\n Category 3
\n ———-
\nBBB- by S&P; 0.0000% 0.4500%
\nBaa3 by Moody’s
\n—————————————————————————————————
\n Category 4
\n ———-
\nBB+ by S&P; 0.0000% 0.5000%
\nBa1 by Moody’s
\n—————————————————————————————————
\n Category 5
\n ———-
\nBB or lower by S&P; 0.0000% 0.7500%
\nBa2 or lower by Moody’s
\n—————————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n (a) For purposes of determining the Applicable Margin, (i) if
\n neither Moody’s nor S&P shall have in effect a rating for
\n Index Debt (other than by reason of the circumstances referred
\n to in the last sentence of this definition), then both such
\n rating agencies will be deemed to have established ratings for
\n Index Debt in Category 5; (ii) if only one of Moody’s or S&P
\n shall have in effect a rating for Index Debt, Borrower and the
\n Facility B Lenders will negotiate in good faith to agree upon
\n another rating agency to be substituted by an agreement for
\n the rating agency which shall not have a rating in effect, and
\n in the absence of such agreement the Applicable Margin will be
\n determined by reference to the available rating; (iii) if the
\n ratings established by Moody’s and S&P shall differ by one
\n Category, the Applicable Margin shall be determined by
\n reference to the numerically lower Category: (for example, if
\n the rating from S&P is in Category 1 and the rating from
\n Moody’s is in Category 2, the Applicable Margin shall be
\n determined by reference to Category 1); (iv) if the ratings
\n established by Moody’s and S&P shall differ by more than one
\n Category, the Applicable Margin shall be determined by
\n reference to the Category that is one numerical Category lower
\n than the numerically higher of the two Categories
\n corresponding to the ratings established by the two rating
\n agencies: (for example, if the rating from S&P is in Category
\n 2 and the rating from Moody’s is in Category 5, the Applicable
\n Margin shall be determined by reference to Category 4); and
\n (v) if any rating established by Moody’s or S&P shall be
\n changed (other than as a result of a change in the rating
\n system of either Moody’s or S&P), such change shall be
\n effective as of the date on which such change is first
\n announced by the rating agency making such change. If the
\n rating system of either Moody’s or S&P shall change prior to
\n the payment in full of the Obligation and the cancellation of
\n all commitments to lend hereunder, Borrower and the Facility B
\n Lenders shall negotiate in good faith to amend the references
\n to specific ratings in this definition to reflect such changed
\n rating system. If both Moody’s and S&P shall cease to be in
\n the business of rating corporate debt obligations, Borrower
\n and the Facility B Lenders shall negotiate in good faith to
\n agree upon a substitute rating agency and to amend the
\n references to specific ratings in this definition to reflect
\n the ratings used by such substitute rating agency.<\/p>\n
(b) On any date of determination of the Applicable Margin for
\n Eurodollar Rate Borrowings, if the sum of the Facility A
\n Commitment Usage (as defined in the Facility A Agreement), the
\n Facility B Principal Debt, and the 364-Day Principal Debt
\n exceeds 33 1\/3% (but less than 66 2\/3%) of the Total
\n Commitment, then the Applicable Margin for Eurodollar Rate
\n Borrowings shall be increased by 0.05% (the “UTILIZATION
\n FEE”); provided that, if the Facility A Commitment Usage (as
\n defined in the Facility A Agreement), the Facility B Principal
\n Debt, and the 364-Day Principal Debt equals or exceeds 66 2\/3%
\n of the Total Commitment, then such Utilization Fee shall be
\n increased to 0.10%.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
3
\n 9
\n ARRANGER means NationsBanc Montgomery Securities LLC, and its
\nsuccessors and assigns, in its capacity as “Lead Arranger” under the Loan
\nPapers.<\/p>\n
AUTHORIZATIONS means all filings, recordings, and registrations with,
\nand all validations or exemptions, approvals, orders, authorizations, consents,
\nfranchises, licenses, certificates, and permits from, any Governmental
\nAuthority (including, without limitation, the FCC and applicable PUCs),
\nincluding without limitation, any of the foregoing authorizing or permitting
\nthe acquisition, construction, or operation of network facilities or any other
\ntelecommunications system.<\/p>\n
BASE RATE means, for any day, the rate per annum equal to the higher
\nof (a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
\nand (b) the Prime Rate for such day. Any change in the Base Rate due to a
\nchange in the Prime Rate or the Federal Funds Rate shall be effective on the
\neffective date of such change in the Prime Rate or Federal Funds Rate.<\/p>\n
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
\nthe Base Rate plus the Applicable Margin for Base Rate Borrowings.<\/p>\n
BORROWER is defined in the preamble to this Facility B Agreement.<\/p>\n
BORROWING means any amount disbursed (a) by one or more Facility B
\nLenders to Borrower under the Facility B Loan Papers, whether such amount
\nconstitutes an original disbursement of funds or the continuation of an amount
\noutstanding, or (b) by any Facility B Lender in accordance with, and to satisfy
\nthe obligations of any Restricted Company under, any Facility B Loan Paper.<\/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 United States dollars are conducted in the London
\ninterbank market and commercial banks are open for international business in
\nLondon, and (c) in addition to the foregoing, for purposes of any fundings in,
\nor conversions to or from, Foreign Currency, a day when commercial banks are
\nopen for international business in the principal financial center in the
\ncountry which issues such Foreign Currency, as determined by Administrative
\nAgent.<\/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 B 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
\nPLC, The Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of
\nNew York, and Royal Bank of Canada.<\/p>\n
CODE means the Internal Revenue Code of 1986, as amended, together
\nwith rules and regulations promulgated thereunder.<\/p>\n
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 B
\nLender may reasonably incur in respect of a Eurodollar Rate Borrowing or as a
\nconsequence of (a) any failure or refusal of Borrower (for any reasons
\nwhatsoever other than a default by Administrative Agent or a Facility B Lender)
\nto accept or utilize such<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
4
\n 10
\nBorrowing after Borrower shall have requested it under this Facility B
\nAgreement, or (b) any prepayment or payment of such Borrowing or conversion of
\nsuch Borrowing to a Borrowing of another Type, in each case, prior to the last
\nday of the Interest Period therefor.<\/p>\n
CONSOLIDATED COMPANIES means, at any date of determination thereof,
\nBorrower and each of its Subsidiaries (including the Unrestricted
\nSubsidiaries).<\/p>\n
CONSOLIDATED NET WORTH means, for any period, the consolidated
\nstockholders’ equity of the Restricted Companies as determined in accordance
\nwith GAAP.<\/p>\n
CURRENT FINANCIALS means, at the time of any determination thereof,
\nthe more recently delivered to Facility B Lenders of (a) as applicable, either
\n(i) prior 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(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
\nto the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
\nBase Rate Borrowings plus 2% and (b) the Maximum Rate.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
5
\n 11
\n DETERMINING LENDERS means:<\/p>\n
(a) For purposes of waiving or amending any conditions
\n precedent under SECTION 5.2 of the Facility A Agreement, those
\n Facility A Lenders who collectively hold, on any date of
\n determination, at least 51% of the Facility A Commitment; or<\/p>\n
(b) For all other purposes under the Loan Papers, (i) on
\n any date of determination occurring prior to the date upon which
\n Facility A has been terminated, those Lenders who collectively hold at
\n least 51% of the sum of (A) the Facility A Commitment and (B) the
\n Facility B Principal Debt; and (ii) on any date of determination
\n occurring on or after the date upon which Facility A Commitment has
\n been terminated, those Lenders who collectively hold at least 51% of
\n the Principal Debt and the LC Exposure (as defined in the Facility A
\n Agreement).<\/p>\n
DISTRIBUTION for any Person means, with respect to any shares of any
\ncapital stock or other equity securities issued by such Person, (a) the
\nretirement, redemption, purchase, or other acquisition for value of any such
\nsecurities, (b) the declaration or payment of any dividend on or with respect
\nto any such securities, and (c) any other payment by such Person with respect
\nto such securities.<\/p>\n
DOLLARS and the symbol $ shall mean lawful money of the United States
\nof America.<\/p>\n
ELIGIBLE ASSIGNEE means (a) a Facility B Lender; (b) an Affiliate of a
\nFacility B 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 B Lender and the Administrative Agent from
\nBorrower within five Business Days after notice of such proposed assignment has
\nbeen provided by the assigning Lender to Borrower; provided, however, that
\nneither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
\nAssignee.<\/p>\n
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
\nIV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
\nbut not including any Multiemployer Plan.<\/p>\n
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
\ncondition or protection of air, groundwater, surface water, soil, or other
\nenvironmental media, (b) the environment, including natural resources or any
\nactivity which affects the environment, (c) the regulation of any pollutants,
\ncontaminants, wastes, substances, and Hazardous Substances, including, without
\nlimitation, the Comprehensive Environmental Response, Compensation, and
\nLiability Act (42 U.S.C. Section 9601 et seq.) (“CERCLA”), the Hazardous
\nMaterials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
\nConservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”), the
\nClean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
\nU.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
\nSection 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
\n(7 U.S.C. Section 136 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
\n201 and Section 300f et seq.) and the Rivers and Harbors Act (33 U.S.C.
\nSection 401 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.)
\nand analogous state and local Laws, as any of the foregoing may have been and
\nmay be amended or supplemented from time to time, and any analogous future
\nenacted or adopted Law, or (d) the Release or threatened Release of Hazardous
\nSubstances.<\/p>\n
ERISA means the Employee Retirement Income Security Act of 1974, as
\namended, and the regulations and rulings thereunder.<\/p>\n
ERISA AFFILIATE means, with respect to Borrower or any of its
\nSubsidiaries, any company, trade, or<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
6
\n 12
\nbusiness (whether or not incorporated) which, for purposes of Title IV of
\nERISA, is a member of Borrower’s controlled group or which is under common
\ncontrol with Borrower within the meaning of Section 414(b), (c) or (m) of the
\nCode.<\/p>\n
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
\nInterest Period therefor, the rate per annum (rounded upwards, if necessary, to
\nthe nearest 1\/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
\nsuccessor page) as the London interbank offered rate for deposits in Dollars at
\napproximately 11:00 a.m. (London time) two Business Days prior to the first day
\nof such Interest Period for a term comparable to such Interest Period. If for
\nany reason such rate is not available, the term “Eurodollar Rate” shall mean,
\nfor any Eurodollar Rate Borrowing for any Interest Period therefor, the rate
\nper annum (rounded upwards, if necessary, to the nearest 1\/100 of 1%) appearing
\non Reuters Screen LIBO Page as the London interbank offered rate for deposits
\nin Dollars at approximately 11:00 a.m. (London time) two Business Days prior
\nto the first day of such Interest Period for a term comparable to such Interest
\nPeriod; provided, however, if more than one rate is specified on Reuters Screen
\nLIBO Page, the applicable rate shall be the arithmetic mean of all such rates
\n(rounded upwards, if necessary, to the nearest 1\/100 of 1%).<\/p>\n
EURODOLLAR RATE BORROWING means a Borrowing bearing interest at the
\nsum of the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar
\nRate Borrowings.<\/p>\n
EXHIBIT means an exhibit to this Facility B Agreement unless otherwise
\nspecified.<\/p>\n
EXISTING AGREEMENT is defined in the Recitals to this Facility B
\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
\n(ii) the thirtieth (30th) day after the closing date of the 364-Day Facility);
\n(b) on and after the MCI Merger Date, the secured and unsecured Debt of MCI and
\nits Subsidiaries 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 B LENDERS is defined in the Recitals to this
\nFacility B Agreement.<\/p>\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 ADMINISTRATIVE AGENT means the “Administrative Agent” under
\nFacility A and its permitted successors and assigns under Facility A.<\/p>\n
FACILITY A AGENTS means, collectively, Facility A Administrative Agent
\nand Co-Syndication Agents under the Facility A Agreement.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
7
\n 13
\n FACILITY A AGREEMENT means the Amended and Restated Facility A
\nRevolving Credit and Term Loan Agreement, and all Exhibits and Schedules
\nthereto, as each may be amended, modified, supplemented, or restated from time
\nto time, dated the date hereof among Borrower, Facility A Administrative Agent,
\nand the Facility A Lenders.<\/p>\n
FACILITY A COMMITMENT means an amount (subject to availability,
\nreduction, or cancellation as provided in the Facility A Agreement) equal to
\n$3,750,000,000.<\/p>\n
FACILITY A COMPETITIVE BID SUBFACILITY means a subfacility of Facility
\nA as described in the Facility A Agreement.<\/p>\n
FACILITY A COMPETITIVE BORROWING means a Borrowing under the Facility
\nA Competitive Bid Subfacility.<\/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 the Facility A Agreement) to the Facility A Agreement, and
\nsubject to the terms and conditions of the Facility A Agreement, their
\nrespective successors and assigns, but not any Participant who is not otherwise
\na party to the Facility A Agreement.<\/p>\n
FACILITY A LOAN PAPERS means those Loan Papers evidencing the
\nObligation arising under, in connection with, or pursuant to, Facility A, and
\nall renewals, extensions, or restatements of or amendments or supplements to,
\nany such Facility A Loan Papers.<\/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 B means the term loan facility described in and subject to
\nthe limitations of the Facility B Agreement.<\/p>\n
FACILITY B AGENTS means, collectively, Administrative Agent and the
\nCo-Syndication Agents under this Facility B Agreement.<\/p>\n
FACILITY B AGREEMENT means this Amended and Restated Facility B Term
\nLoan Agreement, and all Exhibits and Schedules hereto, as each may be amended,
\nmodified, supplemented, or restated 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 this Facility B Agreement) to this Facility B Agreement,
\nand subject to the terms and conditions of this Facility B Agreement, their
\nrespective successors and assigns, but not any Participant who is not otherwise
\na party to this Facility B Agreement<\/p>\n
FACILITY B LOAN PAPERS means those Loan Papers evidencing the
\nObligation arising under, in connection with, or pursuant to, Facility B, and
\nall renewals, extensions, or restatements of or amendments or supplements to,
\nany such 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<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
8
\n 14
\n1\/100 of 1%) determined (which determination shall be conclusive and binding,
\nabsent manifest error) by Administrative Agent to be equal to the weighted
\naverage of the rates on overnight Federal funds transactions with member banks
\nof the Federal Reserve System arranged by Federal funds brokers on such day, as
\npublished by the Federal Reserve Bank of New York on the Business Day next
\nsucceeding such day; provided that (a) if such day is not a Business Day, the
\nFederal Funds Rate for such day shall be such rate on such transactions on the
\nnext preceding Business Day as so published on the next succeeding Business
\nDay, and (b) if no such rate is so published on such next succeeding Business
\nDay, the Federal Funds Rate for such day shall be the average rate charged to
\nthe Administrative Agent (in its individual capacity) on such day on such
\ntransactions as determined by the Administrative Agent (which determination
\nshall be conclusive and binding, absent manifest error).<\/p>\n
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
\ncontract which is intended to reduce or eliminate the risk of fluctuations in
\ninterest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
\nor other contract which is intended to reduce or eliminate the market risk of
\nholding currency or a commodity in either the cash or futures markets, which
\nFinancial Hedge under either CLAUSE (A) or CLAUSE (B) is entered into by any
\nRestricted Company with any Lender or an Affiliate of any Lender or any other
\nPerson under the Laws of a jurisdiction in which such contracts are legal and
\nenforceable (except as enforceability may be limited by applicable Debtor
\nRelief Laws and general principles of equity).<\/p>\n
FINANCIAL STATEMENTS means balance sheets, statements of operations,
\nstatements of shareholders’ investments, and statements of cash flows prepared
\nin accordance with GAAP, which statements of operations and statements of cash
\nflows shall be in comparative form to the corresponding period of the preceding
\nfiscal year, and which balance sheets and statements of shareholders’
\ninvestments shall be in comparative form to the prior fiscal year-end figures.<\/p>\n
GAAP means generally accepted accounting principles of the Accounting
\nPrinciples Board of the American Institute of Certified Public Accountants and
\nthe Financial Accounting Standards Board which (a) with respect to the covenant
\ncontained in SECTION 7.22 (and, to the extent used in or relating to such
\ncovenant, any defined terms), are in effect on the date hereof, and (b) for all
\nother purposes hereunder, are applicable from time to time.<\/p>\n
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or
\nfederal judicial, executive, or legislative instrumentality, (b) private
\narbitration board or panel, or (c) central bank.<\/p>\n
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
\ndefined or classified as a hazardous waste, hazardous material, pollutant,
\ncontaminant or toxic or hazardous substance under any Environmental Law,
\nincluding without limitation, any hazardous substance within the meaning of
\nSection 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil,
\nmotor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons,
\n(c) regulated asbestos and asbestos-containing materials in any form, (d)
\npolychlorinated biphenyls, or (e) urea formaldehyde foam.<\/p>\n
INDENTURES means any indentures or other agreements pursuant to which
\nnotes, debentures, bonds, or debt securities are issued by any Restricted
\nCompany, including, without limitation, the following: Indenture dated as of
\nMarch 1, 1997, between Borrower and The Chase Manhattan Trust Company, N.A., as
\nsuccessor trustee; Indenture dated as of January 26, 1994, between MFS
\nCommunications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
\nIndenture dated as of January 23, 1996 between MFS Communications Company, Inc.
\nand IBJ Schroder Bank & Trust Co., as trustee; Indenture dated as of February
\n26, 1996, between Brooks Fiber Properties, Inc. and The Bank of New York, as
\ntrustee; and Indenture dated as of May 29, 1997, between Brooks Fiber
\nProperties, Inc. and The Bank of New York, as trustee, in each case as the same
\nhave been or may be amended, modified, supplemented or restated from time to
\ntime; and on and after the MCI Merger Date, references to “INDENTURES” shall
\nalso include the Indenture dated as of October 15, 1989, between MCI and
\nCitibank, N.A., as trustee; Indenture dated as of February<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
9
\n 15
\n17, 1995, between MCI and Citibank, N.A., as trustee; and Junior Subordinated
\nIndenture dated as of May 29, 1996, between MCI and Wilmington Trust Company,
\nas trustee, in each case as the same have been or may be amended, modified,
\nsupplemented, or restated from time to time.<\/p>\n
INTEREST PERIOD is determined in accordance with SECTION 3.9.<\/p>\n
LC means any “LC” as defined in the Facility A Agreement.<\/p>\n
LC AGREEMENT means any “LC Agreement” as defined in the Facility A
\nAgreement.<\/p>\n
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
\nrequirements, rules, regulations, orders, writs, injunctions, decrees,
\njudgments, opinions, or interpretations of any Governmental Authority.<\/p>\n
LENDERS means, collectively, on any date of determination, the
\nFacility A 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 B Agreement, certificates
\ndelivered pursuant to this Facility B Agreement, and Exhibits and Schedules
\nhereto, (b) the Facility A Agreement, certificates delivered pursuant to the
\nFacility A Agreement, and exhibits and schedules thereto, (c) all agreements,
\ndocuments, or instruments in favor of Administrative Agent or Lenders (or
\nAdministrative Agent on behalf of Lenders) ever delivered pursuant to this
\nFacility B Agreement or the Facility A Agreement, or otherwise delivered in
\nconnection with all or any part of the Obligation, (d) all LCs and LC
\nAgreements, (e) any Financial Hedge between any Restricted Company and any
\nLender or any Affiliate of any Lender, and (f) all renewals, extensions, or
\nrestatements of, or amendments or supplements to, any of the foregoing.<\/p>\n
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
\nevents which, individually or collectively, could reasonably be expected to
\nresult in any (a) material impairment of the ability of any Restricted Company
\nto perform any of its payment or other material obligations under the Loan
\nPapers or the ability of Administrative Agent or any Lender to enforce any such
\nobligations or any of their respective Rights under the Loan Papers, (b)
\nmaterial and adverse effect on the business, properties, condition (financial
\nor otherwise) or results of operations of the Restricted Companies, in each
\ncase considered as a whole, or (c) material and adverse effect on the business,
\nproperties, condition (financial or otherwise) or results of operations of the
\nConsolidated Companies, in each case considered as a whole. The phrase “could
\nbe a Material Adverse Event” (and any similar phrase herein) means that there
\nis a material probability of such Material Adverse Event occurring, and the
\nphrase “could not be a Material Adverse Event” (and any similar phrase herein)
\nmeans that there is not a material probability of such Material Adverse Event
\noccurring.<\/p>\n
MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary
\nof Borrower (or any group of Subsidiaries of Borrower) that individually or
\ncollectively own 10% or more of the book value of the consolidated assets of
\nthe Restricted Companies determined as of the date of, and with respect to, the
\nCurrent Financials and the related Compliance Certificate.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
10
\n 16
\n MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender,
\nthe maximum non-usurious amount and the maximum non-usurious rate of interest
\nwhich, under applicable Law, such Lender is permitted to contract for, charge,
\ntake, reserve, or receive on the Obligation.<\/p>\n
MCI means MCI Communications Corporation.<\/p>\n
MCI MERGER means the merger of MCI with and into TC Investments Corp.,
\na wholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
\nMerger Agreement.<\/p>\n
MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as
\nof November 9, 1997, among Borrower, MCI, and TC Investments Corp. (as amended
\nto date and as hereinafter amended subject to the consent of Administrative
\nAgent to any material amendment thereof, which consent shall not be
\nunreasonably withheld).<\/p>\n
MCI MERGER DATE means the date upon which the MCI Merger closes in
\naccordance with the MCI Merger Agreement.<\/p>\n
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
\nFacility dated as of April 30, 1997, among MCI and the lenders party thereto,
\nas amended by that certain First Amendment to Revolving Credit Agreement dated
\nas of April 28, 1998.<\/p>\n
MOODY’S means Moody’s Investors Service, Inc. or any successor
\nthereto.<\/p>\n
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
\n3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
\nRestricted Company or any ERISA Affiliate is making, or has made, or is
\naccruing, or has accrued, an obligation to make contributions.<\/p>\n
NATIONSBANK means NationsBank, N.A. (successor in interest by merger
\nto NationsBank 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 Term Notes.<\/p>\n
NOTICE OF CONVERSION is defined in SECTION 3.10.<\/p>\n
OBLIGATION means all present and future indebtedness, liabilities, and
\nobligations, and all renewals and extensions thereof, or any part thereof, now
\nor hereafter owed to any 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
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
PERMITTED SUCCESSOR CORPORATION means any corporation into which
\nBorrower is merged or consolidated, so long as:<\/p>\n
(a) immediately after giving effect to such merger or
\n consolidation, the surviving corporation shall have then-effective
\n ratings (or implied ratings) published by Moody’s and S&P applicable
\n to such surviving corporation’s senior, unsecured,
\n non-credit-enhanced, long term Debt,<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
11
\n 17
\n equal to or higher than BBB- by S&P, and Baa3 by 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
\n of the Obligation and the performance or observance of the Loan
\n Papers;<\/p>\n
(c) immediately after giving effect to such merger or
\n consolidation, no Default or Potential Default shall have occurred and
\n be continuing;<\/p>\n
(d) Borrower shall have delivered to Administrative Agent
\n a certificate signed by a Responsible Officer of Borrower and a
\n written opinion of counsel satisfactory to the Administrative Agent
\n (and its counsel), each stating that such merger or consolidation
\n complies with the requirements for a Permitted Successor Corporation
\n and that all conditions precedent herein provided for relating to such
\n merger or consolidation have been satisfied;<\/p>\n
(e) No “Change of Control” (as described in SECTION 8.6)
\n has occurred as a result of such merger or consolidation; and<\/p>\n
(f) on and prior to the closing of any such merger or
\n consolidation, such merger and consolidation shall have been approved
\n and recommended by the Board of Directors of Borrower.<\/p>\n
PERSON means any individual, entity, or Governmental Authority.<\/p>\n
POTENTIAL DEFAULT means the occurrence of any event or existence of
\nany circumstance which, with the giving of notice or lapse of time or both,
\nwould become a Default.<\/p>\n
PRIME RATE means the per annum rate of interest established from time
\nto time by NationsBank, N.A. as its prime rate, which rate may not be the
\nlowest rate of interest charged by NationsBank, N.A. to its customers.<\/p>\n
PRINCIPAL DEBT means, on any date of determination, the sum of the
\nFacility A Principal Debt and the Facility B Principal Debt.<\/p>\n
PRO RATA or PRO RATA PART means:<\/p>\n
(a) for each Facility A Lender with respect to any
\n commitment to fund (or to purchase participations pursuant to SECTIONS
\n 2.2 and 2.3, as the case may be), any reductions of commitments,
\n conversions or continuations of Borrowings under Facility A, or any
\n payment or prepayment under Facility A, or any expense reimbursements
\n pursuant to SECTION 10.2 — the “Commitment Percentage” stated
\n opposite such Facility A Lender’s name as set forth on SCHEDULE 2.1 to
\n the Facility A Agreement or the most recently-amended SCHEDULE 2.1, if
\n any (or, if the Facility A Commitments shall have expired or been
\n terminated, then the proportion that the Facility A Principal Debt
\n owed to such Facility A Lender under Facility A or any subfacility
\n thereunder (except the Facility A Competitive Bid Subfacility), as
\n applicable, bears to the Facility A Principal Debt owed to all
\n Facility A Lenders under Facility A or any such subfacility thereunder
\n (except the Facility A Competitive Bid Subfacility), as applicable;<\/p>\n
(b) for each Facility B Lender with respect to any
\n conversions or continuations of borrowings under Facility B, or any
\n payment or prepayment under Facility B, or any expense reimbursements
\n pursuant to SECTION 10.2 of the Facility B Agreement — the proportion
\n that the Facility B Principal Debt owed to such Facility B Lender
\n bears to the Facility B Principal Debt owed to all Facility B Lenders;<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
12
\n 18
\n (c) for each Facility A Lender with respect to any
\n principal or interest payments on any Facility A Competitive Borrowing
\n — the proportion that the outstanding principal amount or accrued and
\n unpaid interest (as the case may be) owed to any Facility A Lender
\n participating in such Facility A Competitive Borrowing bears to the
\n total principal amount outstanding or accrued and unpaid interest (as
\n the case may be) owed to all Facility A Lenders participating in such
\n Facility A Competitive Borrowing;<\/p>\n
(d) for all other purposes with respect to any Lender —
\n (i) for so long as the Facility A Commitment has not terminated, the
\n proportion that the sum of such Facility A Lender’s Facility A
\n Committed Sum plus the Facility B Principal Debt owed to such Lender
\n bears to the sum of the Facility A Commitment plus the Facility B
\n Principal Debt, or (ii) at any time on and after the Facility A
\n Termination Date, the proportion that the sum of (A) the Principal
\n Debt owed to such Lender plus (B) such Lender’s proportionate part
\n (whether held directly or through a participation therein and
\n determined after giving effect to any participations) of the LC
\n Exposure (as defined in the Facility A Agreement) bears to the sum of
\n (x) the Principal Debt plus (y) the LC Exposure (as defined in the
\n Facility A Agreement).<\/p>\n
PUC means any state or local regulatory agency or governmental
\nauthority that exercises jurisdiction over the rates or services or the
\nownership, construction, or operation of network facilities or
\ntelecommunications systems or over Persons who own, construct, or operate
\nnetwork facilities or telecommunications systems.<\/p>\n
RECEIVABLES means all Rights of any Consolidated Company (as a
\n“Seller” under Receivables Documents) to payments (whether constituting
\naccounts, chattel paper, instruments, general intangibles, or otherwise, and
\nincluding the Right to payment of any interest or finance charges) with respect
\nto dedicated telecommunications services provided by any such Consolidated
\nCompany to its customers between designated customer premises.<\/p>\n
RECEIVABLES DOCUMENTS means one or more receivables purchase
\nagreements entered into by one or more Consolidated Companies and each other
\ninstrument, agreement, and document entered into by such Consolidated Companies
\nevidencing Accounts Receivable Financings.<\/p>\n
RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which
\nundivided percentage interests are transferred by any Consolidated Company
\npursuant to the Receivables Documents, (b) all Receivables Related Assets with
\nrespect to the Receivables described in CLAUSE (A) of this definition, and (c)
\nall collections (including recoveries) and other proceeds of the assets
\ndescribed in the foregoing clauses.<\/p>\n
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
\ndocumentation governing or relating to Receivables (including Rights in respect
\nof Liens securing such Receivables and other credit support in respect of such
\nReceivables), (b) any proceeds of such Receivables and any lockboxes or
\naccounts in which such proceeds are deposited, and (c) spread accounts and
\nother similar accounts (and any amounts on deposit therein) established in
\nconnection with an Accounts Receivable Financing.<\/p>\n
RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
\ncreated in connection with the transactions contemplated by an Accounts
\nReceivable Financing, which Subsidiary engages in no activities, has no
\nmaterial liabilities, or owns no other assets, other than those incidental to
\nsuch Accounts Receivable Financing.<\/p>\n
REGISTER is defined in SECTION 11.13(C).<\/p>\n
REGULATION D means Regulation D of the Board of Governors of the
\nFederal Reserve System, as amended.<\/p>\n
REGULATION U means Regulation U of the Board of Governors of the
\nFederal Reserve System, as amended.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
13
\n 19
\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
RESTRICTED COMPANIES, at any time of determination thereof, means
\nBorrower and the Restricted Subsidiaries.<\/p>\n
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower
\n(other than the Unrestricted Subsidiaries).<\/p>\n
RIGHTS means rights, remedies, powers, privileges, and benefits.<\/p>\n
RIGHTS OF WAY means the easements, rights of way, and other rights
\nentitling the Restricted Companies to own, use, operate, and maintain the
\nnetwork facilities.<\/p>\n
S&P means Standard & Poor’s Rating Group, a division of McGraw Hill,
\nInc., a New York corporation.<\/p>\n
SCHEDULE means, unless specified otherwise, a schedule attached to
\nthis Facility B Agreement, as the same may be supplemented and modified from
\ntime to time in accordance with the terms of the Facility B Loan Papers.<\/p>\n
SOLVENT means, as to a Person, that (a) the aggregate fair market
\nvalue of such Person’s assets exceeds its liabilities (whether contingent,
\nsubordinated, unmatured, unliquidated, or otherwise), (b) such Person has
\nsufficient cash flow to enable it to pay its Debts as they mature, and (c) such
\nPerson does not have unreasonably small capital to conduct such Person’s
\nbusinesses.<\/p>\n
SUBSIDIARY of any Person means any entity of which an aggregate of
\nmore than 50% (in number of votes) of the stock (or equivalent interests) is
\nowned of record or beneficially, directly or indirectly, by such Person.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
14
\n 20
\n TAXES means, for any Person, taxes, assessments, or other governmental
\ncharges or levies imposed upon such Person, its income, or any of its
\nproperties, franchises, or assets.<\/p>\n
TERM LOAN MATURITY DATE means the earliest of (a) June 30, 2002, and
\n(b) the effective date of any other termination or cancellation of Facility B
\nin accordance with this Facility B Agreement.<\/p>\n
TERM NOTE means a promissory note substantially in the form of EXHIBIT
\nA, and all renewals and extensions of all or any part thereof.<\/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
\ninterest option applicable thereto.<\/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
\notherwise specified, in the Loan Papers (a) where appropriate, the singular
\nincludes the plural and vice versa, and words of any gender include each other
\ngender, (b) heading and caption references may not be construed in interpreting
\nprovisions, (c) monetary<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
15
\n 21
\nreferences are to currency of the United States of America, (d) section,
\nparagraph, 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” mean including without limiting
\nthe generality of any description preceding that word, (g) the rule of
\nconstruction that references to general items that follow references to
\nspecific items are limited to the same type or character of those specific
\nitems is not applicable in the Loan Papers, (h) references to any Person
\ninclude that Person’s heirs, personal representatives, successors, trustees,
\nreceivers, and permitted assigns, (i) references to any Law include every
\namendment or supplement to it, rule and regulation adopted under it, and
\nsuccessor or replacement for it, and (j) references to any Loan Paper or other
\ndocument include every renewal and extension of it, amendment and supplement to
\nit, and replacement or substitution for it.<\/p>\n
1.3 Accounting Principles. All accounting and financial terms
\nused in the Loan Papers and the compliance with each financial covenant therein
\nshall be determined in accordance with GAAP, and, all accounting principles
\nshall be applied on a consistent basis so that the accounting principles in a
\ncurrent period are comparable in all material respects to those applied during
\nthe preceding comparable period.<\/p>\n
SECTION 2 BORROWING PROVISIONS.<\/p>\n
2.1 Term Loan. Subject to and in reliance upon the terms,
\nconditions, representations, and warranties in the Loan Papers, the “Facility B
\nPrincipal Debt” under the Existing Agreement outstanding on the Closing Date
\nshall automatically be continued and extended as the “Facility B Principal
\nDebt” owed to the Facility B Lenders under this Facility B Agreement.<\/p>\n
SECTION 3 TERMS OF PAYMENT.<\/p>\n
3.1 Loan Accounts and Payments.<\/p>\n
(a) The Facility B Principal Debt owed to each Facility B
\n Lender shall be evidenced by one or more loan accounts or records
\n maintained by such Facility B Lender in the ordinary course of
\n business. The loan accounts or records maintained by the
\n Administrative Agent (including, without limitation, the Register) and
\n each Facility B Lender shall be conclusive evidence absent manifest
\n error of the amount of the Borrowings made by Borrower from each
\n Facility B Lender under Facility B (and subfacilities thereunder) and
\n the interest and principal payments thereon. Any failure to so record
\n or any error in doing so shall not, however, limit or otherwise affect
\n the obligation of Borrower under the Loan Papers to pay any amount
\n owing with respect to the Obligation.<\/p>\n
(b) Upon the request of any Facility B Lender made
\n through the Administrative Agent, the Facility B Principal Debt owed
\n to such Facility B Lender may be evidenced by a Term Note.<\/p>\n
(c) All payments of principal, interest, and other
\n amounts to be made by Borrower under this Facility B Agreement and the
\n other Facility B Loan Papers shall be made to Administrative Agent at
\n its principal office in Dallas, Texas in Dollars and in funds which
\n are or will be available for immediate use by Administrative Agent by
\n 12:00 noon Dallas, Texas time on the day due, without setoff,
\n deduction, or counterclaim. Subject to the definition of “Interest
\n Period” herein, whenever any payment under this Facility B Agreement
\n or any other Loan Paper shall be stated to be due on a day that is not
\n a Business Day, such payment may be made on the next succeeding
\n Business Day, and such extension of time in such case shall be
\n included in the computation of interest and fees, as applicable and as
\n the case may be. Payments made after 12:00 noon, Dallas, Texas, time
\n shall be deemed made on the Business Day next following.
\n Administrative Agent shall pay to each Facility B Lender any payment
\n of principal, interest, or other<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
16
\n 22
\n amount to which such Facility B Lender is entitled hereunder on the
\n same day Administrative Agent shall have received the same from
\n Borrower; provided such payment is received by Administrative Agent
\n prior to 12:00 noon Dallas, Texas time, and otherwise before 12:00
\n noon Dallas, Texas time on the Business Day next following. If and to
\n the extent Administrative Agent shall not make such payments to
\n Facility B Lenders when due as set forth in the preceding sentence,
\n such unpaid amounts shall accrue interest, payable by Administrative
\n Agent, at the Federal Funds Rate from the due date until (but not
\n including) the date on which Administrative Agent makes such payments
\n to Facility B Lenders.<\/p>\n
3.2 Interest and Principal Payments.<\/p>\n
(a) Interest on each Eurodollar Rate Borrowing shall be
\n due and payable as it accrues on the last day of its respective
\n Interest Period and on the Term Loan Maturity Date, as applicable;
\n provided that if any Interest Period is a period greater than three
\n (3) months, then accrued interest shall also be due and payable on the
\n date three (3) months after the commencement of such Interest Period.
\n Interest on each Base Rate Borrowing shall be due and payable as it
\n accrues on each March 31, June 30, September 30, and December 31, and
\n on the Term Loan Maturity Date.<\/p>\n
(b) Borrower shall pay on the Term Loan Maturity Date all
\n outstanding Facility B Principal Debt, together with all accrued and
\n unpaid interest and fees.<\/p>\n
(c) After giving Administrative Agent advance written
\n notice of the intent to prepay, Borrower may voluntarily prepay all or
\n any part of the Facility B Principal Debt from time to time and at any
\n time, in whole or in part, without premium or penalty; provided that:
\n (i) such notice must be received by Administrative Agent by 12:00 noon
\n Dallas, Texas time on (A) the third Business Day preceding the date of
\n prepayment of a Eurodollar Rate Borrowing, and (B) one Business Day
\n preceding the date of prepayment of a Base Rate Borrowing; (ii) each
\n such partial prepayment must be in a minimum amount of at least
\n $5,000,000 or a greater integral multiple of $1,000,000 thereof (if a
\n Eurodollar Rate Borrowing or a Base Rate Borrowing); (iii) all accrued
\n interest on the Obligation must also be paid in full, to the date of
\n such prepayment; and (iv) Borrower shall pay any related Consequential
\n Loss within ten (10) days after demand therefor. Each notice of
\n prepayment shall specify the prepayment date, 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.<\/p>\n
3.3 Interest Options. Except where specifically otherwise
\nprovided, Borrowings shall bear interest at a rate per annum equal to the
\nlesser of (a) as to the respective Type of Borrowing (as designated by Borrower
\nin accordance with this Facility B Agreement), the Base Rate plus the
\nApplicable Margin for Base Rate Borrowings or the Adjusted Eurodollar Rate plus
\nthe Applicable Margin for Eurodollar Rate Borrowings, as the case may be, and
\n(b) the Maximum Rate. Each change in the Base Rate or the Maximum Rate,
\nsubject to the terms of this Facility B Agreement, will become effective,
\nwithout notice to Borrower or any other Person, upon the effective date of such
\nchange.<\/p>\n
3.4 Quotation of Rates. It is hereby acknowledged that a
\nResponsible Officer or other appropriately designated employee of Borrower may
\ncall Administrative Agent on or before the date on which a Notice of Conversion
\nis to be delivered by Borrower in order to receive an indication of the rates
\nthen in effect, but such indicated rates shall neither be binding upon
\nAdministrative Agent or Facility B Lenders nor affect the rate of interest
\nwhich thereafter is actually in effect when the Notice of Conversion is given.<\/p>\n
3.5 Default Rate. At the option of Determining Lenders and to the
\nextent permitted by Law, all past-<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
17
\n 23
\ndue Principal Debt and accrued interest thereon shall bear interest from
\nmaturity (stated or by acceleration) at the Default Rate until paid, regardless
\nwhether such payment is made before or after entry of a judgment.<\/p>\n
3.6 Interest Recapture. If the designated rate applicable to any
\nBorrowing exceeds the Maximum Rate, the rate of interest on such Borrowing
\nshall be limited to the Maximum Rate, but any subsequent reductions in such
\ndesignated rate shall not reduce the rate of interest thereon below the Maximum
\nRate until the total amount of interest accrued thereon equals the amount of
\ninterest which would have accrued thereon if such designated rate had at all
\ntimes been in effect. In the event that at maturity (stated or by
\nacceleration), or at final payment of the Facility B 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 B Principal Debt.<\/p>\n
3.7 Interest Calculations.<\/p>\n
(a) All payments of interest shall be calculated on the
\n basis of actual number of days (including the first day but excluding
\n the last day) elapsed but computed as if each calendar year consisted
\n of 360 days in the case of a Eurodollar Rate Borrowing, or Base Rate
\n Borrowings calculated with reference to the Federal Funds Rate (unless
\n such calculation would result in the interest on the Borrowings
\n exceeding the Maximum Rate in which event such interest shall be
\n calculated on the basis of a year of 365 or 366 days, as the case may
\n be) and 365 or 366 days, as the case may be, in the case of a Base
\n Rate Borrowing calculated with reference to Prime Rate. All interest
\n rate determinations and calculations by Administrative Agent shall be
\n conclusive and binding absent manifest error.<\/p>\n
(b) The provisions of this Facility B Agreement relating
\n to calculation of the Base Rate and the Adjusted Eurodollar Rate, are
\n included only for the purpose of determining the rate of interest or
\n other amounts to be paid hereunder that are based upon such rate.<\/p>\n
3.8 Maximum Rate. Regardless of any provision contained in any
\nLoan Paper, no Lender shall ever be entitled to contract for, charge, take,
\nreserve, receive, or apply, as interest on the Obligation, or any part thereof,
\nany amount in excess of the Maximum Rate, and, if Facility B Lenders ever do
\nso, then such excess shall be deemed a partial prepayment of principal and
\ntreated hereunder as such and any remaining excess shall be refunded to
\nBorrower. In determining if the interest paid or payable exceeds the Maximum
\nRate, Borrower and Facility B Lenders shall, to the maximum extent permitted
\nunder applicable Law, (a) treat all Borrowings as but a single extension of
\ncredit (and Facility B Lenders and Borrower agree that such is the case and
\nthat provision herein for multiple Borrowings is for convenience only), (b)
\ncharacterize any nonprincipal payment as an expense, fee, or premium rather
\nthan as interest, (c) exclude voluntary prepayments and the effects thereof,
\nand (d) amortize, prorate, allocate, and spread the total amount of interest
\nthroughout the entire contemplated term of the Obligation; provided that, if
\nthe Obligation is paid and performed in full prior to the end of the full
\ncontemplated term thereof, and if the interest received for the actual period
\nof existence thereof exceeds the Maximum Amount, Facility B Lenders shall
\nrefund such excess, and, in such event, Facility B Lenders shall not, to the
\nextent permitted 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, Borrower may elect the interest period (each an “INTEREST PERIOD”)
\napplicable thereto, which shall be, at Borrower’s option, one, two, three, or
\nsix months or, if available to all Facility B Lenders, nine or twelve months;
\nprovided, however, that: (a) the initial Interest Period for a Eurodollar Rate
\nBorrowing shall commence on the date of such Borrowing<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
18
\n 24
\n(including the date of any conversion thereto), and each Interest Period
\noccurring thereafter in respect of such Borrowing shall commence on the day on
\nwhich the next preceding Interest Period applicable thereto expires; (b) if any
\nInterest Period for a Eurodollar Rate Borrowing begins on a day for which there
\nis no numerically corresponding Business Day in the calendar month at the end
\nof such Interest Period, such Interest Period shall end on the next Business
\nDay immediately following what otherwise would have been such numerically
\ncorresponding day in the calendar month at the end of such Interest Period
\n(unless such date would be in a different calendar month from what would have
\nbeen the month at the end of such Interest Period, or unless there is no
\nnumerically corresponding day in the calendar month at the end of the Interest
\nPeriod; whereupon, such Interest Period shall end on the last Business Day in
\nthe calendar month at the end of such Interest Period); (c) no Interest Period
\nmay be chosen with respect to any portion of the Facility B Principal Debt
\nwhich would extend beyond the scheduled repayment date (including any dates on
\nwhich mandatory prepayments are required to be made) for such portion of the
\nPrincipal Debt; and (d) no more than an aggregate of twenty (20) Interest
\nPeriods (including, without limitation, Interest Periods under Facility A)
\nshall 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) 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 B 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
\n occurred and is continuing, payments and prepayments of the Obligation
\n shall be applied in the order and manner as Borrower may direct;
\n provided that, each such payment or prepayment (other than payments of
\n fees payable solely to Administrative Agent, Facility A Administrative
\n Agent, or a specific Lender) shall be allocated to each Lender in the
\n proportion that the Principal Debt owed to such Lender bears to the
\n Principal Debt owed to all Lenders under the Facility (or Subfacility
\n thereunder) in 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
\n the exercise of any Rights) shall be applied in the following order:<\/p>\n
(i) to the ratable payment of all fees and
\n reasonable expenses for which Facility A Agents, Facility B
\n Agents, or Lenders have not been paid or reimbursed in
\n accordance with the Loan Papers; (as used in this SECTION
\n 3.11(B)(I), a “ratable payment” for any Lender, any Facility A
\n Agent, or any Facility B Agent shall be, on any date of
\n determination, that proportion which the portion of the total
\n fees and indemnities owed to such Lender, Facility A Agent, or
\n Facility B Agent bears to the total aggregate fees and
\n indemnities owed to all Lenders, Facility A Agents, and
\n Facility B Agents on such date of determination);<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
19
\n 25
\n (ii) to the Pro Rata payment of all accrued and
\n unpaid interest on the Principal Debt;<\/p>\n
(iii) to the ratable payment of the Swing Line
\n Principal Debt (as defined in the Facility A Agreement) which
\n is due and payable and which remains unfunded by any Borrowing
\n under Facility A; provided that, such payments shall be
\n allocated among the Swing Line Lenders (as defined in the
\n Facility A Agreement) and the Facility A Lenders which have
\n funded their participation in the Swing Line Principal Debt
\n (as defined in the Facility A Agreement);<\/p>\n
(iv) to the ratable payment of any reimbursement
\n obligation with respect to any LC issued pursuant to Facility
\n A which is due and payable and which remains unfunded by any
\n Borrowing under Facility A; provided that, such payments shall
\n be allocated ratably among NationsBank and the Facility A
\n Lenders which have funded their participation in such LC;<\/p>\n
(v) to the Pro Rata payment of the remaining
\n Principal Debt in such order as Determining Lenders may elect
\n (provided that, Determining Lenders will apply such proceeds
\n in an order that will minimize any Consequential Loss);<\/p>\n
(vi) as a deposit with Administrative Agent, for
\n the benefit of Facility A Lenders, as security for, and to
\n provide for the payment of, any reimbursement obligations, if
\n any, thereafter arising with respect to any issued and
\n outstanding LCs issued pursuant to Facility A; and<\/p>\n
(vii) to the payment of the remaining Obligation in
\n the order and manner Determining Lenders deem appropriate.<\/p>\n
Subject to the provisions of SECTION 10 and provided that Administrative Agent
\nshall in any event not be bound to inquire into or to determine the validity,
\nscope, or priority of any interest or entitlement of any Lender and may suspend
\nall payments or seek appropriate relief (including, without limitation,
\ninstructions from Determining Lenders or an action in the nature of
\ninterpleader) in the event of any doubt or dispute as to any apportionment or
\ndistribution contemplated hereby, Administrative Agent shall (i) promptly
\ndistribute such amounts to each Facility B Lender in accordance with the
\nFacility B Agreement and the related Facility B Loan Papers, and (ii) promptly
\ndistribute all payments allocable to Facility A or the Facility A Lenders to
\nthe Facility A Administrative Agent for distribution in accordance with
\nFacility A and the related Facility A Loan Papers.<\/p>\n
3.12 Sharing of Payments, Etc. If any Lender shall obtain any
\npayment (whether voluntary, involuntary, or otherwise, including, without
\nlimitation, as a result of exercising its Rights under SECTION 3.13) which is
\nin excess of its ratable share of any such payment, such Lender shall purchase
\nfrom the other Lenders such participations as shall be necessary to cause such
\npurchasing Lender to share the excess payment ratably with each of them;
\nprovided, however, that if all or any portion of such excess payment is
\nthereafter recovered from such purchasing Lender, the purchase shall be
\nrescinded and the purchase price restored to the extent of such recovery.
\nBorrower agrees that any Lender so purchasing a participation from another
\nLender pursuant to this section may to the fullest extent permitted by Law,
\nexercise all of its Rights of payment (including the Right of offset) with
\nrespect to such participation as fully as if such Lender were the direct
\ncreditor of Borrower in the amount of such participation.<\/p>\n
3.13 Offset. Upon the occurrence and during the continuance of a
\nDefault, each Lender shall be entitled to exercise (for the benefit of all
\nLenders in accordance with SECTION 3.12) the Rights of offset and\/or banker’s
\nLien against each and every account and other property, or any interest
\ntherein, which Borrower may now or hereafter have with, or which is now or
\nhereafter in the possession of, such Lender to the extent of the full<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
20
\n 26
\namount of the Obligation owed to such Lender.<\/p>\n
3.14 Booking Borrowings. To the extent permitted by Law, any
\nFacility B Lender may make, carry, or transfer its Borrowings at, to, or for
\nthe account of any of its branch offices or the office of any of its
\nAffiliates; provided that no Affiliate shall be entitled to receive any greater
\npayment under SECTION 3.15 than the transferor Facility B Lender would have
\nbeen entitled to receive 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
\n applicable Law or any change in any applicable Law, or any change in
\n the interpretation or administration thereof by any Governmental
\n Authority, or compliance by any Facility B Lender (or its Applicable
\n Lending Office) with any request or directive (whether or not having
\n the force of law) of any such Governmental Authority:<\/p>\n
(i) shall subject such Facility B Lender (or its
\n Applicable Lending Office) to any Tax with respect to any
\n Eurodollar Rate Borrowing, its Notes, or its obligation to
\n loan Eurodollar Rate Borrowings, or change the basis of
\n taxation of any amounts payable to such Facility B Lender (or
\n its Applicable Lending Office) under the Facility B Loan
\n Papers in respect of any Eurodollar Rate Borrowings (other
\n than with respect to Taxes imposed on the overall net income
\n of such Facility B Lender by any jurisdiction and other than
\n liabilities, interest, and penalties incurred as a result of
\n the gross negligence or wilful misconduct of such Facility B
\n Lender;<\/p>\n
(ii) shall impose, modify, or deem applicable any
\n reserve, special deposit, assessment, or similar requirement
\n (other than the Reserve Requirement utilized in the
\n determination of the Adjusted Eurodollar Rate) relating to any
\n extensions of credit or other assets of, or any deposits with
\n or other liabilities or commitments of, such Facility B Lender
\n (or its Applicable Lending Office), including the commitment
\n of such Facility B Lender hereunder; or<\/p>\n
(iii) shall impose on such Facility B Lender (or
\n its Applicable Lending Office) or the London interbank market
\n any other condition affecting the Facility B Loan Papers or
\n any of such extensions of credit or liabilities or
\n commitments;<\/p>\n
and the result of any of the foregoing is to increase the actual cost
\n to such Facility B Lender (or its Applicable Lending Office) of
\n making, converting into, continuing, or maintaining any Eurodollar
\n Rate Borrowings or to reduce any sum received or receivable by such
\n Facility B Lender (or its Applicable Lending Office) under the
\n Facility B Loan Papers with respect to any Eurodollar Rate Borrowing,
\n then Borrower shall pay to such Facility B Lender on demand such
\n amount or amounts as will compensate such Facility B Lender for such
\n increased cost or reduction as provided in SECTION 3.15(C) below. If
\n any Facility B Lender requests compensation by Borrower under this
\n SECTION 3.15(A), Borrower may, by notice to such Facility B Lender
\n (with a copy to Administrative Agent), suspend the obligation of such
\n Facility B Lender to loan or continue Borrowings of the Type with
\n respect to which such compensation is requested, or to convert
\n Borrowings of any other Type into Borrowings of such Type, until the
\n event or condition giving rise to such request ceases to be in effect
\n (in which case the provisions of SECTION 3.18 shall be applicable);
\n provided, that such suspension shall not affect the Right of such
\n Facility B Lender to receive the compensation so requested.<\/p>\n
(b) If, after the date hereof, any Facility B Lender
\n shall have determined that the adoption of any applicable Law
\n regarding capital adequacy or any change therein or in the
\n interpretation or<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
21
\n 27
\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
\n reducing the rate of return by an amount deemed by it to be material
\n on the capital of such Facility B Lender or any corporation
\n controlling such Facility B Lender as a consequence of such Facility B
\n Lender’s obligations hereunder to a level below that which such
\n Facility B Lender or such corporation could have achieved but for such
\n adoption, change, request, or directive (taking into consideration its
\n policies with respect to capital adequacy), then from time to time
\n upon demand Borrower shall pay to such Facility B Lender such
\n additional amount or amounts as will compensate such Facility B Lender
\n for such reduction.<\/p>\n
(c) Each Facility B Lender shall promptly notify Borrower
\n and Administrative Agent of any event of which it has knowledge,
\n occurring after the date hereof, which will entitle such Facility B
\n Lender to compensation pursuant to this Section and will designate a
\n different Applicable Lending Office if such designation will avoid the
\n need for, or reduce the amount of, such compensation and will not, in
\n the reasonable judgment of such Facility B Lender, be otherwise
\n disadvantageous to it. Any Facility B Lender claiming compensation
\n under this Section shall furnish to Borrower and Administrative Agent
\n a statement setting forth in reasonable detail the additional amount
\n or amounts to be paid hereunder which shall be presumed correct in the
\n absence of manifest error. In determining such amount, such Facility
\n B 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
\nof any Interest Period for any Eurodollar Rate Borrowing:<\/p>\n
(a) Administrative Agent determines (which determination
\n shall be conclusive absent manifest error) that by reason of
\n circumstances affecting the relevant market, adequate and reasonable
\n means do not exist for ascertaining the Eurodollar Rate for such
\n Interest Period; or<\/p>\n
(b) Determining Lenders determine (which determination
\n shall be conclusive absent manifest error) and notify Administrative
\n Agent that the Adjusted Eurodollar Rate will not adequately and fairly
\n reflect the cost to the Facility B Lenders of funding Eurodollar Rate
\n Borrowings 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 B 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 B Agreement.<\/p>\n
3.17 Illegality. Notwithstanding any other provision of this
\nFacility B Agreement, in the event that it becomes unlawful for any Facility B
\nLender or its Applicable Lending Office to make, maintain, or fund Eurodollar
\nRate Borrowings hereunder, then such Facility B Lender shall promptly notify
\nBorrower thereof and such Facility B 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
\nB 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 B 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 B Lender, is not otherwise disadvantageous to such
\nFacility B Lender.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
22
\n 28
\n 3.18 Treatment of Affected Loans. If the obligation of any
\nFacility B Lender to fund Eurodollar Rate Borrowings or to continue, or to
\nconvert Base Rate Borrowings into Eurodollar Rate Borrowings, shall be
\nsuspended pursuant to SECTIONS 3.15, 3.16, or 3.17 hereof, such Facility B
\nLender’s Eurodollar Rate Borrowings shall be automatically converted into Base
\nRate Borrowings on the last day(s) of the then current Interest Period(s) for
\nEurodollar Rate Borrowings (or, in the case of a conversion required by SECTION
\n3.17 hereof, on such earlier date as such Facility B Lender may specify to
\nBorrower with a copy to Administrative Agent) and, unless and until such
\nFacility B Lender gives notice as provided below that the circumstances
\nspecified in SECTIONS 3.15, 3.16, or 3.17 hereof that gave rise to such
\nconversion no longer exist:<\/p>\n
(a) to the extent that such Facility B Lender’s
\n Eurodollar Rate Borrowings have been so converted, all payments and
\n prepayments of principal that would otherwise be applied to such
\n Facility B Lender’s Eurodollar Rate Borrowings shall be applied
\n instead to its Base Rate Borrowings; and<\/p>\n
(b) all Borrowings that would otherwise be made or
\n continued by such Facility B Lender as Eurodollar Rate Borrowings
\n shall be made or continued instead as Base Rate Borrowings, and all
\n Borrowings of such Facility B Lender that would otherwise be converted
\n into Eurodollar Rate Borrowings shall be converted instead into (or
\n shall remain as) Base Rate Borrowings.<\/p>\n
If such Facility B 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 B Lender’s
\nEurodollar Rate Borrowings pursuant to this SECTION 3.18 no longer exist (which
\nsuch Facility B Lender agrees to do promptly upon such circumstances ceasing to
\nexist) at a time when Eurodollar Rate Borrowings made by other Facility B
\nLenders are outstanding, such Facility B 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 B Lenders and by such Facility B Lender are held Pro Rata
\n(as to principal amounts, Types, and Interest Periods) in accordance with their
\nrespective Pro Rata Part of the Facility B Principal Debt.<\/p>\n
3.19 Compensation; Replacement of Facility B Lenders.<\/p>\n
(a) Upon the request of any Facility B Lender, Borrower
\n shall pay to such Facility B Lender such amount or amounts as shall be
\n sufficient (in the reasonable opinion of such Facility B Lender) to
\n compensate it for any Consequential Loss; provided that, in each case,
\n the Person claiming such Consequential Loss has furnished Borrower
\n with a reasonably detailed statement of such loss, which statement
\n shall be conclusive in the absence of manifest error.<\/p>\n
(b) If any Facility B Lender requests compensation under
\n SECTION 3.15 or if Borrower is required to pay additional amounts to
\n or for the account of any Facility B Lender pursuant to SECTION 3.20
\n (collectively, “ADDITIONAL AMOUNTS”), then Borrower may, at its sole
\n expense and effort, upon written notice to such Facility B Lender and
\n Administrative Agent, require such Facility B Lender to assign and
\n delegate, without recourse, all its interests, Rights, and obligations
\n under this Facility B Agreement and the other Facility B Loan Papers
\n to an Eligible Assignee that shall assume such obligations; provided
\n that, (i) Borrower shall have received the prior written consent of
\n Administrative Agent to any such assignment; (ii) such Facility B
\n Lender shall have received payment from Borrower of any Additional
\n Amounts owed to such Facility B Lender by Borrower for periods prior
\n to the replacement of such Facility B Lender and any actual costs
\n incurred as a result of such replacement of a Facility B Lender; (iii)
\n such assignment will result in reduction or elimination of the
\n Additional Amounts; and (iv) such assignment and acceptance shall be
\n made in accordance with, and subject to the requirements and
\n restrictions contained in, SECTION 11.13(B). A Facility B Lender
\n shall not be required to make any such assignment and delegation if,
\n prior thereto, as a result of a waiver by such Facility B Lender or
\n otherwise, the<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
23
\n 29
\n circumstances entitling such Borrowing to require such assignment and
\n delegation cease to apply.<\/p>\n
3.20 Taxes.<\/p>\n
(a) Any and all payments by Borrower to or for the
\n account of any Facility B Lender or Administrative Agent hereunder or
\n under any other Loan Paper shall be made free and clear of and without
\n deduction for any and all present or future Taxes, excluding, in the
\n case of each Facility B Lender and Administrative Agent, Taxes imposed
\n on its income and franchise Taxes imposed on it by any jurisdiction
\n and other liabilities, interest and penalties incurred as a result of
\n the gross negligence or wilful misconduct of such Facility B Lender or
\n Administrative Agent (all such Non-Excluded Taxes referred to as
\n “NON-EXCLUDED TAXES”). If Borrower shall be required by law to deduct
\n any Non-Excluded Taxes from or in respect of any sum payable under
\n this Facility B Agreement or any other Facility B Loan Paper to any
\n Facility B Lender or Administrative Agent, (i) the sum payable shall
\n be increased as necessary so that after making all required deductions
\n (including deductions applicable to additional sums payable under this
\n SECTION 3.20) such Facility B Lender or Administrative Agent receives
\n an amount equal to the sum it would have received had no such
\n deductions been made, (ii) Borrower shall make such deductions, (iii)
\n Borrower shall pay the full amount deducted to the relevant taxation
\n authority or other authority in accordance with applicable law, and
\n (iv) Borrower shall furnish to Administrative Agent, at its address
\n listed in SCHEDULE 2.1, the original or a certified copy of a receipt
\n evidencing payment thereof.<\/p>\n
(b) In addition, Borrower agrees to pay any and all
\n present or future stamp or documentary taxes and any other excise or
\n property Taxes which arise from any payment made under this Facility B
\n Agreement or any other Facility B Loan Paper or from the execution or
\n delivery of, or otherwise with respect to, this Facility B Agreement
\n or any other Facility B Loan Paper (hereinafter referred to as “OTHER
\n TAXES”).<\/p>\n
(c) BORROWER AGREES TO INDEMNIFY EACH FACILITY B LENDER
\n AND ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED TAXES
\n THAT 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 B LENDER OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) AND ANY
\n LIABILITY (INCLUDING PENALTIES, INTEREST, AND EXPENSES OTHER THAN
\n THOSE INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFUL
\n MISCONDUCT OF SUCH FACILITY B LENDER OR ADMINISTRATIVE AGENT) ARISING
\n THEREFROM OR WITH RESPECT THERETO.<\/p>\n
(d) Each Facility B Lender organized under the Laws of a
\n jurisdiction outside the United States, on or prior to the date of its
\n execution and delivery of this Facility B Agreement in the case of
\n each Facility B Lender listed on the signature pages hereof and on or
\n prior to the date on which it becomes a Facility B Lender in the case
\n of each other Facility B Lender, and from time to time thereafter,
\n including, without limitation, upon the expiration or obsolescence of
\n any previously delivered form or upon the written request of Borrower
\n or Administrative Agent (but only so long as such Facility B Lender
\n remains lawfully able to do so), shall provide Borrower and
\n Administrative Agent with (i) Internal Revenue Service Form 1001 or
\n 4224, as appropriate, or any successor form prescribed by the Internal
\n Revenue Service, certifying that such Facility B Lender is entitled to
\n benefits under an income tax treaty to which the United States is a
\n party which reduces the rate of withholding tax on payments of
\n interest or certifying that the income receivable pursuant to this
\n Facility B 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
\n the Internal Revenue Service, and (iii) any other form or certificate
\n required by any taxing authority (including any certificate required
\n by Sections 871(h) and 881(c) of the Internal Revenue Code),
\n certifying that such Facility B Lender is entitled to an exemption
\n from or a reduced rate of tax on payments pursuant to this Facility B
\n Agreement or any of the other Facility B Loan Papers.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
24
\n 30
\n (e) For any period with respect to which a Facility B
\n Lender has failed to provide Borrower and Administrative Agent with
\n the appropriate form pursuant to SECTION 3.20(D) (unless such failure
\n is due to a change in Law, occurring subsequent to the date on which a
\n form originally was required to be provided), such Facility B Lender
\n shall not be entitled to indemnification under this SECTION 3.20 with
\n respect to Taxes imposed by the United States; provided, however, that
\n should a Facility B Lender, which is otherwise exempt from or subject
\n to a reduced rate of withholding tax, become subject to Taxes because
\n of its failure to deliver a form required hereunder, Borrower shall
\n take such steps as such Facility B Lender shall reasonably request to
\n assist such Facility B Lender to recover such Taxes.<\/p>\n
(f) If Borrower is required to pay additional amounts to
\n or for the account of any Facility B Lender pursuant to this SECTION
\n 3.20, then such Facility B Lender will use best efforts (consistent
\n with legal and regulatory restrictions) to change the jurisdiction of
\n its 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 B Lender, is not otherwise disadvantageous
\n to such Facility B Lender.<\/p>\n
(g) Within thirty (30) days after the date of any payment
\n of Non-Excluded Taxes or Other Taxes, Borrower shall furnish to
\n Administrative Agent the original or a certified copy of a receipt
\n evidencing such payment.<\/p>\n
(h) Without prejudice to the survival of any other
\n agreement of Borrower hereunder, the agreements and obligations of
\n Borrower contained in this SECTION 3.20 shall survive the termination
\n of this Agreement and the payment in full of the Obligation.<\/p>\n
SECTION 4 FEES.<\/p>\n
4.1 Treatment of Fees. Except as otherwise provided by Law, the
\nfees described in this SECTION 4: (a) do not constitute compensation for the
\nuse, detention, or forbearance of money, (b) are in addition to, and not in
\nlieu of, interest and expenses otherwise described in this Facility B
\nAgreement, (c) shall be payable in accordance with SECTION 3.1, (d) shall be
\nnon-refundable, (e) shall, to the fullest extent permitted by Law, bear
\ninterest, if not paid when due, at the Default Rate, and (f) shall be
\ncalculated on the basis of actual number of days (including the first day, but
\nexcluding the last day) elapsed, but computed as if each calendar year
\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
\nto Administrative Agent or Arranger, as the case may be, solely for their
\nrespective accounts, the fees described in that certain separate letter
\nagreement dated as of June 30, 1998 (as thereafter amended or modified from
\ntime to time), among Borrower, Administrative Agent, and Arranger, which
\npayments shall be made on the dates specified, and in amounts calculated in
\naccordance with, such letter agreement.<\/p>\n
SECTION 5 CONDITIONS PRECEDENT TO CLOSING. This Facility B Agreement
\nshall not become effective unless and until (a) Administrative Agent has
\nreceived all of the agreements, documents, instruments, and other items
\ndescribed on SCHEDULE 5, (b) there has been no change in the consolidated
\nfinancial condition of the Consolidated Companies from that shown in the
\nrespective Current Financials of such companies which could be a Material
\nAdverse Event; and (c) Determining Lenders have indicated their consent to this
\namendment and restatement of the Existing Agreement by execution and delivery
\nof a counterpart signature page to this Facility B Agreement; upon satisfaction
\nof such conditions of closing, the Facility B Loan Papers shall be deemed
\neffective and binding upon Borrower, Facility B Agents, and all Facility B
\nLenders, whether or not such Facility B Lender (other than Determining Lenders)
\nhas executed this Facility B Agreement. Each condition precedent in this
\nFacility B Agreement is material to the transactions contemplated in this
\nFacility B Agreement, and time is of the essence in<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
25
\n 31
\nrespect of each thereof.<\/p>\n
SECTION 6 REPRESENTATIONS AND WARRANTIES. Borrower represents and
\nwarrants to Administrative Agent and Facility B Lenders as follows:<\/p>\n
6.1 Purpose of Credit Facility. Borrower will use all proceeds of
\nBorrowings for general corporate purposes of the Restricted Companies,
\nincluding, without limitation, liquidity support for commercial paper. No
\nRestricted Company is engaged principally, or as one of its important
\nactivities, in the business of extending credit for the purpose of purchasing
\nor carrying any “margin stock” within the meaning of Regulation U. No part of
\nthe proceeds of any Borrowing will be used, directly or indirectly, for a
\npurpose which violates any Law, including, without limitation, the provisions
\nof Regulations T, U, or X (as enacted by the Board of Governors of the Federal
\nReserve System, as amended). “Margin Stock” (as defined in Regulation U)
\nconstitutes less than 25% of those assets of the Restricted Companies which are
\nsubject to any limitation on sale, pledge, or other similar restrictions
\nhereunder.<\/p>\n
6.2 Existence, Good Standing, Authority, and Authorizations. Each
\nRestricted Company is duly organized, validly existing, and in good standing
\nunder the Laws of its jurisdiction of organization. Except where failure could
\nnot be a Material Adverse Event, each Restricted Company (a) is duly qualified
\nto transact business and is in good standing in each jurisdiction where the
\nnature and extent of its business and properties require the same, and (b)
\npossesses all requisite authority, power, licenses, approvals, permits,
\nAuthorizations, and franchises to use its assets and conduct its business as is
\nnow being, or is contemplated herein to be, conducted, except where failure
\ncould not be a Material Adverse Event. No Authorization is required to
\nauthorize, or is required in connection with, the execution, delivery,
\nlegality, validity, binding effect, performance, or enforceability of the Loan
\nPapers (including any change of control occurring as a result thereof)
\nconsummated on or prior to the date this representation or warranty (or
\nreconfirmation thereof) is made under the Loan Papers, except those
\nAuthorizations the failure of which to be obtained or made could not be a
\nMaterial Adverse Event. The Restricted Companies have obtained all
\nAuthorizations of the FCC and any applicable PUC necessary to conduct their
\nbusinesses, and all such Authorizations are in full force and effect, without
\nconditions, except such conditions as are generally applicable to holders of
\nsuch Authorizations. There are no violations of any such Authorizations which
\ncould, individually or collectively, be a Material Adverse Event, nor are there
\nany proceedings pending or, to the knowledge of Borrower, threatened against
\nthe Restricted Companies to revoke or limit any such Authorization which could,
\nindividually or collectively, be a Material Adverse Event, and Borrower has no
\nknowledge that any such Authorizations will not be renewed in the ordinary
\ncourse, except for any nonrenewals that could not be a Material Adverse Event.<\/p>\n
6.3 Authorization and Contravention. The execution, delivery, and
\nperformance by Borrower of each Loan Paper and its obligations thereunder (a)
\nare within the corporate power of Borrower, (b) will have been duly authorized
\nby all necessary corporate action on the part of Borrower when such Loan Paper
\nis executed and delivered, (c) require no action by or in respect of, consent
\nof, or filing with, any Governmental Authority, which action, consent, or
\nfiling has not been taken or made on or prior to the Closing Date, (d) will not
\nviolate any provision of the charter or bylaws of Borrower, (e) will not
\nviolate any provision of Law applicable to it, other than such violations which
\nindividually or collectively could not be a Material Adverse Event, (f) will
\nnot violate any material written or oral agreements, contracts, commitments, or
\nunderstandings to which it is a party, other than such violations which could
\nnot be a Material Adverse Event, or (g) will not result in the creation or
\nimposition of any Lien on any asset of any Consolidated Company that is
\nmaterial in relation to the Consolidated Companies taken as a whole. On and as
\nof the MCI Merger Date, no action by, or in respect of, consent of, or filing
\nwith, any Governmental Authority or other Person is required in connection with
\nthe MCI Merger which has not been obtained or performed on or prior to the MCI
\nMerger Date or the failure of which to be obtained or performed would not be a
\nMaterial Adverse Event.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
26
\n 32
\n 6.4 Binding Effect. Upon execution and delivery by all parties
\nthereto, each Loan Paper will constitute a legal, valid, and binding obligation
\nof Borrower, enforceable against Borrower in accordance with its terms, except
\nas enforceability may be limited by applicable Debtor Relief Laws and general
\nprinciples of equity.<\/p>\n
6.5 Financial Statements. The Current Financials were prepared in
\naccordance with GAAP and present fairly, in all material respects, the
\nconsolidated financial condition, results of operations, and cash flows of the
\nConsolidated Companies as of and for the portion of the fiscal year ending on
\nthe date or dates thereof (subject only to normal year-end audit adjustments).
\nThere were no material liabilities, direct or indirect, fixed or contingent, of
\nthe Consolidated Companies as of the date or dates of the Current Financials
\nwhich are required under GAAP to be reflected therein or in the notes thereto,
\nand are not so reflected.<\/p>\n
6.6 Litigation, Claims, Investigations. No Restricted Company is
\nsubject to, or aware of the threat of, any Litigation which is reasonably
\nlikely to be determined adversely to any Restricted Company, and, if so
\nadversely determined, could (individually or collectively with other
\nLitigation) be a Material Adverse Event. There are no judgments, decrees, or
\norders of any Governmental Authority outstanding against any Restricted Company
\nthat could be a Material Adverse Event.<\/p>\n
6.7 Taxes. All Tax returns of each Consolidated Company required
\nto be filed have been filed (or extensions have been granted) prior to
\ndelinquency, except for any such returns for which the failure to so file could
\nnot be a Material Adverse Event, and all Taxes imposed upon each Consolidated
\nCompany which are due and payable have been paid prior to delinquency, other
\nthan Taxes for which the criteria for Liens permitted under SECTION 7.13(F)
\nhave been satisfied or for which nonpayment thereof could not constitute a
\nMaterial Adverse Event.<\/p>\n
6.8 Environmental Matters. No Consolidated Company (a) knows of
\nany environmental condition or circumstance, such as the presence or Release of
\nany Hazardous Substance, on any property presently or previously owned by any
\nConsolidated Company that could be a Material Adverse Event, (b) knows of any
\nviolation by any Consolidated Company of any Environmental Law, except for such
\nviolations that could not be a Material Adverse Event, or (c) knows that any
\nConsolidated Company is under any obligation to remedy any violation of any
\nEnvironmental Law, except for such obligations that could not be a Material
\nAdverse Event; provided, however, that each Consolidated Company (x) to the
\nbest of its knowledge, has in full force and effect all environmental permits,
\nlicenses, and approvals required to conduct its operations and is operating in
\nsubstantial compliance thereunder, and (y) has taken prudent steps to determine
\nthat its properties and operations are not in violation of any Environmental
\nLaw.<\/p>\n
6.9 ERISA Compliance. (a) No Employee Plan has incurred an
\naccumulated funding deficiency, as defined in section 302 of ERISA and section
\n412 of the Code, (b) neither Borrower nor any ERISA Affiliate has incurred
\nmaterial liability which is currently due and remains unpaid under Title IV of
\nERISA to the PBGC or to an Employee Plan in connection with any such Employee
\nPlan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in whole or in
\npart from participation in a Multiemployer Plan, (d) Borrower has not engaged
\nin any “prohibited transaction” (as defined in section 406 of ERISA or section
\n4975 of the Code) which would be a Material Adverse Event, and (e) no
\nReportable Event has occurred which is likely to result in the termination of
\nan Employee Plan. The present value of all benefit liabilities within the
\nmeaning of Title IV of ERISA under each Employee Plan (based on those actuarial
\nassumptions used to fund such Employee Plan) did not, as of the last annual
\nvaluation date for the 1997 plan year of such Plan, exceed the value of the
\nassets of such Employee Plan, and the total present values of all benefit
\nliabilities within the meaning of Title IV of ERISA of all Employee Plans
\n(based on the actuarial assumptions used to fund each such Plan) did not, as of
\nthe respective annual valuation dates for the 1997 plan year of each such Plan,
\nexceed the value of the assets of all such plans.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
27
\n 33
\n 6.10 Properties; Liens. Each Restricted Company has good and
\nmarketable title to (or, in the case of Rights of Way, the right to use) all
\nits property reflected on the Current Financials, except for (a) property that
\nis obsolete, (b) property that has been disposed of in the ordinary course of
\nbusiness, (c) property with title defects or failures in title which would not
\nbe a Material Adverse Event, or (d) as otherwise permitted by the Loan Papers.
\nExcept for Liens permitted in SECTION 7.13, there is no Lien on any property of
\nany Restricted Company, and the execution, delivery, performance, or observance
\nof the Loan Papers will not require or result in the creation of any Lien on
\nsuch property.<\/p>\n
6.11 Government Regulations. No Restricted Company is subject to
\nregulation under the Investment Company Act of 1940, as amended, the Public
\nUtility Holding Company Act of 1935, as amended, or any other Law (other than
\nRegulations T, U, and X of the Board of Governors of the Federal Reserve System
\nand the requirements of any PUC or public service commission) which regulates
\nthe incurrence of Debt.<\/p>\n
6.12 No Default. No event has occurred and is continuing or would
\nresult from the incurring of obligations by Borrower under this Facility B
\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 until the payment in full of the Facility B Principal Debt and
\npayment in full of all other interest, fees, and other amounts of the
\nObligation then due and owing, unless Borrower receives a prior written consent
\nto the contrary by Administrative Agent as authorized by Determining Lenders:<\/p>\n
7.1 Use of Proceeds. Borrower shall use the proceeds of
\nBorrowings only for the purposes represented herein.<\/p>\n
7.2 Books and Records. The Consolidated Companies shall maintain
\nbooks, records, and accounts necessary to prepare financial statements in
\naccordance with GAAP (with such exceptions as may be noted in the Current
\nFinancials provided to Administrative Agent).<\/p>\n
7.3 Items to be Furnished. Borrower shall cause the following to
\nbe furnished to Administrative Agent for delivery to Facility B Lenders:<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
28
\n 34
\n (a) Promptly after preparation, and no later than 110
\n days after the last day of each fiscal year of Borrower, Financial
\n Statements showing the consolidated financial condition and results of
\n operations calculated for the Consolidated Companies (or in lieu
\n thereof the Form 10-K of the Consolidated Companies filed with the
\n Securities and Exchange Commission for such fiscal year), accompanied
\n by:<\/p>\n
(i) the unqualified opinion of a firm of
\n nationally-recognized independent certified public
\n accountants, based on an audit using generally accepted
\n auditing standards, that such Financial Statements (calculated
\n with respect to the Consolidated Companies) were prepared in
\n accordance with GAAP and present fairly the consolidated
\n financial condition and results of operations of the
\n Consolidated Companies;<\/p>\n
(ii) a certificate from such accounting firm to
\n Administrative Agent indicating that during its audit it
\n obtained no knowledge of any Default or Potential Default or,
\n if it obtained such knowledge, the nature and period of
\n existence thereof; and<\/p>\n
(iii) a Compliance Certificate with respect to such
\n Financial Statements.<\/p>\n
(b) Promptly after preparation, and no later than 65 days
\n after the last day of each fiscal quarter of Borrower (other than the
\n fourth fiscal quarter of each fiscal year), Financial Statements
\n showing the consolidated financial condition and results of operations
\n calculated for the Consolidated Companies (or in lieu thereof the Form
\n 10-Q of the Consolidated Companies filed with the Securities and
\n Exchange Commission for such fiscal quarter), accompanied by a
\n Compliance Certificate with respect to such Financial Statements.<\/p>\n
(c) Notice, promptly after Borrower knows or has reason
\n to know of (i) the existence and status of any Litigation which could
\n be a Material Adverse Event, or of any order or judgment for the
\n payment of money which (individually or collectively) is in excess of
\n $100,000,000, or any warrant of attachment, sequestration or similar
\n proceeding against a Consolidated Company’s assets having a value
\n (individually or collectively) of $100,000,000; (ii) any other
\n Litigation affecting the Restricted Companies which Borrower would be
\n required to report to the Securities and Exchange Commission pursuant
\n to the Securities and Exchange Act of 1934, as amended, within four
\n Business Days after reporting the same to the Securities and Exchange
\n Commission; (iii) a Default or Potential Default, specifying the
\n nature thereof and what action Borrower or any other Consolidated
\n Company has taken, is taking, or proposes to take with respect
\n thereto; (iv) the receipt by any Consolidated Company of any notice
\n from any Governmental Authority of the expiration without renewal,
\n termination, material modification or suspension of, or institution of
\n any proceedings to terminate, materially modify, or suspend, any
\n Authorization granted by the FCC or any applicable PUC, or any other
\n Authorization which any Consolidated Company is required to hold in
\n order to operate its business in compliance with all applicable Laws,
\n other than such expirations, terminations, suspensions, or
\n modifications which individually or in the aggregate would not
\n constitute a Material Adverse Event; (v) a default or event of default
\n under any material agreement of any Restricted Company which could be
\n a Material Adverse Event; (vi) the receipt by any Consolidated Company
\n of notice of any violation or alleged violation of any Environmental
\n Law, which violation or alleged violation could individually or
\n collectively with other such violations or allegations, constitute a
\n Material Adverse Event; or (vii) (A) the occurrence of a Reportable
\n Event that, alone or together with any other Reportable Event, could
\n reasonably be expected to result in liability of Borrower to the PBGC
\n in an aggregate amount exceeding $100,000,000; (B) any expressed
\n statement in writing on the part of the PBGC of its intention to
\n 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
\n failure to make a required installment or other payment with respect
\n to an Employee Plan; or (D) the receipt by Borrower or an ERISA<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
29
\n 35
\n Affiliate from the sponsor of a Multiemployer Plan of either a notice
\n concerning the imposition of withdrawal liability in an aggregate
\n amount exceeding $100,000,000 or of the impending termination or
\n reorganization of such Multiemployer Plan.<\/p>\n
(d) Promptly after the filing thereof, a true, correct,
\n and complete copy of each material report and registration statement
\n filed with the Securities and Exchange Commission, including, without
\n limitation, each Form 10-K, Form 10-Q, and Form 8-K filed by or on
\n behalf of Borrower or any Consolidated Company with the Securities and
\n Exchange Commission.<\/p>\n
(e) Promptly upon request therefor by Administrative
\n Agent or Lenders holding, in the aggregate, at least 25% of the sum of
\n the 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 B 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 B 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
\ndue any and all Taxes other than Taxes the applicability, amount, or validity
\nof which is being contested in good faith by lawful proceedings diligently
\nconducted, and against which reserve or other provision required by GAAP has
\nbeen made, and in respect of which levy and execution of any lien securing same
\nhave been and continue to be stayed, and (b) shall not, directly or indirectly,
\nuse any portion of the proceeds of any Borrowing to pay the wages of employees
\nunless a timely payment to or deposit with the appropriate Governmental
\nAuthorities of all amounts of Tax required to be deducted and withheld with
\nrespect to such wages is also made.<\/p>\n
7.6 Payment of Obligations. Borrower shall pay the Obligation in
\naccordance with the terms and provisions of the Loan Papers. Each Restricted
\nCompany shall promptly pay (or renew and extend) all of its material
\nobligations as the same become due (unless such obligations [other than the
\nObligation arising under the Loan Papers] are being contested in good faith by
\nappropriate proceedings).<\/p>\n
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<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
30
\n 36
\nfinancially sound and reputable insurers, in such amounts, and covering such
\nrisks, as shall be ordinary and customary for similar companies in the
\nindustry, except where the failure to so maintain would not be a Material
\nAdverse Event.<\/p>\n
7.9 Preservation and Protection of Rights. Each Consolidated
\nCompany shall perform such acts and duly authorize, execute, acknowledge,
\ndeliver, file, and record any additional agreements, documents, instruments,
\nand certificates as Administrative Agent or Determining Lenders may reasonably
\ndeem necessary or appropriate in order to preserve and protect the Rights of
\nAdministrative Agent and Lenders under any Loan Paper.<\/p>\n
7.10 Employee Benefit Plans. Borrower shall not directly or
\nindirectly, engage in any “prohibited transaction” (as defined in section 406
\nof ERISA or section 4975 of the Code), and Borrower and its ERISA Affiliates
\nshall not, directly or indirectly, (a) incur any “accumulated funding
\ndeficiency” as such term is defined in section 302 of ERISA with respect to any
\nEmployee Plan, (b) permit any Employee Plan to be subject to involuntary
\ntermination proceedings pursuant to Title IV of ERISA, or (c) fully or
\npartially withdraw from any Multiemployer Plan, if such prohibited transaction,
\naccumulated funding deficiency, termination proceeding, or withdrawal would
\nresult in liability on the part of Borrower in excess of $100,000,000.<\/p>\n
7.11 Environmental Laws. Each Consolidated Company shall (a)
\nconduct its business so as to comply with all applicable Environmental Laws and
\nshall promptly take corrective action to remedy any non-compliance with any
\nEnvironmental Law, except where the failure to so comply or correct would not
\nbe a Material Adverse Event; (b) shall promptly investigate and remediate any
\nknown Release or threatened Release of any Hazardous Substance on any property
\nowned by any Consolidated Company or at any facility operated by any
\nConsolidated Company to the extent and degree necessary to comply with Law and
\nto assure that any Release or threatened Release does not result in a
\nsubstantial endangerment to human health or the environment, except where the
\nfailure to do so would not be a Material Adverse Event; and (c) establish and
\nmaintain a management system designed to ensure compliance with applicable
\nEnvironmental Laws and minimize financial and other risks to each Consolidated
\nCompany arising under applicable Environmental Laws or as a result of
\nenvironmentally-related injuries to Persons or property.<\/p>\n
7.12 Debt. No Restricted Company shall, directly or indirectly,
\ncreate, incur, or suffer to exist any direct, indirect, fixed, or contingent
\nliability for any Debt, other than:<\/p>\n
(a) The Obligation;<\/p>\n
(b) Existing Debt;<\/p>\n
(c) Debt incurred by any Restricted Company under the
\n 364-Day 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
\n such inter-company Debt owed by Borrower to any other Restricted
\n Company is unsecured; or Debt of any Restricted Company to the
\n Receivables Subsidiary; and<\/p>\n
(f) Debt of any Restricted Company not otherwise
\n permitted by this SECTION 7.12, so long as (i) no Default or Potential
\n Default exists on the date any such Debt is created, incurred, or
\n assumed or arises after giving effect to such Debt incurrence; and
\n (ii) if such Debt is secured, on the date any such secured Debt is
\n created, incurred, or assumed, the principal amount of such secured
\n Debt when aggregated with the principal amount of all other secured
\n Debt of the Restricted Companies incurred in accordance<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
31
\n 37
\n with this SECTION 7.12(F) does not exceed 10% of the book value of the
\n consolidated assets of the Restricted Companies determined as of the
\n date of, and with respect to, the Current Financials and the related
\n Compliance Certificate.<\/p>\n
Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate
\nprincipal amount of all Debt of the Restricted Subsidiaries may not exceed, on
\nany date of determination, the sum of (i) 10% of the book value of the
\nconsolidated assets of the Restricted Companies, determined as of the date of
\nthe most-recently delivered consolidated Financial Statements of Borrower and
\nthe related Compliance Certificate, plus (ii) the principal amount of all
\nExisting Debt of MCI and its Subsidiaries on and after the MCI Merger Date.<\/p>\n
7.13 Liens. No Restricted Company will, directly or indirectly,
\ncreate, incur, or suffer or permit to be created or incurred or to exist any
\nLien upon any of its assets, except:<\/p>\n
(a) Liens securing Debt permitted to be incurred or
\n outstanding under SECTION 7.12(B) and SECTION 7.12(F), so long as (i)
\n with respect to Liens securing Existing Debt, such Liens are limited
\n to the assets securing such Existing Debt on the Closing Date (in the
\n case of Existing Debt described in PART A of SCHEDULE 7.12) or on the
\n MCI Merger Date (in the case of Existing Debt described in PART B of
\n SCHEDULE 7.12), (ii) no Default or Potential Default exists on the
\n date any such Lien is granted or created, (iii) the aggregate amount
\n of all Debt secured by such Liens does not exceed the aggregate amount
\n of secured Debt permitted by SECTIONS 7.12(B) and 7.12(F)(II); and
\n (iv) the aggregate amount of Debt of Restricted Subsidiaries secured
\n by such Liens does not exceed the amount of Restricted Subsidiary Debt
\n permitted under SECTION 7.12;<\/p>\n
(b) Pledges or deposits made to secure payment of
\n worker’s compensation, or to participate in any fund in connection
\n with worker’s compensation, unemployment insurance, pensions, or other
\n social security programs, and reasonable and customary reserves
\n established in connection with the sale of Receivables permitted under
\n SECTION 7.19(D);<\/p>\n
(c) Good-faith pledges or deposits made to secure
\n performance of bids, tenders, insurance, or other contracts (other
\n than for the repayment of borrowed money), or leases, or to secure
\n statutory obligations, surety or appeal bonds, or indemnity,
\n performance, or other similar bonds as all such Liens arise in the
\n ordinary course of business of the Restricted Companies;<\/p>\n
(d) Encumbrances consisting of zoning restrictions,
\n easements, or other restrictions on the use of real property, none of
\n which impair in any material respect the use of such property by the
\n Person in question in the operation of its business, and none of which
\n is violated by existing or proposed structures or land use;<\/p>\n
(e) If no Lien has been agreed to or filed in any
\n jurisdiction, (i) claims and Liens for Taxes not yet due and payable,
\n (ii) mechanic’s Liens and materialmen’s Liens for services or
\n materials and similar Liens incident to construction and maintenance
\n of real property, in each case for which payment is not yet due and
\n payable, (iii) landlord Liens for rental not yet due and payable, and
\n (iv) Liens of warehousemen and carriers and similar Liens securing
\n obligations that are not yet due and payable;<\/p>\n
(f) The following, so long as the validity or amount
\n thereof is being contested in good faith and by appropriate and lawful
\n proceedings diligently conducted, reserve or other appropriate
\n provision (if any) required by GAAP shall have been made, levy and
\n execution thereon have been stayed and continue to be stayed, and they
\n do not in the aggregate materially detract from the value of the
\n property of the Person in question, or materially impair the use
\n thereof in the operation of its business:<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
32
\n 38
\n (i) claims and Liens for Taxes (other than Liens relating to
\n Environmental Laws or ERISA); (ii) claims and Liens upon, and defects
\n of title to, real or personal property, including any attachment of
\n personal or real property or other legal process prior to adjudication
\n of a dispute of the merits; (iii) claims and Liens of mechanics,
\n materialmen, warehousemen, carriers, landlords, or other like Liens;
\n and (iv) adverse judgments on appeal;<\/p>\n
(g) Liens on the Receivables Program Assets created
\n pursuant to any Receivables Documents evidencing Accounts Receivable
\n Financing permitted by SECTION 7.19(D); and<\/p>\n
(h) Any attachment or judgment Lien not constituting a
\n Default or Potential Default.<\/p>\n
7.14 Transactions with Affiliates. Except for those transactions
\nlisted on SCHEDULE 7.14, no Restricted Company shall enter into any material
\ntransaction with any of its Affiliates (excluding transactions among or between
\nRestricted Companies), other than (i) transactions in the ordinary course of
\nbusiness and upon fair and reasonable terms not materially less favorable than
\nsuch Restricted Company could obtain or could become entitled to in an
\narm’s-length transaction with a Person that was not its Affiliate and (ii)
\nsales and contributions of Receivables Program Assets from Borrower or certain
\nRestricted Subsidiaries to the Receivables Subsidiary pursuant to an Accounts
\nReceivable Financing 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
\nshall violate the provisions of any Laws applicable to it, including, without
\nlimitation, all rules and regulations promulgated by the FCC or any applicable
\nPUC, or any material written or oral agreement, contract, commitment, or
\nunderstanding to which it is a party, if such violation alone, or when
\naggregated with all other such violations, could be a Material Adverse Event;
\nno Consolidated Company shall violate the provisions of its charter or bylaws,
\nor modify, repeal, replace, or amend any provision of its charter or bylaws, if
\nsuch action could adversely affect the Rights of Facility B Lenders.<\/p>\n
7.16 Assignment. Without the express written consent of all
\nLenders, Borrower shall not assign or transfer any of its Rights, duties, or
\nobligations under any of the Loan Papers.<\/p>\n
7.17 Permitted Distributions. Borrower may not, directly or
\nindirectly, declare, make, or pay any 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
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
33
\n 39
\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
\nor Potential Default exists or arises as a result thereof, Borrower may from
\ntime to time designate a Subsidiary as an Unrestricted Subsidiary, or designate
\nan Unrestricted Subsidiary as a Restricted Subsidiary; provided that, Borrower
\nshall (a) provide Administrative Agent written notification of such
\ndesignation, and (b) deliver to Administrative Agent a Compliance Certificate
\ndemonstrating pro-forma compliance with SECTIONS 7.12 and 7.22 immediately
\nprior to and after giving effect to such designation.<\/p>\n
7.22 Financial Covenant. As calculated on a consolidated basis for
\nthe Restricted Companies, Borrower shall never permit the ratio of Total Debt
\nto Total Capitalization, on any date of determination, to exceed 0.68 to 1.00.<\/p>\n
7.23 Year 2000 Compliance. Borrower will promptly notify the
\nAdministrative Agent in the event Borrower discovers or determines that any
\ncomputer application that is material to its or any of its Subsidiaries’
\nbusiness and operations will not be Year 2000 compliant on a timely basis,
\nexcept to the extent that such failure is not reasonably expected to be a
\nMaterial Adverse Event.<\/p>\n
7.24 Repayment of Certain Existing Debt. On or before the
\nthirtieth (30th) day following the Closing Date, Borrower shall repay in full
\nand cancel its commitment under the WorldCom\/Brooks Fiber Loan. On the MCI
\nMerger Date, Borrower shall cause all Debt under the MCI Revolving Facility to
\nbe repaid in full and the commitment thereunder cancelled. On the date of the
\nDebt repayment and commitment reduction required in this SECTION 7.24 in
\nconnection with the WorldCom\/Brooks Fiber Loan, Borrower shall provide
\nAdministrative Agent with written confirmation and evidence that all such Debt
\nrepayments and commitment terminations have been effected in accordance with
\nthe requirements of this SECTION 7.24. Within five (5) Business Days after the
\nMCI Merger Date, Borrower shall provide Administrative Agent with written
\nconfirmation that all such Debt repayments and commitment terminations have
\nbeen effected in connection with the MCI Revolving Facility.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
34
\n 40
\nSECTION 8 DEFAULT. The term “DEFAULT” means the occurrence of any one
\nor more of the following events:<\/p>\n
8.1 Payment of Obligation. The failure or refusal of (a) Borrower
\nto pay (i) Principal Debt within three days after the same becomes due in
\naccordance with the Loan Papers; (ii) interest, fees, or any other part of the
\nObligation within five days after the same becomes due and payable in
\naccordance with the Loan Papers; or (iii) the indemnifications and
\nreimbursements provided for in SECTIONS 3.15, 3.19, and 3.20 within ten days
\nafter demand therefor as required by such Sections; or (b) any Restricted
\nCompany to punctually and properly perform, observe, and comply with SECTION
\n9.12 or with any other provision in the Loan Papers setting forth
\nindemnification or reimbursement obligations (other than pursuant to SECTIONS
\n3.15, 3.19, and 3.20) of the Restricted Companies, and such failure or refusal
\ncontinues for 15 days.<\/p>\n
8.2 Covenants. The failure or refusal of Borrower (and, if
\napplicable, any other Consolidated Company) to punctually and properly perform,
\nobserve, and comply with: (a) any covenant, agreement, or condition contained
\nin SECTIONS 7.1, 7.12, 7.13 (other than by reason of attachment or involuntary
\nLien), 7.16, 7.17, 7.19 through 7.21, and 7.24; (b) any covenant, agreement, or
\ncondition contained in SECTION 7.13 (if by reason of an attachment or
\ninvoluntary Lien), 7.18, 7.22, and 7.23, which failure or refusal continues for
\n15 days; or (c) any other covenant, agreement, or condition contained in any
\nLoan Paper (other than the covenants to pay the Obligation set forth in SECTION
\n8.1 and the covenants in CLAUSES (A) and (B) hereof), which failure or refusal
\ncontinues for 30 days.<\/p>\n
8.3 Debtor Relief. Borrower or any Material Subsidiary (a) shall
\nnot be Solvent, (b) fails to pay its Debts generally as they become due, (c)
\nvoluntarily seeks, consents to, or acquiesces in the benefit of any Debtor
\nRelief Law, other than as a creditor or claimant, or (d) becomes a party to or
\nis made the subject of any proceeding provided for by any Debtor Relief Law,
\nother than as a creditor or claimant, that could suspend or otherwise adversely
\naffect the Rights of Administrative Agent or any Lender granted in the Loan
\nPapers (unless, in the event such proceeding is involuntary, the petition
\ninstituting same is dismissed within 60 days after its filing).<\/p>\n
8.4 Judgments and Attachments. Any Restricted Company fails,
\nwithin 60 days after entry, to pay, bond, or otherwise discharge any one or
\nmore judgments 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
\nbecome the “beneficial owner” (as defined in Rule 13(d)(3) under the 1934 Act
\nand herein so called) of 50% or more of the Voting Stock of Borrower; (b) any
\nSpecial Shareholder or Special Shareholders become beneficial owners of 50% or
\nmore of the Voting Stock of Borrower; or (c) any other Person or two or more
\nPersons (acting within the meaning of Rule 13(d)(3) under the 1934 Act), other
\nthan Persons described in CLAUSE (A) hereof, become the beneficial owner of 20%
\nor more of the Voting Stock of Borrower. As used herein, “Special
\nShareholders” shall mean (i) any Person or two or more Persons (acting within
\nthe meaning of Rule 13(d)(3) under the 1934 Act) who were on December 4, 1992
\n(or prior to any change in beneficial ownership were) beneficial owners of 20%
\nor more of the Voting Stock of LDDS Communications, Inc., a Tennessee
\ncorporation and the predecessor of Borrower, or immediately prior to the merger
\nbetween LDDS<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
35
\n 41
\nCommunications, Inc., a Tennessee corporation, and Advanced Telecommunications
\nCorporation, a Delaware corporation, were beneficial owners of 20% or more of
\nthe Voting Stock of either such company, and (ii) Metromedia Company, a
\nDelaware general partnership.<\/p>\n
8.7 Default Under Other Agreements. (a) Any default exists under
\nany agreement to which a Restricted Company is a party, the effect of which is
\nto cause, or to permit any Person to cause, an amount of Debt of such
\nRestricted Company in excess (individually or collectively) of $100,000,000 (or
\nthe equivalent thereof in another currency or currencies) to become due and
\npayable by any Restricted Company (whether by acceleration or by its terms); or
\n(b) any default exists under any material written or oral agreement, contract,
\ncommitment, or understanding to which a Restricted Company is a party, the
\neffect of which would be a Material Adverse Event, unless, in the case of this
\nCLAUSE (B), and so long as, such default is being contested by such Restricted
\nCompany in good faith by appropriate proceedings, and adequate reserves in
\nrespect thereof have been established on the books of such Restricted Company
\nto the extent required by GAAP.<\/p>\n
8.8 Employee Benefit Plans. (a) A Reportable Event or Reportable
\nEvents, or a failure to make a required installment or other payment (within
\nthe meaning of Section 412(n)(1) of the Code), shall have occurred with respect
\nto any Employee Plan or Plans that is expected to result in liability of
\nBorrower to the PBGC or to a Plan in an aggregate amount exceeding $100,000,000
\nand, within 30 days after the reporting of any such Reportable Event to
\nAdministrative Agent or after the receipt by Administrative Agent of a
\nstatement required pursuant to SECTION 7.3(D) hereof, Administrative Agent
\nshall have notified Borrower in writing that (i) Determining Lenders have made
\na reasonable determination that, on the basis of such Reportable Event or
\nReportable Events or the failure to make a required payment, there are grounds
\nunder Title IV of ERISA for the termination of such Employee Plan or Plans by
\nthe PBGC, or the appointment by the appropriate United States district court of
\na trustee to administer such Employee Plan or Plans or the imposition of a Lien
\npursuant to section 412(n) of the Code in favor of an Employee Plan and (ii) as
\na result thereof a Default exists hereunder; or (b) Borrower or any ERISA
\nAffiliate has provided to any affected party a 60-day notice of intent to
\nterminate an Employee Plan pursuant to a distress termination in accordance
\nwith section 4041(c) of ERISA if the liability expected to be incurred as a
\nresult of 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
\ncontinuance of a “Default” under the 364-Day Facility C Revolving Credit and
\nTerm Loan Agreement of even date herewith among Borrower, NationsBank, N.A., or
\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<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
36
\n 42
\nexecution and delivery and for any reason, cease to be in full force and effect
\nin any material respect or be declared to be null and void (other than in
\naccordance with the terms hereof or thereof) or the validity or enforceability
\nthereof be contested by any Restricted Company party thereto or any Restricted
\nCompany shall deny in writing that it has any or any further liability or
\nobligations under any Loan Paper to which it is a party.<\/p>\n
SECTION 9 RIGHTS AND REMEDIES.<\/p>\n
9.1 Remedies Upon Default.<\/p>\n
(a) If a Default exists under SECTION 8.3(C) or 8.3(D),
\n the commitment to extend credit hereunder shall automatically
\n terminate and the entire unpaid balance of the Obligation under
\n Facility B shall automatically become due and payable without any
\n action or notice of any kind whatsoever.<\/p>\n
(b) If any Default exists, Administrative Agent may (and,
\n subject to the terms of SECTION 10, shall upon the request of
\n Determining Lenders) or Determining Lenders may, do any one or more of
\n the following: (i) if the maturity of the Obligation under Facility B
\n has not already been accelerated under SECTION 9.1(A), declare the
\n entire unpaid balance of the Obligation under Facility B, 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 B Lender to, and
\n each Facility B Lender shall be entitled to, exercise) the Rights of
\n offset or banker’s Lien against the interest of Borrower in and to
\n every account and other property of Borrower which are in the
\n possession of Administrative Agent or any Facility B Lender to the
\n extent of the full amount of the Obligation (to the extent permitted
\n by Law, Borrower being deemed directly obligated to each Lender in the
\n full amount of the Obligation for such purposes); and (v) exercise any
\n and all other legal or equitable Rights afforded by the Loan Papers,
\n 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
\n specific performance of any covenant or condition contained in any of
\n the Loan Papers or in aid of the exercise of any Right granted to
\n Administrative Agent or any Facility B Lender in any of the Loan
\n Papers.<\/p>\n
9.2 Company Waivers. To the extent permitted by Law, Borrower
\nhereby waives presentment and demand for payment, protest, notice of intention
\nto accelerate, notice of acceleration, and notice of protest and nonpayment,
\nand agrees that its liability with respect to the Obligation (or any part
\nthereof), shall not be affected by any renewal or extension in the time of
\npayment of the Obligation (or any part thereof), by any indulgence, or by any
\nrelease or change in any security for the payment of the Obligation (or any
\npart thereof).<\/p>\n
9.3 Performance by Administrative Agent. If any covenant, duty,
\nor agreement of any Consolidated Company is not performed in accordance with
\nthe terms of the Loan Papers, after the occurrence and during the continuance
\nof a Default, Administrative Agent may, at its option (but subject to the
\napproval of Determining Lenders), perform or attempt to perform such covenant,
\nduty, or agreement on behalf of such Consolidated Company. In such event, any
\namount expended by Administrative Agent in such performance or attempted
\nperformance shall be payable by the Consolidated Companies, jointly and
\nseverally, to Administrative Agent on demand, shall become part of the
\nObligation, and shall bear interest at the Default Rate from the date of such
\nexpenditure by Administrative Agent until paid. Notwithstanding the foregoing,
\nit is expressly understood that Administrative Agent does not assume and shall
\nnever have, except by its express written consent, any liability or
\nresponsibility for the performance of any covenant, duty, or agreement of any
\nConsolidated Company.<\/p>\n
9.4 Delegation of Duties and Rights. Facility B Lenders may
\nperform any of their duties or exercise any of their Rights under the Loan
\nPapers by or through their respective Representatives.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
37
\n 43
\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 B 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 B Lender
\nacquiesces in any non-compliance by any Consolidated Company with any Law or
\ndocument, or that Administrative Agent, any Agent, or any Facility B 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 B 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 B 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 B 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 B 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
\nAgent and Lenders under the Loan Papers are cumulative of and in addition to
\nall other Rights granted to Administrative Agent and Lenders at law or in
\nequity, whether or not the Obligation is due and payable and whether or not
\nAdministrative Agent or Lenders have instituted any suit for collection,
\nforeclosure, or other action in connection with the Loan Papers.<\/p>\n
9.8 Application of Proceeds. Any and all proceeds ever received
\nby Administrative Agent or Lenders from the exercise of any Rights pertaining
\nto the Obligation shall be applied to the Obligation in the order and manner
\nset forth in SECTION 3.11.<\/p>\n
9.9 Certain Proceedings. Borrower will promptly execute and
\ndeliver, or cause the execution and delivery of, all applications,
\ncertificates, instruments, registration statements, and all other documents and
\npapers Administrative Agent or Facility B Lenders may reasonably request in
\nconnection with the obtaining of any consent, approval, registration,
\nqualification, permit, license, or authorization of any Governmental Authority
\nor other Person necessary or appropriate for the effective exercise of any
\nRights under the Loan Papers. Because Borrower agrees that Administrative
\nAgent’s and Facility B Lenders’ remedies at Law for failure of Borrower to
\ncomply with the provisions of this paragraph would be inadequate and that such
\nfailure would not be adequately compensable in damages, Borrower agrees that
\nthe covenants of this paragraph may be specifically enforced.<\/p>\n
9.10 Limitation of Rights. Notwithstanding any other provision of
\nthis Facility B Agreement or any other Loan Paper, any action taken or proposed
\nto be taken by Administrative Agent or any other Facility B 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<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
38
\n 44
\nthe 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 B Lenders, and
\nAdministrative Agent incurred by Administrative Agent, or any Facility B 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
\nOTHER RESTRICTED COMPANIES, INDEMNIFIES, PROTECTS, AND HOLDS ADMINISTRATIVE
\nAGENT, EACH OTHER FACILITY B AGENT, AND EACH LENDER AND THEIR RESPECTIVE
\nAFFILIATES, PARENTS, AND SUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES’
\nRESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS,
\nASSIGNS, AND ATTORNEYS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM
\nAND AGAINST 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 THIS PARAGRAPH, THE TERM “ASSOCIATED PERSON” MEANS,
\nWITH RESPECT TO ANY PERSON, THE AFFILIATES, PARENTS, SUBSIDIARIES, DIRECTORS,
\nOFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND
\nATTORNEYS OF SUCH PERSON, OR OF ANOTHER PERSON OF WHICH SUCH PERSON IS ALSO AN
\nASSOCIATED PERSON. THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET
\nFORTH IN THIS PARAGRAPH SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE
\nOBLIGATION AND TERMINATION OF THIS FACILITY B AGREEMENT. AN INDEMNIFIED PARTY
\nWILL PROMPTLY NOTIFY THE RESTRICTED COMPANIES UPON RECEIPT OF WRITTEN NOTICE OF
\nANY CLAIM, ACTION, SUIT, OR PROCEEDING MADE, COMMENCED, OR THREATENED THAT
\nCOULD GIVE RISE TO AN INDEMNIFIED LIABILITY AND AFFORD THE RESTRICTED COMPANIES
\nFIRST RIGHT TO DEFEND OR RESOLVE THE SAME (WITH COUNSEL REASONABLY SATISFACTORY
\nTO SUCH INDEMNIFIED PARTY); PROVIDED THAT, ANY FAILURE BY SUCH INDEMNIFIED
\nPARTY TO GIVE SUCH NOTICE SHALL NOT RELIEVE THE RESTRICTED COMPANIES FROM THEIR
\nOBLIGATIONS TO INDEMNIFY THE INDEMNIFIED PARTY TO THE EXTENT SUCH FAILURE DOES
\nNOT PREJUDICE THE ABILITY OF THE RESTRICTED COMPANIES TO DEFEND OR RESOLVE ANY
\nSUCH CLAIM, ACTION, SUIT, OR PROCEEDING. THE RESTRICTED COMPANIES SHALL NOT
\nSETTLE ANY SUCH CLAIM OR ACTION WITHOUT THE CONSENT OF SUCH INDEMNIFIED PARTY,
\nWHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. IF THE RESTRICTED
\nCOMPANIES ASSUME ANY DEFENSE, THEY SHALL KEEP THE APPLICABLE INDEMNIFIED
\nPARTIES FULLY ADVISED OF THE STATUS OF, AND SHALL CONSULT WITH THOSE
\nINDEMNIFIED PARTIES BEFORE TAKING ANY MATERIAL POSITION IN RESPECT OF, THAT
\nPROCEEDING. IF (I) COUNSEL FOR ANY INDEMNIFIED PARTY DETERMINES IN GOOD FAITH
\nTHAT THERE IS A CONFLICT WHICH REQUIRES SEPARATE REPRESENTATION FOR THE
\nRESTRICTED COMPANIES AND SUCH INDEMNIFIED PARTY OR FOR SUCH INDEMNIFIED PARTY
\nAND ANY OTHER INDEMNIFIED PARTY OR (II) THE RESTRICTED COMPANIES FAIL TO ASSUME
\nOR PROCEED IN A TIMELY AND<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
39
\n 45
\nREASONABLE MANNER WITH THE DEFENSE OF SUCH ACTION OR FAIL TO EMPLOY COUNSEL
\nREASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY IN ANY SUCH ACTION, THEN IN
\nEITHER SUCH EVENT THE INDEMNIFIED PARTY SHALL BE ENTITLED TO SELECT COUNSEL OF
\nITS OWN CHOICE TO REPRESENT THE INDEMNIFIED PARTY, AND THE RESTRICTED COMPANIES
\nSHALL NO LONGER BE ENTITLED TO ASSUME THE DEFENSE THEREOF ON BEHALF OF SUCH
\nINDEMNIFIED PARTY, AND SUCH INDEMNIFIED PARTY SHALL CONTINUE TO BE ENTITLED TO
\nINDEMNIFICATION (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
\nDISBURSEMENTS OF COUNSEL INCLUDING ALLOCATED COST OF INTERNAL COUNSEL) TO THE
\nEXTENT 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 B Lender (including any Facility B
\n Lender in its capacity as an issuer of a Financial Hedge) hereby
\n appoints NationsBank (and NationsBank hereby accepts such appointment)
\n as its nominee and agent, in its name and on its behalf: (i) to act
\n as nominee for and on behalf of such Facility B Lender in and under
\n all Facility B Loan Papers; (ii) to arrange the means whereby the
\n funds of Facility B Lenders are to be made available to Borrower under
\n the Facility B Loan Papers; (iii) to take such action as may be
\n requested by any Facility B Lender under the Facility B Loan Papers
\n (when such Facility B Lender is entitled to make such request under
\n the Facility B Loan Papers and after such requesting Facility B Lender
\n has obtained the concurrence of such other Facility B Lenders as may
\n be required under the Facility B Loan Papers); (iv) to receive all
\n documents and items to be furnished to Facility B Lenders under the
\n Facility B 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 B Lenders;
\n (vi) to timely distribute, and Administrative Agent agrees to so
\n distribute, to each Facility B Lender all material information,
\n requests, documents, and items received from Borrower under the
\n Facility B Loan Papers; (vii) to promptly distribute to each Facility
\n B Lender its ratable part of each payment or prepayment (whether
\n voluntary, as proceeds of collateral upon or after foreclosure, as
\n proceeds of insurance thereon, or otherwise) in accordance with the
\n terms of the Facility B Loan Papers; (viii) to deliver to the
\n appropriate Persons requests, demands, approvals, and consents
\n received from Facility B Lenders; and (ix) to execute, on behalf of
\n Facility B Lenders, such releases or other documents or instruments as
\n are permitted by the Facility B Loan Papers or as directed by Facility
\n B Lenders from time to time; provided, however, Administrative Agent
\n shall not be required to take any action which exposes Administrative
\n Agent to personal liability or which is contrary to the Facility B
\n Loan Papers or applicable Law.<\/p>\n
(b) Administrative Agent may resign at any time as
\n Administrative Agent under the Facility B Loan Papers by giving
\n written notice thereof to Facility B Lenders and may be removed as
\n Administrative Agent under the Facility B 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
\n removed as Administrative Agent, then Determining Lenders shall elect
\n the successor Administrative Agent from among the Lenders (other than
\n the resigning Administrative Agent). If no successor Administrative
\n Agent shall have been so appointed by Determining Lenders, within 30
\n days 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 B Lenders, appoint a successor Administrative
\n Agent, which shall be a commercial bank having a combined capital and
\n surplus of at least $1,000,000,000. Upon the acceptance of any
\n appointment as Administrative Agent under the Facility B Loan Papers
\n by a successor Administrative Agent, such successor Administrative
\n Agent shall thereupon succeed to and become vested with all the<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
40
\n 46
\n Rights of the retiring Administrative Agent, and the retiring
\n Administrative Agent shall be discharged from its duties and
\n obligations of Administrative Agent under the Facility B Loan Papers,
\n and each Facility B Lender shall execute such documents as any
\n Facility B Lender may reasonably request to reflect such change in and
\n under the Facility B Loan Papers. After any retiring Administrative
\n Agent’s resignation or removal as Administrative Agent under the
\n Facility B Loan Papers, the provisions of this SECTION 10 shall inure
\n to its benefit as to any actions taken or omitted to be taken by it
\n while it was Administrative Agent under the Facility B Loan Papers.<\/p>\n
(c) Administrative Agent, in its capacity as a Facility B
\n Lender, shall have the same Rights under the Facility B Loan Papers as
\n any other Facility B Lender and may exercise the same as though it
\n were not acting as Administrative Agent; the term “Facility B Lender”
\n shall, unless the context otherwise indicates, include Administrative
\n Agent; and any resignation, or removal of by Administrative Agent
\n hereunder shall not impair or otherwise affect any Rights which it has
\n or may have in its capacity as an individual Facility B Lender. Each
\n Facility B Lender and Borrower agree that Administrative Agent is not
\n a fiduciary for Facility B Lenders or for Borrower but simply is
\n acting in the capacity described herein to alleviate administrative
\n burdens for both Borrower and Facility B Lenders, that Administrative
\n Agent has no duties or responsibilities to Facility B Lenders or
\n Borrower except those expressly set forth herein, and that
\n Administrative Agent in its capacity as a Facility B Lender has all
\n 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,
\n or other financing transactions with Borrower, act as trustee or
\n depositary for Borrower, or otherwise be engaged in other transactions
\n with Borrower (collectively, the “OTHER ACTIVITIES”) not the subject
\n of the Facility B Loan Papers. Without limiting the Rights of
\n Facility B Lenders specifically set forth in the Facility B Loan
\n Papers, Administrative Agent and its Affiliates shall not be
\n responsible to account to Facility B Lenders for such other
\n activities, and no Facility B Lender shall have any interest in any
\n other activities, any present or future guaranties by or for the
\n account of Borrower which are not contemplated or included in the
\n Facility B Loan Papers, any present or future offset exercised by
\n Administrative Agent and its Affiliates in respect of such other
\n activities, any present or future property taken as security for any
\n such other activities, or any property now or hereafter in the
\n possession or control of Administrative Agent or its Affiliates which
\n may be or become security for the obligations of Borrower arising
\n under the Facility B Loan Papers by reason of the general description
\n of indebtedness secured or of property contained in any other
\n agreements, documents or instruments related to any such other
\n activities; provided that, if any payments in respect of such
\n guaranties or such property or the proceeds thereof shall be applied
\n to reduction of the obligations of Borrower arising under the Facility
\n B Loan Papers, then each Facility B Lender shall be entitled to share
\n in such application ratably.<\/p>\n
(e) Each Facility B Lender acknowledges that, and
\n consents to, NationsBank’s also serving as the Facility A
\n Administrative Agent and the “Administrative Agent” under the 364-Day
\n Facility.<\/p>\n
10.2 Expenses. Upon demand by Administrative Agent, each Facility
\nB Lender 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 B 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 B 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
\nprovided in the Loan Papers, nothing in the Loan Papers shall be deemed to give
\nany Lender any advantage over any other Lender insofar as the Obligation<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
41
\n 47
\narising under the Loan Papers is concerned, or to relieve any Lender from
\nabsorbing its Pro Rata Part of any losses sustained with respect to the
\nObligation (except to the extent such losses result from unilateral actions or
\ninactions of any Lender that are not made in accordance with the terms and
\nprovisions of the Loan Papers).<\/p>\n
10.4 Delegation of Duties; Reliance. Administrative Agent may
\nperform any of its duties or exercise any of its Rights under the Facility B
\nLoan Papers 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 B Lender as the owner
\nand holder of the Facility B Principal Debt owed to such Facility B 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 B
\nLender shall be conclusive and binding on each subsequent holder, assignee, or
\ntransferee of the Facility B Principal Debt owed to such Facility B 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 B Loan
\nPapers and transactions thereunder, has actual knowledge thereof or
\nAdministrative Agent has been notified thereof by a Facility B 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
10.5 Limitation of Liability.<\/p>\n
(a) None of the Facility B Agents or any of their
\n respective Representatives shall be liable for any action taken or
\n omitted to be taken by it or them under the Loan Papers in good faith
\n and reasonably believed by it or them to be within the discretion or
\n power conferred upon it or them by the Loan Papers or be responsible
\n for the 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
\n Facility B Agents or any of their respective Representatives has a
\n fiduciary relationship with any Facility B Lender by virtue of the
\n Loan Papers (provided that nothing herein shall negate the obligation
\n of Administrative Agent to account for funds received by it for the
\n account of any Facility B Lender).<\/p>\n
(b) Unless indemnified to its satisfaction against loss,
\n cost, liability, and expense, no Facility B Agent shall be compelled
\n to do any act under the Loan Papers or to take any action toward the
\n execution or enforcement of the powers thereby created or to prosecute
\n or defend any suit in respect of the Loan Papers. If any Facility B
\n Agent requests instructions from Facility B Lenders or Determining
\n Lenders, as the case may be, with respect to any act or action
\n (including, but not limited to, any failure to act) in connection with
\n any Facility B Loan Paper, or Loan Paper, such Facility B Agent shall
\n be entitled (but shall not be required) to refrain (without incurring
\n any liability to any Person by so refraining) from such act or action
\n unless and until it has received such instructions. In no event,
\n however, shall any Facility B Agent or any of its respective
\n Representatives be required to take any action which it or they
\n determine could incur for it or them criminal or onerous civil
\n liability. Without limiting the generality of the foregoing, no
\n Facility B Lender shall have any right of action against any Facility
\n B Agent as a result of such Agent’s acting or refraining from acting
\n hereunder in accordance with the instructions of Determining Lenders.<\/p>\n
(c) Facility B Agents shall not be responsible in any
\n manner to any Facility B Lender or any<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
42
\n 48
\n Participant for, and each Facility B Lender represents and warrants
\n that it has not relied upon Facility B Agents in respect of, (i) the
\n creditworthiness of any Restricted Company and the risks involved to
\n such Facility B Lender, (ii) the effectiveness, enforceability,
\n genuineness, validity, or the due execution of any Loan Paper, (iii)
\n any representation, warranty, document, certificate, report, or
\n statement made therein or furnished thereunder or in connection
\n therewith, (iv) the existence, priority, or perfection of any Lien
\n hereafter granted or purported to be granted under any Loan Paper, or
\n (v) observation of or compliance with any of the terms, covenants, or
\n conditions of any Loan Paper on the part of any Restricted Company.
\n Each Facility B Lender agrees to indemnify each Facility B Agent and
\n its respective Representatives and hold them harmless from and against
\n (but limited to such Lender’s Pro Rata Part of) any and all
\n liabilities, obligations, losses, damages, penalties, actions,
\n judgments, suits, costs, reasonable expenses, and reasonable
\n disbursements of any kind or nature whatsoever which may be imposed
\n on, asserted against, or incurred by them in any way relating to or
\n arising out of the Loan Papers or any action taken or omitted by them
\n under the Loan Papers, to the extent any Facility B Agent and its
\n respective Representatives are not reimbursed for such amounts by any
\n Restricted Company (provided that, no Facility B Agent and its
\n respective Representatives shall have the right to be indemnified
\n hereunder for its or their own fraud, gross negligence, or willful
\n misconduct as found in a final, non-appealable judgment by a court of
\n competent jurisdiction).<\/p>\n
10.6 Default; Collateral. Upon the occurrence and continuance of a
\nDefault, Facility B Lenders agree to promptly confer in order that Determining
\nLenders or Facility B Lenders, as the case may be, may agree upon a course of
\naction for the enforcement of the Rights of Facility B 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 B 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 B 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)
\nno Facility B Agent (acting in its respective agent capacities) shall incur any
\nliability to any other Lender, Facility B 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
\ncompetent jurisdiction, and (b) no Facility B Agent, nor any Lender or
\nParticipant shall incur any liability to any other Person for any act or
\nomission of any other Lender or any other Participant.<\/p>\n
10.8 Relationship of Lenders. Nothing herein shall be construed as
\ncreating a partnership or joint venture among Facility B Agents and Facility B
\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 B Lenders and Facility B 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 B Lender or Facility B Agent to comply with such provisions.<\/p>\n
10.10 Agents. None of the Facility B Lenders identified in this
\nFacility B Agreement as a “Co-Syndication Agent” shall have any rights, powers,
\nobligations, liabilities, responsibilities, or duties under this Facility B
\nAgreement, other than those applicable to all Facility B Lenders as such.
\nWithout limiting the foregoing, none of the Facility B Lenders so identified as
\na “Co-Syndication Agent” shall have or be deemed to have<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
43
\n 49
\nany fiduciary relationship with any Facility B Lender.<\/p>\n
SECTION 11 MISCELLANEOUS.<\/p>\n
11.1 Headings. The headings, captions, and arrangements used in
\nany of the Loan Papers are, unless specified otherwise, for convenience only
\nand shall not be deemed to limit, amplify, or modify the terms of the Loan
\nPapers, nor affect the meaning thereof.<\/p>\n
11.2 Nonbusiness Days. In any case where any payment or action is
\ndue under any Loan Paper on a day which is not a Business Day, such payment or
\naction may be delayed until the next-succeeding Business Day, but interest and
\nfees shall continue to accrue in respect of any payment to which it is
\napplicable until such payment is in fact made; provided that, if in the case of
\nany such payment in respect of a Eurodollar Rate Borrowing the next-succeeding
\nBusiness Day is in the next calendar month, then such payment shall be made on
\nthe next-preceding Business Day.<\/p>\n
11.3 Communications. Unless specifically otherwise provided,
\nwhenever any Facility B Loan Paper requires or permits any consent, approval,
\nnotice, request, or demand from one party to another, such communication must
\nbe in writing (which may be by telex or telecopy) to be effective and shall be
\ndeemed to have been given (a) if by telex, when transmitted to the telex
\nnumber, if any, for such party, and the appropriate answer back is received,
\n(b) if by telecopy, when transmitted to the telecopy number for such party (and
\nall such communications sent by telecopy shall be confirmed promptly thereafter
\nby personal delivery or mailing in accordance with the provisions of this
\nsection; provided, that any requirement in this parenthetical shall not affect
\nthe date on which such telecopy shall be deemed to have been delivered), (c) if
\nby mail, on the third Business Day after it is enclosed in an envelope,
\nproperly addressed to such party, properly stamped, sealed, and deposited in
\nthe appropriate 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 B Agent and each Facility B 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 B 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 B 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 B Loan Papers shall
\nsurvive all closings under the Facility B 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 B Lender shall survive
\ntermination of this Facility B Agreement and payment in full of the Obligation.<\/p>\n
11.7 Governing Law. THE FACILITY B LOAN PAPERS HAVE BEEN ENTERED
\nINTO PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
\nTHE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE OF NEW
\nYORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF
\nTHE PARTIES TO THE FACILITY B LOAN PAPERS AND THE VALIDITY, CONSTRUCTION,
\nENFORCEMENT, AND INTERPRETATION OF THE FACILITY B LOAN PAPERS.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
44
\n 50
\n 11.8 Invalid Provisions. If any provision in any Loan Paper is
\nheld to be illegal, invalid, or unenforceable, such provision shall be fully
\nseverable; the appropriate Loan Paper shall be construed and enforced as if
\nsuch provision had never comprised a part thereof; and the remaining provisions
\nthereof shall remain in full force and effect and shall not be affected by such
\nprovision or by its severance therefrom. Administrative Agent, Facility B
\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 B 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 B AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME)
\nAND THE OTHER WRITTEN LOAN PAPERS EXECUTED BY ANY RESTRICTED COMPANY, ANY
\nFACILITY B LENDER, ADMINISTRATIVE AGENT, AND\/OR FACILITY A 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 B LENDERS, ADMINISTRATIVE AGENT, AND\/OR FACILITY A ADMINISTRATIVE
\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
\nPARTY HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE
\nCASE OF BORROWER, FOR EACH OF ITS SUBSIDIARIES), HEREBY (A) IRREVOCABLY SUBMITS
\nTO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW
\nYORK, AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN
\nANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE FACILITY B 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 B 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 B 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 B 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
\nin any court and that relate to the subject matter of this transaction,
\nincluding, without limitation, contract claims, tort claims, breach of duty
\nclaims, and all other common law and statutory claims. Borrower (for itself
\nand on behalf of each of its Subsidiaries) and each other party to this
\nFacility B Agreement acknowledge that this waiver is a material inducement to
\nthe agreement of each party hereto to enter into a business relationship, that
\neach has already relied on this waiver in entering into this Facility B
\nAgreement, and each will continue to rely on each of such waivers in related
\nfuture dealings. Borrower (for itself and on behalf of each of its
\nSubsidiaries) and each other party to this Facility B Agreement warrant and
\nrepresent that they have reviewed these waivers with their legal counsel, and
\nthat they knowingly and voluntarily agree to each such waiver following
\nconsultation with legal counsel. THE WAIVERS IN THIS SECTION 11.10 ARE
\nIRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
\nAND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND
\nREPLACEMENTS TO OR OF THIS OR ANY OTHER FACILITY B LOAN PAPER. In the event of
\nLitigation, this Facility B Agreement may be filed as a written consent to a
\ntrial by the court.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
45
\n 51
\n 11.11 Amendments, Consents, Conflicts, and Waivers.<\/p>\n
(a) Except as otherwise specifically provided, (i) this
\n Facility B 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)
\n may only be the subject of an amendment, modification, or waiver if
\n Borrower and Determining Lenders, and, in the case of any matter
\n affecting Administrative Agent (except as set forth above),
\n Administrative Agent, have approved same.<\/p>\n
(b) Any amendment to or consent or waiver under this
\n Facility B Agreement or any Facility B Loan Paper which purports to
\n accomplish any of the following must be by an instrument in writing
\n executed by Borrower and executed (or approved, as the case may be) by
\n each Facility B Lender, and, in the case of any matter affecting
\n Administrative Agent, by Administrative Agent: (i) extends the due
\n date or decreases the amount of any scheduled payment (other than
\n mandatory prepayments) of the Obligation arising under the Facility B
\n Loan Papers beyond the date specified in the Facility B Loan Papers;
\n (ii) reduces the interest rate or decreases the amount of interest,
\n fees, or other sums payable to Administrative Agent or Facility B
\n Lenders hereunder (except such reductions as are contemplated by this
\n Facility B Agreement); (iii) changes the definition of “APPLICABLE
\n MARGIN” (other than changes having the effect of increasing such
\n Applicable Margin),” “DETERMINING LENDERS,” “PRO RATA,” or “PRO RATA
\n PART,” or (iv) except as otherwise permitted by any Loan Paper, waives
\n compliance with, amends, or releases (in whole or in part) any
\n guaranty (if any) or releases (in whole or in part) any collateral, if
\n any, for the Obligation; or (v) changes this CLAUSE (B) or any other
\n matter specifically requiring the consent of all Facility B Lenders
\n hereunder. No amendment or waiver with respect to the definition of
\n “TERM LOAN MATURITY DATE” may be made without the consent of all
\n Facility B Lenders.<\/p>\n
(c) Any conflict or ambiguity between the terms and
\n provisions herein and terms and provisions in any other Loan Paper
\n shall be controlled by the terms and provisions herein.<\/p>\n
(d) No course of dealing nor any failure or delay by
\n Administrative Agent, any Facility B Lender, or any of their
\n respective Representatives with respect to exercising any Right of
\n Administrative Agent or any Facility B Lender hereunder shall operate
\n as a waiver thereof. A waiver must be in writing and signed by
\n Administrative Agent and Determining Lenders (or by all Facility B
\n Lenders, if required hereunder) to be effective, and such waiver will
\n be effective only in the specific instance and for the specific
\n purpose for which it is given.<\/p>\n
11.12 Multiple Counterparts. This Facility B Agreement may be
\nexecuted in a number of identical counterparts, each of which shall be deemed
\nan original for all purposes and all of which constitute, collectively, one
\nagreement; but, in making proof of this Facility B Agreement, it shall not be
\nnecessary to produce or account for more than one such counterpart. It is not
\nnecessary that each Facility B Lender execute the same counterpart so long as
\nidentical counterparts are executed by Borrower, each Facility B Lender, and
\nAdministrative Agent. This Facility B Agreement shall become effective when
\ncounterparts hereof shall have been executed and delivered to Administrative
\nAgent by each Facility B 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
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
46
\n 52
\n 11.13 Successors and Assigns; Assignments and Participations.<\/p>\n
(a) This Facility B Agreement shall be binding upon, and
\n inure to the benefit of the parties hereto and their respective
\n successors and assigns, except that (i) assignments by Borrower are
\n subject to the restrictions of SECTION 7.16, and (ii) except as
\n permitted under this Section, no Facility B Lender may transfer,
\n pledge, assign, sell any participation in, or otherwise encumber its
\n portion of the Obligation.<\/p>\n
(b) Each Facility B Lender may assign to one or more
\n Eligible Assignees all or a portion of its Rights and obligations
\n under this Facility B Agreement and the other Facility B Loan Papers
\n (including, without limitation, all or a portion of its Borrowings,
\n its Notes [to the extent such Facility B Principal Debt owed to such
\n Facility B Lender 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
\n another Facility B Lender or an assignment of all of a
\n Facility B Lender’s Rights and obligations under this Facility
\n B Agreement and the other Facility B Loan Papers, any such
\n partial assignment (when aggregated with the amounts of any
\n concurrent assignments under Facility A and\/or the 364-Day
\n Facility by the assigning Lender to the same assignee) shall
\n be in an amount at least equal to $10,000,000, but in no event
\n shall an assigned interest in any of Facility A, Facility B,
\n or the 364-Day Facility be less than $1,000,000 (except in the
\n case of an assignment of all of such Facility B Lender’s
\n interest in any such facility);<\/p>\n
(iii) each such assignment by a Facility B Lender
\n shall be of a constant, and not varying, percentage of all of
\n its Rights and obligations under this Facility B Agreement and
\n the Notes (to the extent the Facility B Principal Debt owed to
\n the assigning Facility B Lender is evidenced by any Notes);
\n and<\/p>\n
(iv) the parties to such assignment shall execute
\n and deliver to the Administrative Agent for its acceptance an
\n Assignment and Acceptance Agreement in the form of EXHIBIT E
\n hereto, together with any Notes subject to such assignment (to
\n the extent the Facility B Principal Debt owed to the assigning
\n Facility B Lender is evidenced by any Notes) and a processing
\n fee of $3,500.<\/p>\n
Upon execution, delivery, and acceptance of such Assignment and
\n Acceptance Agreement, the assignee thereunder shall be a party hereto
\n and, to the extent of such assignment, have the obligations, Rights,
\n and benefits of a Facility B Lender under the Facility B Loan Papers
\n and the assigning Facility B Lender shall, to the extent of such
\n assignment, relinquish its rights and be released from its obligations
\n under the Facility B Loan Papers. Upon the consummation of any
\n assignment pursuant to this Section, but only upon the request of the
\n assignor or assignee made through Administrative Agent, Borrower shall
\n issue appropriate Notes to the assignor and the assignee, reflecting
\n such assignment and acceptance. If the assignee is not incorporated
\n under the laws of the United States of America or a state thereof, it
\n shall 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
\n address referred to in SECTION 11.3 a copy of each Assignment and
\n Acceptance Agreement delivered to and accepted by it and a register
\n for the recordation of the names and addresses of the Facility B
\n Lenders and the Facility B Principal Debt owed to<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
47
\n 53
\n such Facility B Lenders, and principal amount of the Borrowings owing
\n to, each Facility B Lender from time to time (the “REGISTER”). The
\n entries in the Register shall be conclusive and binding for all
\n purposes, absent manifest error, and Borrower, Administrative Agent
\n and the Facility B Lenders may treat each Person whose name is
\n recorded in the Register as a Facility B Lender hereunder for all
\n purposes of the Facility B Loan Papers. The Register shall be
\n available for inspection by Borrower or any Facility B Lender at any
\n reasonable time and from time to time upon reasonable prior notice.
\n Upon the consummation of any assignment in accordance with this
\n SECTION 11.13, SCHEDULE 2.1 shall automatically be deemed amended (to
\n the extent required) by Administrative Agent to reflect the name,
\n address, and respective Pro Rata Part of the Facility B Principal Debt
\n of the assignor and assignee.<\/p>\n
(d) Upon its receipt of an Assignment and Acceptance
\n Agreement executed by the parties thereto, together with any Term
\n Notes subject to such assignment (to the extent the Facility B
\n Principal Debt owed to the assigning Facility B Lender is evidenced by
\n any Term Notes) and payment of the processing fee, the Administrative
\n Agent shall, if such assignment and acceptance has been completed and
\n is in substantially the form of EXHIBIT E hereto, (i) accept such
\n Assignment and Acceptance Agreement, (ii) record the information
\n contained therein in the Register and (iii) give prompt notice thereof
\n to the parties thereto.<\/p>\n
(e) Each Facility B Lender may sell participations to one
\n or more Persons (each a “PARTICIPANT”) in all or a portion of its
\n Rights, obligations, or Rights and obligations under this Facility B
\n Agreement and related Facility B Loan Papers (including all or a
\n portion of Borrowings advanced under Facility B); provided, however,
\n that (i) such Facility B Lender’s obligations under this Facility B
\n Agreement shall remain unchanged; (ii) such Lender shall remain solely
\n responsible to the other parties hereto for the performance of such
\n obligations; (iii) the Participant shall be entitled to the benefit of
\n the yield protection provisions contained in SECTIONS 3.15, 3.19, and
\n 3.20 (so long as Borrower shall not be obligated to pay any amount in
\n excess of the amount that would be due to such Facility B Lender under
\n such Sections as though no participations have been made) and the
\n right of set-off contained in SECTION 3.13; (iv) Borrower shall
\n continue to deal solely and directly with such Facility B Lender in
\n connection with such Facility B Lender’s Rights and obligations under
\n this Facility B Agreement and the other Facility B Loan Papers and
\n such Facility B Lender shall retain the sole Right to enforce the
\n obligations of Borrower relating to Borrowings under Facility B and
\n its Term Note (to the extent the Facility B Principal Debt owed to
\n such Facility B Lender is evidenced by a Term Note) and to approve any
\n amendment, modification, or waiver of any provision of this Agreement
\n (other than amendments, modifications, or waivers decreasing the
\n amount of principal of or the rate at which interest is payable on the
\n Facility B Principal Debt, extending any scheduled principal payment
\n date or date fixed for the payment of interest on the Facility B
\n Principal Debt; and (v) such Facility B Lender shall be solely
\n responsible for any withholding taxes or any filing or reporting
\n requirements relating to such participation and shall hold Borrower
\n and Administrative Agent and their respective successors, permitted
\n assigns, officers, directors, employees, agents, and representatives
\n harmless against the same. Except in the case of the sale of a
\n participating interest to another Facility B Lender, the relevant
\n participation agreement shall not permit the Participant to transfer,
\n pledge, assign, sell participations in, or otherwise encumber its
\n portion of the Obligation, unless the consent of the transferring
\n Facility B Lender (which consent will not be unreasonably withheld)
\n has been obtained.<\/p>\n
(f) Notwithstanding any other provision set forth in this
\n Facility B Agreement, any Facility B Lender may at any time assign and
\n pledge all or any portion of its Borrowings and its Term Note (to the
\n extent the Facility B Principal Debt owed to such Facility B Lender is
\n evidenced by a Term Note) 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 B Lender from its obligations hereunder.<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
48
\n 54
\n (g) Any Facility B Lender may furnish any information
\n concerning the Consolidated Companies in the possession of such
\n Facility B Lender from time to time to Eligible Assignees and
\n Participants (including prospective Eligible Assignees and
\n Participants), subject, however, to the provisions of SECTION 11.15
\n 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 Term Note, any promissory note issued pursuant
\nto Facility A, 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 B
\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
\nB Agent, each Facility B Lender and each Participant (collectively, the “LENDER
\nPARTIES”) in accordance with its customary procedures for handling confidential
\ninformation of this nature and in accordance with safe and sound banking
\npractices, and no Lender Party shall disclose any of such information to any
\nother Person; provided that any Facility B Lender, Facility B Agent, or
\nParticipant may make disclosure (a) to its attorneys or accountants, provided
\nthat such Facility B 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 B 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 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 B Agreement is intended to, and does hereby, restate,
\nconsolidate, renew, extend, amend, modify, supersede, and replace the Existing
\nAgreement in its entirety; (c) the Term Notes, if any, executed pursuant to
\nthis Facility B Agreement amend, renew, extend, modify, replace, substitute for
\nand supersede in their entirety (but do not extinguish, the Debt arising under)
\nthe promissory notes issued pursuant to the Existing Agreement, if any, which
\nexisting promissory notes shall be returned to<\/p>\n
AMENDED AND RESTATED
\n FACILITY B TERM LOAN AGREEMENT<\/p>\n
49
\n 55
\nAdministrative Agent promptly after the Closing Date, marked “cancelled and
\nreplaced,” and thereafter delivered by Administrative Agent to Borrower; and
\n(d) the entering into and performance of their respective obligations under
\nthis Facility B Agreement and the transactions evidenced hereby do not
\nconstitute 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 B TERM LOAN AGREEMENT<\/p>\n
50
\n 56<\/p>\n
SCHEDULE 2.1<\/p>\n
FACILITY B LENDERS AND PRINCIPAL DEBT<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n===================================================================================================================================
\n
\n NationsBank, N.A., successor in interest by merger to $53,112,500.00 4.249000000000000%
\n NationsBank of Texas, N.A.
\n Communications Finance Division
\n Attn: David C. Williams
\n 901 Main Street, 64th Floor
\n Dallas, TX 75202
\n———————————————————————————————————————————–
\n ABN AMRO Bank, N.V. $12,500,000.00 1.000000000000000%
\n Attn: Jerry Snider
\n One Ravinia Dr.
\n Suite 1200
\n Atlanta, GA 30346
\n———————————————————————————————————————————–
\n AmSouth Bank $6,250,000.00 0.500000000000000%
\n Attn: Tracy Sheehy
\n 1900 5th Avenue North
\n Birmingham, AL 35288
\n The Asahi Bank, Ltd. $6,250,000.00 0.500000000000000%
\n Attn: Marvin M. Lazar
\n Officer
\n One World Trade Center, Suite 6011
\n New York, NY 10048
\n———————————————————————————————————————————–
\n Banco Espirito Santo $2,500,000.00 0.200000000000000%
\n E Comercial de Lisboa, Nassau Branch
\n Attn: Cristina N. Ferreira
\n Vice President
\n 320 Park Avenue, 29th Floor
\n New York, NY 10022
\n———————————————————————————————————————————–
\n Bank Hapoalim B.M. $6,250,000.00 0.500000000000000%
\n Attn: Ellen Frank
\n Vice President
\n 1515 Market Street, Suite 200
\n Philadelphia PA 19102
\n———————————————————————————————————————————–
\n Bank of America National Trust and Savings Association $38,375,000.00 3.070000000000000%
\n Attn: Fred Thorne, Vice President
\n 555 California Street, 41st Floor (SFCP #9048)
\n San Francisco, CA 94104
\n Bank of Montreal $38,375,000.00 3.070000000000000%
\n Attn: Ola Anderssen
\n Director, Communications\/Media
\n 430 Park Avenue
\n New York, NY 10022
\n———————————————————————————————————————————–
\n The Bank of New York $38,375,000.00 3.070000000000000%
\n Attn: Vincent L. Pacilio, Sr. Vice President
\n One Wall Street, 16th Floor
\n New York, NY 10286
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n FACILITY B – SCHEDULE 2.1
\n 57<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n===================================================================================================================================
\n
\n The Bank of Nova Scotia $42,125,000.00 3.370000000000000%
\n Attn: Paul Gonin, Relationship Manager
\n Houston Representative Office
\n 1100 Louisiana St., Suite 3000
\n Houston, TX 77002
\n———————————————————————————————————————————–
\n Bank of Tokyo-Mitsubishi Trust Company $38,375,000.00 3.070000000000000%
\n Attn: Emile ElNems, Vice President
\n 1251 Avenue of the Americas, 12th Floor
\n New York, NY 10020-1104
\n———————————————————————————————————————————–
\n Banque Nationale de Paris $27,375,000.00 2.190000000000000%
\n Attn: Nuala Marley
\n 499 Park Ave, 2nd Floor
\n New York, NY 10022
\n———————————————————————————————————————————–
\n Barclays Bank PLC $38,375,000.00 3.070000000000000%
\n Attn: J.K. Downey, Director
\n 388 Market Street, Suite 1700
\n San Francisco, CA 94111
\n Bayerische Landesbank Girozentrale, Cayman Islands Branch $18,750,000.00 1.500000000000000%
\n Attn: Jim Boyle, Account Manager
\n 560 Lexington Ave., 17th Floor
\n New York, NY 10022
\n———————————————————————————————————————————–
\n BW Bank Ireland plc $2,500,000.00 0.200000000000000%
\n Attn: Sinead O’Hara, Manager Corporate Banking
\n 2, Harbour Master Place
\n IFSC
\n Dublin 1
\n Republic of Ireland
\n———————————————————————————————————————————–
\n Caisse Nationale de Credit Agricole $6,250,000.00 0.500000000000000%
\n Attn: Kenneth C. Coulter
\n 600 Travis Street, Suite 2340
\n Houston, TX 77002
\n Canadian Imperial Bank of Commerce $25,875,000.00 2.070000000000000%
\n Attn: Erik Piecuch
\n c\/o CIBC Oppenheimer
\n 425 Lexington Avenue
\n New York, NY 10017
\n———————————————————————————————————————————–
\n The Chase Manhattan Bank $38,375,000.00 3.070000000000000%
\n Attn: John J. Huber
\n Managing Director, Global Media and Telecommunications Group
\n 270 Park Avenue, 37th Floor
\n New York, NY 10017
\n———————————————————————————————————————————–
\n Citibank, N.A. $38,375,000.00 3.070000000000000%
\n Attn: Eric Huttner, Vice President
\n c\/o Citicorp Securities, Inc.
\n 399 Park Avenue, 8th Floor (Zone 5)
\n New York, NY 10043
\n———————————————————————————————————————————–
\n Compagnie Financiere de CIC et de l’Union Europeene $12,500,000.00 1.000000000000000%
\n Attn: Marcus Edward, Vice President
\n 520 Madison Ave. 37th Floor
\n New York, NY 10022
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 2
\n FACILITY B – SCHEDULE 2.1
\n 58<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n===================================================================================================================================
\n
\n Credit Lyonnais New York Branch $38,375,000.00 3.070000000000000%
\n Attn: John Judge, Vice President
\n 1301 Avenue of the Americas
\n New York, NY 10019
\n———————————————————————————————————————————–
\n Credit Suisse First Boston $25,000,000.00 2.000000000000000%
\n Attn: Todd Morgan, Director
\n 11 Madison Avenue, 20th Floor
\n New York, NY 10010
\n———————————————————————————————————————————–
\n Crestar Bank $7,812,500.00 0.625000000000000%
\n Attn: J. Eric Millham, Vice President
\n 919 East Main St., 22nd Floor
\n Richmond, VA 23219
\n———————————————————————————————————————————–
\n The Dai-Ichi Kangyo Bank, Limited $18,750,000.00 1.500000000000000%
\n Attn: Guenter Kittel, Vice President
\n Account Officer
\n Marquis Two Tower, Suite 2400
\n 285 Peachtree Center Ave, N.E.
\n Atlanta, GA 30303
\n———————————————————————————————————————————–
\n DG BANK $6,250,000.00 0.500000000000000%
\n Deutsche Genossenschaftsbank Cayman Island Branch
\n Attn: Jim Yeager
\n 303 Peachtree Street, N.E.
\n Atlanta, GA 30308
\n———————————————————————————————————————————–
\n Dresdner Bank AG, New York and Grand Cayman Branch $12,500,000.00 1.000000000000000%
\n Attn: Constance Loosemore
\n 75 Wall Street
\n New York, NY 10005
\n———————————————————————————————————————————–
\n The First National Bank of Chicago $31,125,000.00 2.490000000000000%
\n Attn: Ronna Bury-Prince, Vice President
\n One First National Plaza, Suite 0629
\n Chicago, IL 60670
\n———————————————————————————————————————————–
\n First Union National Bank, individually and as successor in $62,125,000.00 4.970000000000000%
\n interest to Signet Bank and Corestates Bank N.A.
\n Attn: Mark Cook, Senior Vice President
\n 301 South College Street, DC5
\n Charlotte, NC 28288-0735
\n———————————————————————————————————————————–
\n Fleet National Bank $38,375,000.00 3.070000000000000%
\n Attn: Sue Anderson
\n Vice President
\n 1 Federal St. MA\/OF\/DO3D
\n Boston, MA 02109
\n———————————————————————————————————————————–
\n Fuji Bank, Limited $7,500,000.00 0.600000000000000%
\n Attn: Clarence Mahovlich, Vice President
\n Vice President
\n Marquis One Tower, Suite 2100
\n 245 Peachtree Center Ave., N.E.
\n Atlanta, GA 30303-1208
\n———————————————————————————————————————————–
\n Gulf International Bank B.S.C. $6,250,000.00 0.500000000000000%
\n Attn: Mireille Khalidi, Assistant Vice President
\n 380 Madison Ave.- 21st Floor
\n New York, NY 10017
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 3
\n FACILITY B – SCHEDULE 2.1
\n 59<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n———————————————————————————————————————————–
\n
\n The Industrial Bank of Japan, Limited, Atlanta Agency $38,375,000.00 3.070000000000000%
\n Attn: James Masters
\n Vice President
\n One Ninety One Peachtree Tower, Suite 3600
\n 191 Peachtree Street, N.E.
\n Atlanta, GA 30303-1757
\n———————————————————————————————————————————–
\n KBC Bank, N.V. $6,250,000.00 0.500000000000000%
\n Attn: Christine Park, Vice President
\n 125 West 55th St
\n New York, NY 10019
\n———————————————————————————————————————————–
\n The Long-Term Credit Bank of Japan, Limited, New York Branch $29,875,000.00 2.390000000000000%
\n Attn: Robert Nelson, Vice President
\n Texas Commerce Tower
\n 2200 Ross Avenue, Suite 4700 West
\n Dallas, TX 75201
\n———————————————————————————————————————————–
\n Mellon Bank, N.A. $25,000,000.00 2.000000000000000%
\n Attn: Henry Beukema, Vice President
\n One Mellon Bank Center, Room 4440
\n 500 Grant St.
\n Pittsburgh, PA 15258
\n———————————————————————————————————————————–
\n Mercantile Bank National Association $6,250,000.00 0.500000000000000%
\n Attn: Michael Homeyer
\n 7th & Washington, 12th Floor
\n St. Louis, MO 63101
\n———————————————————————————————————————————–
\n Merita Bank Plc $6,250,000.00 0.500000000000000%
\n Attn: Andrew J. Bagusa, Assistant Vice President
\n 437 Madison Ave., 21st Floor
\n New York, NY 10022
\n———————————————————————————————————————————–
\n The Mitsubishi Trust and Banking Corporation, Chicago Branch $10,000,000.00 0.800000000000000%
\n Attn: Vicki L. Kamm
\n Assistant Vice President
\n 311 S. Wacker Dr., Suite 6300
\n Chicago, IL 60606
\n———————————————————————————————————————————–
\n Morgan Guaranty Trust Company of New York $50,875,000.00 4.070000000000000%
\n Attn: George Stapleton
\n Vice President
\n 60 Wall Street, 3rd Floor
\n New York, NY 10260-0060
\n———————————————————————————————————————————–
\n NATEXIS Banque BFCE $7,500,000.00 0.600000000000000%
\n Attn: Mark Harrington
\n Vice President
\n 333 Clay Street, Suite 4340
\n Houston, TX 77002
\n———————————————————————————————————————————–
\n National Bank of Kuwait, S.A.K., Grand Cayman Island Branch $8,325,000.00 0.666000000000000%
\n Attn: Vineeta Salvi
\n Senior Credit Analyst
\n 299 Park Ave.
\n New York, NY 10171
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 4
\n FACILITY B – SCHEDULE 2.1
\n 60<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n===================================================================================================================================
\n
\n Norddeutsche Landesbank Girozentrale, New York Branch and\/or $6,250,000.00 0.500000000000000%
\n Cayman Islands Branch
\n Attn: Stephanie Finnen, Vice President
\n 1270 Avenue of the Americas, 14th Floor
\n New York, NY 10020
\n———————————————————————————————————————————–
\n Paribas, Los Angeles Agency $24,875,000.00 1.990000000000000%
\n Attn: Darlynn Ernst Kitcher, Assistant Vice President
\n 2029 Century Park East, Suite 3900
\n Los Angeles, CA 90067
\n———————————————————————————————————————————–
\n PNC Bank, National Association $12,500,000.00 1.000000000000000%
\n Attn: Daniel Hopkins, Communications Director
\n Communications Division MS F2-F070-21-1
\n 1600 Market Street, 21st Floor
\n Philadelphia, PA 19103
\n———————————————————————————————————————————–
\n Royal Bank of Canada $53,375,000.00 4.270000000000000%
\n Attn: Tom Byrne, Senior Manager
\n One Liberty Plaza
\n New York, NY 10006
\n———————————————————————————————————————————–
\n The Royal Bank of Scotland plc $10,000,000.00 0.800000000000000%
\n Attn: Karen Stefanic, Vice President
\n Wall Street Plaza, 26th Floor
\n 88 Pine Street
\n New York, NY 10005
\n———————————————————————————————————————————–
\n The Sakura Bank, Limited $18,750,000.00 1.500000000000000%
\n Attn: Shelley Yu\/Takehiro Matsumoto
\n Vice President and Manager
\n 277 Park Ave, 45th Floor
\n New York, NY 10172-0098
\n———————————————————————————————————————————–
\n The Sanwa Bank, Limited $12,500,000.00 1.000000000000000%
\n Attn: John T. Feeney, Vice President
\n 55 E. 52nd Street
\n New York, NY 10055
\n———————————————————————————————————————————–
\n Societe Generale $12,500,000.00 1.000000000000000%
\n Attn: John Sadik-Khan
\n Vice President
\n 1221 Avenue of Americas
\n New York, NY 10020
\n———————————————————————————————————————————–
\n The Sumitomo Bank, Limited $12,500,000.00 1.0000000000%
\n Attn: William S. Rogers
\n Assistant Vice President
\n 700 Louisiana, Suite 1750
\n Houston, TX 77002
\n———————————————————————————————————————————–
\n Sumitomo Bank of California $3,750,000.00 0.3000000000%
\n Attn: Shuji Ito
\n Vice President
\n 320 California Street, 6th Floor
\n San Francisco, CA 94104
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 5
\n FACILITY B – SCHEDULE 2.1
\n 61<\/p>\n
\n\n===================================================================================================================================
\n NAME AND ADDRESS OF LENDERS FACILITY B PRO RATA PART
\n PRINCIPAL DEBT
\n===================================================================================================================================
\n
\n The Sumitomo Trust & Banking Corp., Ltd., New York Branch $8,750,000.00 0.700000000000000%
\n Attn: Glenda B. Francis
\n Assistant Vice President
\n 527 Madison Ave., 6th Floor – Corporate Finance
\n New York, NY 10022
\n———————————————————————————————————————————–
\n Summit Bank $6,250,000.00 0.500000000000000%
\n Attn: Robert D. Mace, Asst. Vice President
\n Three Valley Square
\n 512 Township Line Road, Suite 280
\n Blue Bell, PA 19422-2718
\n———————————————————————————————————————————–
\n SunTrust Bank, South Florida, N.A. $8,750,000.00 0.700000000000000%
\n Attn: Steve Apodaca
\n 515 E. Las Olas Boulevard, 7th Floor
\n Ft. Lauderdale, FL 33301
\n———————————————————————————————————————————–
\n The Tokai Bank, Ltd., Atlanta Agency $12,500,000.00 1.000000000000000%
\n Attn: Chris Mallet
\n Assistant Vice President
\n Marquis Two Tower, Suite 2802
\n 285 Peachtree Center Ave, NE
\n Atlanta, GA 30303
\n———————————————————————————————————————————–
\n Toronto Dominion (Texas), Inc. $25,875,000.00 2.070000000000000%
\n Attn: Randy Bingham, Manager, Investment
\n Banking\/Communications
\n 31 West 52nd Street
\n New York, NY 10019
\n———————————————————————————————————————————–
\n The Toyo Trust & Banking Co., Ltd., New York Branch $8,750,000.00 0.700000000000000%
\n Attn: Howard Tulley Mott
\n Vice President
\n 666 Fifth Ave., 33rd Floor
\n New York, NY 10103
\n———————————————————————————————————————————–
\n UBS AG New York Branch, successor in interest to Union Bank $31,125,000.00 2.490000000000000%
\n of Switzerland, New York Branch
\n Attn: Robert H. Riley III, Executive Director
\n 299 Park Ave, 35th Floor
\n New York, NY 10171
\n———————————————————————————————————————————–
\n Wachovia Bank, N.A. $41,125,000.00 3.290000000000000%
\n Attn: Karin E. Reel, Vice President
\n 191 Peachtree St., N.E., 29th Floor
\n Atlanta, GA 30303
\n———————————————————————————————————————————–
\n Westdeutsche Landesbank Girozentrale, New York Branch $6,250,000.00 0.500000000000000%
\n Attn: Walter T. Duffy III
\n 1211 Avenue of the Americas
\n New York, NY 10036
\n———————————————————————————————————————————–
\n Totals $1,250,000,000.00 100.00%
\n———————————————————————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 6
\n FACILITY B – SCHEDULE 2.1
\n 62
\n SCHEDULE 5<\/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 B Agreement shall not become effective unless Administrative Agent
\nhas received all of the following (unless otherwise indicated, all documents
\nshall be dated as of August 6, 1998, and all terms used with their initial
\nletters capitalized are used herein with their meanings as defined in the
\nFacility B Agreement):<\/p>\n
1. The Agreement. The Facility B Agreement (together with all Schedules and
\n Exhibits thereto) executed by Borrower, each Determing Lender under the
\n Existing Agreement, and Administrative Agent.<\/p>\n
2. Notes. With respect to any Facility B Lender requesting Notes pursuant to
\n SECTION 3.1(B), a Term Note in the form of EXHIBIT A, one payable to each
\n such requesting Facility B Lender.<\/p>\n
3. Articles of Incorporation. A copy of the Second Amended and Restated
\n Articles of Incorporation of Borrower, accompanied by a certificate that
\n such copy is correct and complete dated as of the Closing Date, executed by
\n the President or a Vice President and the Secretary or Assistant Secretary
\n of Borrower.<\/p>\n
4. Bylaws. A copy of the Bylaws of Borrower and all amendments thereto,
\n accompanied by a certificate that such copy is correct and complete, dated
\n the Closing Date and executed by the President or Vice President and the
\n Secretary or Assistant Secretary of Borrower.<\/p>\n
5. Good Standing and Authority. Certificates of the Georgia Secretary of
\n State, dated a Current Date, to the effect that Borrower is in good
\n standing (to the extent such information is available) and is duly
\n qualified to transact business in such jurisdiction.<\/p>\n
6. Incumbency. Certificates of incumbency dated as of the Closing Date with
\n respect to all officers and “authorized representatives” of Borrower who
\n will be authorized to execute or attest any of the Facility B Loan Papers
\n on behalf of Borrower, executed by the President, a Vice President, the
\n Secretary or an Assistant Secretary of Borrower.<\/p>\n
7. Resolutions. Copies of resolutions duly adopted by the Board of Directors
\n of Borrower approving this Facility B Agreement and the other Loan Papers
\n and authorizing the transactions contemplated in such Facility B Loan
\n Papers, accompanied by a certificate of the Secretary or an Assistant
\n Secretary of Borrower dated as of the Closing Date certifying that such
\n copy is a true and correct copy of resolutions duly adopted at a meeting of
\n (which may be held by conference telephone or similar communications
\n equipment by means of which all Persons participating in a meeting can hear
\n each other if permitted by applicable Law and, if required by such Law, by
\n its Bylaws), or by the unanimous written consent of (if permitted by
\n applicable Law and, if required by such Law, by its Bylaws), the Board of
\n Directors of Borrower, and that such resolutions constitute all the
\n resolutions adopted with respect to such transactions, have not been
\n amended, modified, or revoked in any respect (except as any such resolution
\n may be modified by any such other resolution), and are in full force and
\n effect as of the Closing Date.<\/p>\n
8. Opinions of Counsel to the Companies. The opinions of counsel to the
\n Companies, addressed to Administrative Agent and Facility B Lenders,
\n substantially in the form of EXHIBIT F-1 and the opinion of New York
\n counsel to the Restricted Companies, substantially in the form of EXHIBIT
\n F-2.<\/p>\n
FACILITY B – SCHEDULE 5
\n 63
\n9. Payment of Closing Fees and Expenses. Payment of all fees payable on or
\n prior to the Closing Date to Administrative Agent as provided for in
\n SECTION 4 of the Facility B Agreement, together with reimbursements to
\n Administrative Agent for all reasonable fees and expenses incurred in
\n connection with the negotiation, preparation, and closing of the
\n transactions evidenced by the Facility B Loan Papers (including, without
\n limitation, attorneys’ fees and expenses).<\/p>\n
10. Current Financials. True and correct copies of the Current Financials have
\n been delivered to Administrative Agent.<\/p>\n
11. Facility A. Evidence that all Facility A Loan Papers have been executed and
\n delivered, and that the amendment and restatement of Facility A has been
\n effected upon approval of “Determining Lenders” thereunder.<\/p>\n
12. Other Documents. Such other agreements, documents, instruments, opinions,
\n certificates, and evidences as Administrative Agent may reasonably request.
\n Administrative Agent shall, upon request of Borrower, confirm to Borrower
\n that it has received all such items so requested.<\/p>\n
2
\n FACILITY B – SCHEDULE 5
\n 64
\nSCHEDULE 7.12 PART B: I
\nEXISTING DEBT<\/p>\n
Indenture – Dated 10\/15\/1998<\/p>\n
\n\n INDEBTEDNESS INCURRED BY USE OF PROCEEDS MATURITY DATE BALANCED OWED
\n AS OF 06\/30\/1998
\n
\nMCI Communications General 03\/16\/99 200,000,000
\n 03\/23\/99 300,000,000
\n 01\/20\/00 200,000,000
\n 03\/02\/00 30,000,000
\n 03\/03\/00 5,000,000
\n 08\/20\/04 400,000,000
\n 01\/20\/23 200,000,000
\n 03\/15\/24 240,000,000
\n 03\/23\/25 450,000,000
\n SubTotal 2,025,000,000
\nIndenture – Dated 02\/17\/95
\nMCI Communications General 08\/15\/06 300,000,000
\n 04\/15\/10 500,000,000
\n 04\/15\/12 700,000,000
\n 06\/15\/27 500,000,000
\n Subtotal 2,000,000,000
\nJr. Subordinated Indenture – Dated 05\/29\/96
\nMCI Capital I \/ QUIPS General 06\/30\/26 750,000,000
\n Sutotal 750,000,000
\nOther Debt
\nMCI Communications ESOP 06\/02\/99 9,500,000
\n 04\/18\/99 19,400,000
\nMCI Telecommunications Cap Lease Various 544,105,000
\nMCI Telecommunications Software Licenses Various 93,619,000
\n Subtotal 666,573,000
\n Grand Total 5,441,573,000<\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE 7.12
\n 65
\n SCHEDULE 7.14<\/p>\n
TRANSACTIONS WITH AFFILIATES<\/p>\n
1. WorldCom, Inc. (“WORLDCOM” or “COMPANY”) leases approximately 139,700
\n square feet of space for its East Rutherford, New Jersey headquarters, of
\n which approximately 31,000 square feet is used by Metromedia Company
\n (“METROMEDIA”). The Metromedia portion of the rent is approximately
\n $692,000 per year. The entire lease is for a 15-year period, with various
\n partial termination options. In addition, Metromedia guaranteed all of
\n WorldCom’s obligations under the lease for the East Rutherford, New Jersey
\n headquarters. WorldCom also subleased or leased from certain of its
\n affiliates certain additional office space in Secaucus, New Jersey; New
\n York, New York; and Columbia, Maryland. The Company is currently evaluating
\n these properties and leases to determine what action it will take
\n thereunder.<\/p>\n
2. Pursuant to the terms of separate leases of microwave transmission
\n facilities, the Company as successor to Metromedia Communications
\n Corporation (“MCC”) is obligated to make the following estimated minimum
\n payments to Metromedia over the remaining terms of the leases, one of which
\n expires in 1997 and the others expire in 2001: $18,353,000 (1996),
\n $11,367,000 (1997), and $14,547,000 (in the aggregate for the years from
\n 1998 through 2001). In addition, at the end of the term of each of the
\n leases, the Company may purchase the equipment covered by such lease at a
\n price to be determined at such date in accordance with the provisions of
\n each lease.<\/p>\n
3. Indemnity Agreements – IDB WorldCom, Inc. entered into an indemnity
\n agreement with certain of its Affiliates. The agreements indemnify such
\n persons against certain liabilities arising out of their service in their
\n capacities as directors and\/or officers and prevent IDB from modifying its
\n indemnification policy in a way that is adverse to any person who is a
\n party to one of the agreements.<\/p>\n
4. On August 23, 1995, Metromedia converted its Series 1 Preferred Stock into
\n 21,876,976 shares of Common Stock and exercised warrants to acquire
\n 3,106,976 shares of Common Stock and sold its position of 30,849,976 shares
\n of Common Stock in a public offering. In connection with the preferred
\n stock conversion, the Company made a non-recurring payment of $15.0 million
\n to Metromedia, representing a discount to the minimal nominal dividend that
\n would have been payable on the Series 1 Preferred Stock prior to the
\n September 15, 1996 optional call date of approximately $26.6 million (which
\n amount included an annual dividend requirement of $24.5 million plus
\n accrued dividends to such call date). The Company did not receive any
\n proceeds from the sale of the shares, but did receive approximately $33.7
\n million in proceeds from the concurrent exercise of such warrants. In May
\n 1995, Metromedia exercised its right to purchase approximately 3.1 million
\n shares of Common Stock for $30.7 million under purchase warrants.
\n Metromedia is a Delaware general partnership, of which the sole partners
\n are a trust affiliated with Mr. Kluge and Mr. Subotnick. Ms. Kessell and
\n Messrs. Kluge and Subotnick are officers of Metromedia.<\/p>\n
FACILITY B – SCHEDULE 7.14
\n 66<\/p>\n
EXHIBIT A<\/p>\n
FORM OF TERM NOTE<\/p>\n
$_____________ ____________ __, ____<\/p>\n
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
\ncorporation (“BORROWER”), hereby promises to pay to the order of
\n____________________ (the “FACILITY B LENDER”), at the offices of NATIONSBANK,
\nN.A., as Administrative Agent for the Facility B Lender and others as
\nhereinafter described, on the Term Loan Maturity Date, the lesser of (i) __
\n_______________________ ($___________) and (ii) the aggregate Facility B
\nPrincipal Debt disbursed by the Facility B Lender to Borrower and outstanding
\nand unpaid on the Term Loan Maturity Date (together with accrued and unpaid
\ninterest thereon).<\/p>\n
This note has been executed and delivered under, and is subject to the
\nterms of, the Amended and Restated Facility B Term Loan Agreement, dated as of
\nAugust 6, 1998 (as amended, modified, supplemented, or restated from time to
\ntime, the “CREDIT AGREEMENT”), among Borrower, the Facility B Lender and other
\nlenders named therein, and the Facility B Agents, and is a “Term Note” referred
\nto therein. Unless defined herein, capitalized terms used herein that are
\ndefined in the Credit Agreement have the meaning given to such terms in the
\nCredit Agreement. Reference is made to the Credit Agreement for provisions
\naffecting this note regarding applicable interest rates, principal and interest
\npayment dates, final maturity, voluntary and mandatory prepayments,
\nacceleration of maturity, exercise of Rights, payment of attorneys’ fees, court
\ncosts and other costs of collection, certain waivers by Borrower and others now
\nor hereafter obligated for payment of any sums due hereunder and security for
\nthe payment hereof. Without limiting the immediately preceding sentence,
\nreference is made to SECTION 3.8 of the Credit Agreement for usury savings
\nprovisions.<\/p>\n
This Term Note is an amendment, restatement, renewal, and modification
\n(but not a novation) of, the Term Note (as the same may have been amended and
\nreplaced to the date hereof, the “FORMER NOTE”), which Former Note was executed
\nand delivered by Borrower, and payable to the order of Facility B Lender
\npursuant to the Existing Agreement. This Term Note is being issued in
\nsubstitution of, and supersedes 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 THE FACILITY B LENDER AND THE VALIDITY, CONSTRUCTION,
\nENFORCEMENT, AND INTERPRETATION HEREOF.<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n (Name)
\n ————————————
\n (Title)
\n ———————————–<\/p>\n
FACILITY B – EXHIBIT A<\/p>\n
67
\n EXHIBIT B<\/p>\n
FORM OF NOTICE OF CONVERSION<\/p>\n
Date: ______________ __, ____<\/p>\n
NATIONSBANK, N.A.,
\n as Administrative Agent for Facility A and
\n Administrative Agent for Facility B 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 <\/p>\n (A) Borrowing under Facility A or Facility B? (A) ______________ ________________<\/p>\n
(B) Date of conversion or last day of applicable Interest
\n Period (1) (B) ______________ ________________
\n (C) Type and principal amount of existing Borrowing being
\n converted or continued (2) (C) ______________ ________________<\/p>\n
(D) New Type of Borrowing selected (or Type of Borrowing
\n continued) (3) (D) ______________ ________________<\/p>\n
(E) For conversion to, or continuation of, a Eurodollar
\n Rate Borrowing, Interest Period selected and the last
\n day thereof (4) (E) ______________ ________________<\/p>\n
<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
FACILITY B – EXHIBIT B
\n 68
\n On the date the rate is set, please confirm the interest rate
\nbelow and return by facsimile transmission to __________________________.<\/p>\n
Very truly yours,<\/p>\n
WORLDCOM, INC.<\/p>\n
By
\n ——————————————-
\n (Name
\n —————————————-
\n (Title)
\n ————————————–<\/p>\n
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 receipt
\n by Administrative Agent for Facility A or Administrative Agent for Facility
\n B (as applicable) of this Notice of Conversion from a Base Rate Borrowing
\n to a Eurodollar Rate Borrowing or a continuation of a Eurodollar Rate
\n Borrowing for an additional Interest Period, and (ii) one Business Day
\n following receipt by Administrative Agent for Facility A or Administrative
\n Agent for Facility B (as applicable) of this Notice of Conversion for a
\n conversion from a Eurodollar Rate Borrowing to a Base Rate Borrowing.<\/p>\n
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a Base
\n Rate Borrowing); not less than $10,000,000 or a greater integral multiple
\n of $1,000,000 (if a Eurodollar Rate Borrowing).<\/p>\n
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.<\/p>\n
(4) Eurodollar Rate Borrowing — 1, 2, 3, or 6 months, or, if available to all
\n Facility A Lenders or Facility B Lenders (as applicable), 9 or 12 months.
\n In no event may the Interest Period end after the Facility A Termination
\n Date or Facility B Term Loan Maturity Date, as applicable.<\/p>\n
FACILITY B – EXHIBIT B
\n 69
\n EXHIBIT C<\/p>\n
FORM OF ADMINISTRATIVE QUESTIONNAIRE<\/p>\n
BORROWER: WorldCom, Inc.<\/p>\n
1) Name of Entity as it should appear on Signature Page:
\n ______________________________________. Please indicate
\n number of signature lines required for Entity
\n ________________________________.<\/p>\n
2) Name and address of Person to Receive Drafts of Loan Papers at
\n Lender:
\n _______________________________________________________________<\/p>\n
3) If different from above, name and address of person to whom
\n signature pages should be forwarded for execution:<\/p>\n
_______________________________________________________________
\n _______________________________________________________________
\n _______________________________________________________________<\/p>\n
4) If different from above, name and address of person to whom
\n signature pages should be forwarded for execution:
\n _______________________________________________________________
\n _______________________________________________________________
\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
——————– ———————- ——————
\n TELEPHONE:
\n ——————– ———————- ——————
\n FACSIMILE #:
\n ——————– ———————- ——————
\n ANSWERBACK:
\n ——————– ———————- ——————
\n<\/c><\/c><\/c><\/s><\/table>\n
FACILITY B – EXHIBIT C
\n 70
\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
FACILITY B – EXHIBIT C
\n 71
\n EXHIBIT D<\/p>\n
FORM OF COMPLIANCE CERTIFICATE<\/p>\n
FOR __________ ENDED ______________, ____<\/p>\n
DATE:____________________, __________<\/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
\nthe position(s) set forth under my signature below;<\/p>\n
(b) the Financial Statements of the Consolidated Companies
\nattached to this certificate were prepared in accordance with GAAP, and present
\nfairly in all material respects the consolidated financial condition and
\nresults of operations of Consolidated Companies as of, and for the (three, six,
\nor nine months, or fiscal year) ended on, __________
\n_________________________________, ___________ (the “SUBJECT PERIOD”) [(subject
\nonly to normal year-end audit adjustments)];<\/p>\n
(c) a review of the activities of the Consolidated Companies
\nduring the Subject Period has been made under my supervision with a view to
\ndetermining whether, during the Subject Period, the Consolidated Companies have
\nkept, observed, performed, and fulfilled all of their respective obligations
\nunder the Loan Papers, and during the Subject Period, to my knowledge (i) the
\nConsolidated Companies kept, observed, performed, and fulfilled each and every
\ncovenant and condition of the Loan Papers (except for the deviations, if any,
\nset forth on a schedule annexed to this certificate) in all material respects,
\nand (ii) no Default (nor any Potential Default) has occurred which has not been
\ncured or waived (except the Defaults or Potential Defaults, if any, described
\non the schedule annexed to this certificate);<\/p>\n
(d) to my knowledge, the status of compliance by the Restricted
\nCompanies with SECTION 7.22 of 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
(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<\/p>\n
FACILITY B – EXHIBIT D
\n 72
\nthan $____________________ [(being 10% of the book value of the consolidated
\nassets of the Restricted Companies as of the end of the Subject Period)]; and<\/p>\n
(f) as of the date hereof, to my knowledge, the aggregate Debt of
\nthe Restricted Subsidiaries is $__________ _______ [which amount does not
\nexceed $ ____________________ (being (i) 10% of the book value of the
\nconsolidated assets of the Restricted Companies as of the end of the Subject
\nPeriod)] plus (ii) the principal amount of all Existing Debt of MCI and its
\nSubsidiaries on and after the MCI Merger Date.<\/p>\n
By
\n —————————————
\n (Name)
\n ———————————–
\n (Title)
\n ———————————-<\/p>\n
FACILITY B – EXHIBIT D
\n 73
\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
\n the end of Subject Period)<\/p>\n
\n
\n1. SECTION 7.22 – TOTAL DEBT TO TOTAL CAPITALIZATION<\/p>\n a. Total Debt of Consolidated Companies (1) $
\n ——————————————-<\/p>\n
b. Total Debt of Unrestricted Companies $
\n ———————————–<\/p>\n
c. Total Debt of Restricted Companies (Line a minus Line b) $
\n ——————————————-<\/p>\n
d. Consolidated Net Worth of Consolidated Companies (1) $
\n ———————————–<\/p>\n
e. Consolidated Net Worth of Unrestricted Companies $
\n ——————————————-<\/p>\n
f. Consolidated Net Worth of Restricted Companies
\n (Line d minus Line e) $
\n ———————————–<\/p>\n
g. Total Capitalization (1) (Sum of Line c and Line f) $
\n ———————————–<\/p>\n
h. Ratio of Line c to Line g :
\n ————————————<\/p>\n
i. Maximum Ratio for Subject Period 0.68 : 1.0
\n<\/c><\/c><\/c><\/s><\/table>\n
—————<\/p>\n
(1) All as more particularly determined in accordance with
\n the terms of the Facility A Agreement or the Facility B
\n Agreement (as applicable), which control in the event of
\n conflicts with this form.<\/p>\n
FACILITY B – EXHIBIT D
\n 74
\n EXHIBIT E<\/p>\n
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT<\/p>\n
Reference is made to the Amended and Restated Facility B Term Loan
\nAgreement dated as August 6, 1998 (as amended, modified, supplemented, or
\nrestated from time to time, the “FACILITY B AGREEMENT”) among WORLDCOM, INC., a
\nGeorgia corporation (“BORROWER”), Facility B Lenders, the Co-Syndication Agents
\n(each such term as defined in the Facility B Agreement), and NATIONSBANK, N.A.,
\nas the Administrative Agent under the Facility B Agreement (“ADMINISTRATIVE
\nAGENT”). Capitalized terms used herein and not otherwise defined herein shall
\nhave the meanings assigned to such terms in the Facility B Agreement.<\/p>\n
The “ASSIGNOR” and the “ASSIGNEE” referred to on SCHEDULE 1 agree as
\nfollows:<\/p>\n
1. The Assignor hereby sells and assigns to the Assignee, without
\nrecourse and without representation or warranty except as expressly set forth
\nherein, and the Assignee hereby purchases and assumes from the Assignor, an
\ninterest in and to the Assignor’s Rights and obligations under the Facility B
\nAgreement and the related Facility B Loan Papers as of the date hereof equal to
\nthe percentage interest specified on SCHEDULE 1. After giving effect to such
\nsale and assignment, the Assignor’s and the Assignee’s Facility B Principal
\nDebt and the amount of the Borrowings under Facility B owing to each of them
\nwill be as set forth on SCHEDULE 1.<\/p>\n
2. The Assignor (i) represents and warrants that it is the legal
\nand beneficial owner of the interest being assigned by it hereunder and that
\nsuch interest is free and clear of any adverse claim; (ii) makes no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with the
\nFacility B Loan Papers or the execution, legality, validity, enforceability,
\ngenuineness, sufficiency or value of the Facility B Loan Papers or any other
\ninstrument or document furnished pursuant thereto; (iii) makes no
\nrepresentation or warranty and assumes no responsibility with respect to the
\nfinancial condition of any party to any Facility B Loan Paper or the
\nperformance or observance by any such party of any of its obligations under the
\nFacility B Loan Papers or any other instrument or document furnished pursuant
\nthereto; and (iv) attaches the Notes held by the Assignor (to the extent the
\nFacility B Principal Debt being assigned and owed to the Assignor is evidenced
\nby Notes) and requests that Administrative Agent exchange such Notes for new
\nNotes if so requested by either the Assignor or Assignee. Such new Notes shall
\nbe prepared in accordance with the provisions of SECTION 3.1(B) of the Facility
\nB Agreement and will reflect the respective Principal Debt of the Assignee and
\nthe Assignor after giving effect to this Assignment and Acceptance.<\/p>\n
3. The Assignee (i) confirms that it has received a copy of the
\nFacility B 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 B 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
\nB 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 B
\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 B Agreement are required to be
\nperformed by it as a Facility B Lender; and (vi) attaches any U.S. Internal
\nRevenue Service or other forms required under SECTION 3.20(D) of the Facility B
\nAgreement.<\/p>\n
FACILITY B – EXHIBIT E
\n 75
\n 4. Following the execution of this Assignment and Acceptance, it
\nwill be delivered to Administrative Agent for acceptance and recording by the
\nAdministrative Agent. The effective date for this Assignment and Acceptance
\n(the “EFFECTIVE DATE”) shall be the date of acceptance hereof by Administrative
\nAgent, unless otherwise specified on SCHEDULE 1.<\/p>\n
5. Upon such acceptance and recording by Administrative Agent, as
\nof the Effective Date, (i) the Assignee shall be a party to the Facility B
\nAgreement and, to the extent provided in this Assignment and Acceptance, have
\nthe Rights and obligations of a Facility B 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 B
\nAgreement.<\/p>\n
6. Upon such acceptance and recording by Facility B
\nAdministrative Agent, from and after the Effective Date, Administrative Agent
\nshall make all payments under the Facility B Agreement, the Notes (to the
\nextent the Facility B Principal Debt owed to the Assignee is evidenced by
\nNotes), and loan accounts in respect of the interest assigned hereby
\n(including, without limitation, all payments of principal, interest and
\ncommitment fees and other fees with respect thereto) to the Assignee. The
\nAssignor and Assignee shall make all appropriate adjustments in payments under
\nthe Facility B Agreement and the other Facility B Loan Papers for periods prior
\nto the Effective Date directly between themselves.<\/p>\n
7. Unless the Assignee is a Facility B Lender or an Affiliate of
\na Facility B Lender (and this sale and assignment is not made in connection
\nwith the sale of such Affiliate), this Assignment and Acceptance is conditioned
\nupon the consent of Borrower and Administrative Agent pursuant to the
\ndefinition of “Eligible Assignee” in the Facility B Agreement. The execution
\nand delivery of this Assignment and Acceptance by Borrower and Administrative
\nAgent is evidence of this consent.<\/p>\n
8. As contemplated by SECTION 11.13(B)(V) of the Facility B
\nAgreement, the Assignor or the Assignee (as determined between the Assignor and
\nthe Assignee) agrees to pay to Administrative Agent for its account on the
\nEffective Date in federal funds a processing fee of $3,500.<\/p>\n
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL
\nBE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
\nWITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.<\/p>\n
10. This Assignment and Acceptance may be executed in any number
\nof counterparts and by different parties hereto in separate counterparts, each
\nof which when so executed shall be deemed to be an original and all of which
\ntaken together shall constitute one and the same agreement. Delivery of an
\nexecuted counterpart of SCHEDULE 1 to this Assignment and Acceptance by
\ntelecopier shall be effective as delivery of a manually executed counterpart of
\nthis Assignment and Acceptance.<\/p>\n
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
\n1 to this Assignment and Acceptance to be executed by their officers thereunto
\nduly authorized as of the date specified thereon.<\/p>\n
FACILITY B – EXHIBIT E
\n 76
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (FACILITY B)<\/p>\n
\n
\n1. Assigned Interest:<\/p>\n (a) Assignor’s Facility B Principal Debt prior to giving effect to the
\n Assignment to Assignee $___________________________________<\/p>\n
(b) Percentage Interest in Facility B Principal Debt 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 A and the 364-Day Facility, but in no event
\n less than $1,000,000) ___________________________________%<\/p>\n
2. Adjustments after giving effect to Assignment between Assignor and
\n Assignee:<\/p>\n
(a) Assignor’s Facility B Principal Debt $___________________________________<\/p>\n
(b) Assignee’s Facility B Principal Debt acquired from Assignor
\n pursuant to this Assignment $_____________________________<\/p>\n
(c) Assignor’s aggregate Principal Debt after giving effect to
\n this Assignment $___________________________________<\/p>\n
(d) Assignee’s aggregate Principal Debt after giving effect
\n to this Assignment $___________________________________<\/p>\n
3. Effective Date (if other than date of acceptance by Administrative
\n Agent): *______________ ___, ______<\/p>\n
<\/c><\/s><\/table>\n
FACILITY B – EXHIBIT E
\n 77
\n SCHEDULE 1
\n to
\n ASSIGNMENT AND ACCEPTANCE AGREEMENT
\n (FACILITY B)
\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
FACILITY B – EXHIBIT E
\n 78
\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 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 delivery
\n of this Assignment and Acceptance to the Administrative Agent under the
\n Facility B Agreement.<\/p>\n
FACILITY B – EXHIBIT E
\n 79
\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
\nby Borrower and acting under my supervision have examined such corporate
\ndocuments and records of the Consolidated Companies and such certificates of
\npublic officials and of officers of the Consolidated Companies, other
\ndocuments, and matters of law as I deemed necessary or appropriate, including,
\nwithout limitation, originals or copies (or, with respect to the Notes under
\nthe Facility A or Facility B Agreement (collectively, the “NOTES”) only, the
\nforms of Notes attached as Exhibits to the Facility A and the Facility B
\nAgreement) of (i) the Facility A Agreement, (ii) the Facility B Agreement, and
\n(iii) to the extent any Notes are executed and delivered on the Closing Date or
\nimmediately subsequent thereto, such Notes (all of the foregoing, collectively,
\nthe “TRANSACTION DOCUMENTS”).<\/p>\n
In rendering the opinions expressed below, I have assumed with your
\npermission, without independent investigation or inquiry, (a) the authenticity
\nof all documents submitted to me as originals, (b) the genuineness of all
\nsignatures on all documents that I have examined (other than those of any
\nofficer of any Consolidated Company who signed in my presence and Bernard J.
\nEbbers, Charles T. Cannada, Scott D. Sullivan, and any other officer signing
\nthe incumbency provisions of officers’ certificates delivered in connection
\nwith the Loan Papers), (c) the conformity<\/p>\n
FACILITY B – EXHIBIT F-1
\n 80
\nto authentic originals of documents submitted to me as certified, conformed or
\nphotostatic copies, and (d) compliance by the Facility A Administrative Agent,
\nthe Facility B Administrative Agent, the other Agents under Facility A, the
\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
\nsolely upon the opinions of Bryan Cave LLP.<\/p>\n
Based upon the foregoing, and subject to the qualifications and
\nlimitations herein contained, it is my opinion that:<\/p>\n
1. Borrower (a) is a corporation validly existing and in good
\nstanding under the Laws of its state of incorporation (based solely upon my
\nreview of good standing certificates issued by such state with respect to such
\ncorporation), and (b) possesses all requisite corporate authority and power to
\nconduct its business and execute, deliver, and comply with the terms of the
\nTransaction Documents, which have been duly authorized and approved by all
\nnecessary corporate action and for which, to the best of my knowledge, no
\napproval or consent of any Person or Governmental Authority is required which
\nhas not been obtained, except where the failure to obtain would not be a
\nMaterial Adverse Event.<\/p>\n
2. Each of the Transaction Documents have been duly executed and
\ndelivered by Borrower.<\/p>\n
3. The Transaction Documents evidence the valid and legally
\nbinding obligations of Borrower, enforceable against Borrower in accordance
\nwith their terms, except as the enforcement may be limited by Debtor Relief
\nLaws and except that the remedies available with respect thereto may be subject
\nto general principles of equity (regardless of whether such remedies are sought
\nin a proceeding in equity or at law).<\/p>\n
4. The execution, delivery and performance of and compliance with
\nthe terms of the Transaction Documents will not cause Borrower to be in
\nviolation of its Second Amended and Restated Articles or Certificates of
\nIncorporation or Bylaws.<\/p>\n
5. The execution, delivery, and the performance of and compliance
\nwith the terms of the Transaction Documents will not cause Borrower to be in
\nviolation of any Laws applicable to it, other than such violations which will
\nnot, individually or collectively, be a Material Adverse Event.<\/p>\n
6. No Restricted Company is involved in, nor am I aware of the
\nthreat of, any Litigation which is reasonably likely to be determined adversely
\nto any Restricted Company and, if so adversely determined, would be a Material
\nAdverse Event. There are no outstanding orders or judgments for the payment of
\nmoney (not paid or fully covered by insurance) in excess of $100,000,000
\n(individually or collectively) or any warrant of attachment, sequestration, or
\nsimilar proceeding against any Restricted Company’s assets having a value
\n(individually or collectively) of $100,000,000 or more, which is not either (a)
\nstayed on appeal, (b) being diligently contested in good faith by appropriate
\nproceedings with adequate reserves having been set aside on the books of such
\nRestricted Company in accordance with GAAP, or (c) dismissed by a court of
\ncompetent jurisdiction.<\/p>\n
7. To the best of my knowledge, after reasonable investigation,
\nthe execution, delivery, and the performance of and compliance with the terms
\nof the Transaction Documents will not cause Borrower to be in default under any
\nmaterial, written, or oral agreements, contracts, commitments, or
\nunderstandings to which any Restricted Company is a party, other than such
\ndefaults or potential defaults which will not, individually or collectively, be
\na Material Adverse Event.<\/p>\n
2
\n FACILITY B – EXHIBIT F-1
\n 81
\n 8. (a) No Employee Plan has incurred an accumulated funding
\ndeficiency (as defined in the Code and ERISA), (b) neither Borrower nor any
\nERISA Affiliate has incurred material liability which is currently due and
\nremains unpaid to the PBGC or to an Employee Plan in connection with any such
\nEmployee Plan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in
\nwhole or in part from participation in a Multiemployer Plan, (d) Borrower has
\nnot engaged in any prohibited transaction (as such term is defined in ERISA or
\nthe Code) which would be a Material Adverse Event, and (e) to the best of my
\nknowledge, after reasonable investigation, no Reportable Event has occurred
\nwhich is likely to result in the termination of any Employee Plan.<\/p>\n
This opinion is limited in all respect to the laws of the State of
\nGeorgia and the federal laws of the United States of America.<\/p>\n
I note that the Transaction Documents are to be governed by the laws
\nof the State of New York. Accordingly, for purposes of rendering this opinion
\nas to the enforceability of the Transaction Documents, I have assumed that the
\nsubstantive laws of the State of New York are identical to the substantive laws
\nof the State of Georgia.<\/p>\n
The foregoing opinions are also subject to the following exceptions
\nand qualifications: I express no opinion<\/p>\n
(a) with respect to the availability of the remedies of
\n specific performance or injunction, or other remedies requiring the
\n exercise of judicial discretion;<\/p>\n
(b) as to the effect of the compliance or noncompliance
\n of Lenders with any state or federal laws or regulations applicable to
\n any Lender’s legal or regulatory status or the nature of such Lender’s
\n business;<\/p>\n
(c) as to the enforceability of any provisions contained
\n in the Transaction Documents that (i) purport to make void any act in
\n contravention thereof, (ii) purport to authorize a party to act in its
\n sole discretion, (iii) relate to the effect of laws or regulations
\n that may be enacted in the future, (iv) require waivers or amendments
\n to be made only in writing or (v) purport to effect waivers of
\n constitutional, statutory or equitable rights or the effect of
\n applicable laws;<\/p>\n
(d) regarding the enforceability of the waivers in the
\n Transaction Documents of the right to demand a trial by jury and with
\n respect to selection of a venue;<\/p>\n
(e) as to the enforceability of any provisions in the
\n Transaction Documents to the effect that the acceptance of a past due
\n installment or other performance by Borrower shall not be deemed a
\n waiver of the right to accelerate the indebtedness;<\/p>\n
(f) as to the enforceability of any provisions in the
\n Transaction Documents relating to (i) set off, (ii) self help or (iii)
\n evidentiary standards or other standards by which the Transaction
\n Documents are to be construed;<\/p>\n
(g) with regard to any provisions of the Transaction
\n Documents whereby a party purports to indemnify another party against
\n its own negligence or misconduct; and<\/p>\n
(h) as to matters subject to the jurisdiction of the FCC,
\n state public utility commissions, or any other communications or
\n similar regulatory authorities.<\/p>\n
This opinion is addressed to you solely for your use in connection
\nwith the transactions contemplated by the Transaction Documents, and no person
\nother than the Facility A Administrative Agent, the Facility B Administrative<\/p>\n
3
\n FACILITY B – EXHIBIT F-1
\n 82
\nAgent, each other Agent under the Facility A Agreement and the Facility B
\nAgreement, each Lender, each assignee which hereafter becomes a Lender as
\npermitted by either the Facility A Agreement or the Facility B Agreement and
\nthe law firm of Haynes and Boone, L.L.P. is entitled to rely hereon without my
\nprior written consent. This opinion is given as of the date hereof, and I have
\nno obligation to revise or update this opinion subsequent to the date hereof or
\nto advise you or any other person of any matter subsequent to the date hereof
\nwhich would cause me to modify this opinion in whole or in part.<\/p>\n
Very truly yours,<\/p>\n
William E. Anderson,
\n General Counsel<\/p>\n
4
\n FACILITY B – EXHIBIT F-1
\n 83
\n EXHIBIT F-2<\/p>\n
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
\n [BRYAN CAVE]<\/p>\n
August 6, 1998<\/p>\n
NationsBank, N.A.,
\n as Administrative Agent for Facility A and
\n Administrative Agent for Facility B<\/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
\nFacility A Agreement and SECTION 5 of the Facility B Agreement and PARAGRAPHS 8
\nof SCHEDULES 5.1 and SCHEDULE 5, respectively, to the Facility A Agreement and
\nthe Facility B Agreement. Capitalized terms used but not otherwise defined
\nherein shall have the meanings given to them in the Facility A Agreement and
\nthe Facility 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
\n of the date hereof (the “SECRETARY’S CERTIFICATE”), including
\n the following exhibits appended to each such Secretary’s
\n Certificate:<\/p>\n
Exhibit A Second Amended and Restated Articles of
\n Incorporation
\n Exhibit B Certificate of Existence<\/p>\n
FACILITY B – EXHIBIT F-2
\n 84
\n Exhibit C By-Laws
\n Exhibit D Authorizing Resolutions\/Unanimous Written
\n Consents<\/p>\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
\nhave relied as to matters of fact upon, the representations and warranties made
\nby the Borrower in the Transaction Documents insofar as they relate to factual
\nmatters and upon factual representations as to certain matters contained in the
\nSecretary’s Certificate and other certificates signed by officers of the
\nBorrower and certain of the other Restricted Companies. We have assumed, and
\nwe have relied upon, (i) the genuineness of all signatures on documents,
\ninstruments, and certificates reviewed by us, (ii) the accuracy and
\nauthenticity of all documents, instruments, and certificates reviewed by us,
\n(iii) the legal competence of all natural persons who are signatories thereto,
\n(iv) the conformity to authentic original documents of all documents,
\ninstruments, and certificates submitted to us as certified, conformed or
\nphotostatic copies, and (v) the due execution and delivery of all documents
\n(other than the Transaction Documents) where due execution and delivery are a
\nprerequisite to the effectiveness thereof. We have further assumed that 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
\n against Borrower in accordance with its terms.<\/p>\n
(2) The execution, delivery, and performance by the Borrower of
\n each of the Transaction Documents to which it is a party will
\n not violate any applicable Law of the State of New York,
\n except for any such violations which could not reasonably be
\n expected to cause, either individually or in the aggregate, a
\n Material Adverse Event.<\/p>\n
(3) The execution, delivery, and performance by Borrower of the
\n Transaction Documents do not require the consent or
\n authorization of, or filing with any New York Governmental
\n Authority.<\/p>\n
(4) No Restricted Company is an “investment company” or a company
\n “controlled” by an “investment company” within the meaning of
\n the Investment Company Act of 1940, as amended.<\/p>\n
(5) No Restricted Company is a “holding company” or a “subsidiary
\n company” of a “holding company” within the meaning of the
\n Public Utility Holding Company Act of 1935, as amended.<\/p>\n
(6) No Restricted Company is subject to regulation under the
\n Interstate Commerce Act, as amended.<\/p>\n
2
\n FACILITY B – EXHIBIT F-2
\n 85
\n (7) The application of the proceeds of the Borrowings under
\n Facility A and Facility B by the Borrower in accordance with
\n the terms of the Facility A Agreement and the Facility B
\n Agreement will not violate Regulation U.<\/p>\n
This opinion is subject to the additional exceptions, limitations and
\nqualifications set forth below:<\/p>\n
Enforceability of the Transactions Documents are subject to:<\/p>\n
(1) the effect of bankruptcy, insolvency, reorganization,
\n receivership, moratorium and other similar laws affecting the
\n rights and remedies of creditors generally, including:<\/p>\n
(a) the United States Bankruptcy Code of 1978, as
\n amended, and thus comprehends, among others, matters
\n of turn-over, automatic stay, avoiding powers,
\n fraudulent transfer, preference, discharge,
\n conversion of a non-recourse obligation into a
\n recourse claim, limitations on ipso facto and
\n anti-assignment clauses and the coverage of
\n pre-petition security agreements applicable to
\n property acquired after a petition is filed.<\/p>\n
(b) all other federal and state bankruptcy, insolvency,
\n reorganization, receivership, moratorium, arrangement
\n and assignment for the benefit of creditors laws that
\n affect the rights and remedies of creditors
\n generally.<\/p>\n
(c) state fraudulent transfer and conveyance laws.<\/p>\n
(d) judicially developed doctrines relevant to any of the
\n foregoing laws, such as substantive consolidation of
\n entities.<\/p>\n
(2) the effect of general principles of equity, whether applied by
\n a court of law or equity, including principles:<\/p>\n
(a) governing the availability of specific performance,
\n injunctive relief or other equitable remedies, which
\n generally place the award of such remedies, subject
\n to certain guidelines, in the discretion of the court
\n to which application for such relief is made.<\/p>\n
(b) affording equitable defenses (e.g., waiver, laches
\n and estoppel) against a party seeking enforcement.<\/p>\n
(c) requiring good faith and fair dealing in the
\n performance and enforcement of a contract by the
\n party seeking its enforcement.<\/p>\n
(d) requiring reasonableness in the performance and
\n enforcement of an agreement by the party seeking
\n enforcement of the contract.<\/p>\n
(e) requiring consideration of the materiality of a
\n breach and the consequences of the breach to the
\n party seeking enforcement.<\/p>\n
(f) requiring consideration of the impracticability or
\n impossibility of performance at the time of attempted
\n enforcement.<\/p>\n
3
\n FACILITY B – EXHIBIT F-2
\n 86
\n (g) affording defenses based upon the unconscionability
\n of the enforcing party’s conduct after the parties
\n have entered into the contract.<\/p>\n
(3) the effect of generally applicable rules of law that:<\/p>\n
(a) limit or affect the enforcement of provisions of a
\n contract that purport to require waiver of the
\n obligations of good faith, fair dealing, diligence
\n and reasonableness.<\/p>\n
(b) provide that forum selection clauses in contracts are
\n not necessarily binding on the court(s) in the forum
\n selected.<\/p>\n
(c) limit the availability of a remedy under certain
\n circumstances where another remedy has been elected.<\/p>\n
(d) limit the right of a creditor to use force or cause a
\n breach of the peace in enforcing rights.<\/p>\n
(e) limit the enforceability of provisions releasing,
\n exculpating or exempting a party from, or requiring
\n indemnification of a party for, liability for its own
\n action or inaction, to the extent public policy
\n limits the enforceability of such indemnification or
\n the action or inaction involves gross negligence,
\n recklessness, willful misconduct or unlawful conduct.<\/p>\n
(f) may, where less than all of a contract may be
\n unenforceable, limit the enforceability of the
\n balance of the contract to circumstances in which the
\n unenforceable portion is not an essential part of the
\n agreed exchange.<\/p>\n
(g) govern and afford judicial discretion regarding the
\n determination of damages and entitlement to
\n attorneys’ fees and other costs.<\/p>\n
(h) may permit a party who has materially failed to
\n render or offer performance required by the contract
\n to cure that failure unless (A) permitting a cure
\n would unreasonably hinder the aggrieved party from
\n making substitute arrangements for performance, or
\n (B) it was important in the circumstances to the
\n aggrieved party that performance occur by the date
\n stated in the contract.<\/p>\n
(i) limit the enforceability of any clause requiring
\n additional interest or additional payments upon
\n default.<\/p>\n
(j) limit the enforceability of any clause authorizing
\n the exercise of set-off rights absent prior notice
\n and demand.<\/p>\n
We express no opinion as to the enforceability of (i) any waiver of
\njury trial, or any waiver of any statutory or constitutional rights, or (ii)
\nthe choice of law provisions in any of the Transaction Documents in courts
\nsitting in jurisdictions other than the State of New York. We express no
\nopinion as to any titles, estates, or interests of the Borrower in and to any
\nproperties, real or personal, fee or leasehold. We express no opinion as to
\n(x) the enforceability of any waiver of any statutory right and (y) the
\nenforceability of the provisions found under clauses A, B, C, E, F and G of
\nSECTIONS 11.10 of each of the Facility A Agreement and the Facility B
\nAgreement. With respect to<\/p>\n
4
\n FACILITY B – EXHIBIT F-2
\n 87
\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 Administrative Agent, the Agents, or any
\nLender of any change in any matters set forth herein or any matters upon which
\nthis opinion is based.<\/p>\n
We are qualified to practice law in the State of New York, and we do
\nnot purport to be experts on, or to express any opinion concerning, any laws
\nother than the laws of the State of New York. The opinions above are subject
\nto this limitation in all respects. We express no opinion as to any matters
\ninvolving the Federal Communications Commission and state public utility
\ncommissions or analogous regulatory or governmental authorities or the laws,
\nrules, or regulations relating to any regulatory matters affecting the
\ncompanies, as we understand you will rely solely on special regulatory counsel
\nto the Restricted Companies for such matters.<\/p>\n
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 CAVE LLP<\/p>\n
5
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