnow being, or is contemplated herein to be, conducted, except where failure
\ncould not be a Material Adverse Event. No Authorization is required to
\nauthorize, or is required in connection with, the execution, delivery,
\nlegality, validity, binding effect, performance, or enforceability of the Loan
\nPapers (including any change of control occurring as a result thereof)
\nconsummated on or prior to the date this representation or warranty (or
\nreconfirmation thereof) is made under the Loan Papers, except those
\nAuthorizations the failure of which to be obtained or made could not be a
\nMaterial Adverse Event. The Restricted Companies have obtained all
\nAuthorizations of the FCC and any applicable PUC necessary to conduct their
\nbusinesses, and all such Authorizations are in full force and effect, without
\nconditions, except such conditions as are generally applicable to holders of
\nsuch Authorizations. There are no violations of any such Authorizations which
\ncould, individually or collectively, be a Material Adverse Event, nor are there
\nany proceedings pending or, to the knowledge of Borrower, threatened against
\nthe Restricted Companies to revoke or limit any such Authorization which could,
\nindividually or collectively, be a Material Adverse Event, and Borrower has no
\nknowledge that any such Authorizations will not be renewed in the ordinary
\ncourse, except for any nonrenewals that could not be a Material Adverse Event.<\/p>\n
6.3 Authorization and Contravention. The execution, delivery, and
\nperformance by Borrower of each Loan Paper and its obligations thereunder (a)
\nare within the corporate power of Borrower, (b) will have been duly authorized
\nby all necessary corporate action on the part of Borrower when such Loan Paper
\nis executed and delivered, (c) require no action by or in respect of, consent
\nof, or filing with, any Governmental Authority, which action, consent, or
\nfiling has not been taken or made on or prior to the Closing Date, (d) will not
\nviolate any provision of the charter or bylaws of Borrower, (e) will not
\nviolate any provision of Law applicable to it, other than such violations which
\nindividually or collectively could not be a Material Adverse Event, (f) will
\nnot violate any material written or oral agreements, contracts, commitments, or
\nunderstandings to which it is a party, other than such violations which could
\nnot be a Material Adverse Event, or (g) will not result in the creation or
\nimposition of any Lien on any asset of any Consolidated Company that is
\nmaterial in relation to the Consolidated Companies taken as a whole. On and as
\nof the MCI Merger Date, no action by, or in respect of, consent of, or filing
\nwith, any Governmental Authority or other Person is required in connection with
\nthe MCI Merger which has not been obtained or performed on or prior to the MCI
\nMerger Date or the failure of which to be obtained or performed would not be a
\nMaterial Adverse Event.<\/p>\n
6.4 Binding Effect. Upon execution and delivery by all parties
\nthereto, each Loan Paper will constitute a legal, valid, and binding obligation
\nof Borrower, enforceable against Borrower in accordance with its terms, except
\nas enforceability may be limited by applicable Debtor Relief Laws and general
\nprinciples of equity.<\/p>\n
6.5 Financial Statements. The Current Financials were prepared in
\naccordance with GAAP and present fairly, in all material respects, the
\nconsolidated financial condition, results of operations, and cash flows of the
\nConsolidated Companies as of and for the portion of the fiscal year ending on
\nthe date or dates thereof (subject only to normal year-end audit adjustments).
\nThere were no material liabilities, direct or indirect, fixed or contingent, of
\nthe Consolidated Companies as of the date or dates of the Current Financials
\nwhich are required under GAAP to be reflected therein or in the notes thereto,
\nand are not so reflected.<\/p>\n
6.6 Litigation, Claims, Investigations. No Restricted Company is
\nsubject to, or aware of the threat<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 42
\n 48
\nof, any Litigation which is reasonably likely to be determined adversely to any
\nRestricted Company, and, if so adversely determined, could (individually or
\ncollectively with other Litigation) be a Material Adverse Event. There are no
\njudgments, decrees, or orders of any Governmental Authority outstanding against
\nany Restricted Company that could be a Material Adverse Event.<\/p>\n
6.7 Taxes. All Tax returns of each Consolidated Company required to
\nbe filed have been filed (or extensions have been granted) prior to
\ndelinquency, except for any such returns for which the failure to so file could
\nnot be a Material Adverse Event, and all Taxes imposed upon each Consolidated
\nCompany which are due and payable have been paid prior to delinquency, other
\nthan Taxes for which the criteria for Liens permitted under SECTION 7.13(F)
\nhave been satisfied or for which nonpayment thereof could not constitute a
\nMaterial Adverse Event.<\/p>\n
6.8 Environmental Matters. No Consolidated Company (a) knows of any
\nenvironmental condition or circumstance, such as the presence or Release of any
\nHazardous Substance, on any property presently or previously owned by any
\nConsolidated Company that could be a Material Adverse Event, (b) knows of any
\nviolation by any Consolidated Company of any Environmental Law, except for such
\nviolations that could not be a Material Adverse Event, or (c) knows that any
\nConsolidated Company is under any obligation to remedy any violation of any
\nEnvironmental Law, except for such obligations that could not be a Material
\nAdverse Event; provided, however, that each Consolidated Company (x) to the
\nbest of its knowledge, has in full force and effect all environmental permits,
\nlicenses, and approvals required to conduct its operations and is operating in
\nsubstantial compliance thereunder, and (y) has taken prudent steps to determine
\nthat its properties and operations are not in violation of any Environmental
\nLaw.<\/p>\n
6.9 ERISA Compliance. (a) No Employee Plan has incurred an
\naccumulated funding deficiency, as defined in section 302 of ERISA and section
\n412 of the Code, (b) neither Borrower nor any ERISA Affiliate has incurred
\nmaterial liability which is currently due and remains unpaid under Title IV of
\nERISA to the PBGC or to an Employee Plan in connection with any such Employee
\nPlan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in whole or in
\npart from participation in a Multiemployer Plan, (d) Borrower has not engaged
\nin any “prohibited transaction” (as defined in section 406 of ERISA or section
\n4975 of the Code) which would be a Material Adverse Event, and (e) no
\nReportable Event has occurred which is likely to result in the termination of
\nan Employee Plan. The present value of all benefit liabilities within the
\nmeaning of Title IV of ERISA under each Employee Plan (based on those actuarial
\nassumptions used to fund such Employee Plan) did not, as of the last annual
\nvaluation date for the 1997 plan year of such Plan, exceed the value of the
\nassets of such Employee Plan, and the total present values of all benefit
\nliabilities within the meaning of Title IV of ERISA of all Employee Plans
\n(based on the actuarial assumptions used to fund each such Plan) did not, as of
\nthe respective annual valuation dates for the 1997 plan year of each such Plan,
\nexceed the value of the assets of all such plans.<\/p>\n
6.10 Properties; Liens. Each Restricted Company has good and
\nmarketable title to (or, in the case of Rights of Way, the right to use) all
\nits property reflected on the Current Financials, except for (a) property that
\nis obsolete, (b) property that has been disposed of in the ordinary course of
\nbusiness, (c) property with title defects or failures in title which would not
\nbe a Material Adverse Event, or (d) as otherwise permitted by the Loan Papers.
\nExcept for Liens permitted in SECTION 7.13, there is no Lien on any property of
\nany Restricted Company, and the execution, delivery, performance, or observance
\nof the Loan Papers will not require or result in the creation of any Lien on
\nsuch property.<\/p>\n
6.11 Government Regulations. No Restricted Company is subject to
\nregulation under the Investment Company Act of 1940, as amended, the Public
\nUtility Holding Company Act of 1935, as amended, or any other Law (other than
\nRegulations T, U, and X of the Board of Governors of the Federal Reserve System
\nand the requirements of<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 43
\n 49
\nany PUC or public service commission) which regulates the incurrence of Debt.<\/p>\n
6.12 No Default. No event has occurred and is continuing or would
\nresult from the incurring of obligations by Borrower under this Facility A
\nAgreement or any other Loan Paper which constitutes a Default or a Potential
\nDefault. No Restricted Subsidiary is in default under or with respect to any
\nmaterial written or oral agreements, contracts, commitments, or understandings
\nto which any Restricted Company is party (including without limitation, the
\nExisting Agreement) which could, individually or together with all such
\ndefaults, be a Material Adverse Event.<\/p>\n
6.13 Senior Indebtedness. All of the Obligation constitutes “senior
\nindebtedness” or “senior debt” (or ranks at least pari passu with other senior
\nand unsubordinated indebtedness) under the terms of the Indentures to which
\nBorrower is a party or any other unsecured senior Debt or secured or unsecured
\nsubordinated Debt of Borrower.<\/p>\n
6.14 Year 2000 Compliance. Borrower has (i) initiated a review and
\nassessment of all areas within its and each of its Subsidiaries’ business and
\noperations that could be adversely affected by the “Year 2000 Problem” (that
\nis, the risk that computer applications used by the Borrower or any of its
\nSubsidiaries may be unable to recognize and perform properly date-sensitive
\nfunctions involving certain dates prior to and any date after December 31,
\n1999), (ii) developed a plan and time line for addressing the Year 2000 Problem
\non a timely basis, and (iii) to date, implemented in all material respects that
\nplan in accordance with that timetable.<\/p>\n
SECTION 7 COVENANTS. Borrower covenants and agrees (and agrees to cause
\neach other Restricted Company and Consolidated Company to the extent any
\ncovenant is applicable to such Restricted Company or Consolidated Company) to
\nperform, observe, and comply with each of the following covenants, from the
\nClosing Date and so long thereafter as Facility A Lenders are committed to fund
\nBorrowings and Administrative Agent is committed to issue LCs under this
\nFacility A Agreement and thereafter until the payment in full of the Facility A
\nPrincipal Debt (and termination of outstanding LCs, if any) and payment in full
\nof all other interest, fees, and other amounts of the Obligation then due and
\nowing, 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 Borrowings
\nonly for the purposes represented herein.<\/p>\n
7.2 Books and Records. The Consolidated Companies shall maintain
\nbooks, records, and accounts necessary to prepare financial statements in
\naccordance with GAAP (with such exceptions as may be noted in the Current
\nFinancials provided to Administrative Agent).<\/p>\n
7.3 Items to be Furnished. Borrower shall cause the following to be
\nfurnished to Administrative Agent for delivery to Facility A Lenders:<\/p>\n
(a) Promptly after preparation, and no later than 110 days
\n after the last day of each fiscal year of Borrower, Financial Statements
\n showing the consolidated financial condition and results of operations
\n calculated for the Consolidated Companies (or in lieu thereof the Form
\n 10-K of the Consolidated Companies filed with the Securities and
\n Exchange Commission for such fiscal year), accompanied by:<\/p>\n
(i) the unqualified opinion of a firm of
\n nationally-recognized independent certified public accountants,
\n based on an audit using generally accepted auditing standards,<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 44
\n 50
\n that such Financial Statements (calculated with respect to the
\n Consolidated Companies) were prepared in accordance with GAAP and
\n present fairly the consolidated financial condition and results
\n of operations of the Consolidated Companies;<\/p>\n
(ii) a certificate from such accounting firm to
\n Administrative Agent indicating that during its audit it obtained
\n no knowledge of any Default or Potential Default or, if it
\n obtained such knowledge, the nature and period of existence
\n thereof; and<\/p>\n
(iii) a Compliance Certificate with respect to such
\n Financial Statements.<\/p>\n
(b) Promptly after preparation, and no later than 65 days
\n after the last day of each fiscal quarter of Borrower (other than the
\n fourth fiscal quarter of each fiscal year), Financial Statements showing
\n the consolidated financial condition and results of operations
\n calculated for the Consolidated Companies (or in lieu thereof the Form
\n 10-Q of the Consolidated Companies filed with the Securities and
\n Exchange Commission for such fiscal quarter), accompanied by a
\n Compliance Certificate with respect to such Financial Statements.<\/p>\n
(c) Notice, promptly after Borrower knows or has reason to
\n know of (i) the existence and status of any Litigation which could be a
\n Material Adverse Event, or of any order or judgment for the payment of
\n money which (individually or collectively) is in excess of $100,000,000,
\n or any warrant of attachment, sequestration or similar proceeding
\n against a Consolidated Company’s assets having a value (individually or
\n collectively) of $100,000,000; (ii) any other Litigation affecting the
\n Restricted Companies which Borrower would be required to report to the
\n Securities and Exchange Commission pursuant to the Securities and
\n Exchange Act of 1934, as amended, within four Business Days after
\n reporting the same to the Securities and Exchange Commission; (iii) a
\n Default or Potential Default, specifying the nature thereof and what
\n action Borrower or any other Consolidated Company has taken, is taking,
\n or proposes to take with respect thereto; (iv) the receipt by any
\n Consolidated Company of any notice from any Governmental Authority of
\n the expiration without renewal, termination, material modification or
\n 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 the
\n aggregate would not constitute a Material Adverse Event; (v) a default
\n or event of default under any material agreement of any Restricted
\n Company which could be a Material Adverse Event; (vi) the receipt by any
\n Consolidated Company of notice of any violation or alleged violation of
\n any Environmental Law, which violation or alleged violation could
\n individually or collectively with other such violations or allegations,
\n constitute a Material Adverse Event; or (vii) (A) the occurrence of a
\n Reportable Event that, alone or together with any other Reportable
\n Event, could reasonably be expected to result in liability of Borrower
\n to the PBGC in an aggregate amount exceeding $100,000,000; (B) any
\n expressed statement in writing on the part of the PBGC of its intention
\n to terminate any Employee Plan or Plans; (C) Borrower’s or an ERISA
\n Affiliate’s becoming obligated to file with the PBGC a notice of failure
\n to make a required installment or other payment with respect to an
\n Employee Plan; or (D) the receipt by Borrower or an ERISA Affiliate from
\n the sponsor of a Multiemployer Plan of either a notice concerning the
\n imposition of withdrawal liability in an aggregate amount exceeding
\n $100,000,000 or of the impending termination or reorganization of such
\n Multiemployer Plan.<\/p>\n
(d) Promptly after the filing thereof, a true, correct, and
\n complete copy of each material report and registration statement filed
\n with the Securities and Exchange Commission, including, without<\/p>\n
AMENDED AND RESTATED
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\n 45
\n 51
\n limitation, each Form 10-K, Form 10-Q, and Form 8-K filed by or on
\n behalf of Borrower or any Consolidated Company with the Securities and
\n Exchange Commission.<\/p>\n
(e) Promptly upon request therefor by Administrative Agent or
\n Lenders holding, in the aggregate, at least 25% of the sum of the
\n Facility A Commitment and the Facility B Principal Debt (through
\n Administrative Agent), such information (not otherwise required to be
\n furnished under the Loan Papers) respecting the business affairs,
\n assets, and liabilities of the Consolidated Companies, and such
\n opinions, certifications and documents, in addition to those mentioned
\n in this Facility A Agreement, as reasonably requested.<\/p>\n
7.4 Inspections. On and after the occurrence of any Potential
\nDefault or Default, the Consolidated Companies shall allow Administrative Agent
\nor any Facility A Lender (or their respective Representatives) to inspect any
\nof their properties, to review reports, files, and other records and to make
\nand take away copies thereof, to conduct tests or investigations, and to
\ndiscuss any of their affairs, conditions, and finances with the Consolidated
\nCompanies’ other creditors, directors, officers, employees, other
\nrepresentatives, and independent accountants, from time to time, during
\nreasonable business hours, as often as may be desired, and all at the expense
\nof Borrower.<\/p>\n
7.5 Taxes. Each Consolidated Company (a) shall promptly pay when due
\nany 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 to pay the wages of employees
\nunless a timely payment to or deposit with the appropriate Governmental
\nAuthorities of all amounts of Tax required to be deducted and withheld with
\nrespect to such wages is also made.<\/p>\n
7.6 Payment of Obligations. Borrower shall pay the Obligation in
\naccordance with the terms and provisions of the Loan Papers. Each Restricted
\nCompany shall promptly pay (or renew and extend) all of its material
\nobligations as the same become due (unless such obligations [other than the
\nObligation arising under the Loan Papers] are being contested in good faith by
\nappropriate proceedings).<\/p>\n
7.7 Maintenance of Existence, Assets, and Business. Except as
\notherwise permitted by SECTION 7.20, each Restricted Company shall at all
\ntimes: (a) maintain its existence and good standing in the jurisdiction of its
\norganization and its authority to transact business in all other jurisdictions
\nwhere the failure to so maintain its authority to transact business could be a
\nMaterial Adverse Event; (b) maintain all licenses, permits, and franchises
\nnecessary for its business where the failure to so maintain could be a Material
\nAdverse Event; (c) keep all of its assets which are useful in and necessary to
\nits business in good working order and condition (ordinary wear and tear
\nexcepted) and make all necessary repairs thereto and replacements thereof,
\nexcept where the failure to do so would not be a Material Adverse Event; and
\n(d) do all things necessary to obtain, renew, extend, and continue in effect
\nall Authorizations issued by the FCC or any applicable PUC which may at any
\ntime and from time to time be necessary for the Consolidated Companies to
\noperate their businesses in compliance with applicable Law, where the failure
\nto so renew, extend, or continue in effect could be a Material Adverse Event.<\/p>\n
7.8 Insurance. Each Consolidated Company shall, at its cost and
\nexpense, maintain insurance with financially sound and reputable insurers, in
\nsuch amounts, and covering such risks, as shall be ordinary and customary for
\nsimilar companies in the industry, except where the failure to so maintain
\nwould not be a Material Adverse Event.<\/p>\n
AMENDED AND RESTATED
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\n 46
\n 52
\n 7.9 Preservation and Protection of Rights. Each Consolidated Company
\nshall perform such acts and duly authorize, execute, acknowledge, deliver,
\nfile, and record any additional agreements, documents, instruments, and
\ncertificates as Administrative Agent or Determining Lenders may reasonably deem
\nnecessary or appropriate in order to preserve and protect the Rights of
\nAdministrative Agent and Lenders under any Loan Paper.<\/p>\n
7.10 Employee Benefit Plans. Borrower shall not directly or
\nindirectly, engage in any “prohibited transaction” (as defined in section 406
\nof ERISA or section 4975 of the Code), and Borrower and its ERISA Affiliates
\nshall not, directly or indirectly, (a) incur any “accumulated funding
\ndeficiency” as such term is defined in section 302 of ERISA with respect to any
\nEmployee Plan, (b) permit any Employee Plan to be subject to involuntary
\ntermination proceedings pursuant to Title IV of ERISA, or (c) fully or
\npartially withdraw from any Multiemployer Plan, if such prohibited transaction,
\naccumulated funding deficiency, termination proceeding, or withdrawal would
\nresult in liability on the part of Borrower in excess of $100,000,000.<\/p>\n
7.11 Environmental Laws. Each Consolidated Company shall (a) conduct
\nits business so as to comply with all applicable Environmental Laws and shall
\npromptly take corrective action to remedy any non-compliance with any
\nEnvironmental Law, except where the failure to so comply or correct would not
\nbe a Material Adverse Event; (b) shall promptly investigate and remediate any
\nknown Release or threatened Release of any Hazardous Substance on any property
\nowned by any Consolidated Company or at any facility operated by any
\nConsolidated Company to the extent and degree necessary to comply with Law and
\nto assure that any Release or threatened Release does not result in a
\nsubstantial endangerment to human health or the environment, except where the
\nfailure to do so would not be a Material Adverse Event; and (c) establish and
\nmaintain a management system designed to ensure compliance with applicable
\nEnvironmental Laws and minimize financial and other risks to each Consolidated
\nCompany arising under applicable Environmental Laws or as a result of
\nenvironmentally-related injuries to Persons or property.<\/p>\n
7.12 Debt. No Restricted Company shall, directly or indirectly,
\ncreate, incur, or suffer to exist any direct, indirect, fixed, or contingent
\nliability for any Debt, other than:<\/p>\n
(a) The Obligation;<\/p>\n
(b) Existing Debt;<\/p>\n
(c) Debt incurred by any Restricted Company under the 364-Day
\n Facility;<\/p>\n
(d) Debt incurred by any Restricted Company under any
\n Financial Hedge with any Lender or an Affiliate of any Lender;<\/p>\n
(e) Debt between Restricted Companies, so long as any such
\n inter-company Debt owed by Borrower to any other Restricted Company is
\n unsecured; or Debt of any Restricted Company to the Receivables
\n Subsidiary; and<\/p>\n
(f) Debt of any Restricted Company not otherwise permitted by
\n this SECTION 7.12, so long as (i) no Default or Potential Default exists
\n on the date any such Debt is created, incurred, or assumed or arises
\n after giving effect to such Debt incurrence; and (ii) if such Debt is
\n secured, on the date any such secured Debt is created, incurred, or
\n assumed, the principal amount of such secured Debt when aggregated with
\n the principal amount of all other secured Debt of the Restricted
\n Companies incurred in accordance with this SECTION 7.12(F) does not
\n exceed 10% of the book value of the consolidated assets of the
\n Restricted Companies determined as of the date of, and with respect to,
\n the Current Financials and the related Compliance Certificate.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 47
\n 53
\nNotwithstanding anything in this SECTION 7.12 to the contrary, the aggregate
\nprincipal amount of all Debt of the Restricted Subsidiaries may not exceed, on
\nany date of determination, the sum of (i) 10% of the book value of the
\nconsolidated assets of the Restricted Companies, determined as of the date of
\nthe most-recently delivered consolidated Financial Statements of Borrower and
\nthe related Compliance Certificate, plus (ii) the principal amount of all
\nExisting Debt of MCI and its Subsidiaries on and after the MCI Merger Date.<\/p>\n
7.13 Liens. No Restricted Company will, directly or indirectly,
\ncreate, incur, or suffer or permit to be created or incurred or to exist any
\nLien upon any of its assets, except:<\/p>\n
(a) Liens securing Debt permitted to be incurred or
\n outstanding under SECTION 7.12(b) and SECTION 7.12(f), so long as (i)
\n with respect to Liens securing Existing Debt, such Liens are limited to
\n the assets securing such Existing Debt on the Closing Date (in the case
\n of Existing Debt described in PART A of SCHEDULE 7.12) or on the MCI
\n Merger Date (in the case of Existing Debt described in PART B of
\n SCHEDULE 7.12), (ii) no Default or Potential Default exists on the date
\n any such Lien is granted or created, (iii) the aggregate amount of all
\n Debt secured by such Liens does not exceed the aggregate amount of
\n secured Debt permitted by SECTIONS 7.12(b) and 7.12(f)(ii); and (iv) the
\n aggregate amount of Debt of Restricted Subsidiaries secured by such
\n Liens does not exceed the amount of Restricted Subsidiary Debt permitted
\n under SECTION 7.12;<\/p>\n
(b) Pledges or deposits made to secure payment of worker’s
\n compensation, or to participate in any fund in connection with worker’s
\n compensation, unemployment insurance, pensions, or other social security
\n programs, and reasonable and customary reserves established in
\n connection with the sale of Receivables permitted under SECTION 7.19(d);<\/p>\n
(c) Good-faith pledges or deposits made to secure performance
\n of bids, tenders, insurance, or other contracts (other than for the
\n repayment of borrowed money), or leases, or to secure statutory
\n obligations, surety or appeal bonds, or indemnity, performance, or other
\n similar bonds as all such Liens arise in the ordinary course of business
\n of the Restricted Companies;<\/p>\n
(d) Encumbrances consisting of zoning restrictions, easements,
\n or other restrictions on the use of real property, none of which impair
\n in any material respect the use of such property by the Person in
\n question in the operation of its business, and none of which is violated
\n by existing or proposed structures or land use;<\/p>\n
(e) If no Lien has been agreed to or filed in any
\n jurisdiction, (i) claims and Liens for Taxes not yet due and payable,
\n (ii) mechanic’s Liens and materialmen’s Liens for services or materials
\n and similar Liens incident to construction and maintenance of real
\n property, in each case for which payment is not yet due and payable,
\n (iii) landlord Liens for rental not yet due and payable, and (iv) Liens
\n of warehousemen and carriers and similar Liens securing obligations that
\n are not yet due and payable;<\/p>\n
(f) The following, so long as the validity or amount thereof
\n is being contested in good faith and by appropriate and lawful
\n proceedings diligently conducted, reserve or other appropriate provision
\n (if any) required by GAAP shall have been made, levy and execution
\n thereon have been stayed and continue to be stayed, and they do not in
\n the aggregate materially detract from the value of the property of the
\n Person in question, or materially impair the use thereof in the
\n operation of its business: (i) claims and Liens for Taxes (other than
\n Liens relating to Environmental Laws or ERISA); (ii) claims and Liens
\n upon, and defects of title to, real or personal property, including any
\n attachment of personal or<\/p>\n
AMENDED AND RESTATED
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\n 48
\n 54
\n real property or other legal process prior to adjudication of a dispute
\n of the merits; (iii) claims and Liens of mechanics, materialmen,
\n warehousemen, carriers, landlords, or other like Liens; and (iv) adverse
\n judgments on appeal;<\/p>\n
(g) Liens on the Receivables Program Assets created pursuant
\n to any Receivables Documents evidencing Accounts Receivable Financing
\n permitted by SECTION 7.19(d); and<\/p>\n
(h) Any attachment or judgment Lien not constituting a Default
\n or Potential Default.<\/p>\n
7.14 Transactions with Affiliates. Except for those transactions
\nlisted on SCHEDULE 7.14, no Restricted Company shall enter into any material
\ntransaction with any of its Affiliates (excluding transactions among or between
\nRestricted Companies), other than (i) transactions in the ordinary course of
\nbusiness and upon fair and reasonable terms not materially less favorable than
\nsuch Restricted Company could obtain or could become entitled to in an
\narm’s-length transaction with a Person that was not its Affiliate and (ii)
\nsales and contributions of Receivables Program Assets from Borrower or certain
\nRestricted Subsidiaries to the Receivables Subsidiary pursuant to an Accounts
\nReceivable Financing permitted by SECTION 7.19(d); provided, that, for the
\npurposes hereof, determinations of materiality shall be made in the good faith
\njudgment of Borrower with respect to the Restricted Companies taken as a whole.<\/p>\n
7.15 Compliance with Laws and Documents. No Restricted Company shall
\nviolate 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 Facility A Lenders.<\/p>\n
7.16 Assignment. Without the express written consent of all Lenders,
\nBorrower shall not assign or transfer any of its Rights, duties, or obligations
\nunder any of the Loan Papers.<\/p>\n
7.17 Permitted Distributions. Borrower may not, directly or
\nindirectly, declare, make, or pay any Distributions if any Default or Potential
\nDefault exists or will exist after giving effect to any such Distribution. Any
\nDistribution permitted hereunder is permitted only to the extent such
\nDistribution is made in accordance with applicable Law and constitutes a valid,
\nnon-voidable transaction.<\/p>\n
7.18 Restrictions on Subsidiaries. No Restricted Subsidiary shall,
\ndirectly or indirectly, enter into or permit to exist any material arrangement
\nor agreement (other than the Loan Papers) which directly or indirectly
\nprohibits any such Restricted Subsidiary from (a) declaring, making, or paying,
\ndirectly or indirectly, any Distribution to Borrower or any other Restricted
\nSubsidiary, (b) paying any Debt owed to Borrower or any other Restricted
\nSubsidiary, (c) making loans, advances, or investments to Borrower or any other
\nRestricted Subsidiary, or (d) transferring any of its property or assets to
\nBorrower or any other Restricted Subsidiary.<\/p>\n
7.19 Sale of Assets. No Restricted Company shall, directly or
\nindirectly, sell, assign, transfer, or otherwise dispose of any of its assets
\nexcept: (a) disposition of obsolete or worn-out property or real property no
\nlonger used or useful in its business; (b) the sale, discount, or transfer of
\ndelinquent accounts receivable in the ordinary course of business for purposes
\nof collection; (c) sales of inventory in the ordinary course of business; (d)
\nthe sale, assignment, transfer, or other disposition of undivided percentage
\ninterests in the Receivables Program Assets pursuant to any Accounts
\nReceivables Financing, so long as the aggregate Accounts<\/p>\n
AMENDED AND RESTATED
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\n 49
\n 55
\nReceivable Financing Amount payable from the Receivables Program Assets to the
\npurchasers under all such Accounts Receivable Financings does not exceed
\n$2,000,000,000 on any date of determination; (e) asset sales between Restricted
\nCompanies; and (f) if no Default or Potential Default then exists or arises as
\na result thereof, additional sales or disposition of other assets, if after
\ngiving effect to such sales or disposition, the aggregate book value of assets
\nsold on and after the Closing Date does not exceed 20% of the book value of the
\nconsolidated assets of the Restricted Companies determined as of the date of,
\nand with respect to, the Current Financials and the related Compliance
\nCertificate.<\/p>\n
7.20 Mergers and Dissolutions; Sale of Capital Stock. No Restricted
\nCompany will, directly or indirectly, merge or consolidate with any other
\nPerson, other than (a) mergers or consolidations by Borrower with another
\nPerson; (b) mergers or consolidations by any Restricted Subsidiary with another
\nPerson, if a Restricted Subsidiary is the surviving or resulting entity; (c)
\nmergers or consolidations among Restricted Companies; (d) as previously
\napproved by Determining Lenders; and (e) mergers or consolidations between
\nRestricted Companies and Unrestricted Subsidiaries; provided that, under this
\nSECTION 7.20, unless previously approved by Determining Lenders, (i) in any
\nmerger or consolidation involving Borrower, Borrower or a Permitted Successor
\nCorporation must be the surviving or resulting entity, (ii) in any merger or
\nconsolidation involving a wholly-owned Restricted Subsidiary, a wholly-owned
\nSubsidiary must be the surviving or resulting entity; and, (iii) in any merger
\nor consolidation involving any other Restricted Company (including any
\nacquisition effected as a merger), a Restricted Subsidiary must be the
\nsurviving or resulting entity. No Restricted Company shall liquidate, wind up,
\nor dissolve (or suffer any liquidation or dissolution), other than (x)
\nliquidations, wind ups, or dissolutions incident to mergers or consolidations
\npermitted under this SECTION 7.20, or (y) liquidations, wind ups, or
\ndissolutions of a Restricted Subsidiary if no Default or Potential Default
\nexists or would result therefrom and its proportionate share of assets (if any)
\nare transferred to a Restricted Company.<\/p>\n
7.21 Designation of Unrestricted Companies. So long as no Default or
\nPotential Default exists or arises as a result thereof, Borrower may from time
\nto time designate a Subsidiary as an Unrestricted Subsidiary or designate an
\nUnrestricted Subsidiary as a Restricted Subsidiary; provided that, Borrower
\nshall (a) provide Administrative Agent written notification of such
\ndesignation, and (b) deliver to Administrative Agent a Compliance Certificate
\ndemonstrating pro-forma compliance with SECTIONS 7.12 and 7.22 immediately
\nprior to and after giving effect to such designation.<\/p>\n
7.22 Financial Covenant. As calculated on a consolidated basis for
\nthe Restricted Companies, Borrower shall never permit the ratio of Total Debt
\nto Total Capitalization, on any date of determination, to exceed 0.68 to 1.00.<\/p>\n
7.23 Year 2000 Compliance. Borrower will promptly notify the
\nAdministrative Agent in the event Borrower discovers or determines that any
\ncomputer application that is material to its or any of its Subsidiaries’
\nbusiness and operations will not be Year 2000 compliant on a timely basis,
\nexcept to the extent that such failure is not reasonably expected to be a
\nMaterial Adverse Event.<\/p>\n
7.24 Repayment of Certain Existing Debt. On or before the thirtieth
\n(30th) day following the Closing Date, Borrower shall repay in full and cancel
\nits commitment under the WorldCom\/Brooks Fiber Loan. On the MCI Merger Date,
\nBorrower shall cause all Debt under the MCI Revolving Facility to be repaid in
\nfull and the commitment thereunder cancelled. On the date of the Debt
\nrepayment and commitment reduction required in this SECTION 7.24 in connection
\nwith the WorldCom\/Brooks Fiber Loan, Borrower shall provide Administrative
\nAgent with written confirmation and evidence that all such Debt repayments and
\ncommitment terminations have been effected in accordance with the requirements
\nof this SECTION 7.24. Within five (5) Business Days after the MCI Merger Date,
\nBorrower shall provide Administrative Agent with written confirmation that all
\nsuch Debt repayments and<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 50
\n 56
\ncommitment terminations have been effected in connection with the MCI Revolving
\nFacility.<\/p>\n
SECTION 8 DEFAULT. The term “DEFAULT” means the occurrence of any one or
\nmore of the following events:<\/p>\n
8.1 Payment of Obligation. The failure or refusal of (a) Borrower to
\npay (i) Principal Debt within three days after the same becomes due in
\naccordance with the Loan Papers; (ii) interest, fees, or any other part of the
\nObligation within five days after the same becomes due and payable in
\naccordance with the Loan Papers; or (iii) the indemnifications and
\nreimbursements provided for in SECTIONS 3.15, 3.19, and 3.20 within ten days
\nafter demand therefor as required by such Sections; or (b) any Restricted
\nCompany to punctually and properly perform, observe, and comply with SECTION
\n9.12 or with any other provision in the Loan Papers setting forth
\nindemnification or reimbursement obligations (other than pursuant to SECTIONS
\n3.15, 3.19, and 3.20) of the Restricted Companies, and such failure or refusal
\ncontinues for 15 days.<\/p>\n
8.2 Covenants. The failure or refusal of Borrower (and, if
\napplicable, any other Consolidated Company) to punctually and properly perform,
\nobserve, and comply with: (a) any covenant, agreement, or condition contained
\nin SECTIONS 7.1, 7.12, 7.13 (other than by reason of attachment or involuntary
\nLien), 7.16, 7.17, 7.19 through 7.21, and 7.24; (b) any covenant, agreement, or
\ncondition contained in SECTION 7.13 (if by reason of an attachment or
\ninvoluntary Lien), 7.18, 7.22, and 7.23, which failure or refusal continues for
\n15 days; or (c) any other covenant, agreement, or condition contained in any
\nLoan Paper (other than the covenants to pay the Obligation set forth in SECTION
\n8.1 and the covenants in CLAUSES (a) and (b) hereof), which failure or refusal
\ncontinues for 30 days.<\/p>\n
8.3 Debtor Relief. Borrower or any Material Subsidiary (a) shall not
\nbe Solvent, (b) fails to pay its Debts generally as they become due, (c)
\nvoluntarily seeks, consents to, or acquiesces in the benefit of any Debtor
\nRelief Law, other than as a creditor or claimant, or (d) becomes a party to or
\nis made the subject of any proceeding provided for by any Debtor Relief Law,
\nother than as a creditor or claimant, that could suspend or otherwise adversely
\naffect the Rights of Administrative Agent or any Lender granted in the Loan
\nPapers (unless, in the event such proceeding is involuntary, the petition
\ninstituting same is dismissed within 60 days after its filing).<\/p>\n
8.4 Judgments and Attachments. Any Restricted Company fails, within
\n60 days after entry, to pay, bond, or otherwise discharge any one or more
\njudgments or orders for the payment of money (not paid or fully covered by
\ninsurance) in excess of $100,000,000 (individually or collectively) or the
\nequivalent thereof in another currency or currencies, or any warrant of
\nattachment, sequestration, or similar proceeding against any Restricted
\nCompany’s assets having a value (individually or collectively) of $100,000,000
\nor the equivalent thereof in another currency or currencies, which is not
\neither (a) stayed on appeals; (b) being diligently contested in good faith by
\nappropriate proceedings with adequate reserves having been set aside on the
\nbooks of such Restricted Company in accordance with GAAP, or (c) dismissed by a
\ncourt of competent jurisdiction.<\/p>\n
8.5 Misrepresentation. Any representation or warranty made by any
\nConsolidated Company contained in any Loan Paper shall at any time prove to
\nhave been incorrect in any material respect when made.<\/p>\n
8.6 Change of Control. (a) A Responsible Officer or Officers become
\nthe “beneficial owner” (as defined in Rule 13(d)(3) under the 1934 Act and
\nherein 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<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 51
\n 57
\nwithin the meaning of Rule 13(d)(3) under the 1934 Act) who were on December 4,
\n1992 (or prior to any change in beneficial ownership were) beneficial owners of
\n20% or more of the Voting Stock of LDDS Communications, Inc., a Tennessee
\ncorporation and the predecessor of Borrower, or immediately prior to the merger
\nbetween LDDS Communications, Inc., a Tennessee corporation, and Advanced
\nTelecommunications Corporation, a Delaware corporation, were beneficial owners
\nof 20% or more of the Voting Stock of either such company, and (ii) Metromedia
\nCompany, a Delaware general partnership.<\/p>\n
8.7 Default Under Other Agreements. (a) Any default exists under any
\nagreement to which a Restricted Company is a party, the effect of which is to
\ncause, or to permit any Person to cause, an amount of Debt of such Restricted
\nCompany in excess (individually or collectively) of $100,000,000 (or the
\nequivalent thereof in another currency or currencies) to become due and payable
\nby any Restricted Company (whether by acceleration or by its terms); or (b) any
\ndefault exists under any material written or oral agreement, contract,
\ncommitment, or understanding to which a Restricted Company is a party, the
\neffect of which would be a Material Adverse Event, unless, in the case of this
\nCLAUSE (B), and so long as, such default is being contested by such Restricted
\nCompany in good faith by appropriate proceedings, and adequate reserves in
\nrespect thereof have been established on the books of such Restricted Company
\nto the extent required by GAAP.<\/p>\n
8.8 Employee Benefit Plans. (a) A Reportable Event or Reportable
\nEvents, or a failure to make a required installment or other payment (within
\nthe meaning of Section 412(n)(1) of the Code), shall have occurred with respect
\nto any Employee Plan or Plans that is expected to result in liability of
\nBorrower to the PBGC or to a Plan in an aggregate amount exceeding $100,000,000
\nand, within 30 days after the reporting of any such Reportable Event to
\nAdministrative Agent or after the receipt by Administrative Agent of a
\nstatement required pursuant to SECTION 7.3(d) hereof, Administrative Agent
\nshall have notified Borrower in writing that (i) Determining Lenders have made
\na reasonable determination that, on the basis of such Reportable Event or
\nReportable Events or the failure to make a required payment, there are grounds
\nunder Title IV of ERISA for the termination of such Employee Plan or Plans by
\nthe PBGC, or the appointment by the appropriate United States district court of
\na trustee to administer such Employee Plan or Plans or the imposition of a Lien
\npursuant to section 412(n) of the Code in favor of an Employee Plan and (ii) as
\na result thereof a Default exists hereunder; or (b) Borrower or any ERISA
\nAffiliate has provided to any affected party a 60-day notice of intent to
\nterminate an Employee Plan pursuant to a distress termination in accordance
\nwith section 4041(c) of ERISA if the liability expected to be incurred as a
\nresult of such termination will exceed $100,000,000; 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 $100,000,000; or (f) Borrower or any ERISA
\nAffiliate shall have been notified by the sponsor of a Multiemployer Plan that
\nsuch Multiemployer Plan is in reorganization or is being terminated, within the
\nmeaning of Title IV of ERISA, if solely as a result of such reorganization or
\ntermination the aggregate annual contributions of Borrower and its ERISA
\nAffiliates to all Multiemployer Plans that are then in reorganization or have
\nbeen or are being terminated have been or will be increased over the amounts
\nrequired to be contributed to such Multiemployer Plans for their most recently
\ncompleted plan years by an amount exceeding $100,000,000.<\/p>\n
8.9 Default Under 364-Day Facility. The occurrence and continuance
\nof a “Default” under the 364-Day Facility C Revolving Credit and Term Loan
\nAgreement of even date herewith among Borrower, NationsBank, N.A., or<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 52
\n 58
\nAdministrative Agent thereunder, and other financial institutions party thereto
\n(as the same may be amended, modified, restated, or supplemented from time to
\ntime).<\/p>\n
8.10 Validity and Enforceability of Loan Papers. Any Loan Paper
\nshall, at any time after its execution and delivery and for any reason, cease
\nto be in full force and effect in any material respect or be declared to be
\nnull and void (other than in accordance with the terms hereof or thereof) or
\nthe validity or enforceability thereof be contested by any Restricted Company
\nparty thereto or any Restricted Company shall deny in writing that it has any
\nor any further liability or obligations under any Loan Paper to which it is a
\nparty.<\/p>\n
SECTION 9 RIGHTS AND REMEDIES.<\/p>\n
9.1 Remedies Upon Default.<\/p>\n
(a) If a Default exists under SECTION 8.3(c) or 8.3(d), the
\n commitment to extend credit hereunder shall automatically terminate and
\n the entire unpaid balance of the Obligation under Facility A shall
\n automatically become due and payable without any action or notice of any
\n kind whatsoever and Borrower shall be required to provide cash
\n collateral in an amount equal to the LC Exposure then existing in
\n accordance with SECTION 2.2(h).<\/p>\n
(b) If any Default exists, Administrative Agent may (and,
\n subject to the terms of SECTION 10, shall upon the request of
\n Determining Lenders) or Determining Lenders may, do any one or more of
\n the following: (i) if the maturity of the Obligation under Facility A
\n has not already been accelerated under SECTION 9.1(a), declare the
\n entire unpaid balance of the Obligation under Facility A, or any part
\n thereof, immediately due and payable, whereupon it shall be due and
\n payable; (ii) terminate the commitments of Lenders to extend credit
\n hereunder; (iii) reduce any claim to judgment; (iv) to the extent
\n permitted by Law, exercise (or request each Facility A Lender to, and
\n each Facility A Lender shall be entitled to, exercise) the Rights of
\n offset or banker’s Lien against the interest of Borrower in and to every
\n account and other property of Borrower which are in the possession of
\n Administrative Agent or any Facility A Lender to the extent of the full
\n amount of the Obligation (to the extent permitted by Law, Borrower being
\n deemed directly obligated to each Lender in the full amount of the
\n Obligation for such purposes); (v) if the maturity of the Obligation
\n under Facility A has not already been accelerated under SECTION 9.1(a),
\n demand Borrower to provide cash collateral in an amount equal to the LC
\n Exposure then existing in accordance with SECTION 2.2(h); and (vi)
\n exercise any and all other legal or equitable Rights afforded by the
\n Loan Papers, the Laws of the State of New York, 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 specific
\n performance of any covenant or condition contained in any of the Loan
\n Papers or in aid of the exercise of any Right granted to Administrative
\n Agent or any Facility A Lender in any of the Loan Papers.<\/p>\n
9.2 Company Waivers. To the extent permitted by Law, Borrower hereby
\nwaives presentment and demand for payment, protest, notice of intention to
\naccelerate, notice of acceleration, and notice of protest and nonpayment, and
\nagrees that its liability with respect to the Obligation (or any part thereof),
\nshall not be affected by any renewal or extension in the time of payment of the
\nObligation (or any part thereof), by any indulgence, or by any release or
\nchange in any security for the payment of the Obligation (or any part thereof).<\/p>\n
9.3 Performance by Administrative Agent. If any covenant, duty, or
\nagreement of any Consolidated Company is not performed in accordance with the
\nterms of the Loan Papers, after the occurrence and during the continuance of a
\nDefault, Administrative Agent may, at its option (but subject to the approval
\nof Determining<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 53
\n 59
\nLenders), perform or attempt to perform such covenant, duty, or agreement on
\nbehalf of such Consolidated Company. In such event, any amount expended by
\nAdministrative Agent in such performance or attempted performance shall be
\npayable by the Consolidated Companies, jointly and severally, to Administrative
\nAgent on demand, shall become part of the Obligation, and shall bear interest
\nat the Default Rate from the date of such expenditure by Administrative Agent
\nuntil paid. Notwithstanding the foregoing, it is expressly understood that
\nAdministrative Agent does not assume and shall never have, except by its
\nexpress written consent, any liability or responsibility for the performance of
\nany covenant, duty, or agreement of any Consolidated Company.<\/p>\n
9.4 Delegation of Duties and Rights. Facility A Lenders may perform
\nany of their duties or exercise any of their Rights under the Loan Papers by or
\nthrough their respective Representatives.<\/p>\n
9.5 Not in Control. Nothing in any Loan Paper shall, or shall be
\ndeemed to (a) give Administrative Agent, any Agent, or any Facility A Lender
\nthe Right to exercise control over the assets (including real property),
\naffairs, or management of any Consolidated Company, (b) preclude or interfere
\nwith compliance by any Consolidated Company with any Law, or (c) require any
\nact or omission by any Consolidated Company that may be harmful to Persons or
\nproperty. Any “Material Adverse Event” or other materiality qualifier in any
\nrepresentation, warranty, covenant, or other provision of any Loan Paper is
\nincluded for credit documentation purposes only and shall not, and shall not be
\ndeemed to, mean that Administrative Agent, any Agent, or any Facility A Lender
\nacquiesces in any non-compliance by any Consolidated Company with any Law or
\ndocument, or that Administrative Agent, any Agent, or any Facility A Lender
\ndoes not expect the Consolidated Companies to promptly, diligently, and
\ncontinuously carry out all appropriate removal, remediation, and termination
\nactivities required or appropriate in accordance with all Environmental Laws.
\nNeither the Administrative Agent nor any Facility A Lender has any fiduciary
\nrelationship with or fiduciary duty to Borrower or any Consolidated Company
\narising out of or in connection with the Loan Papers, and the relationship
\nbetween the Administrative Agent and Facility A Lenders, on the one hand, and
\nBorrower, on the other hand, in connection with the Loan Papers is solely that
\nof debtor and creditor. The power of Facility A Agents and Lenders under the
\nLoan Papers is limited to the Rights provided in the Loan Papers, which Rights
\nexist solely to assure payment and performance of the Obligation and may be
\nexercised in a manner calculated by Facility A Agents and Lenders in their
\nrespective 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 Agent
\nand Lenders under the Loan Papers are cumulative of and in addition to all
\nother Rights granted to Administrative Agent and Lenders at law or in equity,
\nwhether 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 by
\nAdministrative Agent or Lenders from the exercise of any Rights pertaining to
\nthe Obligation shall be applied to the Obligation in the order and manner set
\nforth in SECTION 3.11.<\/p>\n
9.9 Certain Proceedings. Borrower will promptly execute and deliver,
\nor cause the execution and<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 54
\n 60
\ndelivery of, all applications, certificates, instruments, registration
\nstatements, and all other documents and papers Administrative Agent or Facility
\nA Lenders may reasonably request in connection with the obtaining of any
\nconsent, approval, registration, qualification, permit, license, or
\nauthorization of any Governmental Authority or other Person necessary or
\nappropriate for the effective exercise of any Rights under the Loan Papers.
\nBecause Borrower agrees that Administrative Agent’s and Facility A Lenders’
\nremedies at Law for failure of Borrower to comply with the provisions of this
\nparagraph would be inadequate and that such failure would not be adequately
\ncompensable in damages, Borrower agrees that the covenants of this paragraph
\nmay be specifically enforced.<\/p>\n
9.10 Limitation of Rights. Notwithstanding any other provision of
\nthis Facility A Agreement or any other Loan Paper, any action taken or proposed
\nto be taken by Administrative Agent or any other Facility A Agent or any Lender
\nunder any Loan Paper which would affect the operational, voting, or other
\ncontrol of any Consolidated Company, shall be pursuant to Section 310(d) of the
\nCommunications Act of 1934 (as amended), any applicable state Law, and the
\napplicable rules and regulations thereunder and, if and to the extent required
\nthereby, subject to the prior consent of the FCC or any applicable PUC.<\/p>\n
9.11 Expenditures by Lenders. Borrower shall promptly pay within
\nfifteen (15) Business Days after request therefor (a) all reasonable costs,
\nfees, and expenses paid or incurred by Administrative Agent incident to any
\nLoan Paper (including, but not limited to, the reasonable fees and expenses of
\ncounsel to Administrative Agent and the allocated cost of internal counsel in
\nconnection with the negotiation, preparation, delivery, execution, coordination
\nand administration of the Loan Papers and any related amendment, waiver, or
\nconsent) and (b) all reasonable costs and expenses of Facility A Lenders, and
\nAdministrative Agent incurred by Administrative Agent, or any Facility A Lender
\nin connection 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 OTHER
\nRESTRICTED COMPANIES, INDEMNIFIES, PROTECTS, AND HOLDS ADMINISTRATIVE AGENT,
\nEACH OTHER FACILITY A AGENT, AND EACH LENDER AND THEIR RESPECTIVE AFFILIATES,
\nPARENTS, AND SUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES’ RESPECTIVE
\nDIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS,
\nAND ATTORNEYS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND
\nAGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
\nACTIONS, JUDGMENTS, SUITS, CLAIMS, AND PROCEEDINGS AND ALL REASONABLE AND
\nNECESSARY COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE
\nATTORNEYS’ FEES AND LEGAL EXPENSES INCLUDING ALLOCATED COST OF INTERNAL
\nCOUNSEL, AND AMOUNTS PAID IN SETTLEMENT WHETHER OR NOT SUIT IS BROUGHT), AND
\nDISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER, AND AMOUNTS PAID IN SETTLEMENT
\n(THE “INDEMNIFIED LIABILITIES”) WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED
\nBY, OR ASSERTED AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR
\nARISING OUT OF (A) THE DIRECT OR INDIRECT RESULT OF THE VIOLATION BY ANY
\nCONSOLIDATED COMPANY OF ANY ENVIRONMENTAL LAW, AS WELL AS ANY AMENDMENT AND
\nSUPPLEMENT THERETO AND ANY STATE COUNTERPART THEREOF; (B) ANY CONSOLIDATED
\nCOMPANY’S GENERATION, MANUFACTURE, PRODUCTION, STORAGE, TRANSPORTATION,
\nRELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL OR PRESENCE IN CONNECTION WITH
\nITS PROPERTIES OF A HAZARDOUS SUBSTANCE (INCLUDING, WITHOUT LIMITATION, (I) ALL
\nDAMAGES ARISING FROM ANY SUCH USE, GENERATION, MANUFACTURE, PRODUCTION,
\nSTORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE, OR (II)
\nTHE COSTS OF ANY REQUIRED OR NECESSARY ENVIRONMENTAL INVESTIGATION, MONITORING,
\nREPAIR, CLEANUP, OR DETOXIFICATION AND THE PREPARATION AND IMPLEMENTATION OF
\nANY CLOSURE, REMEDIAL, OR OTHER PLANS); OR (C) THE LOAN PAPERS OR ANY OF THE
\nTRANSACTIONS CONTEMPLATED THEREIN OR THE USE OF PROCEEDS OF ANY BORROWING, TO
\nTHE EXTENT THAT ANY OF THE INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR
\nINDIRECTLY, FROM ANY CLAIM MADE OR ACTION, SUIT, OR PROCEEDING COMMENCED BY OR
\nON BEHALF OF ANY PERSON OTHER THAN BY THE INDEMNIFIED PARTIES; (PROVIDED THAT,
\nNONE OF THE RESTRICTED COMPANIES SHALL HAVE ANY OBLIGATION HEREUNDER TO ANY
\nINDEMNIFIED PARTY WITH RESPECT TO ANY INDEMNIFIED LIABILITY ARISING FROM (I)
\nTHE FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY OR
\nANY ASSOCIATED PERSON OF SUCH INDEMNIFIED PARTY, OR (II) LEGAL PROCEEDINGS
\nCOMMENCED AGAINST ANY INDEMNIFIED PARTY BY ANY SECURITY HOLDER OR CREDITOR
\nTHEREOF ARISING OUT OF AND BASED UPON RIGHTS AFFORDED TO SUCH PERSON SOLELY IN
\nSUCH CAPACITY). AS USED IN<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 55
\n 61
\nTHIS PARAGRAPH, THE TERM “ASSOCIATED PERSON” MEANS, WITH RESPECT TO ANY PERSON,
\nTHE AFFILIATES, 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 FACILITY A AGREEMENT. AN INDEMNIFIED PARTY WILL PROMPTLY NOTIFY THE
\nRESTRICTED COMPANIES UPON RECEIPT OF WRITTEN NOTICE OF ANY CLAIM, ACTION, SUIT,
\nOR PROCEEDING 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 Facility A Lender (including any Facility A Lender in
\n its capacity as an issuer of a Financial Hedge or as a Swing Line
\n Lender) hereby appoints NationsBank (and NationsBank hereby accepts such
\n appointment) as its nominee and agent, in its name and on its behalf:
\n (i) to act as nominee for and on behalf of such Facility A Lender in and
\n under all Facility A Loan Papers; (ii) to arrange the means whereby the
\n funds of Facility A Lenders are to be made available to Borrower under
\n the Facility A Loan Papers; (iii) to take such action as may be
\n requested by any Facility A Lender under the Facility A Loan Papers
\n (when such Facility A Lender is entitled to make such request under the
\n Facility A Loan Papers and after such requesting Facility A Lender has
\n obtained the concurrence of such other Facility A Lenders as may be
\n required under the Facility A Loan Papers); (iv) to receive all
\n documents and items to be furnished to Facility A Lenders under the
\n Facility A Loan Papers; (v) to be the secured party, mortgagee,
\n beneficiary, and similar party in respect of, and to receive, as the
\n case may be, any collateral for the benefit of Facility A Lenders; (vi)
\n to timely distribute, and Administrative Agent agrees to so distribute,
\n to each Facility A Lender all material information, requests, documents,
\n and items received from Borrower under the Facility A Loan Papers; (vii)
\n to promptly distribute to each Facility A Lender its ratable part of
\n each 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 Facility A Loan Papers;
\n (viii) to deliver to the appropriate Persons requests, demands,
\n approvals, and consents received from Facility A Lenders; and (ix) to
\n execute, on behalf of Facility A Lenders, such releases or other
\n documents or instruments as are permitted by the Facility A Loan Papers
\n or as directed by Facility A Lenders from time to time; provided,
\n however, Administrative Agent shall not be required to<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 56
\n 62
\n take any action which exposes Administrative Agent to personal liability
\n or which is contrary to the Facility A Loan Papers or applicable Law.<\/p>\n
(b) Administrative Agent may resign at any time as
\n Administrative Agent under the Facility A Loan Papers by giving written
\n notice thereof to Facility A Lenders and may be removed as
\n Administrative Agent under the Facility A Loan Papers at any time with
\n cause by Determining Lenders. Should the initial or any successor
\n Administrative Agent ever cease to be a party hereto or should the
\n initial or any successor Administrative Agent ever resign or be removed
\n as Administrative Agent, then Determining Lenders shall elect the
\n successor Administrative Agent from among the Lenders (other than the
\n resigning Administrative Agent). If no successor Administrative Agent
\n shall have been so appointed by Determining Lenders, within 30 days
\n after the retiring Administrative Agent’s giving of notice of
\n resignation or Determining Lenders’ removal of the retiring
\n Administrative Agent, then the retiring Administrative Agent may, on
\n behalf of Facility A Lenders, appoint a successor Administrative Agent,
\n which shall be a commercial bank having a combined capital and surplus
\n of at least $1,000,000,000. Upon the acceptance of any appointment as
\n Administrative Agent under the Facility A Loan Papers by a successor
\n Administrative Agent, such successor Administrative Agent shall
\n thereupon succeed to and become vested with all the Rights of the
\n retiring Administrative Agent, and the retiring Administrative Agent
\n shall be discharged from its duties and obligations of Administrative
\n Agent under the Facility A Loan Papers (provided, however, that when
\n used in connection with LCs issued and outstanding prior to the
\n appointment of the successor Administrative Agent, “Administrative
\n Agent” shall continue to refer solely to the bank that issued the
\n outstanding LC; provided further that any LCs issued or renewed after
\n the appointment of any successor Administrative Agent shall be issued by
\n such successor Administrative Agent), and each Facility A Lender shall
\n execute such documents as any Facility A Lender may reasonably request
\n to reflect such change in and under the Facility A Loan Papers. After
\n any retiring Administrative Agent’s resignation or removal as
\n Administrative Agent under the Facility A Loan Papers, the provisions of
\n this 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 Facility A Loan Papers.<\/p>\n
(c) Administrative Agent, in its capacity as a Facility A
\n Lender, shall have the same Rights under the Facility A Loan Papers as
\n any other Facility A Lender and may exercise the same as though it were
\n not acting as Administrative Agent; the term “Facility A Lender” shall,
\n unless the context otherwise indicates, include Administrative Agent;
\n and any resignation, or removal of by Administrative Agent hereunder
\n shall not impair or otherwise affect any Rights which it has or may have
\n in its capacity as an individual Facility A Lender. Each Facility A
\n Lender and Borrower agree that Administrative Agent is not a fiduciary
\n for Facility A Lenders or for Borrower but simply is acting in the
\n capacity described herein to alleviate administrative burdens for both
\n Borrower and Facility A Lenders, that Administrative Agent has no duties
\n or responsibilities to Facility A Lenders or Borrower except those
\n expressly set forth herein, and that Administrative Agent in its
\n capacity as a Facility A Lender has all Rights of any 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, or
\n other financing transactions with Borrower, act as trustee or depositary
\n for Borrower, or otherwise be engaged in other transactions with
\n Borrower (collectively, the “OTHER ACTIVITIES”) not the subject of the
\n Facility A Loan Papers. Without limiting the Rights of Facility A
\n Lenders specifically set forth in the Facility A Loan Papers,
\n Administrative Agent and its Affiliates shall not be responsible to
\n account to Facility A Lenders for such other activities, and no Facility
\n A 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 Facility A Loan Papers, any<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 57
\n 63
\n present or future offset exercised by Administrative Agent and its
\n Affiliates in respect of such other activities, any present or future
\n property taken as security for any such other activities, or any
\n property now or hereafter in the possession or control of Administrative
\n Agent or its Affiliates which may be or become security for the
\n obligations of Borrower arising under the Facility A Loan Papers by
\n reason of the general description of indebtedness secured or of property
\n contained in any other agreements, documents or instruments related to
\n any such other activities; provided that, if any payments in respect of
\n such guaranties or such property or the proceeds thereof shall be
\n applied to reduction of the obligations of Borrower arising under the
\n Facility A Loan Papers, then each Facility A Lender shall be entitled to
\n share in such application ratably.<\/p>\n
(e) Each Facility A Lender acknowledges that, and consents to,
\n NationsBank’s also serving as the Facility B Administrative Agent and
\n the “Administrative Agent” under the 364-Day Facility.<\/p>\n
10.2 Expenses. Upon demand by Administrative Agent, each Facility A
\nLender shall pay its Pro Rata Part of any reasonable expenses (including,
\nwithout limitation, court costs, reasonable attorneys’ fees and other costs of
\ncollection) incurred by Administrative Agent in connection with any of the
\nFacility A Loan Papers if and to the extent Administrative Agent does not
\nreceive reimbursement therefor from other sources within 60 days after
\nincurred; provided that each Facility A Lender shall be entitled to receive its
\nPro Rata Part of any reimbursement for such expenses, or part thereof, which
\nAdministrative Agent subsequently receives from such other sources.<\/p>\n
10.3 Proportionate Absorption of Losses. Except as otherwise provided
\nin the Loan Papers, nothing in the Loan Papers shall be deemed to give any
\nLender any advantage over any other Lender insofar as the Obligation arising
\nunder the Loan Papers is concerned, or to relieve any Lender from absorbing its
\nPro Rata Part of any losses sustained with respect to the Obligation (except to
\nthe extent such losses result from unilateral actions or inactions of any
\nLender that are not made in accordance with the terms and provisions of the
\nLoan Papers).<\/p>\n
10.4 Delegation of Duties; Reliance. Administrative Agent may perform
\nany of its duties or exercise any of its Rights under the Facility A Loan
\nPapers by 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 Facility A Lender as the owner
\nand holder of the Facility A Principal Debt owed to such Facility A Lender for
\nall purposes until, subject to SECTION 11.13, written notice of the assignment
\nor transfer thereof shall have been given to and received by Administrative
\nAgent (and any request, authorization, consent, or approval of any Facility A
\nLender shall be conclusive and binding on each subsequent holder, assignee, or
\ntransferee of the Facility A Principal Debt owed to such Facility A Lender or
\nportion thereof until such notice is given and received), (c) not be deemed to
\nhave notice of the occurrence of a Default unless a responsible officer of
\nAdministrative Agent, who handles matters associated with the Facility A Loan
\nPapers and transactions thereunder, has actual knowledge thereof or
\nAdministrative Agent has been notified thereof by a Facility A Lender or
\nBorrower, and (d) be entitled to consult with legal counsel (including counsel
\nfor Borrower), independent accountants and other experts selected by
\nAdministrative Agent and shall not be liable for any action taken or omitted to
\nbe taken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 58
\n 64
\n 10.5 Limitation of Liability.<\/p>\n
(a) None of the Facility A Agents or any of their respective
\n Representatives shall be liable for any action taken or omitted to be
\n taken by it or them under the Loan Papers in good faith and reasonably
\n believed by it or them to be within the discretion or power conferred
\n upon it or them by the Loan Papers or be responsible for the
\n consequences of any error of judgment, except for fraud, gross
\n negligence, or willful misconduct as found in a final, non-appealable
\n judgment by a court of competent jurisdiction; and none of the Facility
\n A Agents or any of their respective Representatives has a fiduciary
\n relationship with any Facility A Lender by virtue of the Loan Papers
\n (provided that nothing herein shall negate the obligation of
\n Administrative Agent to account for funds received by it for the account
\n of any Facility A Lender).<\/p>\n
(b) Unless indemnified to its satisfaction against loss, cost,
\n liability, and expense, no Facility A Agent shall be compelled to do any
\n act under the Loan Papers or to take any action toward the execution or
\n enforcement of the powers thereby created or to prosecute or defend any
\n suit in respect of the Loan Papers. If any Facility A Agent requests
\n instructions from Facility A Lenders or Determining Lenders, as the case
\n may be, with respect to any act or action (including, but not limited
\n to, any failure to act) in connection with any Facility A Loan Paper, or
\n Loan Paper, such Facility A Agent shall be entitled (but shall not be
\n required) to refrain (without incurring any liability to any Person by
\n so refraining) from such act or action unless and until it has received
\n such instructions. In no event, however, shall any Facility A Agent or
\n any of its respective Representatives be required to take any action
\n which it or they determine could incur for it or them criminal or
\n onerous civil liability. Without limiting the generality of the
\n foregoing, no Facility A Lender shall have any right of action against
\n any Facility A Agent as a result of such Agent’s acting or refraining
\n from acting hereunder in accordance with the instructions of Determining
\n Lenders.<\/p>\n
(c) Facility A Agents shall not be responsible in any manner
\n to any Facility A Lender or any Participant for, and each Facility A
\n Lender represents and warrants that it has not relied upon Facility A
\n Agents in respect of, (i) the creditworthiness of any Restricted Company
\n and the risks involved to such Facility A Lender, (ii) the
\n effectiveness, enforceability, genuineness, validity, or the due
\n execution of any Loan Paper, (iii) any representation, warranty,
\n document, certificate, report, or statement made therein or furnished
\n thereunder or in connection therewith, (iv) the existence, priority, or
\n perfection of any Lien hereafter granted or purported to be granted
\n under any Loan Paper, or (v) observation of or compliance with any of
\n the terms, covenants, or conditions of any Loan Paper on the part of any
\n Restricted Company. Each Facility A Lender agrees to indemnify each
\n Facility A Agent and its respective Representatives and hold them
\n harmless from and against (but limited to such Lender’s Pro Rata Part
\n of) any and all liabilities, obligations, losses, damages, penalties,
\n actions, judgments, suits, costs, reasonable expenses, and reasonable
\n disbursements of any kind or nature whatsoever which may be imposed on,
\n asserted against, or incurred by them in any way relating to or arising
\n out of the Loan Papers or any action taken or omitted by them under the
\n Loan Papers, to the extent any Facility A Agent and its respective
\n Representatives are not reimbursed for such amounts by any Restricted
\n Company (provided that, no Facility A Agent and its respective
\n Representatives shall have the right to be indemnified hereunder for its
\n or their own fraud, gross negligence, or willful misconduct as found in
\n a final, non-appealable judgment by a court of competent jurisdiction).<\/p>\n
10.6 Default; Collateral. Upon the occurrence and continuance of a
\nDefault, Facility A Lenders agree to promptly confer in order that Determining
\nLenders or Facility A Lenders, as the case may be, may agree upon a<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 59
\n 65
\ncourse of action for the enforcement of the Rights of Facility A 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 Facility A Lender. Any and all
\nagreements to subordinate (whether made heretofore or hereafter) other
\nindebtedness or obligations of Borrower to the Obligation shall be construed as
\nbeing for the ratable benefit of each Facility A Lender. If Administrative
\nAgent acquires any security for the Obligation or any guaranty of the
\nObligation upon or in lieu of foreclosure, the same shall be held for the
\nratable benefit of all Lenders in proportion to the Principal Debt respectively
\nowed to each Lender.<\/p>\n
10.7 Limitation of Liability. To the extent permitted by Law, (a) no
\nFacility A Agent (acting in its respective agent capacities) shall incur any
\nliability to any other Lender, Facility A Agent, or Participant, except for
\nacts or omissions resulting from its own fraud, gross negligence or wilful
\nmisconduct as found in a final, non-appealable judgment by a court of competent
\njurisdiction, and (b) no Facility A Agent, nor any Lender or Participant shall
\nincur any liability to any other Person for any act or omission of any other
\nLender or any other Participant.<\/p>\n
10.8 Relationship of Lenders. Nothing herein shall be construed as
\ncreating a partnership or joint venture among Facility A Agents and Facility A
\nLenders or among Lenders.<\/p>\n
10.9 Benefits of Agreement. Except for the representations and
\ncovenants in SECTION 10.1(c) in favor of Borrower, none of the provisions of
\nthis SECTION 10 shall inure to the benefit of any Restricted Company or any
\nother Person other than Facility A Lenders and Facility A Agents; consequently,
\nneither any Restricted Company nor any other Person shall be entitled to rely
\nupon, or to raise as a defense, in any manner whatsoever, the failure of any
\nFacility A Lender or Facility A Agent to comply with such provisions.<\/p>\n
10.10 Co-Syndication Agents. None of the Facility A Lenders identified
\nin this Facility A Agreement as a “Co-Syndication Agent” shall have any rights,
\npowers, obligations, liabilities, responsibilities, or duties under this
\nFacility A Agreement, other than those applicable to all Facility A Lenders as
\nsuch. Without limiting the foregoing, none of the Facility A Lenders so
\nidentified as a “Co-Syndication Agent” shall have or be deemed to have any
\nfiduciary relationship with any Facility A Lender.<\/p>\n
SECTION 11 MISCELLANEOUS.<\/p>\n
11.1 Headings. The headings, captions, and arrangements used in any
\nof the Loan Papers are, unless specified otherwise, for convenience only and
\nshall not be deemed to limit, amplify, or modify the terms of the Loan Papers,
\nnor affect the meaning thereof.<\/p>\n
11.2 Nonbusiness Days. In any case where any payment or action is due
\nunder any Loan Paper on a day which is not a Business Day, such payment or
\naction may be delayed until the next-succeeding Business Day, but interest and
\nfees shall continue to accrue in respect of any payment to which it is
\napplicable until such payment is in fact made; provided that, if in the case of
\nany such payment in respect of a Eurodollar Rate Borrowing the next-succeeding
\nBusiness Day is in the next calendar month, then such payment shall be made on
\nthe next-preceding Business Day.<\/p>\n
11.3 Communications. Unless specifically otherwise provided, whenever
\nany Facility A 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<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 60
\n 66
\nbeen given (a) if by telex, when transmitted to the telex number, if any, for
\nsuch party, and the appropriate answer back is received, (b) if by telecopy,
\nwhen 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 other Facility A Agent and each Facility A Lender is set forth on SCHEDULE
\n2.1, and for Borrower and each Restricted Company is the address set forth by
\nBorrower’s signature on the signature page of this Facility A Agreement. A
\ncopy of each communication to Administrative Agent shall also be sent to Haynes
\nand Boone, L.L.P., 901 Main Street, Dallas, Texas 75202, Fax: 214\/651-5940,
\nAttn: Karen S. Nelson; a copy of each communication to any Consolidated Company
\nshall also be sent to WorldCom, Inc., 10777 Sunset Office Drive, St. Louis, MO
\n63127, 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
\nFacility A Agreement must be in form and substance and in such number of
\ncounterparts as may be reasonably satisfactory to Administrative Agent and its
\ncounsel.<\/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 Facility A Loan Papers shall
\nsurvive all closings under the Facility A Loan Papers and, except as otherwise
\nindicated, shall not be affected by any investigation made by any party. All
\nrights of, and provisions relating to, reimbursement and indemnification of
\nAdministrative Agent, any Agent, or any Facility A Lender shall survive
\ntermination of this Facility A Agreement and payment in full of the Obligation.<\/p>\n
11.7 Governing Law. THE FACILITY A LOAN PAPERS HAVE BEEN ENTERED INTO
\nPURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE
\nLAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF NEW YORK
\nAND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE
\nPARTIES TO THE FACILITY A LOAN PAPERS AND THE VALIDITY, CONSTRUCTION,
\nENFORCEMENT, AND INTERPRETATION OF THE FACILITY A LOAN PAPERS.<\/p>\n
11.8 Invalid Provisions. If any provision in any Loan Paper is held
\nto 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, Facility A
\nLenders, and each Restricted Company party to such Loan Paper agree to
\nnegotiate, in good faith, the terms of a replacement provision as similar to
\nthe severed provision as may be possible and be legal, valid, and enforceable.<\/p>\n
11.9 Entirety. THE RIGHTS AND OBLIGATIONS OF THE RESTRICTED
\nCOMPANIES, FACILITY A LENDERS, AND ADMINISTRATIVE AGENT SHALL BE DETERMINED
\nSOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL
\nAGREEMENTS BETWEEN SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH
\nWRITINGS. THIS FACILITY A AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME)
\nAND THE OTHER WRITTEN LOAN PAPERS EXECUTED BY ANY RESTRICTED COMPANY, ANY
\nFACILITY A LENDER, ADMINISTRATIVE AGENT, AND\/OR FACILITY B ADMINISTRATIVE AGENT
\n(TOGETHER WITH ALL FEE LETTERS AS THEY RELATE TO THE PAYMENT OF FEES AFTER THE
\nCLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN THE RESTRICTED COMPANIES,
\nFACILITY A LENDERS, ADMINISTRATIVE AGENT, AND\/OR FACILITY B ADMINISTRATIVE<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 61
\n 67
\nAGENT, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
\nSUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL
\nAGREEMENTS BETWEEN SUCH PARTIES.<\/p>\n
11.10 Jurisdiction; Venue; Service of Process; Jury Trial. EACH PARTY
\nHERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE CASE OF
\nBORROWER, FOR EACH OF ITS SUBSIDIARIES), HEREBY (A) IRREVOCABLY SUBMITS TO THE
\nNONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK,
\nAND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY
\nLEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE FACILITY A LOAN
\nPAPERS AND THE OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY NEW YORK LAW,
\n(B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
\nWHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION
\nARISING OUT OF OR IN CONNECTION WITH THE FACILITY A LOAN PAPERS AND THE
\nOBLIGATION BROUGHT IN ANY SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT
\nANY LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
\nFORUM, (D) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN
\nNEW YORK, NEW YORK IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO
\nADMINISTRATIVE AGENT EVIDENCE THEREOF, IF REQUESTED, (E) IRREVOCABLY CONSENTS
\nTO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
\nLITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT
\nREQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F) IRREVOCABLY
\nAGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN
\nCONNECTION WITH THE FACILITY A LOAN PAPERS OR THE OBLIGATION SHALL BE BROUGHT
\nIN ONE OF THE AFOREMENTIONED COURTS, AND (G) IRREVOCABLY WAIVES, TO THE FULLEST
\nEXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
\nCAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY FACILITY A LOAN PAPER OR THE
\nTRANSACTIONS CONTEMPLATED THEREBY. The scope of each of the foregoing waivers
\nis intended to be all-encompassing of any and all disputes that may be filed in
\nany court and that relate to the subject matter of this transaction, including,
\nwithout limitation, contract claims, tort claims, breach of duty claims, and
\nall other common law and statutory claims. Borrower (for itself and on behalf
\nof each of its Subsidiaries) and each other party to this Facility A Agreement
\nacknowledge that this waiver is a material inducement to the agreement of each
\nparty hereto to enter into a business relationship, that each has already
\nrelied on this waiver in entering into this Facility A Agreement, and each will
\ncontinue to rely on each of such waivers in related future dealings. Borrower
\n(for itself and on behalf of each of its Subsidiaries) and each other party to
\nthis Facility A Agreement warrant and represent that they have reviewed these
\nwaivers with their legal counsel, and that they knowingly and voluntarily agree
\nto each such waiver following consultation with legal counsel. THE WAIVERS IN
\nTHIS SECTION 11.10 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED
\nEITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT
\nAMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER FACILITY A
\nLOAN PAPER. In the event of Litigation, this Facility A Agreement may be filed
\nas a written consent to a trial by the court.<\/p>\n
11.11 Amendments, Consents, Conflicts, and Waivers.<\/p>\n
(a) Except as otherwise specifically provided, (i) this
\n Facility A Agreement may only be amended, modified or waived by an
\n instrument in writing executed jointly by Borrower and Determining
\n Lenders, and, in the case of any matter affecting Administrative Agent
\n (except removal of Administrative Agent as provided in SECTION 10), by
\n Administrative Agent, and may only be supplemented by documents
\n delivered or to be delivered in accordance with the express terms
\n hereof, and (ii) the other Loan Papers (other than Financial Hedges) may
\n only be the subject of an amendment, modification, or waiver if Borrower
\n and Determining Lenders, and, in the case of any matter affecting
\n Administrative Agent (except as set forth above), Administrative Agent,
\n have approved same.<\/p>\n
(b) Any amendment to or consent or waiver under this Facility
\n A Agreement or any Facility A Loan Paper which purports to accomplish
\n any of the following must be by an instrument in writing executed by
\n Borrower and executed (or approved, as the case may be) by each Facility
\n A Lender, and, in the case of any matter affecting Administrative Agent,
\n by Administrative Agent: (i) extends the due date or decreases the
\n amount of any scheduled payment (other than mandatory prepayments) of
\n the Obligation arising under the Facility A Loan Papers beyond the date
\n specified in the Facility A Loan Papers; (ii) reduces the<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 62
\n 68
\n interest rate or decreases the amount of interest, fees, or other sums
\n payable to Administrative Agent or Facility A Lenders hereunder (except
\n such reductions as are contemplated by this Facility A Agreement); (iii)
\n changes the definition of “APPLICABLE MARGIN” (other than changes having
\n the effect of increasing such Applicable Margin),” “DETERMINING
\n LENDERS,” “FACILITY A COMMITMENT,” “PRO RATA,” or “PRO RATA PART,” or
\n (iv) except as otherwise permitted by any Loan Paper, waives compliance
\n with, amends, or releases (in whole or in part) any guaranty (if any) or
\n releases (in whole or in part) any collateral, if any, for the
\n Obligation; or (v) changes this CLAUSE (B) or any other matter
\n specifically requiring the consent of all Facility A Lenders hereunder.
\n No amendment or waiver with respect to the definition of “FACILITY A
\n TERMINATION DATE” may be made without the consent of all Facility A
\n Lenders. Without the consent of such Lender, no Facility A Lender’s
\n “COMMITTED SUM” under Facility A may be increased.<\/p>\n
(c) Any conflict or ambiguity between the terms and provisions
\n herein and terms and provisions in any other Loan Paper shall be
\n controlled by the terms and provisions herein.<\/p>\n
(d) No course of dealing nor any failure or delay by
\n Administrative Agent, any Facility A Lender, or any of their respective
\n Representatives with respect to exercising any Right of Administrative
\n Agent or any Facility A Lender hereunder shall operate as a waiver
\n thereof. A waiver must be in writing and signed by Administrative Agent
\n and Determining Lenders (or by all Facility A Lenders, if required
\n hereunder) to be effective, and such waiver will be effective only in
\n the specific instance and for the specific purpose for which it is
\n given.<\/p>\n
11.12 Multiple Counterparts. This Facility A Agreement may be executed
\nin a number of identical counterparts, each of which shall be deemed an
\noriginal for all purposes and all of which constitute, collectively, one
\nagreement; but, in making proof of this Facility A Agreement, it shall not be
\nnecessary to produce or account for more than one such counterpart. It is not
\nnecessary that each Facility A Lender execute the same counterpart so long as
\nidentical counterparts are executed by Borrower, each Facility A Lender, and
\nAdministrative Agent. This Facility A Agreement shall become effective when
\ncounterparts hereof shall have been executed and delivered to Administrative
\nAgent by each Facility A Lender, Administrative Agent, and Borrower, or, when
\nAdministrative Agent shall have received telecopied, telexed, or other evidence
\nsatisfactory to it that such party has executed and is delivering to
\nAdministrative Agent a counterpart hereof.<\/p>\n
11.13 Successors and Assigns; Assignments and Participations.<\/p>\n
(a) This Facility A Agreement shall be binding upon, and inure
\n to the benefit of the parties hereto and their respective successors and
\n assigns, except that (i) assignments by Borrower are subject to the
\n restrictions of SECTION 7.16, and (ii) except as permitted under this
\n Section, no Facility A Lender may transfer, pledge, assign, sell any
\n participation in, or otherwise encumber its portion of the Obligation.<\/p>\n
(b) Each Facility A Lender may assign to one or more Eligible
\n Assignees all or a portion of its Rights and obligations under this
\n Facility A Agreement and the other Facility A Loan Papers (including,
\n without limitation, all or a portion of its Borrowings, its Notes [to
\n the extent such Facility A Principal Debt owed to such Facility A Lender
\n is evidenced by Notes]); provided, 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 another
\n Facility A Lender or an<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 63
\n 69
\n assignment of all of a Facility A Lender’s Rights and obligations
\n under this Facility A Agreement and the other Facility A Loan
\n Papers, any such partial assignment (when aggregated with the
\n amounts of any concurrent assignments under Facility B and\/or the
\n 364-Day Facility by the assigning Lender to the same assignee)
\n shall be in an amount at least equal to $10,000,000, but in no
\n event shall an assigned interest in any of Facility A, Facility
\n B, or the 364-Day Facility be less than $1,000,000 (except in the
\n case of an assignment of all of such Facility A Lenders’ interest
\n in any such facility);<\/p>\n
(iii) each such assignment by a Facility A Lender shall
\n be of a constant, and not varying, percentage of all of its
\n Rights and obligations under this Facility A Agreement and the
\n Notes (to the extent the Facility A Principal Debt owed to the
\n assigning Facility A Lender is evidenced by any Notes);<\/p>\n
(iv) each such assignment shall exclude Competitive
\n Borrowings, unless the assigning Facility A Lender is selling all
\n of its Rights and obligations under the Facility A Loan Papers;<\/p>\n
(v) the parties to such assignment shall execute and
\n 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 Facility A Principal Debt owed to the assigning
\n Facility A Lender is evidenced by any Notes) and a processing fee
\n of $3,500;<\/p>\n
(vi) no Swing Line Lender may assign any portion of its
\n obligations under the Swing Line Subfacility and its related
\n portion of the Revolving Commitment, unless such assignment is
\n being made in connection with the sale of all such Swing Line
\n Lender’s Rights and interests under the Facility A Loan Papers.<\/p>\n
Upon execution, delivery, and acceptance of such Assignment and
\n Acceptance Agreement, the assignee thereunder shall be a party hereto
\n and, to the extent of such assignment, have the obligations, Rights, and
\n benefits of a Facility A Lender under the Facility A Loan Papers and the
\n assigning Facility A Lender shall, to the extent of such assignment,
\n relinquish its rights and be released from its obligations under the
\n Facility A Loan Papers. Upon the consummation of any assignment
\n pursuant to this Section, but only upon the request of the assignor or
\n assignee made through Administrative Agent, Borrower shall issue
\n appropriate Notes to the assignor and the assignee, reflecting such
\n assignment and acceptance. If the assignee is not incorporated under
\n the laws of the United States of America or a state thereof, it shall
\n deliver to Borrower and Administrative Agent certification as to
\n exemption from deduction or withholding of Taxes in accordance with
\n SECTION 3.20(D).<\/p>\n
(c) The Administrative Agent shall maintain at its address
\n referred to in SECTION 11.3 a copy of each Assignment and Acceptance
\n Agreement delivered to and accepted by it and a register for the
\n recordation of the names and addresses of the Facility A Lenders and the
\n Facility A Commitment, and principal amount of the Borrowings owing to,
\n each Facility A Lender from time to time (the “REGISTER”). The entries
\n in the Register shall be conclusive and binding for all purposes, absent
\n manifest error, and Borrower, Administrative Agent and the Facility A
\n Lenders may treat each Person whose name is recorded in the Register as
\n a Facility A Lender hereunder for all purposes of the Facility A Loan
\n Papers. The Register shall be available for inspection by Borrower or
\n any Facility A Lender at any reasonable time and from time to time upon
\n reasonable prior notice. Upon the consummation of any assignment in
\n accordance<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 64
\n 70
\n with this SECTION 11.13, SCHEDULE 2.1 shall automatically be deemed
\n amended (to the extent required) by Administrative Agent to reflect the
\n name, address, and respective Facility A Committed Sums of the assignor
\n and assignee.<\/p>\n
(d) Upon its receipt of an Assignment and Acceptance Agreement
\n executed by the parties thereto, together with any Notes subject to such
\n assignment (to the extent the Facility A Principal Debt owed to the
\n assigning Facility A Lender is evidenced by any Notes) and payment of
\n the processing fee, the Administrative Agent shall, if such assignment
\n and 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 (iii)
\n give prompt notice thereof to the parties thereto.<\/p>\n
(e) Each Facility A Lender may sell participations to one or
\n more Persons (each a “PARTICIPANT”) in all or a portion of its Rights,
\n obligations, or Rights and obligations under this Facility A Agreement
\n and related Facility A Loan Papers (including all or a portion of its
\n Committed Sum or its portion of Borrowings advanced under Facility A);
\n provided, however, that (i) such Facility A Lender’s obligations under
\n this Facility A Agreement shall remain unchanged; (ii) such Lender
\n shall remain solely responsible to the other parties hereto for the
\n performance of such obligations; (iii) the Participant shall be entitled
\n to the benefit of the yield protection provisions contained in SECTIONS
\n 3.15, 3.19, and 3.20 (so long as Borrower shall not be obligated to pay
\n any amount in excess of the amount that would be due to such Facility A
\n Lender under such Sections as though no participations have been made)
\n and the right of set-off contained in SECTION 3.13; (iv) Borrower shall
\n continue to deal solely and directly with such Facility A Lender in
\n connection with such Facility A Lender’s Rights and obligations under
\n this Facility A Agreement and the other Facility A Loan Papers and such
\n Facility A Lender shall retain the sole Right to enforce the obligations
\n of Borrower relating to Borrowings under Facility A and its Notes (to
\n the extent the Facility A Principal Debt owed to such Facility A Lender
\n is evidenced by Notes) and to approve any amendment, modification, or
\n waiver of any provision of this Agreement (other than amendments,
\n modifications, or waivers decreasing the amount of principal of or the
\n rate at which interest is payable on the Facility A Principal Debt,
\n extending any scheduled principal payment date or date fixed for the
\n payment of interest on the Facility A Principal Debt, or extending such
\n Facility A Lender’s Committed Sum); and (v) such Facility A Lender shall
\n be solely responsible for any withholding taxes or any filing or
\n reporting requirements relating to such participation and shall hold
\n Borrower and Administrative Agent and their respective successors,
\n permitted assigns, officers, directors, employees, agents, and
\n representatives harmless against the same. Except in the case of the
\n sale of a participating interest to another Facility A Lender, the
\n relevant participation agreement shall not permit the Participant to
\n transfer, pledge, assign, sell participations in, or otherwise encumber
\n its portion of the Obligation, unless the consent of the transferring
\n Facility A Lender (which consent will not be unreasonably withheld) has
\n been obtained.<\/p>\n
(f) Notwithstanding any other provision set forth in this
\n Facility A Agreement, any Facility A Lender may at any time assign and
\n pledge all or any portion of its Borrowings and its Notes (to the extent
\n the Facility A Principal Debt owed to such Facility A Lender is
\n evidenced by any Notes) to any Federal Reserve Bank as collateral
\n security pursuant to Regulation A and any Operating Circular issued by
\n such Federal Reserve Bank. No such assignment shall release the
\n assigning Facility A Lender from its obligations hereunder.<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 65
\n 71
\n (g) Any Facility A Lender may furnish any information
\n concerning the Consolidated Companies in the possession of such Facility
\n A Lender from time to time to Eligible Assignees and Participants
\n (including prospective Eligible Assignees and Participants), subject,
\n however, to the provisions of SECTION 11.15 hereof.<\/p>\n
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain
\nCircumstances. Each Restricted Company’s obligations under the Loan Papers
\nshall remain in full force and effect until termination of the Facility A
\nCommitment and payment in full of the Principal Debt and of all interest, fees,
\nand other amounts of the Obligation then due and owing, (and termination of all
\noutstanding LCs with any Facility A Lender, if any, unless such Facility A
\nLender shall otherwise consent) except that SECTIONS 3.15, 3.19, 3.20, SECTION
\n9, and SECTION 11, and any other provisions under the Loan Papers expressly
\nintended to survive by the terms hereof or by the terms of the applicable Loan
\nPapers, shall survive such termination. If at any time any payment of the
\nprincipal of or interest on any Note, any promissory note issued pursuant to
\nFacility B, or any other amount payable by Borrower under any Loan Paper is
\nrescinded or must be otherwise restored or returned upon the insolvency,
\nbankruptcy, or reorganization of Borrower or otherwise, the obligations of each
\nRestricted Company under the Loan Papers with respect to such payment shall be
\nreinstated as though such payment had been due but not made at such time.<\/p>\n
11.15 Confidentiality. All information furnished by or on behalf of
\nany Restricted Company in connection with or pursuant to this Facility A
\nAgreement or any of the Loan Papers (including but not limited to in connection
\nwith or pursuant to the negotiation, preparation or requirements hereof or
\nthereof), which information has been identified as confidential by any
\nRestricted Company, shall be held by Administrative Agent, each other Facility
\nA Agent, each Facility A Lender, and each Participant (collectively, the
\n“LENDER PARTIES”) in accordance with its customary procedures for handling
\nconfidential information of this nature and in accordance with safe and sound
\nbanking practices, and no Lender Party shall disclose any of such information
\nto any other Person; provided that any Facility A Lender, Facility A Agent, or
\nParticipant may make disclosure (a) to its attorneys or accountants, provided
\nthat such Facility A Lender or Participant shall direct such attorneys or
\naccountants to maintain such information in confidence in accordance with the
\nprovisions of this SECTION 11.15, 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 11.15, (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 Facility A Lender
\nor Participant 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 11.15 (or of any agreement or obligation to be bound by this
\nSECTION 11.15) by any Lender Party, any affiliate of any Lender Party, any
\nprospective assignee or Participant, or their respective attorneys.<\/p>\n
11.16 Restatement of Existing Agreement. The parties hereto agree
\nthat, on the Closing Date, after all conditions precedent set forth in SECTION
\n5.1 have been satisfied or waived: (a) the Obligation (as defined herein)
\nrepresents, among other things, the amendment, extension, consolidation, and
\nmodification of the “Obligation” (as defined in the Existing Agreement); (b)
\nthis Facility A Agreement is intended to, and does hereby, restate,
\nconsolidate, renew, extend, amend, modify, supersede, and replace the Existing
\nAgreement in its entirety; (c) the Notes, if any, executed pursuant to this
\nFacility A Agreement amend, renew, extend, modify, replace, substitute for, and
\nsupersede in their entirety (but do not extinguish, the Debt arising under) the<\/p>\n
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 66
\n 72
\npromissory notes issued pursuant to the Existing Agreement, if any, which
\nexisting promissory notes shall be returned to Administrative Agent promptly
\nafter the Closing Date, marked “cancelled and replaced,” and, thereafter,
\ndelivered by Administrative Agent to Borrower; and (d) the entering into and
\nperformance of their respective obligations under this Facility A Agreement and
\nthe transactions evidenced hereby do not constitute a novation.<\/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
AMENDED AND RESTATED
\n FACILITY A REVOLVING CREDIT AGREEMENT
\n 67
\n 73<\/p>\n
SCHEDULE 2.1<\/p>\n
FACILITY A LENDERS AND FACILITY A COMMITTED SUMS<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nNationsBank, N.A., successor in interest by merger to NationsBank $154,337,500.00 4.115666666666667%
\nof Texas, N.A.
\nCommunications Finance Division
\nAttn: David C. Williams
\n901 Main Street, 64th Floor
\nDallas, TX 75202
\n———————————————————————————————————————
\nABN AMRO Bank, N.V. $37,500,000.00 1.000000000000000%
\nAttn: Jerry Snider
\nOne Ravinia Dr.
\nSuite 1200
\nAtlanta, GA 30346
\n———————————————————————————————————————
\nAmSouth Bank $18,750,000.00 0.500000000000000%
\nAttn: Tracy Sheehy
\n1900 5th Avenue North
\nBirmingham, AL 35288
\nThe Asahi Bank, Ltd. $18,750,000.00 0.500000000000000%
\nAttn: Marvin M. Lazar
\nOfficer
\nOne World Trade Center, Suite 6011
\nNew York, NY 10048
\n———————————————————————————————————————
\nBanco Espirito Santo $7,500,000.00 0.200000000000000%
\nE Comercial de Lisboa, Nassau Branch
\nAttn: Cristina N. Ferreira
\nVice President
\n320 Park Avenue, 29th Floor
\nNew York, NY 10022
\n———————————————————————————————————————
\nBank Hapoalim B.M. $18,750,000.00 0.500000000000000%
\nAttn: Ellen Frank
\nVice President
\n1515 Market Street, Suite 200
\nPhiladelphia PA 19102
\n———————————————————————————————————————
\nBank of America National Trust and Savings Association $115,125,000.00 3.070000000000000%
\nAttn: Fred Thorne, Vice President
\n555 California Street, 41st Floor (SFCP #9048)
\nSan Francisco, CA 94104
\nBank of Montreal $115,125,000.00 3.070000000000000%
\nAttn: Ola Anderssen
\nDirector, Communications\/Media
\n430 Park Avenue
\nNew York, NY 10022
\n———————————————————————————————————————
\nThe Bank of New York $115,125,000.00 3.070000000000000%
\nAttn: Vincent L. Pacilio, Sr. Vice President
\nOne Wall Street, 16th Floor
\nNew York, NY 10286
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n FACILITY A – SCHEDULE 2.1
\n 74<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nThe Bank of Nova Scotia $126,375,000.00 3.370000000000000%
\nAttn: Paul Gonin, Relationship Manager
\nHouston Representative Office
\n1100 Louisiana St., Suite 3000
\nHouston, TX 77002
\n———————————————————————————————————————
\nBank of Tokyo-Mitsubishi Trust Company $115,125,000.00 3.070000000000000%
\nAttn: Emile ElNems, Vice President
\n1251 Avenue of the Americas, 12th Floor
\nNew York, NY 10020-1104
\n———————————————————————————————————————
\nBanque Nationale de Paris $82,125,000.00 2.190000000000000%
\nAttn: Nuala Marley
\n499 Park Ave, 2nd Floor
\nNew York, NY 10022
\nBarclays Bank PLC $115,125,000.00 3.070000000000000%
\nAttn: J.K. Downey, Director
\n388 Market Street, Suite 1700
\nSan Francisco, CA 94111
\n———————————————————————————————————————
\nBayerische Landesbank Girozentrale, Cayman Islands Branch $56,250,000.00 1.500000000000000%
\nAttn: Jim Boyle, Account Manager
\n560 Lexington Ave., 17th Floor
\nNew York, NY 10022
\n———————————————————————————————————————
\nBW Bank Ireland plc $7,500,000.00 0.200000000000000%
\nAttn: Sinead O’Hara, Manager Corporate Banking
\n2, Harbour Master Place
\nIFSC
\nDublin 1
\nRepublic of Ireland
\n———————————————————————————————————————
\nCaisse Nationale de Credit Agricole $18,750,000.00 0.500000000000000%
\nAttn: Kenneth C. Coulter
\n600 Travis Street, Suite 2340
\nHouston, TX 77002
\nCanadian Imperial Bank of Commerce $77,625,000.00 2.070000000000000%
\nAttn: Erik Piecuch
\nc\/o CIBC Oppenheimer
\n425 Lexington Avenue
\nNew York, NY 10017
\n———————————————————————————————————————
\nThe Chase Manhattan Bank $115,125,000.00 3.070000000000000%
\nAttn: John J. Huber
\nManaging Director, Global Media and Telecommunications Group
\n270 Park Avenue, 37th Floor
\nNew York, NY 10017
\n———————————————————————————————————————
\nCitibank, N.A. $115,125,000.00 3.070000000000000%
\nAttn: Eric Huttner, Vice President
\nc\/o Citicorp Securities, Inc.
\n399 Park Avenue, 8th Floor (Zone 5)
\nNew York, NY 10043
\n———————————————————————————————————————
\nCompagnie Financiere de CIC et de l’Union Europeene $37,500,000.00 1.000000000000000%
\nAttn: Marcus Edward, Vice President
\n520 Madison Ave. 37th Floor
\nNew York, NY 10022
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 2
\n FACILITY A – SCHEDULE 2.1
\n 75<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nCredit Lyonnais New York Branch $115,125,000.00 3.070000000000000%
\nAttn: John Judge, Vice President
\n1301 Avenue of the Americas
\nNew York, NY 10019
\n———————————————————————————————————————
\nCredit Suisse First Boston $75,000,000.00 2.000000000000000%
\nAttn: Todd Morgan, Director
\n11 Madison Avenue, 20th Floor
\nNew York, NY 10010
\n———————————————————————————————————————
\nCrestar Bank $23,437,500.00 0.625000000000000%
\nAttn: J. Eric Millham, Vice President
\n919 East Main St., 22nd Floor
\nRichmond, VA 23219
\nThe Dai-Ichi Kangyo Bank, Limited $56,250,000.00 1.500000000000000%
\nAttn: Guenter Kittel, Vice President
\nAccount Officer
\nMarquis Two Tower, Suite 2400
\n285 Peachtree Center Ave, N.E.
\nAtlanta, GA 30303
\n———————————————————————————————————————
\nDG BANK $18,750,000.00 0.500000000000000%
\nDeutsche Genossenschaftsbank Cayman Island Branch
\nAttn: Jim Yeager
\n303 Peachtree Street, N.E.
\nAtlanta, GA 30308
\n———————————————————————————————————————
\nDresdner Bank AG, New York and Grand Cayman Branch $37,500,000.00 1.000000000000000%
\nAttn: Constance Loosemore
\n75 Wall Street
\nNew York, NY 10005
\n———————————————————————————————————————
\nThe First National Bank of Chicago $93,375,000.00 2.490000000000000%
\nAttn: Ronna Bury-Prince, Vice President
\nOne First National Plaza, Suite 0629
\nChicago, IL 60670
\nFirst Union National Bank, individually and as successor in $186,375,000.00 4.970000000000000%
\ninterest to Signet Bank and Corestates Bank N.A.
\nAttn: Mark Cook, Senior Vice President
\n301 South College Street, DC5
\nCharlotte, NC 28288-0735
\n———————————————————————————————————————
\nFleet National Bank $115,125,000.00 3.070000000000000%
\nAttn: Sue Anderson
\nVice President
\n1 Federal St. MA\/OF\/DO3D
\nBoston, MA 02109
\n———————————————————————————————————————
\nFuji Bank, Limited $22,500,000.00 0.600000000000000%
\nAttn: Clarence Mahovlich, Vice President
\nVice President
\nMarquis One Tower, Suite 2100
\n245 Peachtree Center Ave., N.E.
\nAtlanta, GA 30303-1208
\n———————————————————————————————————————
\nGulf International Bank B.S.C. $18,750,000.00 0.500000000000000%
\nAttn: Mireille Khalidi, Assistant Vice President
\n380 Madison Ave.- 21st Floor
\nNew York, NY 10017
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 3
\n FACILITY A – SCHEDULE 2.1
\n 76<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nThe Industrial Bank of Japan, Limited, Atlanta Agency $105,125,000.00 2.803333333333333%
\nAttn: James Masters
\nVice President
\nOne Ninety One Peachtree Tower, Suite 3600
\n191 Peachtree Street, N.E.
\nAtlanta, GA 30303-1757
\n———————————————————————————————————————
\nKBC Bank, N.V. $18,750,000.00 0.500000000000000%
\nAttn: Christine Park, Vice President
\n125 West 55th St
\nNew York, NY 10019
\n———————————————————————————————————————
\nThe Long-Term Credit Bank of Japan, Limited, New York Branch $89,625,000.00 2.390000000000000%
\nAttn: Robert Nelson, Vice President
\nTexas Commerce Tower
\n2200 Ross Avenue, Suite 4700 West
\nDallas, TX 75201
\nMellon Bank, N.A. $75,000,000.00 2.000000000000000%
\nAttn: Henry Beukema, Vice President
\nOne Mellon Bank Center, Room 4440
\n500 Grant St.
\nPittsburgh, PA 15258
\n———————————————————————————————————————
\nMercantile Bank National Association $18,750,000.00 0.500000000000000%
\nAttn: Michael Homeyer
\n7th & Washington, 12th Floor
\nSt. Louis, MO 63101
\n———————————————————————————————————————
\nMerita Bank Plc $18,750,000.00 0.500000000000000%
\nAttn: Andrew J. Bagusa, Assistant Vice President
\n437 Madison Ave., 21st Floor
\nNew York, NY 10022
\n———————————————————————————————————————
\nThe Mitsubishi Trust and Banking Corporation, Chicago Branch $30,000,000.00 0.800000000000000%
\nAttn: Vicki L. Kamm
\nAssistant Vice President
\n311 S. Wacker Dr., Suite 6300
\nChicago, IL 60606
\nMorgan Guaranty Trust Company of New York $152,625,000.00 4.070000000000000%
\nAttn: George Stapleton
\nVice President
\n60 Wall Street, 3rd Floor
\nNew York, NY 10260-0060
\n———————————————————————————————————————
\nNATEXIS Banque BFCE $22,500,000.00 0.600000000000000%
\nAttn: Mark Harrington
\nVice President
\n333 Clay Street, Suite 4340
\nHouston, TX 77002
\n———————————————————————————————————————
\nNational Bank of Kuwait, S.A.K., Grand Cayman Island Branch $24,975,000.00 0.666000000000000%
\nAttn: Vineeta Salvi
\nSenior Credit Analyst
\n299 Park Ave.
\nNew York, NY 10171
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 4
\n FACILITY A – SCHEDULE 2.1
\n 77<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nNorddeutsche Landesbank Girozentrale, New York Branch and\/or Cayman $18,750,000.00 0.500000000000000%
\nIslands Branch
\nAttn: Stephanie Finnen, Vice President
\n1270 Avenue of the Americas, 14th Floor
\nNew York, NY 10020
\n———————————————————————————————————————
\nParibas, Los Angeles Agency $74,625,000.00 1.990000000000000%
\nAttn: Darlynn Ernst Kitcher, Assistant Vice President
\n2029 Century Park East, Suite 3900
\nLos Angeles, CA 90067
\n———————————————————————————————————————
\nPNC Bank, National Association $37,500,000.00 1.000000000000000%
\nAttn: Daniel Hopkins, Communications Director
\nCommunications Division MS F2-F070-21-1
\n1600 Market Street, 21st Floor
\nPhiladelphia, PA 19103
\nRepublic National Bank of New York $15,000,000.00 0.400000000000000%
\nAttn: Theodore Koerner
\n452 Fifth Avenue, Tower 25
\nNew York, NY 10018
\n———————————————————————————————————————
\nRoyal Bank of Canada $160,125,000.00 4.270000000000000%
\nAttn: Tom Byrne, Senior Manager
\nOne Liberty Plaza
\nNew York, NY 10006
\n———————————————————————————————————————
\nThe Royal Bank of Scotland plc $30,000,000.00 0.800000000000000%
\nAttn: Karen Stefanic, Vice President
\nWall Street Plaza, 26th Floor
\n88 Pine Street
\nNew York, NY 10005
\n———————————————————————————————————————
\nThe Sakura Bank, Limited $56,250,000.00 1.500000000000000%
\nAttn: Shelley Yu\/Takehiro Matsumoto
\nVice President and Manager
\n277 Park Ave, 45th Floor
\nNew York, NY 10172-0098
\nThe Sanwa Bank, Limited $37,500,000.00 1.000000000000000%
\nAttn: John T. Feeney, Vice President
\n55 E. 52nd Street
\nNew York, NY 10055
\n———————————————————————————————————————
\nSociete Generale $37,500,000.00 1.000000000000000%
\nAttn: John Sadik-Khan
\nVice President
\n1221 Avenue of Americas
\nNew York, NY 10020
\n———————————————————————————————————————
\nThe Sumitomo Bank, Limited $37,500,000.00 1.000000000000000%
\nAttn: William S. Rogers
\nAssistant Vice President
\n700 Louisiana, Suite 1750
\nHouston, TX 77002
\n———————————————————————————————————————
\nSumitomo Bank of California $11,250,000.00 0.300000000000000%
\nAttn: Shuji Ito
\nVice President
\n320 California Street, 6th Floor
\nSan Francisco, CA 94104
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 5
\n FACILITY A – SCHEDULE 2.1
\n 78<\/p>\n
\n\n=====================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY A COMMITMENT PERCENTAGE
\n COMMITTED SUMS
\n=====================================================================================================================
\n
\nThe Sumitomo Trust & Banking Corp., Ltd., New York Branch $26,250,000.00 0.700000000000000%
\nAttn: Glenda B. Francis
\nAssistant Vice President
\n527 Madison Ave., 6th Floor – Corporate Finance
\nNew York, NY 10022
\n———————————————————————————————————————
\nSummit Bank $18,750,000.00 0.500000000000000%
\nAttn: Robert D. Mace, Asst. Vice President
\nThree Valley Square
\n512 Township Line Road, Suite 280
\nBlue Bell, PA 19422-2718
\n———————————————————————————————————————
\nSunTrust Bank, South Florida, N.A. $26,250,000.00 0.700000000000000%
\nAttn: Steve Apodaca
\n515 E. Las Olas Boulevard, 7th Floor
\nFt. Lauderdale, FL 33301
\nThe Tokai Bank, Ltd., Atlanta Agency $37,500,000.00 1.000000000000000%
\nAttn: Chris Mallet
\nAssistant Vice President
\nMarquis Two Tower, Suite 2802
\n285 Peachtree Center Ave, NE
\nAtlanta, GA 30303
\n———————————————————————————————————————
\nToronto Dominion (Texas), Inc. $77,625,000.00 2.070000000000000%
\nAttn: Randy Bingham, Manager, Investment Banking\/Communications
\n31 West 52nd Street
\nNew York, NY 10019
\n———————————————————————————————————————
\nThe Toyo Trust & Banking Co., Ltd., New York Branch $26,250,000.00 0.700000000000000%
\nAttn: Howard Tulley Mott
\nVice President
\n666 Fifth Ave., 33rd Floor
\nNew York, NY 10103
\n———————————————————————————————————————
\nUBS AG New York Branch, successor in interest to Union Bank of $93,375,000.00 2.490000000000000%
\nSwitzerland, New York Branch
\nAttn: Robert H. Riley III, Executive Director
\n299 Park Ave, 35th Floor
\nNew York, NY 10171
\nWachovia Bank, N.A. $123,375,000.00 3.290000000000000%
\nAttn: Karin E. Reel, Vice President
\n191 Peachtree St., N.E., 29th Floor
\nAtlanta, GA 30303-1757
\n———————————————————————————————————————
\nWestdeutsche Landesbank Girozentrale, New York Branch $18,750,000.00 0.500000000000000%
\nAttn: Walter T. Duffy III
\n1211 Avenue of the Americas
\nNew York, NY 10036
\n=====================================================================================================================
\n Totals $3,750,000,000.00 100.00%
\n———————————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 6
\n FACILITY A – SCHEDULE 2.1
\n 79
\n SCHEDULE 2.3<\/p>\n
SWING LINE LENDERS AND SWING LINE COMMITTED SUMS<\/p>\n
\n\n==================================================================================
\n NAME AND ADDRESS OF SWING LINE LENDERS SWING LINE
\n COMMITTED SUMS
\n==================================================================================
\n
\nNationsBank, N.A. $25,000,000.00
\nCommunications Finance Division
\nAttn: David C. Williams
\n901 Main Street, 64th Floor
\nDallas, Texas 75202
\n———————————————————————————-
\nBank of America NT & SA $25,000,000.00
\nAttn: Fred Thorne
\nVice President
\n555 California Street, 41st Floor, SFCP9048
\nSan Francisco, CA 94104
\n———————————————————————————-
\nBarclays Bank PLC $25,000,000.00
\nAttn: James Downey
\nDirector
\n388 Market Street, Suite 1700
\nSan Francisco, CA 94111
\nThe Chase Manhattan Bank $25,000,000.00
\nAttn: John J. Huber, III
\nManaging Director, Media and Telecommunications Group
\n270 Park Avenue, 37th Floor
\nNew York, NY 10017
\n———————————————————————————-
\nCitibank, N.A. $25,000,000.00
\nAttn: Eric Huttner
\nVice President
\nc\/o Citicorp Securities, Inc.
\n399 Park Avenue, 8th Floor (Zone 5)
\nNew York, NY 10043
\n———————————————————————————-
\nMorgan Guaranty Trust Company of New York $25,000,000.00
\nAttn: George Stapleton
\nVice President
\n60 Wall Street, 22nd Floor
\nNew York, NY 10260-0060
\nRoyal Bank of Canada $25,000,000.00
\nAttn: Tom Byrne
\nSr. Manager
\nFinancial Square – 24th Floor
\nNew York, New York 10005-3531
\n———————————————————————————-
\n Totals $175,000,000.00<\/p>\n==================================================================================
\n<\/c><\/s><\/caption>\n<\/table>\n
FACILITY A – SCHEDULE 2.3
\n 80
\n SCHEDULE 5.1<\/p>\n
CONDITIONS PRECEDENT TO CLOSING<\/p>\n
(as used herein, the term “CURRENT DATE” means any
\n date not more than 60 days prior to the Closing Date)<\/p>\n
The Facility A Agreement shall not become effective unless Administrative
\nAgent has received all of the following (unless otherwise indicated, all
\ndocuments shall be dated as of August 6, 1998, and all terms used with their
\ninitial letters capitalized are used herein with their meanings as defined in
\nthe Facility A Agreement):<\/p>\n
1. The Agreement. The Facility A Agreement (together with all Schedules and
\nExhibits thereto) executed by Borrower, each Determing Lender under the
\nExisting Agreement, and Administrative Agent.<\/p>\n
2. Notes. With respect to any Facility A Lender requesting Notes pursuant
\nto SECTION 3.1(B), an Amended and Restated Facility A Note and an Amended and
\nRestated Facility A Competitive Bid Note in the forms of EXHIBIT A-1 and
\nEXHIBIT A-2, respectively, one payable to each such requesting Facility A
\nLender.<\/p>\n
3. Articles of Incorporation. A copy of the Second Amended and Restated
\nArticles of Incorporation of Borrower, accompanied by a certificate that such
\ncopy is correct and complete, dated the Closing Date, executed by the President
\nor a Vice President and the Secretary or Assistant Secretary of Borrower.<\/p>\n
4. Bylaws. A copy of the Bylaws of Borrower and all amendments thereto,
\naccompanied by a certificate that such copy is correct and complete, dated the
\nClosing Date and executed by the President or Vice President and the Secretary
\nor Assistant Secretary of Borrower.<\/p>\n
5. Good Standing and Authority. Certificates of the Georgia Secretary of
\nState, dated a Current Date, to the effect that Borrower is in good standing
\n(to the extent such information is available) and is duly qualified to transact
\nbusiness in such jurisdiction.<\/p>\n
6. Incumbency. Certificates of incumbency dated as of the Closing Date with
\nrespect to all officers and “authorized representatives” of Borrower who will
\nbe authorized to execute or attest any of the Facility A Loan Papers on behalf
\nof Borrower, executed by the President, a Vice President, the Secretary or an
\nAssistant Secretary of Borrower.<\/p>\n
7. Resolutions. Copies of resolutions duly adopted by the Board of
\nDirectors of Borrower approving this Facility A Agreement and the other Loan
\nPapers and authorizing the transactions contemplated in such Facility A Loan
\nPapers, accompanied by a certificate of the Secretary or an Assistant Secretary
\nof Borrower dated as of the Closing Date certifying that such copy is a true
\nand correct copy of resolutions duly adopted at a meeting of (which may be held
\nby conference telephone or similar communications equipment by means of which
\nall Persons participating in a meeting can hear each other if permitted by
\napplicable Law and, if required by such Law, by its Bylaws), or by the
\nunanimous written consent of (if permitted by applicable Law and, if required
\nby such Law, by its Bylaws), the Board of Directors of Borrower, and that such
\nresolutions constitute all the resolutions adopted with respect to such
\ntransactions, have not been amended, modified, or revoked in any respect
\n(except as any such resolution may be modified by any such other resolution),
\nand are in full force and effect as of the Closing Date.<\/p>\n
8. Opinions of Counsel to the Companies. The opinions of counsel to the
\nCompanies, addressed to Administrative Agent and Facility A Lenders,
\nsubstantially in the form of EXHIBIT F-1 and the opinion of New York counsel to
\nthe Restricted Companies, substantially in the form of EXHIBIT F-2.<\/p>\n
FACILITY A – SCHEDULE 5.1
\n 81
\n9. Payment of Closing Fees and Expenses. Payment of all fees payable on or
\nprior to the Closing Date to Administrative Agent as provided for in SECTION 4
\nof the Facility A Agreement, together with reimbursements to Administrative
\nAgent for all reasonable fees and expenses incurred in connection with the
\nnegotiation, preparation, and closing of the transactions evidenced by the
\nFacility A Loan Papers (including, without limitation, attorneys’ fees and
\nexpenses).<\/p>\n
10. Current Financials. True and correct copies of the Current Financials
\nhave been delivered to Administrative Agent.<\/p>\n
11. Facility B. Evidence that all Facility B Loan Papers have been executed
\nand delivered, and that the amendment and restatement of Facility B has been
\neffected upon approval of “Determining Lenders” thereunder.<\/p>\n
12. Other Documents. Such other agreements, documents, instruments,
\nopinions, certificates, and evidences as Administrative Agent may reasonably
\nrequest. Administrative Agent shall, upon request of Borrower, confirm to
\nBorrower that it has received all such items so requested.<\/p>\n
2
\n FACILITY A – SCHEDULE 5.1
\n 82
\n SCHEDULE 7.12<\/p>\n
EXISTING DEBT<\/p>\n
SCHEDULE 7.12: PART A: I
\n EXISTING DEBT<\/p>\n
\n\n INDEBTEDNESS INDEBTEDNESS USE OF MATURITY BALANCE OWED
\n INCURRED BY OWED TO PROCEEDS DATE AS OF
\n JUNE 30, 1998
\n———————– ———————– ———————– ——————— —————
\n
\nBLT Technologies Silicon Valley Bank Equipment 10\/31\/00 $ 955,547<\/p>\nBorrower NationsBank (A) General 06\/30\/02 $3,161,250,000
\n Commitment $3,750,000,000<\/p>\n
Borrower NationsBank (B) General 06\/30\/02 $1,250,000,000
\n Commitment $1,250,000,000<\/p>\n
Borrower NationsBank (C) General 08\/05\/99 $ 0
\n $7,000,000,000 ment<\/p>\n
Borrower NationsBank (Brooks) General 02\/18\/99 $1,165,000,000
\n Commitment $1,250,000,000<\/p>\n
ANS (Note 1) Various Lessors Equipment Various $ 127,487,124<\/p>\n
Brooks Fiber Various Lessors Equipment 08\/98 – 02\/00 $ 108,649<\/p>\n
MFS Comm Co AT&T Capital Equipment 12\/30\/03 $ 20,899,338<\/p>\n
MFS Comm Co Chase Equip Leasing Equipment 06\/22\/04 $ 6,499,005<\/p>\n
UUNET Various Lessors Equipment 10\/98 – 03\/00 $ 207,923<\/p>\n
UUNET Various Lessors Equipment 09\/98 – 04\/00 $ 2,217,544<\/p>\n
Fibernet, Inc. AT&T Capital Equipment 03\/31\/99 $ 1,198,426<\/p>\n
ITC Teleservices Telecomm Fin Equipment 03\/99 – 06\/99 $ 127,161<\/p>\n
Borrower First Union Working Cap 02\/24\/99 $ 0
\n Commitment $ 15,000,000
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Note 1: ANS operating leases may be converted to capital leases in third
\nquarter.<\/p>\n
PART A: II<\/p>\n
Debt issued pursuant to the Indentures referenced in Section 1 of the Agreement
\nand to which a Restricted Company is a party.<\/p>\n
FACILITY A – SCHEDULE 7.12
\n 83
\n SCHEDULE 7.14<\/p>\n
TRANSACTIONS WITH AFFILIATES<\/p>\n
1. WorldCom, Inc. (“WORLDCOM” or “COMPANY”) leases approximately 139,700
\nsquare feet of space for its East Rutherford, New Jersey headquarters, of which
\napproximately 31,000 square feet is used by Metromedia Company (“METROMEDIA”).
\nThe Metromedia portion of the rent is approximately $692,000 per year. The
\nentire lease is for a 15-year period, with various partial termination options.
\nIn addition, Metromedia guaranteed all of WorldCom’s obligations under the
\nlease for the East Rutherford, New Jersey headquarters. WorldCom also
\nsubleased or leased from certain of its affiliates certain additional office
\nspace in Secaucus, New Jersey; New York, New York; and Columbia, Maryland. The
\nCompany is currently evaluating these properties and leases to determine what
\naction it will take thereunder.<\/p>\n
2. Pursuant to the terms of separate leases of microwave transmission
\nfacilities, the Company as successor to Metromedia Communications Corporation
\n(“MCC”) is obligated to make the following estimated minimum payments to
\nMetromedia over the remaining terms of the leases, one of which expires in 1997
\nand the others expire in 2001: $18,353,000 (1996), $11,367,000 (1997), and
\n$14,547,000 (in the aggregate for the years from 1998 through 2001). In
\naddition, at the end of the term of each of the leases, the Company may
\npurchase the equipment covered by such lease at a price to be determined at
\nsuch date in accordance with the provisions of each lease.<\/p>\n
3. Indemnity Agreements – IDB WorldCom, Inc. entered into an indemnity
\nagreement with certain of its Affiliates. The agreements indemnify such
\npersons against certain liabilities arising out of their service in their
\ncapacities as directors and\/or officers and prevent IDB from modifying its
\nindemnification policy in a way that is adverse to any person who is a party to
\none of the agreements.<\/p>\n
4. On August 23, 1995, Metromedia converted its Series 1 Preferred Stock
\ninto 21,876,976 shares of Common Stock and exercised warrants to acquire
\n3,106,976 shares of Common Stock and sold its position of 30,849,976 shares of
\nCommon Stock in a public offering. In connection with the preferred stock
\nconversion, the Company made a non- recurring payment of $15.0 million to
\nMetromedia, representing a discount to the minimal nominal dividend that would
\nhave been payable on the Series 1 Preferred Stock prior to the September 15,
\n1996 optional call date of approximately $26.6 million (which amount included
\nan annual dividend requirement of $24.5 million plus accrued dividends to such
\ncall date). The Company did not receive any proceeds from the sale of the
\nshares, but did receive approximately $33.7 million in proceeds from the
\nconcurrent exercise of such warrants. In May 1995, Metromedia exercised its
\nright to purchase approximately 3.1 million shares of Common Stock for $30.7
\nmillion under purchase warrants. Metromedia is a Delaware general partnership,
\nof which the sole partners are a trust affiliated with Mr. Kluge and Mr.
\nSubotnick. Ms. Kessell and Messrs. Kluge and Subotnick are officers of
\nMetromedia.<\/p>\n
FACILITY A – SCHEDULE 7.14
\n 84<\/p>\n
EXHIBIT A-1<\/p>\n
FORM OF AMENDED AND RESTATED FACILITY A NOTE<\/p>\n
$_____________ August 6, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n_______________ ____ (“FACILITY A LENDER”), at the offices of NATIONSBANK, N.A.
\n(as successor in interest by merger to NationsBank of Texas, N.A.), as
\nAdministrative Agent under the Credit Agreement (as hereinafter described), on
\nthe Facility A Termination Date, the lesser of (i) ________________________
\n($___________) and (ii) the aggregate Facility A Principal Debt (other than
\nunder the Competitive Bid Subfacility or the Swing Line Subfacility) disbursed
\nby Facility A Lender to Borrower and outstanding and unpaid on the Facility A
\nTermination Date (together with accrued and unpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the Amended and Restated Facility A Revolving Credit Agreement, dated
\nas of August 6, 1998 (as amended, modified, supplemented, or restated from time
\nto time, the “CREDIT AGREEMENT”), among Borrower, Facility A Lender, other
\nlenders named therein, Administrative Agent, and the other Agents, and is one
\nof the “Facility A 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
This Amended and Restated Facility A Note is an amendment, restatement,
\nrenewal, and modification (but not a novation) of, the Facility A Note (as the
\nsame may have been amended and replaced to the date hereof, the “FORMER NOTE”),
\nwhich Former Note was executed and delivered by Borrower, and payable to the
\norder of Facility A Lender pursuant to the Existing Agreement. This Amended
\nand Restated Facility A Note is being issued in substitution of, and supersedes
\nand replaces, the Former Note.<\/p>\n
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND FACILITY A 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
FACILITY A – EXHIBIT A-1
\n 85
\n EXHIBIT A-2<\/p>\n
FORM OF AMENDED AND RESTATED FACILITY A COMPETITIVE BID NOTE<\/p>\n
August 6, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n_______________ ____ (“FACILITY A LENDER”), at the offices of NATIONSBANK, N.A.
\n(as successor in interest by merger to NationsBank of Texas, N.A.), as
\nAdministrative Agent under the Credit Agreement (as hereinafter described):<\/p>\n
(1) on the last day of the Interest Period for any Competitive
\n Borrowing disbursed by Facility A Lender to Borrower under Facility A,
\n which Interest Period ends prior to the Facility A Termination Date, the
\n aggregate principal amount of such Competitive Borrowing outstanding and
\n unpaid on such last day of such Interest Period (together with accrued
\n and unpaid interest thereon), and<\/p>\n
(2) on the Facility A Termination Date, the aggregate
\n principal amount of all Competitive Borrowings disbursed by Facility A
\n Lender to Borrower under Facility A and outstanding and unpaid on the
\n Facility A Termination Date (together with accrued and unpaid interest
\n thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the Amended and Restated Facility A Revolving Credit Agreement, dated
\nas of August 6, 1998 (as amended, modified, supplemented, or restated from time
\nto time, the “CREDIT AGREEMENT”), among Borrower, Facility A Lender, other
\nlenders named therein, Administrative Agent, and the other Agents, and is one
\nof the “Facility A Competitive Bid Notes” referred to therein. Unless defined
\nherein, capitalized terms used herein that are defined in the Credit Agreement
\nhave the meaning given to such terms in the Credit Agreement. Reference is
\nmade to the Credit Agreement for provisions affecting this note regarding
\napplicable interest rates, principal and interest payment dates, final
\nmaturity, voluntary and mandatory prepayments, acceleration of maturity,
\nexercise of Rights, payment of attorneys’ fees, court costs and other costs of
\ncollection, certain waivers by Borrower and others now or hereafter obligated
\nfor payment of any sums due hereunder and security for the payment hereof.
\nWithout limiting the immediately preceding sentence, reference is made to
\nSECTION 3.8 of the Credit Agreement for usury savings provisions.<\/p>\n
This Amended and Restated Competitive Bid Note is an amendment,
\nrestatement, renewal, extension, and modification of (but not a novation of),
\nand substitution for, the Facility A Competitive Bid Note (as the same may have
\nbeen amended and replaced to the date hereof, the “FORMER NOTE”), which Former
\nNote was executed and delivered by Borrower, and payable to the order of
\nFacility A Lender pursuant to the Existing Agreement. This Amended and
\nRestated Competitive Bid Note is being issued in substitution of, and
\nsupersedes and replaces, the Former Note.<\/p>\n
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND FACILITY A 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
FACILITY A – EXHIBIT A-2
\n 86
\n EXHIBIT A-3<\/p>\n
FORM OF AMENDED AND RESTATED SWING LINE NOTE<\/p>\n
$ August 6, 1998
\n ——————— <\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of _____________
\n(“SWING LINE LENDER”) at the offices of NationsBank, N.A. (as successor in
\ninterest to NationsBank of Texas, N.A.), as Administrative Agent under the
\nCredit Agreement (as hereinafter described), on the Facility A Termination
\nDate, the aggregate principal amount of Borrowings under the Swing Line
\nSubfacility disbursed by Swing Line Lender to Borrower and outstanding and
\nunpaid on the Facility A Termination Date and on such other dates as provided
\nin the Credit Agreement (as hereinafter described) (together with accrued and
\nunpaid interest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the Amended and Restated Facility A Revolving Credit Agreement, dated
\nas of August 6, 1998 (as amended, modified, supplemented, or restated from time
\nto time, the “CREDIT AGREEMENT”), among Borrower, Swing Line Lender, other
\nlenders named therein, Administrative Agent, and the other Agents, and is one
\nof the “Swing Line 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, terms, and conditions of Swing Line Borrowings hereunder,
\nprincipal and interest payment dates, final maturity, voluntary and mandatory
\nprepayments, acceleration of maturity, exercise of Rights, payment of
\nattorneys’ fees, court costs, and other costs of collection, certain waivers by
\nBorrower and others now or hereafter obligated for payment of any sums due
\nhereunder and security for the payment hereof. Without limiting the
\nimmediately preceding sentence, reference is made to SECTION 3.8 of the Credit
\nAgreement for usury savings provisions.<\/p>\n
[This Amended and Restated Swing Line Note is an amendment, restatement,
\nrenewal, extension, and modification (but not a novation) of the Swing Line
\nNote (as the same may have been amended and replaced to the date hereof, the
\n“FORMER NOTE”), which Former Note was executed and delivered pursuant to the
\nExisting Agreement. This Amended and Restated Swing Line Note is being issued
\nin substitution of, and supersedes and replaces, the Former Note.] (1)<\/p>\n
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
\nOF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
\nDUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT,
\nAND INTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ———————————–
\n (Name)
\n ——————————-
\n (Title)
\n ——————————<\/p>\n
———————————–<\/p>\n
(1) Provision to be included in Amended and Restated Swing Line Note payable
\n to NationsBank, N.A.<\/p>\n
FACILITY A – EXHIBIT A-3
\n 87
\n EXHIBIT B-1<\/p>\n
FORM OF NOTICE OF BORROWING
\n (OTHER THAN COMPETITIVE BORROWING OR SWING LINE BORROWING)<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent under Facility A
\nNationsBank Plaza, 13th Floor
\n901 Main Street
\nDallas, TX 75202
\nAttn: Mickey McLean
\n Fax: (214) 508-2515<\/p>\n
Reference is made to (i) the Amended and Restated Facility A Revolving
\nCredit Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”), among
\nthe undersigned, the Facility A Lenders, Administrative Agent, and the other
\nFacility A Agents. Capitalized terms used herein and not otherwise defined
\nherein shall have the meanings assigned to such terms in the Facility A
\nAgreement. The undersigned hereby gives you notice pursuant to the Facility A
\nAgreement that it requests a Borrowing (other than a Competitive Borrowing or
\nSwing Line Borrowing) under Facility A, and in that connection sets forth below
\nthe terms on which such Borrowing is requested to be made:<\/p>\n
\n
\n (A) Borrowing Date (1) (A)
\n ————————<\/p>\n (B) Amount of Borrowing (2) (B)
\n ————————<\/p>\n
(C) Type of Borrowing (3) (C)
\n ————————
\n (D) For a Eurodollar Rate Borrowing, the Interest Period and (D)
\n the last day thereof (4) ————————
\n<\/c><\/c><\/s><\/table>\n
On the date the rate is set, please confirm the interest rate below and
\nreturn 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 Facility A Commitment
\n Usage to exceed the Facility A Commitment;<\/p>\n
(b) all of the representations and warranties of any Borrower
\n set forth in the Loan Papers are true and correct in all material
\n respects (except to the extent that (i) the representations and
\n warranties speak to a specific date, or (ii) the facts on which such
\n representations and warranties are based have been changed by
\n transactions contemplated or permitted by the Loan Papers);<\/p>\n
(c) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
(d) the funding of such Borrowing is permitted by Law.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ———————————–
\n (Name)
\n ——————————-
\n (Title)
\n ——————————<\/p>\n
FACILITY A – EXHIBIT B-1
\n 88<\/p>\n
Facility A Rate: <\/p>\n
Confirmed by:
\n ———————-<\/p>\n
———————————–<\/p>\n
(1) Must be a Business Day occurring prior to the Facility A Termination
\n Date and be at least (i) three Business Days following receipt by
\n Administrative Agent of this Notice of Borrowing for any Eurodollar Rate
\n Borrowing, and (ii) one Business Day following receipt by Administrative
\n Agent of this Notice of Borrowing for any Base Rate Borrowing.<\/p>\n
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a
\n Base Rate Borrowing); not less than $10,000,000 or a greater integral
\n multiple of $1,000,000 (if a Eurodollar Rate Borrowing).<\/p>\n
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if available to
\n all Facility A Lenders, 9 or 12 months. In no event may the Interest
\n Period end after the Facility A Termination Date.<\/p>\n
1 FACILITY A – EXHIBIT B-1
\n 89
\n EXHIBIT B-2<\/p>\n
FORM OF NOTICE OF CONVERSION<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Facility A Administrative Agent and
\n Facility B Administrative Agent for the
\n Facility A Lenders and Facility B Lenders
\n as defined in the Credit Agreements 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 (i) the Amended and Restated Facility A Revolving
\nCredit Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”), among
\nthe undersigned, the Facility A Lenders, the Administrative Agent for the
\nFacility A Lenders, and the other Facility A Agents under the Facility A
\nAgreement and (ii) the Amended and Restated Facility B Term Loan Agreement,
\ndated as of August 6, 1998 (as amended, modified, supplemented, or restated
\nfrom time to time, the “FACILITY B AGREEMENT”), among the undersigned, the
\nFacility B Lenders, the Administrative Agent for the Facility B Lenders, and
\nthe other Facility B Agents under the Facility B Agreement. Capitalized terms
\nused herein and not otherwise defined herein shall have the meanings assigned
\nto such terms in the Facility A Agreement or the Facility B Agreement (as
\napplicable). The undersigned hereby gives you notice pursuant to SECTION 3.10
\nof the applicable Facility that it elects to convert a Borrowing (other than a
\nCompetitive Borrowing or Swing Line Borrowing) under the applicable Credit
\nAgreement from one Type to another Type or elects a new Interest Period for a
\nEurodollar Rate Borrowing, and in that connection sets forth below the terms on
\nwhich such election is requested to be made:<\/p>\n
\n\n FACILITY A FACILITY B
\n
\n (A) Borrowing under Facility A or Facility B? (A)
\n ————– —————-
\n (B) Date of conversion or last day of applicable Interest
\n Period (1) (B)
\n ————– —————-
\n (C) Type and principal amount of existing Borrowing being
\n converted or continued (2) (C)
\n ————– —————-
\n (D) New Type of Borrowing selected (or Type of Borrowing
\n continued) (3) (D)
\n ————– —————-
\n (E) For conversion to, or continuation of, a Eurodollar Rate
\n Borrowing, Interest Period selected and the last day
\n thereof (4) (E)
\n ————– —————-
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n FACILITY A – EXHIBIT B-2
\n 90
\n On the date the rate is set, please confirm the interest rate below and
\nreturn 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
Facility A Rate:
\n ————<\/p>\n
Facility B Rate:
\n ————<\/p>\n
Confirmed by:
\n —————<\/p>\n
———————————–<\/p>\n
(1) Must be a Business Day at least (i) three Business Days following
\n receipt by Facility A Administrative Agent or Facility B Administrative
\n Agent (as applicable) of this Notice of Conversion from a Base Rate
\n Borrowing to a Eurodollar Rate Borrowing or a continuation of a
\n Eurodollar Rate Borrowing for an additional Interest Period, and (ii)
\n one Business Day following receipt by Facility A Administrative Agent or
\n Facility B Administrative Agent (as applicable) of this Notice of
\n Conversion for a conversion from a Eurodollar Rate Borrowing to a Base
\n Rate Borrowing.<\/p>\n
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a
\n Base Rate Borrowing); not less than $10,000,000 or a greater integral
\n multiple of $1,000,000 (if a Eurodollar Rate Borrowing).<\/p>\n
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if available to
\n all Facility A Lenders or Facility B Lenders (as applicable), 9 or 12
\n months. In no event may the Interest Period end after the Facility A
\n Termination Date or Facility B Termination Date, as applicable.<\/p>\n
3 FACILITY A – EXHIBIT
\nB-2
\n 91
\n EXHIBIT B-3<\/p>\n
FORM OF NOTICE OF LC<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent under Facility A
\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 Amended and Restated Facility A Revolving
\nCredit Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”), among
\nthe undersigned, the Facility A Lenders, Administrative Agent, and the other
\nFacility A Agents. Capitalized terms used herein and not otherwise defined
\nherein shall have the meaning assigned to such terms in the Facility A
\nAgreement. The undersigned hereby gives you notice pursuant to SECTION 2.2(A)
\nof the Facility A Agreement that it requests the issuance of an LC under the LC
\nSubfacility, and in that connection sets forth below the terms on which such LC
\nis requested to be issued:<\/p>\n
(A) Face amount of the LC (1) $____________
\n (B) Date on which the LC is to be issued (2) ____________________
\n (C) Expiration date of the LC (3) ____________________<\/p>\n
Accompanying this notice is a duly executed and properly completed LC
\nAgreement in the form requested by Administrative Agent, together with the
\npayment of any LC fees due and payable pursuant to SECTIONS 4.2 and 4.3 of the
\nFacility A Agreement.<\/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 date specified
\nherein for issuance of the LC after giving effect to the issuance of such LC:<\/p>\n
(a) the issuance of the requested LC will not cause the
\n Facility A Commitment Usage to exceed the Facility A Commitment;<\/p>\n
(b) the issuance of the requested LC will not cause the LC
\n Exposure to exceed the LC Commitment;<\/p>\n
(c) all of the representations and warranties of Borrower set
\n forth in the Loan Papers are true and correct in all material respects
\n (except to the extent that (i) the representations and warranties speak
\n to a specific date, or (ii) the facts on which such representations and
\n warranties are based have been changed by transactions contemplated or
\n permitted by the Loan Papers);<\/p>\n
(d) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
(e) the issuance of such LC 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
FACILITY A – EXHIBIT B-3
\n 92<\/p>\n
Rate:________<\/p>\n
Confirmed by:_________________________<\/p>\n
———————————–<\/p>\n
(1) Not greater than the lesser of (i) an amount which when added to the LC
\n Exposure does not exceed $75,000,000, and (ii) the unused and available
\n portion of the LC Subfacility.<\/p>\n
(2) Must be a Business Day at least three Business Days following receipt by
\n Administrative Agent of this Notice of LC.<\/p>\n
(3) Not later than the earlier of two years from the date of issuance or 30
\n days prior to the Facility A Termination Date.<\/p>\n
2 FACILITY A – EXHIBIT B-3
\n 93
\n EXHIBIT B-4<\/p>\n
FORM OF COMPETITIVE BID REQUEST<\/p>\n
Date: ______________ __, ____<\/p>\n
NationsBank, N.A.,
\n as Administrative Agent under Facility A
\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 Amended and Restated Facility A Revolving
\nCredit Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”), among
\nthe undersigned, the Facility A Lenders, Administrative Agent, and the other
\nFacility A Agents under the Facility A Agreement. Capitalized terms used
\nherein and not otherwise defined herein shall have the meanings assigned to
\nsuch terms in the Facility A Agreement. The undersigned hereby gives you
\nnotice pursuant to SECTION 2.4(B) of the Facility A Agreement that it requests
\na Competitive Borrowing under Facility A, and in that connection sets forth
\nbelow the terms on which such Competitive Borrowing is requested to be made:<\/p>\n
\n
\n (A) Borrowing Date of Competitive Borrowing (1) (A)
\n ————————-
\n (B) Principal amount of Competitive Borrowing (2) (B)
\n ————————-
\n (C) Type of Borrowing (3) (C)
\n ————————-
\n (D) Interest Period and the last day thereof (4) (D)
\n ————————-
\n<\/c><\/c><\/s><\/table>\n Accompanying this notice is payment of the competitive bid fee payable
\nto Administrative Agent for its own account pursuant to SECTION 4.2 of the
\nFacility A Agreement.<\/p>\n
Borrower hereby certifies that the following statements are true on the
\ndate 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 Facility A Commitment
\n Usage to exceed the Facility A Commitment;<\/p>\n
(b) all of the representations and warranties of Borrower set
\n forth in the Loan Papers are true and correct in all material respects
\n (except to the extent that (i) the representations and warranties speak
\n to a specific date, or (ii) the facts on which such representations and
\n warranties are based have been changed by transactions contemplated or
\n permitted by the Loan Papers);<\/p>\n
(c) no Default or Potential Default has occurred and is
\n continuing; and<\/p>\n
FACILITY A – EXHIBIT B-4
\n 94
\n (d) the funding of such Borrowing is permitted by Law.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ———————————–
\n (Name)
\n ——————————-
\n (Title)
\n ——————————<\/p>\n
———————————–<\/p>\n
(1) Must be a Business Day occurring prior to the Facility A Termination
\n Date and be at least (i) four Business Days following receipt by
\n Administrative Agent of this Competitive Bid Request for any Competitive
\n Borrowing that will be comprised of Eurodollar Rate Borrowings, and (ii)
\n one 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.<\/p>\n
(2) Not less than $5,000,000 (and in integral multiples of $1,000,000
\n thereafter), and not greater than the lesser of (i) the unused and
\n available portion of Facility A Commitment.<\/p>\n
(3) Eurodollar Rate Borrowing or Fixed Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3 or 6 months; Fixed Rate Borrowing
\n — up to 6 months. But in no event may the Interest Period end after
\n the Facility A Termination Date.<\/p>\n
2 FACILITY A – EXHIBIT B-4
\n 95
\n EXHIBIT B-5<\/p>\n
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST<\/p>\n
Date: ______________ __, ____
\n[Name of Lender]
\n[Address of Lender]
\nAttention: ______________________<\/p>\n
Reference is made to (i) the Amended and Restated Facility A Revolving
\nCredit Agreement, dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”), among
\nWorldCom, Inc., the Facility A Lenders, the Administrative Agent for the
\nFacility A Lenders, and the other Facility A Agents under the Facility A
\nAgreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meanings assigned to such terms in the Facility A Agreement.
\nBorrower delivered a Competitive Bid Request dated _________ __, ____, pursuant
\nto SECTION 2.4(B) of the Facility A Agreement, and in that connection you are
\ninvited to submit a Competitive Bid by [Date]\/[Time].(1) Your Competitive Bid
\nmust comply with SECTION 2.4(C) of the Facility A Agreement and the terms set
\nforth below on which the Competitive Bid Request was made:<\/p>\n
\n
\n (A) Borrowing Date of Competitive Borrowing (a Business Day) (A)
\n ————————
\n (B) Principal amount of Competitive Borrowing (B)
\n ————————
\n (C) Type of Borrowing (C)
\n ————————
\n (D) Interest Period and the last day thereof (D) <\/p>\n ————————
\n<\/c><\/s><\/table>\n
Very truly yours,<\/p>\n
NATIONSBANK, N.A., as
\n Administrative Agent under
\n Facility A<\/p>\n
By
\n —————————-
\n Name:
\n ————————-
\n Title:
\n ————————<\/p>\n
——————————<\/p>\n
(1) The Competitive Bid must be received by the Administrative Agent (i) in
\n the case of Eurodollar Rate Borrowings, not later than 10:00 a.m.,
\n Dallas, Texas time, four Business Days before the Borrowing Date of the
\n proposed Competitive Borrowing, and (ii) 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
FACILITY A – EXHIBIT B-5
\n 96
\n EXHIBIT B-6<\/p>\n
FORM OF COMPETITIVE BID<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent under Facility A
\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 Amended and
\nRestated Facility A Revolving Credit Agreement, dated as of August 6, 1998 (as
\namended, modified, supplemented, or restated from time to time, the “FACILITY A
\nAGREEMENT”), among WorldCom, Inc. (the “BORROWER”), the Facility A Lenders,
\nAdministrative Agent, and the other Facility A Agents under the Facility A
\nAgreement. Capitalized terms used herein and not otherwise defined herein
\nshall have the meanings assigned to such terms in the Facility A Agreement.
\nThe undersigned hereby makes a Competitive Bid pursuant to SECTION 2.4(C) of
\nthe Facility A Agreement, in response to the Competitive Bid Request made by
\nBorrower on ____________________, ________, and in that connection sets forth
\nbelow the terms on which such Competitive Bid is made:<\/p>\n
\n
\n (A) Principal Amount (1) (A)
\n —————————
\n (B) Competitive Bid Rate (2) (B)
\n —————————<\/p>\n (C) Interest Period and the last day thereof (3) (C)
\n —————————
\n<\/c><\/s><\/table>\n
The undersigned hereby confirms that it is prepared to extend credit to
\nBorrower upon acceptance by Borrower of this bid in accordance with
\nSECTION 2.4(E) of the Facility A Agreement.<\/p>\n
Very truly yours,<\/p>\n
[NAME OF LENDER]
\n By
\n ———————————–
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
——————————<\/p>\n
(1) Not less than $5,000,000 (and in integral multiples of $1,000,000
\n thereafter) and which may equal the entire principal amount of the
\n Competitive Borrowing requested by Borrower and which may exceed such
\n Facility A Lender’s Committed Sum under Facility A (subject to the
\n limitations set forth in SECTION 2.4(A) of the Facility A Agreement).
\n Multiple bids will be accepted by Administrative Agent.
\n(2) Eurodollar Rate +_____% or -_____%, in the case of Eurodollar Rate
\n Borrowings; or _____%, in the case of Fixed Rate Borrowings (in each
\n case, expressed in the form of a decimal to no more than four decimal
\n places).
\n(3) The Interest Period must be the Interest Period specified in the
\n Competitive Bid Request.<\/p>\n
FACILITY A – EXHIBIT B-6
\n 97
\n EXHIBIT B-7<\/p>\n
FORM OF SWING LINE BORROWING REQUEST<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent under Facility A
\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 Amended and Restated Facility A Credit
\nAgreement dated as of August 6, 1998 (as amended, modified, supplemented, or
\nrestated, from time to time, the “FACILITY A AGREEMENT”), among the
\nundersigned, the Facility A Lenders, Administrative Agent, and the other
\nFacility A Agents under the Facility A Agreement. Capitalized terms used
\nherein and not otherwise defined herein shall have the meanings assigned to
\nsuch terms in the Facility A Agreement. The undersigned hereby gives you
\nnotice pursuant to SECTION 2.3(B) of the Facility A Agreement that it requests
\na Swing Line Borrowing under Facility A, and in that connection sets forth
\nbelow the terms on which such Swing Line Borrowing is requested to be made:<\/p>\n
\n
\n (A) Date of Swing Line Borrowing (which is a (A)
\n Business Day)
\n —————————
\n (B) Principal Amount of Swing Line Borrowing (1) (B)
\n —————————
\n (C) Interest Rate Basis (2) (C)
\n —————————
\n<\/c><\/c><\/s><\/table>\n Upon acceptance of any or all of the Swing Line Borrowings made by the
\nSwing Line Lenders in response to this request, the undersigned shall be deemed
\nto have represented and warranted that the conditions specified in
\nSECTION 5.2(C), (D), (E), and (F) of the Facility A Agreement have been
\nsatisfied.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ———————————–
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
———————————–<\/p>\n
(1) Not less than $1,000,000 (and in integral multiples of $250,000).<\/p>\n
(2) Alternate Rate Swing Line Borrowing or Quoted Swing Line Borrowing.<\/p>\n
FACILITY A – EXHIBIT B-7
\n 98
\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 number
\n of signature lines required for Entity
\n ________________________________.<\/p>\n
2) Name and address of Person to Receive Drafts of Loan Papers at
\n Lender:<\/p>\n
——————————————————————<\/p>\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
——————————————————————<\/p>\n
——————————————————————<\/p>\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
——————————————————————<\/p>\n
——————————————————————<\/p>\n
——————————————————————<\/p>\n
\n
\n CREDIT CONTACT OPERATIONS CONTACT LEGAL COUNSEL
\n ————– —————— ————-<\/p>\n NAME:
\n ——————– ———————– ———————
\n TITLE:
\n ——————– ———————– ———————
\n ADDRESS:
\n ——————– ———————– ———————<\/p>\n
——————– ———————– ———————<\/p>\n
——————– ———————– ———————<\/p>\n
TELEPHONE:
\n ——————– ———————– ———————
\n FACSIMILE #:
\n ——————– ———————– ———————
\n ANSWERBACK:
\n ——————– ———————– ———————<\/p>\n
<\/c><\/c><\/c><\/s><\/table>\n
FACILITY A – EXHIBIT C
\n 99
\nPAYMENT INSTRUCTIONS<\/p>\n
FED WIRE INSTRUCTIONS<\/p>\n
PAY 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)<\/p>\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 FACILITY A – EXHIBIT C
\n 100
\n EXHIBIT D-1<\/p>\n
FORM OF COMPLIANCE CERTIFICATE<\/p>\n
FOR ENDED ,
\n ————— ——————————– ———-<\/p>\n
DATE: ,
\n ———————————– ———-<\/p>\n
ADMINISTRATIVE AGENT: NationsBank, N.A.<\/p>\n
BORROWER: WorldCom, Inc.<\/p>\n
——————————————————————————–<\/p>\n
This certificate is delivered under (i) the Amended and Restated
\nFacility A Revolving Credit Agreement, dated as of August 6, 1998 (as amended,
\nmodified, supplemented, or restated from time to time, the “FACILITY A
\nAGREEMENT”) among Borrower, the Facility A Lenders, the Administrative Agent
\nfor the Facility A Lenders, and the other Facility A Agents under the Facility
\nA Agreement, and (ii) the Amended and Restated Facility B Term Loan Agreement,
\ndated as of August 6, 1998 (as amended, modified, supplemented, or restated
\nfrom time to time, the “FACILITY B AGREEMENT”) among Borrower, the Facility B
\nLenders, the Administrative Agent for the Facility B Lenders, and the other
\nFacility B Agents under the Facility B Agreement. Capitalized terms used
\nherein and not otherwise defined herein shall have the meaning given to such
\nterms in the Facility A Agreement or the Facility B Agreement (as applicable).<\/p>\n
I certify to Lenders that:<\/p>\n
(a) I am a Responsible Officer of the Consolidated Companies in the
\nposition(s) set forth under my signature below;<\/p>\n
(b) the Financial Statements of the Consolidated Companies attached
\nto this certificate were prepared in accordance with GAAP, and present fairly
\nin all material respects the consolidated financial condition and results of
\noperations of Consolidated Companies as of, and for the (three, six, or nine
\nmonths, or fiscal year) ended on, ____________________________________________,
\n__________ (the “SUBJECT PERIOD”) [(subject only to normal year-end audit
\nadjustments)];<\/p>\n
(c) a review of the activities of the Consolidated Companies during
\nthe Subject Period has been made under my supervision with a view to
\ndetermining whether, during the Subject Period, the Consolidated Companies have
\nkept, observed, performed, and fulfilled all of their respective obligations
\nunder the Loan Papers, and during the Subject Period, to my knowledge (i) the
\nConsolidated Companies kept, observed, performed, and fulfilled each and every
\ncovenant and condition of the Loan Papers (except for the deviations, if any,
\nset forth on a schedule annexed to this certificate) in all material respects,
\nand (ii) no Default (nor any Potential Default) has occurred which has not been
\ncured or waived (except the Defaults or Potential Defaults, if any, described
\non the schedule annexed to this certificate);<\/p>\n
(d) to my knowledge, the status of compliance by the Restricted
\nCompanies with SECTION 7.22 of each of the Facility A Agreement and the
\nFacility B Agreement at the end of the Subject Period is as set forth on ANNEX
\nI to this certificate;<\/p>\n
FACILITY A – EXHIBIT D-1
\n 101
\n (e) as of the date hereof, to my knowledge, the aggregate secured
\nDebt (including, without limitation, the amounts outstanding as of the date
\nhereof under Capital Leases) of the Restricted Companies restricted by SECTION
\n7.12(F) of each of the Facility A Agreement and Facility B Agreement is
\n$_______ _____, which amount is equal to or less than $____________________
\n[(being 10% of the book value of the consolidated assets of the Restricted
\nCompanies as of the end of the Subject Period)]; and<\/p>\n
(f) as of the date hereof, to my knowledge, the aggregate Debt of the
\nRestricted Subsidiaries is $__________________ [which amount does not exceed $
\n_ __________________ (being (i) 10% of the book value of the consolidated
\nassets of the Restricted Companies as of the end of the Subject Period)] plus
\n(ii) the principal amount of all Existing Debt of MCI and its Subsidiaries on
\nand after the MCI Merger Date.<\/p>\n
By
\n ———————————-
\n (Name)
\n ——————————
\n (Title)
\n —————————–<\/p>\n
2 FACILITY A – EXHIBIT D-1
\n 102
\n ANNEX I TO COMPLIANCE CERTIFICATE<\/p>\n
Status of Compliance with SECTION 7.22
\n of the Facility A Agreement and the Facility B Agreement1<\/p>\n
(All on consolidated basis for the Restricted Companies at the end of Subject
\nPeriod)<\/p>\n
\n
\n1. SECTION 7.22 – TOTAL DEBT TO TOTAL CAPITALIZATION<\/p>\n a. Total Debt of Consolidated Companies (1) $
\n ——————
\n b. Total Debt of Unrestricted Companies $
\n ———-
\n c. Total Debt of Restricted Companies (Line a minus Line b) $
\n ———–
\n d. Consolidated Net Worth of Consolidated Companies (1) $
\n ———–
\n e. Consolidated Net Worth of Unrestricted Companies $
\n ——————
\n f. Consolidated Net Worth of Restricted Companies
\n (Line d minus Line e) $
\n ———–
\n g. Total Capitalization (1) (Sum of Line c and Line f) $
\n ———–
\n h. Ratio of Line c to Line g :
\n ——————
\n i. Maximum Ratio for Subject Period 0.68 : 1.0
\n<\/c><\/s><\/table>\n
——————–<\/p>\n
(1) All as more particularly determined in accordance with the terms of the
\n Facility A Agreement or the Facility B Agreement (as applicable), which
\n control in the event of conflicts with this form.<\/p>\n
3 FACILITY A – EXHIBIT D-1
\n 103
\n EXHIBIT E<\/p>\n
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT<\/p>\n
Reference is made to the Amended and Restated Facility A Revolving
\nCredit Agreement dated as of August 6, 1998 (as amended, modified,
\nsupplemented, or restated from time to time, the “FACILITY A AGREEMENT”) among
\nWORLDCOM, INC., a Georgia corporation (“BORROWER”), Facility A Lenders, the Co-
\nSyndication Agents (each such term as defined in the Facility A Agreement), and
\nNATIONSBANK, N.A., as the Administrative Agent under the Facility A Agreement
\n(“ADMINISTRATIVE AGENT”). Capitalized terms used herein and not otherwise
\ndefined herein shall have the meanings assigned to such terms in the Facility A
\nAgreement.<\/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 Facility A
\nAgreement and the related Facility A Loan Papers as of the date hereof equal to
\nthe percentage interest specified on SCHEDULE 1 (excluding any outstanding
\nCompetitive Borrowings owed to the Assignor or any obligations to fund any
\nSwing Line Borrowing in Assignor’s capacity as a Swing Line Lender [unless the
\nAssignor is selling all of its Rights and obligations under the Facility A Loan
\nPapers], but including any participations by the Assignor in any LCs or Swing
\nLine Borrowings pursuant to SECTIONS 2.2(B) or 2.3(D) of the Facility A
\nAgreement). After giving effect to such sale and assignment, the Assignor’s
\nand the Assignee’s Facility A Committed Sums and the amount of the Borrowings
\nunder Facility A owing to each of them will be as set forth on SCHEDULE 1.<\/p>\n
2. The Assignor (i) represents and warrants that it is the legal and
\nbeneficial owner of the interest being assigned by it hereunder and that such
\ninterest is free and clear of any adverse claim; (ii) makes no representation
\nor warranty and assumes no responsibility with respect to any statements,
\nwarranties or representations made in or in connection with the Facility A Loan
\nPapers or the execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of the Facility A Loan Papers or any other instrument or
\ndocument furnished pursuant thereto; (iii) makes no representation or warranty
\nand assumes no responsibility with respect to the financial condition of any
\nparty to any Facility A Loan Paper or the performance or observance by any such
\nparty of any of its obligations under the Facility A Loan Papers or any other
\ninstrument or document furnished pursuant thereto; and (iv) attaches the Notes
\nheld by the Assignor (to the extent the Facility A Principal Debt being
\nassigned and owed to the Assignor is evidenced by Notes) and requests that
\nAdministrative Agent exchange such Notes for new Notes if so requested by
\neither the Assignor or Assignee. Such new Notes shall be prepared in
\naccordance with the provisions of SECTION 3.1(B) of the Facility A Agreement
\nand will reflect the respective Committed Sums of the Assignee and the Assignor
\nafter giving effect to this Assignment and Acceptance.<\/p>\n
3. The Assignee (i) confirms that it has received a copy of the
\nFacility A Agreement, together with copies of the Current Financials and such
\nother documents and information as it has deemed appropriate to make its own
\ncredit analysis and decision to enter into this Assignment and Acceptance; (ii)
\nagrees that it will, independently and without reliance upon the Administrative
\nAgent, the Assignor, or any other Facility A Lender, and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit decisions in taking or not taking action under the Facility
\nA Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
\nauthorizes Administrative Agent to take such action as Administrative Agent on
\nits behalf and to exercise such powers and discretion under the Facility A
\nAgreement as are delegated to Administrative Agent by the terms thereof,
\ntogether with such powers and discretion as are reasonably incidental thereto;
\n(v) agrees that it will perform in accordance with their terms all of the
\nobligations that by the terms of the Facility A Agreement are required to be
\nperformed by it as a Facility A Lender; and (vi) attaches any U.S. Internal
\nRevenue Service or other forms required under SECTION 3.20(D) of the Facility A
\nAgreement.<\/p>\n
FACILITY A – EXHIBIT E
\n 104
\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 of
\nthe Effective Date, (i) the Assignee shall be a party to the Facility A
\nAgreement and, to the extent provided in this Assignment and Acceptance, have
\nthe Rights and obligations of a Facility A Lender thereunder, and (ii) the
\nAssignor shall, to the extent provided in this Assignment and Acceptance,
\nrelinquish its Rights and be released from its obligations under the Facility A
\nAgreement.<\/p>\n
6. Upon such acceptance and recording by Facility A Administrative
\nAgent, from and after the Effective Date, Administrative Agent shall make all
\npayments under the Facility A Agreement, the Notes (to the extent the Facility
\nA Principal Debt owed to the Assignee is evidenced by Notes), and loan accounts
\nin respect of the interest assigned hereby (including, without limitation, all
\npayments of principal, interest and commitment fees and other fees with respect
\nthereto) to the Assignee. The Assignor and Assignee shall make all appropriate
\nadjustments in payments under the Facility A Agreement and the other Facility A
\nLoan Papers for periods prior to the Effective Date directly between
\nthemselves.<\/p>\n
7. Unless the Assignee is a Facility A Lender or an Affiliate of a
\nFacility A Lender (and this sale and assignment is not made in connection with
\nthe sale of such Affiliate), this Assignment and Acceptance is conditioned upon
\nthe consent of Borrower and Administrative Agent pursuant to the definition of
\n“Eligible Assignee” in the Facility A Agreement. The execution and delivery of
\nthis Assignment and Acceptance by Borrower and Administrative Agent is evidence
\nof this consent.<\/p>\n
8. As contemplated by SECTION 11.13(B)(V) of the Facility A
\nAgreement, the Assignor or the Assignee (as determined between the Assignor and
\nthe Assignee) agrees to pay to Administrative Agent for its account on the
\nEffective Date in federal funds a processing fee of $3,500.<\/p>\n
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL BE
\nCONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
\nWITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.<\/p>\n
10. This Assignment and Acceptance may be executed in any number of
\ncounterparts and by different parties hereto in separate counterparts, each of
\nwhich when so executed shall be deemed to be an original and all of which taken
\ntogether shall constitute one and the same agreement. Delivery of an executed
\ncounterpart of SCHEDULE 1 to this Assignment and Acceptance by telecopier shall
\nbe effective as delivery of a manually executed counterpart of this Assignment
\nand Acceptance.<\/p>\n
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE 1
\nto this Assignment and Acceptance to be executed by their officers thereunto
\nduly authorized as of the date specified thereon.<\/p>\n
2 FACILITY A – EXHIBIT E
\n 105
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (FACILITY A)<\/p>\n
\n
\n1. Assigned Interest:*<\/p>\n (a) Assignor’s Facility A Committed Sum prior to giving effect to the
\n Assignment to Assignee $
\n ——————-
\n (b) Aggregate Borrowings owed to Assignor (inclusive of
\n participations in L\/C’s and Swing Line Loans, if any),
\n immediately prior to giving
\n effect to the assignment to Assignee $
\n ——————-
\n (c) Aggregate Borrowings owed to Assignor (exclusive of
\n participations in L\/C’s and Swing Line Loans, if any),
\n immediately prior to giving
\n effect to the assignment to Assignee $
\n ——————-
\n (d) Percentage Interest in Facility A Commitment and Borrowings being
\n assigned to Assignee by Assignor (not less than $10,000,000, when
\n aggregated with any concurrent assignments from Assignor to
\n Assignee under Facility B and the 364-Day Facility, but in no
\n event less than $1,000,000) %
\n ——————-
\n2. Adjustments after giving effect to Assignment between Assignor and
\n Assignee:<\/p>\n
(a) Assignor’s Facility A Committed Sum $
\n ——————-
\n (b) Assignee’s Facility A Committed Sum acquired from Assignor
\n pursuant to this Assignment $
\n ——————-
\n (c) Assignor’s aggregate Facility A Borrowings (inclusive of
\n participations in L\/C’s and Swing Line Loans, if any) $
\n ——————-
\n (d) Assignee’s Facility A Borrowings (inclusive of L\/C’s and
\n Swing Line Loans, if any) acquired from Assignor pursuant
\n to this Assignment $
\n ——————-<\/p>\n
(e) Assignor’s aggregate Facility A Borrowings (exclusive of
\n participations in L\/C’s and Swing Line Loans, if any) $
\n ——————-
\n (f) Assignee’s Facility A Borrowings (exclusive of L\/C’s and Swing
\n Line Loans, if any) acquired from Assignor pursuant to the
\n Assignment $
\n ——————-<\/p>\n
3. Effective Date (if other than date of acceptance by Administrative
\n Agent): * ,
\n ————— —- ——
\n<\/c><\/s><\/table>\n
——————–<\/p>\n
* Each assignment shall exclude Competitive Borrowings and Swing Line
\n Borrowings unless Assignor is assigning 100% of its interest under
\n Facility A.<\/p>\n
3 FACILITY A – EXHIBIT E
\n 106
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (FACILITY A)
\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 FACILITY A – EXHIBIT E
\n 107
\n If SECTION 11.13(B) and CLAUSE (C) of the definition of “Eligible
\nAssignee” of the Facility A Agreement so require, Borrower and Administrative
\nAgent consent to this Assignment and Acceptance.<\/p>\n
WORLDCOM, INC., as Borrower<\/p>\n
By:
\n —————————
\n Title:
\n ————————<\/p>\n
Dated: ,
\n ————— —- —<\/p>\n
NATIONSBANK, N.A., as
\n 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 the
\n delivery of this Assignment and Acceptance to the Administrative Agent
\n under the Facility A Agreement.<\/p>\n
5 FACILITY A – EXHIBIT E
\n 108
\n EXHIBIT F-1<\/p>\n
FORM OF OPINION OF GENERAL COUNSEL OF BORROWER<\/p>\n
August 6, 1998<\/p>\n
NationsBank, N.A., in its capacities as
\n Facility A Administrative Agent and
\n Facility B Administrative Agent<\/p>\n
Each of the Facility A Agents and the Facility B Agents and the Lenders named
\nin Schedules 2.1 to the Facility A Agreement and the Facility B Agreement
\nreferred to below<\/p>\n
RE: CREDIT FACILITIES 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 Amended and Restated Facility A Revolving
\nCredit Agreement dated as August 6, 1998 (the “FACILITY A AGREEMENT”) and the
\nAmended and Restated Facility B Term Loan Agreement dated as of August 6, 1998
\n(the “FACILITY B AGREEMENT”), among Borrower, the lenders named on SCHEDULES
\n2.1 to each of the Facility A Agreement and the Facility B Agreement
\n(“LENDERS”), NationsBank, N.A., (as successor in interest by merger to
\nNationsBank of Texas, N.A.), as the “Administrative Agent” under the Facility A
\nAgreement (in such capacity, the “FACILITY A ADMINISTRATIVE AGENT”) or as the
\n“Administrative Agent” under the Facility B Agreement (in such capacity, the
\n“FACILITY B ADMINISTRATIVE AGENT”), the other “Facility A Agents” under the
\nFacility A Agreement, and the “Facility B Agents” under the Facility B
\nAgreement.<\/p>\n
This opinion is delivered pursuant to SECTION 5.1 of the Facility A
\nAgreement and SECTION 5 of the Facility B Agreement and PARAGRAPHS 8 of
\nSCHEDULES 5.1 and 5, respectively, to the Facility A Agreement and the Facility
\nB Agreement. Unless otherwise defined, each capitalized term used herein has
\nthe meaning given to such term in the Facility A Agreement and the Facility B
\nAgreement.<\/p>\n
In arriving at the opinions expressed below, I or attorneys employed by
\nBorrower and acting under my supervision have examined such corporate documents
\nand records of the Consolidated Companies and such certificates of public
\nofficials and of officers of the Consolidated Companies, other documents, and
\nmatters of law as I deemed necessary or appropriate, including, without
\nlimitation, originals or copies (or, with respect to the Notes under the
\nFacility A or Facility B Agreement (collectively, the “NOTES”) only, the forms
\nof Notes attached as Exhibits to the Facility A and the Facility B Agreement)
\nof (i) the Facility A Agreement, (ii) the Facility B Agreement, and (iii) to
\nthe extent any Notes are executed and delivered on the Closing Date or
\nimmediately subsequent thereto, such Notes (all of the foregoing, collectively,
\nthe “TRANSACTION DOCUMENTS”).<\/p>\n
In rendering the opinions expressed below, I have assumed with your
\npermission, without independent investigation or inquiry, (a) the authenticity
\nof all documents submitted to me as originals, (b) the genuineness of all
\nsignatures on all documents that I have examined (other than those of any
\nofficer of any Consolidated Company who signed in my presence and Bernard J.
\nEbbers, Charles T. Cannada, Scott D. Sullivan, and any other officer signing
\nthe incumbency provisions of officers’ certificates delivered in connection
\nwith the Loan Papers), (c) the conformity to authentic originals of documents
\nsubmitted to me as certified, conformed or photostatic copies, and (d)
\ncompliance by the Facility A Administrative Agent, the Facility B
\nAdministrative Agent, the other Agents under Facility A, the<\/p>\n
FACILITY A – EXHIBIT F-1
\n 109
\nother Agents under Facility B, and the Lenders with their respective covenants
\nand undertakings contained in the Transaction Documents.<\/p>\n
As to certain matters of New York law, I understand you will rely solely
\nupon the opinions of Bryan Cave LLP.<\/p>\n
Based upon the foregoing, and subject to the qualifications and
\nlimitations herein contained, it is my opinion that:<\/p>\n
1. Borrower (a) is a corporation validly existing and in good
\nstanding under the Laws of its state of incorporation (based solely upon my
\nreview of good standing certificates issued by such state with respect to such
\ncorporation), and (b) possesses all requisite corporate authority and power to
\nconduct its business and execute, deliver, and comply with the terms of the
\nTransaction Documents, which have been duly authorized and approved by all
\nnecessary corporate action and for which, to the best of my knowledge, no
\napproval or consent of any Person or Governmental Authority is required which
\nhas not been obtained, except where the failure to obtain would not be a
\nMaterial Adverse Event.<\/p>\n
2. Each of the Transaction Documents have been duly executed and
\ndelivered by Borrower.<\/p>\n
3. The Transaction Documents evidence the valid and legally binding
\nobligations of Borrower, enforceable against Borrower in accordance with their
\nterms, except as the enforcement may be limited by Debtor Relief Laws and
\nexcept that the remedies available with respect thereto may be subject to
\ngeneral principles of equity (regardless of whether such remedies are sought in
\na proceeding in equity or at law).<\/p>\n
4. The execution, delivery and performance of and compliance with
\nthe terms of the Transaction Documents will not cause Borrower to be in
\nviolation of its Second Amended and Restated Articles or Certificates of
\nIncorporation or Bylaws.<\/p>\n
5. The execution, delivery, and the performance of and compliance
\nwith the terms of the Transaction Documents will not cause Borrower to be in
\nviolation of any Laws applicable to it, other than such violations which will
\nnot, individually or collectively, be a Material Adverse Event.<\/p>\n
6. No Restricted Company is involved in, nor am I aware of the
\nthreat of, any Litigation which is reasonably likely to be determined adversely
\nto any Restricted Company and, if so adversely determined, would be a Material
\nAdverse Event. There are no outstanding orders or judgments for the payment of
\nmoney (not paid or fully covered by insurance) in excess of $100,000,000
\n(individually or collectively) or any warrant of attachment, sequestration, or
\nsimilar proceeding against any Restricted Company’s assets having a value
\n(individually or collectively) of $100,000,000 or more, which is not either (a)
\nstayed on appeal, (b) being diligently contested in good faith by appropriate
\nproceedings with adequate reserves having been set aside on the books of such
\nRestricted Company in accordance with GAAP, or (c) dismissed by a court of
\ncompetent jurisdiction.<\/p>\n
7. To the best of my knowledge, after reasonable investigation, the
\nexecution, delivery, and the performance of and compliance with the terms of
\nthe 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
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<\/p>\n
2 FACILITY A – EXHIBIT F-1
\n 110
\nengaged in any prohibited transaction (as such term is defined in ERISA or the
\nCode) which would be a Material Adverse Event, and (e) to the best of my
\nknowledge, after reasonable investigation, no Reportable Event has occurred
\nwhich is likely to result in the termination of any Employee Plan.<\/p>\n
This opinion is limited in all respect to the laws of the State of
\nGeorgia and the federal laws of the United States of America.<\/p>\n
I note that the Transaction Documents are to be governed by the laws of
\nthe State of New York. 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 New York are identical to the substantive laws
\nof the State of Georgia.<\/p>\n
The foregoing opinions are also subject to the following exceptions and
\nqualifications: 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 of
\n Lenders with any state or federal laws or regulations applicable to any
\n 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 in
\n 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 that
\n may be enacted in the future, (iv) require waivers or amendments to be
\n made only in writing or (v) purport to effect waivers of constitutional,
\n statutory or equitable rights or the effect of applicable laws;<\/p>\n
(d) regarding the enforceability of the waivers in the
\n Transaction Documents of the right to demand a trial by jury and with
\n respect to selection of a venue;<\/p>\n
(e) as to the enforceability of any provisions in the
\n Transaction Documents to the effect that the acceptance of a past due
\n installment or other performance by Borrower shall not be deemed a
\n waiver of the right to accelerate the indebtedness;<\/p>\n
(f) as to the enforceability of any provisions in the
\n Transaction Documents relating to (i) set off, (ii) self help or (iii)
\n evidentiary standards or other standards by which the Transaction
\n Documents are to be construed;<\/p>\n
(g) with regard to any provisions of the Transaction Documents
\n whereby a party purports to indemnify another party against its own
\n negligence or misconduct; and<\/p>\n
(h) as to matters subject to the jurisdiction of the FCC,
\n state public utility commissions, or any other communications or similar
\n regulatory authorities.<\/p>\n
This opinion is addressed to you solely for your use in connection with
\nthe transactions contemplated by the Transaction Documents, and no person other
\nthan the Facility A Administrative Agent, the Facility B Administrative Agent,
\neach other Agent under the Facility A Agreement and the Facility B Agreement,
\neach Lender, each assignee which hereafter becomes a Lender as permitted by
\neither the Facility A Agreement or the Facility B Agreement and the law firm of
\nHaynes and Boone, L.L.P. is entitled to rely hereon without my prior written
\nconsent. This opinion is given as of the date hereof, and I have no obligation
\nto revise or update this opinion subsequent to the date hereof or to advise you
\nor any other person of any matter subsequent to the date hereof which would
\ncause 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
3 FACILITY A – EXHIBIT F-1
\n 111
\n EXHIBIT F-2<\/p>\n
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
\n [BRYAN CAVE]<\/p>\n
August 6, 1998<\/p>\n
NationsBank, N.A.,
\n as Facility A Administrative Agent and
\n Facility B Administrative Agent<\/p>\n
Each of the Facility A Agents and the Facility B Agents and Lenders named on
\nSCHEDULES 2.1 to each of the Facility A Agreement and the Facility B Agreement
\nreferred to below:<\/p>\n
Ladies and Gentlemen:<\/p>\n
We have acted as special New York counsel to WorldCom, Inc., a Georgia
\ncorporation (the “BORROWER”), in connection with the negotiation, preparation,
\nand execution of the Amended and Restated Facility A Revolving Credit Agreement
\n(the “FACILITY A AGREEMENT”) dated as of August 6, 1998, the Amended and
\nRestated Facility B Term Loan Agreement (the “FACILITY B AGREEMENT”) dated as
\nof August 6, 1998, and the related Loan Papers by and among the Borrower, the
\nLenders referred to on SCHEDULES 2.1 of each of the Facility A Agreement and
\nthe Facility B Agreement (“LENDERS”), NationsBank, N.A. (as successor in
\ninterest by merger to NationsBank of Texas, N.A.), as the “Administrative
\nAgent” under the Facility A Agreement (the “FACILITY A ADMINISTRATIVE AGENT”)
\nand as the “Administrative Agent” under the Facility B Agreement (the “FACILITY
\nB ADMINISTRATIVE AGENT”), and the other “Facility A Agents” under the Facility
\nA Agreement and the “Facility B Agents” under the Facility B Agreement
\n(collectively, “AGENTS”):<\/p>\n
This opinion is furnished to you pursuant to SECTION 5.1 of the Facility
\nA Agreement and SECTION 5 of the Facility B Agreement and PARAGRAPHS 8 of
\nSCHEDULE 5.1 and SCHEDULE 5, respectively, to the Facility A Agreement and the
\nFacility B Agreement. Capitalized terms used but not otherwise defined herein
\nshall have the meanings given to them in the Facility A Agreement and the
\nFacility B Agreement.<\/p>\n
For purposes of the opinions expressed herein, we have examined the
\nfollowing documents:<\/p>\n
(a) A copy of the Facility A Agreement;<\/p>\n
(b) A copy of the Facility B Agreement;<\/p>\n
(c) A copy of the form of the Notes issuable under Facility A or
\n Facility B;<\/p>\n
(d) A copy of a Secretary’s Certificate for the Borrower dated as of
\n the date hereof (the “SECRETARY’S CERTIFICATE”), including the
\n following exhibits appended to each such Secretary’s Certificate:<\/p>\n
Exhibit A Second Amended and Restated Articles of
\n Incorporation
\n Exhibit B Certificate of Existence
\n Exhibit C By-Laws
\n Exhibit D Authorizing Resolutions\/Unanimous Written Consents<\/p>\n
FACILITY A – EXHIBIT F-2
\n 112
\n The documents described under Paragraphs (a) through (c) above are
\nsometimes collectively referred to herein as the “TRANSACTION DOCUMENTS”. We
\nhave not made any independent investigation or inquiries as to (i) the accuracy
\nor completeness of any factual matters contained in the exhibits or schedules
\nto any of the Transaction Documents, (ii) any other instruments or other
\ndocuments delivered by the Borrower in connection with any of the Transaction
\nDocuments, or (iii) title to, or ownership of any property, real or personal,
\nor the compliance or non-compliance of such properties with applicable laws,
\nregulations, and codes.<\/p>\n
In rendering this opinion, we have assumed the accuracy of, and we have
\nrelied as to matters of fact upon, the representations and warranties made by
\nthe Borrower in the Transaction Documents insofar as they relate to factual
\nmatters and upon factual representations as to certain matters contained in the
\nSecretary’s Certificate and other certificates signed by officers of the
\nBorrower and certain of the other Restricted Companies. We have assumed, and
\nwe have relied upon, (i) the genuineness of all signatures on documents,
\ninstruments, and certificates reviewed by us, (ii) the accuracy and
\nauthenticity of all documents, instruments, and certificates reviewed by us,
\n(iii) the legal competence of all natural persons who are signatories thereto,
\n(iv) the conformity to authentic original documents of all documents,
\ninstruments, and certificates submitted to us as certified, conformed or
\nphotostatic copies, and (v) the due execution and delivery of all documents
\n(other than the Transaction Documents) where due execution and delivery are a
\nprerequisite to the effectiveness thereof. We have further assumed that each
\nof the Facility A Agreement and the Facility B Agreement have been duly
\nauthorized, executed, and delivered by the Facility A Administrative Agent or
\nthe Facility B Administrative Agent (as the case may be), the Agents, and the
\nLenders and that the Facility A Administrative Agent or the Facility B
\nAdministrative Agent (as the case may be), the Agents, and the Lenders have the
\nrequisite corporate power and authority to execute, deliver and perform each of
\nthe Facility A Agreement and the Facility B Agreement.<\/p>\n
Based on the foregoing and in reliance thereon, and subject to the
\nassumptions, exceptions, limitations and qualifications set forth in this
\nopinion, we are of the opinion that:<\/p>\n
(1) Each of the Transaction Documents constitute the valid and
\n legally binding obligation of the Borrower, enforceable against
\n Borrower in accordance with its terms.<\/p>\n
(2) The execution, delivery, and performance by the Borrower of each
\n of the Transaction Documents to which it is a party will not
\n violate any applicable Law of the State of New York, except for
\n any such violations which could not reasonably be expected to
\n cause, either individually or in the aggregate, a Material
\n Adverse Event.<\/p>\n
(3) The execution, delivery, and performance by Borrower of the
\n Transaction Documents do not require the consent or authorization
\n of, or filing with any New York Governmental Authority.<\/p>\n
(4) No Restricted Company is an “investment company” or a company
\n “controlled” by an “investment company” within the meaning of the
\n Investment Company Act of 1940, as amended.<\/p>\n
(5) No Restricted Company is a “holding company” or a “subsidiary
\n company” of a “holding company” within the meaning of the Public
\n Utility Holding Company Act of 1935, as amended.<\/p>\n
(6) No Restricted Company is subject to regulation under the
\n Interstate Commerce Act, as amended.<\/p>\n
(7) The application of the proceeds of the Borrowings under Facility
\n A and Facility B by the Borrower in accordance with the terms of
\n the Facility A Agreement and the Facility B Agreement will not
\n violate Regulation U.<\/p>\n
This opinion is subject to the additional exceptions, limitations and
\nqualifications set forth below:<\/p>\n
2 FACILITY A – EXHIBIT F-2
\n 113
\n Enforceability of the Transactions Documents are subject to:<\/p>\n
(1) the effect of bankruptcy, insolvency, reorganization,
\n receivership, moratorium and other similar laws affecting the
\n rights and remedies of creditors generally, including:<\/p>\n
(a) the United States Bankruptcy Code of 1978, as amended, and
\n thus comprehends, among others, matters of turn-over,
\n automatic stay, avoiding powers, fraudulent transfer,
\n preference, discharge, conversion of a non-recourse
\n obligation into a recourse claim, limitations on ipso
\n facto and anti-assignment clauses and the coverage of
\n pre-petition security agreements applicable to property
\n acquired after a petition is filed.<\/p>\n
(b) all other federal and state bankruptcy, insolvency,
\n reorganization, receivership, moratorium, arrangement and
\n assignment for the benefit of creditors laws that affect
\n the rights and remedies of creditors generally.<\/p>\n
(c) state fraudulent transfer and conveyance laws.<\/p>\n
(d) judicially developed doctrines relevant to any of the
\n foregoing laws, such as substantive consolidation of
\n entities.<\/p>\n
(2) the effect of general principles of equity, whether applied by a
\n court of law or equity, including principles:<\/p>\n
(a) governing the availability of specific performance,
\n injunctive relief or other equitable remedies, which
\n generally place the award of such remedies, subject to
\n certain guidelines, in the discretion of the court to
\n which application for such relief is made.<\/p>\n
(b) affording equitable defenses (e.g., waiver, laches and
\n estoppel) against a party seeking enforcement.<\/p>\n
(c) requiring good faith and fair dealing in the performance
\n and enforcement of a contract by the party seeking its
\n enforcement.<\/p>\n
(d) requiring reasonableness in the performance and
\n enforcement of an agreement by the party seeking
\n enforcement of the contract.<\/p>\n
(e) requiring consideration of the materiality of a breach and
\n the consequences of the breach to the party seeking
\n enforcement.<\/p>\n
(f) requiring consideration of the impracticability or
\n impossibility of performance at the time of attempted
\n enforcement.<\/p>\n
(g) affording defenses based upon the unconscionability of the
\n enforcing party’s conduct after the parties have entered
\n into the contract.<\/p>\n
(3) the effect of generally applicable rules of law that:<\/p>\n
(a) limit or affect the enforcement of provisions of a
\n contract that purport to require waiver of the obligations
\n of good faith, fair dealing, diligence and reasonableness.<\/p>\n
3 FACILITY A – EXHIBIT F-2
\n 114
\n (b) provide that forum selection clauses in contracts are not
\n necessarily binding on the court(s) in the forum selected.<\/p>\n
(c) limit the availability of a remedy under certain
\n circumstances where another remedy has been elected.<\/p>\n
(d) limit the right of a creditor to use force or cause a
\n breach of the peace in enforcing rights.<\/p>\n
(e) limit the enforceability of provisions releasing,
\n exculpating or exempting a party from, or requiring
\n indemnification of a party for, liability for its own
\n action or inaction, to the extent public policy limits the
\n enforceability of such indemnification or the action or
\n inaction involves gross negligence, recklessness, willful
\n misconduct or unlawful conduct.<\/p>\n
(f) may, where less than all of a contract may be
\n unenforceable, limit the enforceability of the balance of
\n the contract to circumstances in which the unenforceable
\n portion is not an essential part of the agreed exchange.<\/p>\n
(g) govern and afford judicial discretion regarding the
\n determination of damages and entitlement to attorneys’
\n fees and other costs.<\/p>\n
(h) may permit a party who has materially failed to render or
\n offer performance required by the contract to cure that
\n failure unless (A) permitting a cure would unreasonably
\n hinder the aggrieved party from making substitute
\n arrangements for performance, or (B) it was important in
\n the circumstances to the aggrieved party that performance
\n occur by the date stated in the contract.<\/p>\n
(i) limit the enforceability of any clause requiring
\n additional interest or additional payments upon default.<\/p>\n
(j) limit the enforceability of any clause authorizing the
\n exercise of set-off rights absent prior notice and demand.<\/p>\n
We express no opinion as to the enforceability of (i) any waiver of jury
\ntrial, or any waiver of any statutory or constitutional rights, or (ii) the
\nchoice of law provisions in any of the Transaction Documents in courts sitting
\nin jurisdictions other than the State of New York. We express no opinion as to
\nany titles, estates, or interests of the Borrower in and to any properties,
\nreal or personal, fee or leasehold. We express no opinion as to (x) the
\nenforceability of any waiver of any statutory right and (y) the enforceability
\nof the provisions found under clauses A, B, C, E, F and G of SECTIONS 11.10 of
\neach of the Facility A Agreement and the Facility B Agreement. With respect to
\nour opinions provided under numbered paragraphs 4, 5 and 6 above, we have
\nassumed that the business of the Restricted Companies is limited to the
\nprovision of long distance telecommunications services through a digital fiber
\noptic and digital microwave network, and that the Restricted Companies,
\nindividually and collectively, are engaged in no other line of business.<\/p>\n
We express no opinion on any other matters pertaining to the
\ntransactions contemplated by or related to the Transaction Documents, except as
\nhereinabove specifically provided, and no further or other opinion shall be
\nimplied. The opinion above is subject to each and every assumption, exception,
\nqualification and limitation, factual or legal, set forth herein. The matters
\nset forth herein or upon which this opinion is based are as of the date hereof,
\nand we hereby undertake no, and disclaim any, obligation to advise the Facility
\nA Administrative Agent, the Facility B<\/p>\n
4 FACILITY A – EXHIBIT F-2
\n 115
\nAdministrative Agent, the Agents, or any Lender of any change in any matters
\nset forth herein or any matters upon which this opinion is based.<\/p>\n
We are qualified to practice law in the State of New York, and we do not
\npurport to be experts on, or to express any opinion concerning, any laws other
\nthan the laws of the State of New York. The opinions above are subject to this
\nlimitation in all respects. We express no opinion as to any matters involving
\nthe Federal Communications Commission and state public utility commissions or
\nanalogous regulatory or governmental authorities or the laws, rules, or
\nregulations relating to any regulatory matters affecting the companies, as we
\nunderstand you will rely solely on special regulatory counsel to the Restricted
\nCompanies for such matters.<\/p>\n
This opinion is addressed solely for your use in connection with the
\ntransactions contemplated by the Facility A Agreement and the Facility B
\nAgreement, and no Person other than the Facility A Administrative Agent, the
\nFacility B Administrative Agent, each Agent, each Lender, each assignee which
\nhereafter becomes a Lender in accordance with the terms of either of the
\nFacility A Agreement or the Facility B Agreement, and the law firm of Haynes
\nand Boone, L.L.P., is entitled to rely hereon without our prior written
\nconsent.<\/p>\n
Very truly yours,<\/p>\n
BRYAN CAVELLP<\/p>\n
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