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364-DAY REVOLVING CREDIT AGREEMENT
among
WORLDCOM, INC.,
BORROWER
BANK OF AMERICA, N.A. and THE CHASE MANHATTAN BANK,
CO-ADMINISTRATIVE AGENTS
BANC OF AMERICA SECURITIES LLC and J.P. MORGAN SECURITIES INC.,
JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES INC., SALOMON
SMITH BARNEY INC., ABN AMRO BANK N.V., and
DEUTSCHE BANC ALEX. BROWN INC.,
CO-ARRANGERS
CITIBANK, N.A.,
SYNDICATION AGENT
ABN AMRO BANK N.V. and DEUTSCHE BANK AG NEW YORK BRANCH,
CO-DOCUMENTATION AGENTS
and
THE LENDERS NAMED HEREIN,
LENDERS
$2,650,000,000
DATED AS OF JUNE 8, 2001
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND TERMS............................................1
1.1 Definitions......................................................1
1.2 Number and Gender of Words; Other References....................16
1.3 Accounting......................................................17
SECTION 2 BORROWING PROVISIONS............................................17
2.1 The Facility....................................................17
2.2 Competitive Bid Subfacility.....................................17
2.3 Optional Renewal of Commitments.................................20
2.4 Conversion to Term Loans........................................22
2.5 Termination of Commitments......................................23
2.6 Borrowing Procedure.............................................23
SECTION 3 TERMS OF PAYMENT................................................24
3.1 Loan Accounts, Notes, and Payments..............................24
3.2 Interest and Principal Payments.................................25
3.3 Interest Options................................................26
3.4 Quotation of Rates..............................................26
3.5 Default Rate....................................................26
3.6 Interest Recapture..............................................26
3.7 Interest Calculations...........................................26
3.8 Maximum Rate....................................................27
3.9 Interest Periods................................................27
3.10 Conversions.....................................................27
3.11 Order of Application............................................28
3.12 Sharing of Payments, Etc........................................29
3.13 Offset..........................................................29
3.14 Booking Borrowings..............................................29
3.15 Increased Cost and Reduced Return...............................29
3.16 Limitation on Types of Loans....................................30
3.17 Illegality......................................................31
3.18 Treatment of Affected Loans.....................................31
3.19 Compensation; Replacement of Lenders............................32
3.20 Taxes...........................................................32
SECTION 4 FEES............................................................34
4.1 Treatment of Fees...............................................34
4.2 Fees of Administrative Agent....................................34
4.3 Facility Fees...................................................35
SECTION 5 CONDITIONS PRECEDENT............................................35
5.1 Conditions Precedent to Closing.................................35
5.2 Conditions Precedent to Each Borrowing..........................35
SECTION 6 REPRESENTATIONS AND WARRANTIES..................................36
364-DAY REVOLVING
CREDIT AGREEMENT
ii
<PAGE>
6.1 Purpose of Credit Facility......................................36
6.2 Existence, Good Standing, Authority, and Authorizations.........36
6.3 Authorization and Contravention.................................37
6.4 Binding Effect..................................................37
6.5 Financial Statements............................................37
6.6 Litigation, Claims, Investigations..............................37
6.7 Taxes...........................................................37
6.8 Environmental Matters...........................................37
6.9 ERISA Compliance................................................38
6.10 Properties; Liens...............................................38
6.11 Government Regulations..........................................38
6.12 No Default......................................................38
6.13 Senior Indebtedness.............................................38
SECTION 7 COVENANTS.......................................................38
7.1 Use of Proceeds.................................................39
7.2 Books and Records...............................................39
7.3 Items to be Furnished...........................................39
7.4 Inspections.....................................................40
7.5 Taxes...........................................................40
7.6 Payment of Obligations..........................................41
7.7 Maintenance of Existence, Assets, and Business..................41
7.8 Insurance.......................................................41
7.9 Preservation and Protection of Rights...........................41
7.10 Employee Benefit Plans..........................................41
7.11 Environmental Laws..............................................41
7.12 Debt............................................................42
7.13 Liens...........................................................42
7.14 Transactions with Affiliates....................................43
7.15 Compliance with Laws and Documents..............................44
7.16 Assignment......................................................44
7.17 Permitted Distributions.........................................44
7.18 Restrictions on Subsidiaries....................................44
7.19 Sale of Assets..................................................44
7.20 Mergers and Dissolutions........................................44
7.21 Designation of Unrestricted Companies...........................45
7.22 Financial Covenant..............................................45
SECTION 8 DEFAULT.........................................................45
8.1 Payment of Obligation...........................................45
8.2 Covenants.......................................................45
8.3 Debtor Relief...................................................46
8.4 Judgments and Attachments.......................................46
8.5 Misrepresentation...............................................46
8.6 Change of Control...............................................46
8.7 Default Under Other Agreements..................................46
8.8 Employee Benefit Plans..........................................47
8.9 Validity and Enforceability of Loan Papers......................47
364-DAY REVOLVING
CREDIT AGREEMENT
ii
<PAGE>
SECTION 9 RIGHTS AND REMEDIES.............................................47
9.1 Remedies Upon Default...........................................47
9.2 Company Waivers.................................................48
9.3 Performance by Administrative Agent.............................48
9.4 Delegation of Duties and Rights.................................48
9.5 Not in Control..................................................48
9.6 Course of Dealing...............................................49
9.7 Cumulative Rights...............................................49
9.8 Application of Proceeds.........................................49
9.9 Certain Proceedings.............................................49
9.10 Limitation of Rights............................................49
9.11 Expenditures by Lenders.........................................50
9.12 INDEMNIFICATION.................................................50
SECTION 10 AGREEMENT AMONG LENDERS.........................................51
10.1 Administrative Agent............................................51
10.2 Expenses........................................................53
10.3 Proportionate Absorption of Losses..............................53
10.4 Delegation of Duties; Reliance..................................53
10.5 Limitation of Liability.........................................54
10.6 Default; Collateral.............................................55
10.7 Limitation of Liability.........................................55
10.8 Relationship of Lenders.........................................55
10.9 Benefits of Agreement...........................................55
10.10 Agents..........................................................55
SECTION 11 MISCELLANEOUS...................................................55
11.1 Headings........................................................55
11.2 Nonbusiness Days................................................56
11.3 Communications..................................................56
11.4 Form and Number of Documents....................................56
11.5 Exceptions to Covenants.........................................56
11.6 Survival........................................................56
11.7 Governing Law...................................................56
11.8 Invalid Provisions..............................................57
11.9 Entirety........................................................57
11.10 Jurisdiction; Venue; Service of Process; Jury Trial.............57
11.11 Amendments, Consents, Conflicts, and Waivers....................58
11.12 Multiple Counterparts...........................................58
11.13 Successors and Assigns; Assignments and Participations..........59
11.14 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances...........................................61
11.15 Confidentiality.................................................61
364-DAY REVOLVING
CREDIT AGREEMENT
iii
<PAGE>
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Committed Sums
Schedule 5.1 - Conditions Precedent to Closing
Schedule 7.12 - Existing Debt
Schedule 7.14 - Transactions with Affiliates
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit B-3 - Form of Term Conversion Request
Exhibit B-4 - Form of Competitive Bid Request
Exhibit B-5 - Form of Notice to Lenders of Competitive Bid Request
Exhibit B-6 - Form of Competitive Bid
Exhibit C - Form of Administrative Questionnaire
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Acceptance Agreement
Exhibit F-1 - Form of Opinion of General Counsel of Borrower
Exhibit F-2 - Form of Opinion of Special New York Counsel
364-DAY REVOLVING
CREDIT AGREEMENT
iv
<PAGE>
364-DAY REVOLVING CREDIT AGREEMENT
THIS 364-DAY REVOLVING CREDIT AGREEMENT is entered into as of June 8,
2001, among WORLDCOM, INC., a Georgia corporation ("BORROWER"), certain Lenders
(hereinafter defined), BANK OF AMERICA, N.A. and THE CHASE MANHATTAN BANK, as
Co-Administrative Agents (hereinafter defined), for themselves and the Lenders
(hereinafter defined), CITIBANK, N.A., as Syndication Agent (hereinafter
defined), and ABN AMRO BANK N.V. and DEUTSCHE BANK AG NEW YORK BRANCH, as
Co-Documentation Agents (hereinafter defined).
RECITALS
A. Borrower has requested that Lenders extend credit to Borrower in the
form of this 364-Day Revolving Credit Agreement (the "AGREEMENT"), providing for
a 364-day revolving credit facility in the aggregate principal amount of
$2,650,000,000.
B. Upon and subject to the terms and conditions of this Agreement, Lenders
are willing to extend such credit to Borrower.
Accordingly, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. As used herein:
364-DAY FACILITY means the revolving credit and term loan facility
(including any amendments, modifications, supplements, restatements, or
extensions of the facility as permitted herein) described in and subject to the
limitations of this Agreement.
ACCOUNTS RECEIVABLE FINANCING means any transaction or series of
transactions that may be entered into by any Consolidated Company pursuant to
which such Consolidated Company may sell, convey, grant a security interest in,
or otherwise transfer, undivided percentage interests in the Receivables Program
Assets; PROVIDED THAT, for purposes of determinations made pursuant to SECTIONS
7.13(g) and 7.19(d), any Accounts Receivable Financing involving a sale of
Receivables Program Assets to the Receivables Subsidiary by any Restricted
Company and a subsequent substantially concurrent resale of such Receivables
Program Assets, or an interest therein, to a third party shall be treated as a
single Accounts Receivable Financing transaction.
ACCOUNTS RECEIVABLE FINANCING AMOUNT means, with respect to any Accounts
Receivable Financing and without duplication, the aggregate outstanding
principal amount of the undivided percentage interests in the Receivables
Program Assets, representing Rights to be paid a specified principal amount from
such Receivables Program Assets.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by Administrative Agent to be equal to the
quotient obtained by dividing (a) the Eurodollar Rate for such
Eurodollar Rate Borrowing for such Interest Period by (b) 1 minus the Reserve
Requirement for such Eurodollar Rate Borrowing for such Interest Period.
364-DAY REVOLVING
CREDIT AGREEMENT
1
<PAGE>
ADMINISTRATIVE AGENT means Bank of America, N.A. and its permitted
successors or assigns as "ADMINISTRATIVE AGENT" for Lenders under this
Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Lender shall complete
and provide to Administrative Agent.
AFFILIATE of any Person means any other individual or entity who directly
or indirectly controls, or is controlled by, or is under common control with,
such Person, and, for purposes of this definition only, "CONTROL," "CONTROLLED
BY," and "UNDER COMMON CONTROL WITH" mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, Co-Administrative Agents, Syndication Agent,
and Co-Documentation Agents.
AGREEMENT means this 364-Day Revolving Credit Agreement and all Exhibits
and Schedules hereto, as each may be amended, modified, supplemented, or
restated from time to time.
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "LENDING OFFICE" of such Lender (or an Affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an Affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means the lowest percentage set forth in the table below
for the Type of Borrowing or Facility Fees (as the case may be) which
corresponds to Borrower's conformity, on any date of determination, with the
ratings (or implied ratings) established by both S&P and Moody's applicable to
Borrower's senior, unsecured, non-credit-enhanced, long term indebtedness for
borrowed money ("INDEX DEBT"):
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------
RATINGS APPLICABLE MARGIN
-----------------------------------------
EURODOLLAR
BASE RATE RATE FACILITY FEES
BORROWINGS BORROWINGS
- -------------------------------------------------------------------------
<S> <C> <C> <C>
CATEGORY 1
A or higher by S&P; 0.0000% 0.290% 0.0600%
A2 or higher by Moody's
- -------------------------------------------------------------------------
CATEGORY 2
A- by S&P; 0.0000% 0.3300% 0.0700%
A3 by Moody's
- -------------------------------------------------------------------------
CATEGORY 3
BBB+ by S&P; 0.0000% 0.3500% 0.1000%
Baa1 by Moody's
- -------------------------------------------------------------------------
</TABLE>
364-DAY REVOLVING
CREDIT AGREEMENT
2
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------
RATINGS APPLICABLE MARGIN
-----------------------------------------
EURODOLLAR
BASE RATE RATE FACILITY FEES
BORROWINGS BORROWINGS
- -------------------------------------------------------------------------
<S> <C> <C> <C>
CATEGORY 4
BBB by S&P; 0.0000% 0.5000% 0.1250%
Baa2 by Moody's
- -------------------------------------------------------------------------
CATEGORY 5
BBB- or lower by S&P; 0.0000% 0.6500% 0.1500%
Baa3 or lower by Moody's
- -------------------------------------------------------------------------
CATEGORY 6 0.0000% 0.8000% 0.2000%
BB+ or lower by S&P;
Ba1 or lower by Moody's
- -------------------------------------------------------------------------
</TABLE>
(a) For purposes of determining the Applicable Margin, (i) if neither
Moody's nor S&P shall have in effect a rating for Index Debt (other than by
reason of the circumstances referred to in the last sentence of this
definition), then both such rating agencies will be deemed to have established
ratings for Index Debt in Category 6; (ii) if only one of Moody's or S&P shall
have in effect a rating for Index Debt, Borrower and Lenders will negotiate in
good faith to agree upon another rating agency to be substituted by an agreement
for the rating agency which shall not have a rating in effect, and in the
absence of such agreement the Applicable Margin will be determined by reference
to the available rating; (iii) if the ratings established by Moody's and S&P
shall differ by one Category, the Applicable Margin shall be determined by
reference to the higher Category (with Category 1 being the highest and Category
6 being the lowest); (iv) if the ratings established by Moody's and S&P shall
differ by more than one Category, the Applicable Margin shall be determined by
reference to the Category that is one Category higher than the lower of the
actual debt ratings established by the two rating agencies: (FOR EXAMPLE, if the
rating from S&P is in Category 2 and the rating from Moody's is in Category 5,
the Applicable Margin shall be determined by reference to Category 4); and (v)
if any rating established by Moody's or S&P shall be changed (other than as a
result of a change in the rating system of either Moody's or S&P), such change
shall be effective as of the date on which such change is first publicly
announced by the rating agency making such change. If the rating system of
either Moody's or S&P shall change prior to the payment in full of the
Obligation and the cancellation of all commitments to lend hereunder, Borrower
and Lenders shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system. If both
Moody's and S&P shall cease to be in the business of rating corporate debt
obligations, Borrower and Lenders shall negotiate in good faith to agree upon a
substitute rating agency and to amend the references to specific ratings in this
definition to reflect the ratings used by such substitute rating agency.
(b) Notwithstanding the foregoing, on any date of determination of the
Applicable Margin for Eurodollar Rate Borrowings, if the sum of the Principal
Debt and the "COMMITMENT USAGE" (as such term is defined in the Multi-Year
Agreement) exceeds 50% of the Total Commitment, then the Applicable Margin for
Eurodollar Rate Borrowings shall be increased by .075% (such increased amount
being herein referred to as, the "UTILIZATION FEE").
364-DAY REVOLVING
CREDIT AGREEMENT
3
<PAGE>
APPROVED FUND means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
ARRANGERS means Banc of America Securities LLC and J.P. Morgan Securities
Inc. and their respective successors and assigns, in their capacity as joint
lead arrangers and joint book managers.
AUTHORIZATIONS means all filings, recordings, and registrations with, and
all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental Authority
(including, without limitation, the FCC and applicable PUCs), including without
limitation, any of the foregoing authorizing or permitting the acquisition,
construction, or operation of network facilities or any other telecommunications
system.
BANK OF AMERICA means Bank of America, N.A., in its individual capacity as
a Lender, and its permitted successors and assigns.
BASE RATE means, for any day, a fluctuating rate per annum equal to the
HIGHER of (a) the Federal Funds Rate for such day plus one-half of one percent
(.5%) and (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "PRIME RATE." Such rate is a rate
set by Bank of America based upon various factors including Bank of America's
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in the
public announcement of such change.
BASE RATE BORROWING means a Borrowing bearing interest at the SUM of the
Base Rate PLUS the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to
Borrower under the Loan Papers, whether such amount constitutes an original
disbursement of funds (as a Committed Borrowing, Competitive Borrowing, or
otherwise) or the continuation of an amount outstanding, or (b) by any Lender in
accordance with, and to satisfy the obligations of any Restricted Company under,
any Loan Paper.
BORROWING DATE is defined in SECTION 2.6(a).
BUSINESS DAY means (a) for all purposes, any day OTHER THAN Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, or New York, New York, and
(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been executed by
Borrower, Administrative Agent, and Lenders, and all conditions precedent
specified in SECTION 5.1 have been satisfied or waived.
364-DAY REVOLVING
CREDIT AGREEMENT
4
<PAGE>
CO-ADMINISTRATIVE AGENTS means Bank of America, N.A. and The Chase
Manhattan Bank, and their respective permitted successors or assigns as
"CO-ADMINISTRATIVE AGENTS" for Lenders under the Loan Papers.
CO-ARRANGERS means Banc of America Securities LLC, J.P. Morgan Securities
Inc., Salomon Smith Barney Inc., ABN AMRO Bank N.V., and Deutsche Banc Alex.
Brown Inc., and their respective permitted successors or assigns as
"CO-ARRANGERS" under this Agreement.
CO-DOCUMENTATION AGENTS means ABN AMRO Bank N.V. and Deutsche Bank AG New
York Branch, and their respective permitted successors or assigns as
"CO-DOCUMENTATION AGENTS" under the Loan Papers.
CODE means the INTERNAL REVENUE CODE OF 1986, as amended, TOGETHER WITH
rules and regulations promulgated thereunder.
COMMITMENT means an amount (subject to availability, reduction, or
cancellation as provided in this Agreement) equal to $2,650,000,000.
COMMITMENT PERCENTAGE means, on any date of determination for any Lender,
the proportion which any Lender's Committed Sum bears to the Commitment then in
effect (without reference to any Competitive Bids or Competitive Borrowing then
outstanding).
COMMITTED BORROWING means any Borrowing under the credit facility
described in SECTION 2.1, other than a Competitive Borrowing.
COMMITTED SUM means, on any date of determination for any Lender, the
amount stated beside its name on SCHEDULE 2.1 (as such amount may be subject to
availability, increase, reduction, adjustment, or cancellation from time to time
in accordance with this Agreement.)
COMPETITIVE BID means an offer by a Lender to fund a Borrowing under the
Competitive Bid Subfacility pursuant to SECTION 2.2.
COMPETITIVE BID NOTE means a promissory note in substantially the form of
EXHIBIT A-2 and all renewals and extensions of all or any part thereof.
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Lender
pursuant to SECTION 2.2, (a) in the case of a Eurodollar Rate Borrowing, the
margin which shall be added to or subtracted from the Adjusted Eurodollar Rate,
and (b) in the case of a Fixed Rate Borrowing, the fixed rate of interest, in
each case offered by the Lender making such Competitive Bid.
COMPETITIVE BID REQUEST means a request for Competitive Bids made pursuant
to SECTION 2.2(B) substantially in the form of EXHIBIT B-4.
COMPETITIVE BID SUBFACILITY means a subfacility under this Agreement as
described in and subject to the limitations of SECTION 2.2.
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
Subfacility.
364-DAY REVOLVING
CREDIT AGREEMENT
5
<PAGE>
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D.
CONSEQUENTIAL LOSS means any loss, cost, or expense which any Lender may
reasonably incur as a result of (a) any continuation, conversion, payment or
prepayment of any Borrowing (other than a Base Rate Borrowing) on a day other
than the last day of the Interest Period for such Borrowing (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise), or (b) any
failure by Borrower (for a reason other than the failure of such Lender to make
a Borrowing) to prepay, borrow, continue or convert any Borrowing (other than a
Base Rate Borrowing) on the date or in the amount notified by Borrower.
CONSOLIDATED COMPANIES means, at any date of determination thereof,
Borrower and each of its Subsidiaries (including the Unrestricted Subsidiaries).
CONSOLIDATED NET WORTH means, for any period, the consolidated
stockholders' equity of the Restricted Companies as determined in accordance
with GAAP.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of (a) the Financial Statements of Borrower
for the fiscal year ended December 31, 2000, and the three-month period ended
March 31, 2001, calculated on a consolidated basis for Borrower and the
Consolidated Companies; or (b) the Financial Statements required to be delivered
under SECTION 7.3(a) or 7.3(b), as the case may be, calculated on a consolidated
basis for the Consolidated Companies.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor, guarantor,
or otherwise; (c) all obligations of the type referred to in CLAUSES (a)(i)
through CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons secured by any
Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; (d) the face amount of all letters of credit and banker's
acceptances issued for the account of such Person, and without duplication, all
drafts drawn and unpaid thereunder; and (e) obligations arising under any
Accounts Receivable Financing which in accordance with GAAP should be classified
upon such Person's balance sheet as liabilities; PROVIDED, HOWEVER, THAT Debt
shall not include obligations of Borrower which are owed to a trust or other
special purpose entity, all of whose common equity is beneficially owned by
Borrower, SO LONG AS such obligations are held by such trusts or their
representatives and are subordinate in right of payment to the Obligation.
DEBTOR RELIEF LAWS means the BANKRUPTCY CODE OF THE UNITED STATES OF
AMERICA and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to time
in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
364-DAY REVOLVING
CREDIT AGREEMENT
6
<PAGE>
DEFAULT RATE means a per annum rate of interest equal from day to day to
the LESSER of (a) the sum of the Base Rate plus the Applicable Margin for Base
Rate Borrowings plus 2% AND (b) the Maximum Rate.
DETERMINING LENDERS means, for all purposes under the Loan Papers, (i) on
any date of determination occurring prior to the earlier of the Term Conversion
Date or the Termination Date, those Lenders who collectively hold at least 51%
of the Commitment; and (ii) on any date of determination occurring on or after
the earlier of the Termination Date or the Term Conversion Date, those Lenders
who collectively hold at least 51% of the Principal Debt.
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any such
securities, (b) the declaration or payment of any dividend on or with respect to
any such securities, and (c) any other payment by such Person with respect to
such securities.
DOLLARS and the symbol $ shall mean lawful money of the United States of
America.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of any Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); (c) an Approved Fund; and (d) any other Person approved by
Administrative Agent (which approval will not be unreasonably withheld or
delayed by Administrative Agent) and, unless a Default has occurred and is
continuing at the time any assignment is effected in accordance with SECTION
11.13, Borrower, such approval not to be unreasonably withheld or delayed by
Borrower and such approval to be deemed given by Borrower if no objection is
received by the assigning Lender and Administrative Agent from Borrower within
five Business Days after notice of such proposed assignment has been provided by
the assigning Lender to Borrower; PROVIDED, HOWEVER, that neither Borrower nor
any Affiliate of Borrower shall qualify as an Eligible Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by TITLE IV
of ERISA and established or maintained by Borrower or any ERISA Affiliate, but
not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. ss. 9601 ET SEQ.) ("CERCLA"), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 ET SEQ.), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 ET SEQ.) ("RCRA"), the Clean Water Act (33
U.S.C.ss.1251 ET SEQ.), the Clean Air Act (42 U.S.C. ss. 7401 ET SEQ.), the
Toxic Substances Control Act (15 U.S.C. ss. 2601 ET SEQ.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 ET SEQ.), the Safe
Drinking Water Act (42 U.S.C. ss. 201 and ss. 300f ET SEQ.) and the Rivers and
Harbors Act (33 U.S.C. ss. 401 ET SEQ.), the Oil Pollution Act (33 U.S.C. ss.
2701 ET SEQ.) and analogous state and local Laws, as any of the foregoing may
have been and may be amended or supplemented from time to time, and any
analogous future enacted or adopted Law, or (d) the Release or threatened
Release of Hazardous Substances.
ERISA means the EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means, with respect to Borrower or any of its
Subsidiaries, any company, trade, or business (whether or not incorporated)
which, for purposes of TITLE IV of ERISA, is a member of Borrower's
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controlled group or which is under common control with Borrower within the
meaning of SECTION 414(b), (c) or (m) of the Code.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any Interest
Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent
to be the offered rate that appears on the page of the Telerate screen
(and any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period; or
(b) if for any reason the rate in the preceding CLAUSE (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent
to be the offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period; or
(c) if the rates referenced in the preceding CLAUSES (a) and (b)are
not available, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by Administrative Agent to be the rate of
interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Borrowing being made, continued, or converted and with a
term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar market at
their request at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period.
EURODOLLAR RATE BORROWING means, as the case may be, either (a) a
Borrowing (OTHER THAN a Competitive Borrowing) bearing interest at the SUM of
the Adjusted Eurodollar Rate PLUS the Applicable Margin for Eurodollar Rate
Borrowings or (b) a Competitive Borrowing bearing interest at the SUM of the
Adjusted Eurodollar Rate PLUS or MINUS the margin indicated for such Competitive
Borrowing in the related Competitive Bid.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
EXISTING AGREEMENT means the Amended and Restated Facility A Revolving
Credit Agreement dated as of August 6, 1998, among Borrower, various lenders,
and Bank of America, N.A., f/k/a Bank of America National Trust and Savings
Association, successor by merger to Bank of America, N.A., f/k/a NationsBank,
N.A., successor by merger to NationsBank of Texas, N.A., as "ADMINISTRATIVE
AGENT" thereunder (as such agreement has been or may be amended, extended,
modified, or restated from time to time).
EXISTING DEBT means on any date of determination, (a) the secured and
unsecured Debt of Borrower and its Restricted Subsidiaries existing on the
Closing Date and described in PART A of SCHEDULE 7.12; (b) on and after the
effective date of any designation of Intermedia and its Subsidiaries as
"Restricted Subsidiaries," the secured and unsecured Debt of Intermedia and its
Subsidiaries existing on the Intermedia Merger Date and described in PART B of
SCHEDULE 7.12; and (c) renewals, extensions, and refinancings of any of the
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Existing Debt described in CLAUSES (A) and (B) TO THE EXTENT that the principal
amount under (or the maximum principal amount that may be borrowed under) such
Existing Debt is not increased on or after the Closing Date (with respect to
Existing Debt listed in PART A of SCHEDULE 7.12) or on or after the Intermedia
Merger Date (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).
FACILITY FEE is defined in SECTION 4.3.
FCC means the Federal Communications Commission and any successor
regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
PROVIDED THAT (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Bank of America on such day on
such transactions as determined by Administrative Agent (which determination
shall be conclusive and binding, absent manifest error).
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk of fluctuations in
interest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
or other contract which is intended to reduce or eliminate the market risk of
holding currency or a commodity in either the cash or futures markets, which
Financial Hedge under either CLAUSE (a) or CLAUSE (b) is entered into by any
Restricted Company with any Person under the Laws of a jurisdiction in which
such contracts are legal and enforceable (EXCEPT as enforceability may be
limited by applicable Debtor Relief Laws and general principles of equity);
PROVIDED THAT, all documentation for Financial Hedges must conform to ISDA
standards.
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures.
FIXED RATE BORROWING means any Competitive Borrowing made from a Lender
pursuant to SECTION 2.2 based upon an actual percentage rate per annum offered
by such Lender, expressed as a decimal (to no more than four decimal places) and
accepted by Borrower.
FUND means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding, or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which (a) with respect to the covenant
contained in SECTION 7.22 (and, to the extent used in or relating to such
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covenant, any defined terms), are in effect on the date hereof, and (b) for all
other purposes hereunder, are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or federal
judicial, executive, or legislative instrumentality, (b) private arbitration
board or panel, or (c) central bank.
HAZARDOUS SUBSTANCE means (a) any substance that is designated, defined or
classified as a hazardous waste, hazardous material, pollutant, contaminant or
toxic or hazardous substance under any Environmental Law, including without
limitation, any hazardous substance within the meaning of SECTION 101(14) of
CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste
oil, diesel fuel, jet fuel, and other petroleum hydrocarbons, (c) regulated
asbestos and asbestos-containing materials in any form, (d) polychlorinated
biphenyls, or (e) urea formaldehyde foam.
INDENTURES means any indentures or other agreements pursuant to which
notes, debentures, bonds, or debt securities are issued by any Restricted
Company, including, without limitation, the following: Indenture dated as of May
15, 2000, between Borrower and The Chase Manhattan Trust Company, N.A., as
trustee; Indenture dated as of March 1, 1997, between Borrower and The Chase
Manhattan Trust Company, N.A., as successor trustee; Indenture dated as of
January 26, 1994, between MFS Communications Company, Inc. and IBJ Schroder Bank
& Trust Co., as trustee; Indenture dated as of January 23, 1996 between MFS
Communications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
Indenture dated as of February 26, 1996, between Brooks Fiber Properties, Inc.
and The Bank of New York, as trustee; and Indenture dated as of May 29, 1997,
between Brooks Fiber Properties, Inc. and The Bank of New York, as trustee;
Indenture dated as of October 15, 1989, between MCI and Citibank, N.A., as
trustee; Indenture dated as of February 17, 1995, between MCI and Citibank,
N.A., as trustee; and Junior Subordinated Indenture dated as of May 29, 1996,
between MCI and Wilmington Trust Company, as trustee, in each case as the same
have been or may be amended, modified, supplemented, or restated from time to
time; and on and after the effective date of any designation of Intermedia and
its Subsidiaries as "RESTRICTED SUBSIDIARIES," references to "INDENTURES" shall
also include the Indenture dated as of May 14, 1996, between Intermedia and
SunTrust Bank; Indenture dated as of July 9, 1997, between Intermedia and
SunTrust Bank; Indenture dated as of October 30, 1997, between Intermedia and
SunTrust Bank; Indenture dated as of December 23, 1997, between Intermedia and
SunTrust Bank; Indenture dated as of May 27, 1998, between Intermedia and
SunTrust Bank; Senior Note Indenture dated February 24, 1999, between Intermedia
and SunTrust Bank; and Senior Subordinated Note Indenture dated February 24,
1999, between Intermedia and SunTrust Bank, in each case as the same may have
been amended, modified, supplemented, or restated from time to time.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
INTERMEDIA means Intermedia Communications Inc. and its successors by
merger.
INTERMEDIA MERGER means the merger of Intermedia with and into Wildcat
Acquisition Corp., a Wholly-owned Subsidiary of Borrower, in accordance with the
terms of the Intermedia Merger Agreement.
INTERMEDIA MERGER AGREEMENT means the Agreement and Plan of Merger dated
as of September 1, 2000, among Borrower, Intermedia, and Wildcat Acquisition
Corp. (as amended to date and as hereinafter amended subject to the consent of
Administrative Agent to any material amendment thereof, which consent shall not
be unreasonably withheld).
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INTERMEDIA MERGER DATE means the date upon which the Intermedia Merger
closes in accordance with the Intermedia Merger Agreement.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1, and subject to the terms and conditions of this
Agreement, their respective successors and assigns, but not any Participant who
is not otherwise a party to this Agreement.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Agreement, certificates delivered pursuant to
this Agreement, and Exhibits and Schedules hereto, (b) all agreements,
documents, or instruments in favor of Agents or Lenders (or Administrative Agent
on behalf of Lenders) ever delivered pursuant to this Agreement, or otherwise
delivered in connection with all or any part of the Obligation, and (c) all
renewals, extensions, or restatements of, or amendments or supplements to, any
of the foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Restricted Company
to perform any of its payment or other material obligations under the Loan
Papers or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers, (b)
material and adverse effect on the business, properties, condition (financial or
otherwise) or results of operations of the Restricted Companies, in each case
considered as a whole, or (c) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of operations of the
Consolidated Companies, in each case considered as a whole. The phrase "COULD BE
A MATERIAL ADVERSE EVENT" (and any similar phrase herein) means that there is a
material probability of such Material Adverse Event occurring, and the phrase
"COULD NOT BE A MATERIAL ADVERSE EVENT" (and any similar phrase herein) means
that there is not a material probability of such Material Adverse Event
occurring.
MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary of
Borrower (or any group of Subsidiaries of Borrower) that individually or
collectively own 10% or more of the book value of the consolidated assets of the
Restricted Companies determined as of the date of, and with respect to, the
Current Financials and the related Compliance Certificate.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest
which, under applicable Law, such Lender is permitted to contract for, charge,
take, reserve, or receive on the Obligation.
MCI means MCI Communications Corporation.
MOODY'S means Moody's Investors Service, Inc. or any successor thereto.
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MULTI-YEAR AGREEMENT means the Revolving Credit Agreement dated June 8,
2001 among Borrower, Bank of America, N.A. and The Chase Manhattan Bank, as
"CO-ADMINISTRATIVE AGENTS" thereunder, and the lenders party thereto (as the
same may be amended, modified, supplemented, or restated from time to time).
MULTI-YEAR COMMITMENT means an amount (subject to availability, reduction,
or cancellation as provided in the Multi-Year Agreement) equal to
$1,600,000,000.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in SECTIONS 3(37)
or 4001(A)(3) of ERISA or SECTION 414(f) of the Code to which any Restricted
Company or any ERISA Affiliate is making, or has made, or is accruing, or has
accrued, an obligation to make contributions.
NOTES means, at the time of any determination thereof, all outstanding and
unpaid Revolving Notes, Competitive Bid Notes, and Term Notes.
NOTICE OF BORROWING is defined in SECTION 2.6(a).
NOTICE OF CONVERSION is defined in SECTION 3.10.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to any Agent, or any Lender by any Restricted Company arising
from, by virtue of, or pursuant to any Loan Paper, TOGETHER WITH all interest
accruing thereon, fees, costs, and expenses (including, without limitation, all
reasonable attorneys' fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Papers.
PARTICIPANT is defined in SECTION 11.13(e).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED SUCCESSOR CORPORATION means any corporation into which Borrower
is merged or consolidated, SO LONG AS:
(a) immediately after giving effect to such merger or consolidation,
the surviving corporation shall have then-effective debt ratings (or
implied debt ratings) published by Moody's and S&P applicable to such
surviving corporation's senior, unsecured, non-credit-enhanced, long term
Debt, equal to or higher than BBB- by S&P, and Baa3 by Moody's;
(b) such surviving corporation shall be a corporation organized and
existing under the laws of the United States of America, any state thereof
or the District of Columbia, and shall expressly assume all of Borrower's
obligations for the due and punctual payment of the Obligation and the
performance or observance of the Loan Papers;
(c) immediately after giving effect to such merger or consolidation,
no Default or Potential Default shall have occurred and be continuing;
(d) Borrower shall have delivered to Administrative Agent a
certificate signed by a Responsible Officer of Borrower and a written
opinion of counsel satisfactory to Administrative Agent (and its counsel),
each stating that such merger or consolidation complies with the
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requirements for a Permitted Successor Corporation and that all conditions
precedent herein provided for relating to such merger or consolidation
have been satisfied;
(e) no "CHANGE OF CONTROL" (as described in SECTION 8.6) has
occurred as a result of such merger or consolidation; and
(f) on and prior to the closing of any such merger or consolidation,
such merger and consolidation shall have been approved and recommended by
the Board of Directors of Borrower.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
PRINCIPAL DEBT means, on any date of determination, the aggregate unpaid
principal balance of all Borrowings under this Agreement.
PRO RATA or PRO RATA PART means on any date of determination for any
Lender, (a) at any time prior to the earlier of the Termination Date or the Term
Conversion Date, the proportion that such Lender's Committed Sum bears to the
Commitment Percentage, or (b) at any time on or after the earlier of the
Termination Date or the Term Conversion Date, the proportion that the Principal
Debt owed to such Lender bears to the Principal Debt owed to all Lenders.
PUC means any state or local regulatory agency or Governmental Authority
that exercises jurisdiction over the rates or services or the ownership,
construction, or operation of network facilities or telecommunications systems
or over Persons who own, construct, or operate network facilities or
telecommunications systems.
RECEIVABLES means all Rights of any Consolidated Company (as a "SELLER"
under Receivables Documents) to payments (whether constituting accounts, chattel
paper, instruments, general intangibles, or otherwise, and including the Right
to payment of any interest or finance charges) with respect to dedicated
telecommunications services provided by any such Consolidated Company to its
customers between designated customer premises.
RECEIVABLES DOCUMENTS means one or more receivables purchase agreements
entered into by one or more Consolidated Companies and each other instrument,
agreement, and document entered into by such Consolidated Companies evidencing
Accounts Receivable Financings.
RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which undivided
percentage interests are transferred by any Consolidated Company pursuant to the
Receivables Documents, (b) all Receivables Related Assets with respect to the
Receivables described in CLAUSE (a) of this definition, and (c) all collections
(including recoveries) and other proceeds of the assets described in the
foregoing clauses.
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
documentation governing or relating to Receivables (including Rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables), (b) any proceeds of such Receivables and any lockboxes or accounts
in which such proceeds are deposited, and (c) spread accounts and other similar
accounts (and any amounts on deposit therein) established in connection with an
Accounts Receivable Financing.
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RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
created in connection with the transactions contemplated by an Accounts
Receivable Financing, which Subsidiary engages in no activities, has no material
liabilities, or owns no other assets, other than those incidental to such
Accounts Receivable Financing.
REGISTER is defined in SECTION 11.13(c).
REGULATION D means Regulation D of the Board of Governors of the Federal
Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the Federal
Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposal, deposit,
dispersal, migrating, or other movement into the air, ground, or surface water,
or soil.
REPORTABLE EVENT shall have the meaning specified in SECTION 4043 of ERISA
or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in SECTIONS 4043.21, 4043.24
AND 4043.28 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
RESERVE REQUIREMENT means, for any day during an Interest Period, the
reserve percentage (expressed as a decimal, rounded upward to the next 1/100 of
1%) at which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement with respect to, "EUROCURRENCY
LIABILITIES" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (a) any category
of liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (b) any category of extensions of credit
or other assets which include Eurodollar Rate Borrowings. The Adjusted
Eurodollar Rate for each outstanding Eurodollar Rate Borrowing shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive
officer, chief financial officer, senior vice president, or treasurer of
Borrower, or, for all purposes under the Loan Papers other than SECTION 8.6, any
other officer designated from time to time by the Board of Directors of
Borrower, which designated officer is acceptable to Administrative Agent.
RESTRICTED COMPANIES, at any time of determination thereof, means Borrower
and the Restricted Subsidiaries.
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower (other
than the Unrestricted Subsidiaries).
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REVOLVING NOTE means a promissory note substantially in the form of
EXHIBIT A-1, and all renewals and extensions of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate, and maintain the
network facilities.
S&P means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Papers.
SOLVENT means, as to a Person, that (a) the aggregate fair market value of
such Person's assets exceeds its liabilities (whether contingent, subordinated,
unmatured, unliquidated, or otherwise), (b) such Person has sufficient cash flow
to enable it to pay its Debts as they mature, and (c) such Person does not have
unreasonably small capital to conduct such Person's businesses.
SUBSIDIARY of any Person means any entity of which an aggregate of more
than 50% of the Voting Stock issued by such Person is owned of record or
beneficially, directly or indirectly, by such Person.
SYNDICATION AGENT means Citibank, N.A.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERM CONVERSION DATE means the date upon which the Principal Debt is
converted to a Term Loan in accordance with SECTION 2.4.
TERM CONVERSION REQUEST is defined in SECTION 2.4(a).
TERM LOAN means loans made by Lenders pursuant to SECTION 2.4.
TERM LOAN MATURITY DATE has the meaning set forth in SECTION 2.4.
TERM NOTE means a promissory note in substantially the form of EXHIBIT
A-3, and all renewals and extensions of all or any part thereof.
TERMINATION DATE means the earlier of (a) June 7, 2002, as such date may
be extended pursuant to SECTION 2.3, and (b) the effective date of any other
termination or cancellation of Lenders' commitments to lend under, and in
accordance with, this Agreement.
TOTAL CAPITALIZATION means, on any date of determination, the SUM of Total
Debt and Consolidated Net Worth.
TOTAL COMMITMENT means, on any date of determination, the sum of the
Commitment hereunder and the Multi-Year Commitment.
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TOTAL DEBT means (without duplication) all Debt of the Restricted
Companies on a consolidated basis; PROVIDED THAT, in determining "TOTAL DEBT,"
Debt arising under the 8.00% Junior Subordinated Deferrable Interest Debentures
(the "DEBENTURES") issued by MCI pursuant to Supplemental Indenture No. 1 to the
Junior Subordinated Indenture dated as of May 29, 1996, between MCI and
Wilmington Trust Company, as Trustee (as the same have been or may be amended,
modified, supplemented, or restated, but not increased from time to time) shall
not be included, SO LONG AS no "EVENT OF DEFAULT" under such Debentures or the
related Indenture has occurred and is continuing on any date of determination.
TYPE means any type of Borrowing determined with respect to the interest
option applicable thereto.
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
mean (a) the Receivables Subsidiary and (b) any Subsidiary of Borrower
designated as an "UNRESTRICTED SUBSIDIARY" from time to time in accordance with
SECTION 7.21. UNRESTRICTED SUBSIDIARY, at any time of determination, shall mean
any of the Unrestricted Subsidiaries.
UTILIZATION FEE has the meaning set forth in CLAUSE (b) of the definition
of "APPLICABLE MARGIN" in this SECTION 1.1.
VOTING STOCK shall mean securities (as such term is defined in SECTION
2(1) of the Securities Act of 1933, as amended) of any class or classes or other
interests, the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors or other governing body
of the issuer of such securities or interests.
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of securities or
other equity interests (EXCEPT shares required as directors' qualifying shares)
issued by such Subsidiary shall be owned by Borrower or one or more of its
Wholly-owned Subsidiaries.
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES. Unless otherwise
specified, in the Loan Papers (a) where appropriate, the singular includes the
plural and VICE VERSA, and words of any gender include each other gender, (b)
heading and caption references may not be construed in interpreting provisions,
(c) monetary references are to currency of the United States of America, (d)
section, paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Paper in which they are used, (e) references to "TELECOPY,"
"FACSIMILE," "FAX," or similar terms are to facsimile or telecopy transmissions,
(f) references to "INCLUDING" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items that follow references to specific items are limited
to the same type or character of those specific items is not applicable in the
Loan Papers, (h) references to any Person include that Person's heirs, personal
representatives, successors, trustees, receivers, and permitted assigns, (i)
references to any Law include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for it, and (j)
references to any Loan Paper or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used in the
Loan Papers and the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period.
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SECTION 2 BORROWING PROVISIONS.
2.1 THE FACILITYSubject to and in reliance upon the terms, conditions,
representations, and warranties in the Loan Papers, each Lender, severally and
not jointly, agrees to lend to Borrower such Lender's Commitment Percentage of
one or more Committed Borrowings under this Agreement not to exceed such
Lender's Committed Sum under this Agreement, which, subject to the Loan Papers,
Borrower may borrow, repay, and reborrow under this Agreement; PROVIDED THAT (i)
each such Committed Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date; (ii) each such
Committed Borrowing shall be in an amount not less than (A) $5,000,000 or a
greater integral multiple of $1,000,000 (if a Base Rate Borrowing), or (B)
$10,000,000 or a greater integral multiple of $1,000,000 (if a Eurodollar Rate
Borrowing); and (iii) on any date of determination, after giving effect to any
requested Committed Borrowing, the Principal Debt shall never exceed the
Commitment.
2.2 COMPETITIVE BID SUBFACILITY.
(a) In addition to Committed Borrowings under this Agreement
otherwise provided for herein, but subject to the terms and conditions of
the Loan Papers, Borrower may, as set forth in this SECTION 2.2, request
Lenders to make offers to make Competitive Borrowings under this
Agreement. Lenders may, but shall have no obligation to, make any such
offers, and Borrower may, but shall have no obligation to, accept any such
offers. Any Competitive Borrowings made available to Borrower hereunder
shall be subject, however, to the conditions that on any date of
determination: (i) the aggregate principal outstanding under all
Competitive Borrowings under this Agreement made by all Lenders shall not
exceed the Commitment then in effect; (ii) on any date of determination,
the Principal Debt shall not exceed the Commitment; and (iii) each
Competitive Borrowing under the Competitive Bid Subfacility in respect of
this Agreement must occur on a Business Day and prior to the Business Day
immediately preceding the Termination Date.
(b) In order to request Competitive Bids, Borrower shall deliver a
Competitive Bid Request to Administrative Agent (i) not later than 10:00
a.m. Dallas, Texas time on the fourth Business Day preceding the Borrowing
Date for any requested Competitive Borrowing that will be comprised of
Eurodollar Rate Borrowings, or (ii) not later than 10:00 a.m. Dallas,
Texas time one Business Day before the Borrowing Date for any requested
Competitive Borrowing that will be comprised of Fixed Rate Borrowings. A
Competitive Bid Request that does not conform substantially to the format
of EXHIBIT B-4 may be rejected by Administrative Agent, and Administrative
Agent shall promptly notify Borrower of such rejection. Each Competitive
Bid Request shall refer to this Agreement and shall specify (i) whether
the Competitive Borrowing then being requested will be comprised of
Eurodollar Rate Borrowings or Fixed Rate Borrowings, (ii) the Borrowing
Date of such Competitive Borrowing (which shall be a Business Day) and the
aggregate principal amount thereof (which shall not be less than
$5,000,000 or a greater integral multiple of $1,000,000), and (iii) the
Interest Period with respect thereto (which may not be more than six
months and which may not extend beyond the Termination Date). Promptly
after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, Administrative Agent shall notify Lenders of the Competitive
Bid Request on a form substantially similar to EXHIBIT B-5 hereto,
pursuant to which the Lenders are invited to bid, subject to the terms and
conditions of this Agreement, to make Competitive Borrowings pursuant to
such Competitive Bid Request. Notwithstanding the foregoing,
Administrative Agent shall have no obligation to invite any Lender to make
a Competitive Bid
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pursuant to this SECTION 2.2 until such Lender has delivered a completed
Administrative Questionnaire to Administrative Agent.
(c) Each Lender may make one or more Competitive Bids to Borrower
responsive to each respective Competitive Bid Request. Each Competitive
Bid by a Lender must be received by Administrative Agent substantially in
the form of EXHIBIT B-6, (i) no later than 11:00 a.m. Dallas, Texas time
on the third Business Day preceding the Borrowing Date for any requested
Competitive Borrowing that will be comprised of Eurodollar Rate
Borrowings, or (ii) prior to 10:00 a.m. Dallas, Texas time on the
Borrowing Date for any requested Competitive Borrowing that will be
comprised of Fixed Rate Borrowings. Competitive Bids that do not conform
substantially to the format of EXHIBIT B-6 may be rejected by
Administrative Agent after conferring with, and upon the instruction of,
Borrower, and Administrative Agent shall notify the appropriate Lender of
such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and shall (x) specify the principal amount (which shall be
in a minimum principal amount of $5,000,000 or a greater integral multiple
of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by Borrower and may exceed such Lender's
Committed Sum, subject to the limitations set forth in SECTION 2.2(a)
hereof) of the Competitive Borrowing such Lender is willing to make to
Borrower, (y) specify the Competitive Bid Rate at which such Lender is
prepared to make its Competitive Borrowing, and (z) confirm the Interest
Period with respect thereto specified by Borrower in its Competitive Bid
Request. A Competitive Bid submitted by a Lender pursuant to this SECTION
2.2(C) shall be irrevocable.
(d) Administrative Agent shall promptly notify Borrower of all
Competitive Bids made and the Competitive Bid Rate and the principal
amount of each Competitive Borrowing in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid.
(e) Borrower may, subject only to the provisions of this SECTION
2.2(e), accept or reject any or all of the Competitive Bids referred to in
SECTION 2.2(c); PROVIDED, HOWEVER, that the aggregate amount of the
Competitive Bids so accepted by Borrower may not exceed the principal
amount of the Competitive Borrowing requested by Borrower (subject to the
further limitations of SECTION 2.2(a) hereof). Borrower shall notify
Administrative Agent whether and to what extent it has decided to accept
or reject any or all of the bids referred to in SECTION 2.2(c), (i) not
later than 10:45 a.m. Dallas, Texas time three Business Days before the
Borrowing Date specified for a proposed Competitive Borrowing that is
deemed a Eurodollar Rate Borrowing or (ii) not later than 11:00 a.m.,
Dallas, Texas time on the day specified for a proposed Competitive
Borrowing that is deemed a Fixed Rate Borrowing; PROVIDED, HOWEVER, that
(w) the failure by Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in SECTION 2.2(c), (x) Borrower
shall not accept a bid under this Agreement in the same or lower principal
amount made at a particular Competitive Bid Rate if Borrower has decided
to reject a bid made at a lower Competitive Bid Rate, (y) if Borrower
shall accept bids made at a particular Competitive Bid Rate but shall be
restricted by other conditions hereof from borrowing the principal amount
of the Competitive Borrowing in respect of which bids at such Competitive
Bid Rate have been made, then Borrower shall accept a ratable portion of
each bid made at such Competitive Bid Rate based as nearly as possible on
the respective principal amounts of the Competitive Borrowing for which
such bids were made, and (z) no bid shall be accepted for a Competitive
Borrowing unless the aggregate principal amount to be funded pursuant to
all accepted bids under this Agreement shall be in a minimum amount of
$5,000,000 or a greater integral multiple of $1,000,000 for each
respective Lender whose bid is accepted. Notwithstanding the foregoing, if
it is necessary for Borrower to accept a ratable
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allocation of the bids for this Agreement made in response to a
Competitive Bid Request (whether pursuant to the events specified in
CLAUSE (y) above or otherwise) and the available principal amount of the
Competitive Borrowing to be allocated among Lenders submitting Competitive
Bids is not sufficient to enable Competitive Borrowings to be allocated to
each such Lender in a minimum principal amount of $5,000,000 or a greater
integral multiple of $1,000,000, then Borrower shall select the Lenders to
be allocated such Competitive Borrowings and shall round allocations up or
down to the next higher or lower multiple of $500,000 as it shall deem
appropriate. A notice given by Borrower pursuant to this SECTION 2.2(e)
shall be irrevocable.
(f) Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (which notice to
those Lenders whose Competitive Bids have been accepted will be given
within one hour from the time such bid was accepted by Borrower and shall
further indicate in what amount and at what Competitive Bid Rate), and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to advance the Competitive Borrowing in
respect of which its bid has been accepted. After completing the
notifications referred to in the immediately preceding sentence,
Administrative Agent shall notify each bidding Lender of the aggregate
principal amount of all Competitive Bids under this Agreement accepted for
and the range of Competitive Bid Rates submitted in connection with that
Competitive Borrowing.
(g) If any Competitive Borrowing is to consist of Eurodollar Rate
Borrowings, Administrative Agent shall determine the Adjusted Eurodollar
Rate for the relevant Interest Period, and promptly after making such
determination, shall notify Borrower and Lenders that will be
participating in such Competitive Borrowing of such Adjusted Eurodollar
Rate.
(h) Each Lender that has received notice pursuant to SECTION 2.2(f)
that all or a portion of its Competitive Bid has been accepted by Borrower
shall make the amount of its Competitive Borrowing available to
Administrative Agent in immediately available funds at Administrative
Agent's office not later than 1:00 p.m., Dallas, Texas time, on the date
of the requested Competitive Borrowing. Upon satisfaction of the
applicable conditions set forth in SECTION 5.2, Administrative Agent shall
make all funds so received available to Borrower in like funds as received
by Administrative Agent. No Lender shall be responsible for the failure of
any other Lender to advance its Competitive Borrowing.
(i) If Administrative Agent shall at any time elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid
directly to Borrower one-half hour earlier than the latest time at which
the other Lenders are required to submit their bids to Administrative
Agent pursuant to SECTION 2.2(c).
(j) Each Competitive Borrowing shall be due and payable on the last
day of the applicable Interest Period; PROVIDED THAT if Borrower fails to
repay any Competitive Borrowing on such day, Borrower shall be deemed to
have given a Notice of Borrowing requesting the Lenders to make a Base
Rate Borrowing under this Agreement in the amount of such Competitive
Borrowing, subject to satisfaction of the conditions specified in SECTION
5.2; PROVIDED THAT failure to repay such Competitive Borrowing on the last
day of the applicable Interest Period shall not constitute a failure to
satisfy such conditions.
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2.3 OPTIONAL RENEWAL OF COMMITMENTS.
(a) OPTIONAL RENEWAL PROCEDURES. Borrower may request that the
Termination Date be extended for all or a portion of the Commitment to a
date which is no later than the 364th day after the then-current
Termination Date; PROVIDED THAT, (i) any such extension request shall be
made in writing (an "EXTENSION REQUEST") by Borrower and delivered to
Administrative Agent no more than 60 days prior to (but no later than 30
days prior to) the then-current Termination Date; (ii) no Extension
Request may be made after the Term Conversion Date or which would have the
effect of extending the Termination Date to a date later than the
then-applicable "TERMINATION DATE" under the Multi-Year Agreement.
Promptly upon receipt of an Extension Request, Administrative Agent shall
notify Lenders of such request.
(i) LENDERS' RESPONSE TO EXTENSION REQUEST. Lenders may, at
their option, accept or reject such Extension Request by giving
written notice to Administrative Agent delivered no earlier than 30
days prior to (but no later than 25 days prior to) the then-
effective Termination Date (such 25th day being the "RESPONSE
DATE"). If any Lender shall fail to give such notice to
Administrative Agent by the Response Date, such Lender shall be
deemed to have rejected the requested extension. If the Extension
Request is not consented to by Determining Lenders by the Response
Date, the Extension Request will be rejected, and this Commitment
will terminate on the then-effective Termination Date (unless prior
to such Termination Date, Borrower elects to convert the Principal
Debt, or a portion thereof, in accordance with SECTION 2.4 hereof).
If Determining Lenders consent to the Extension Request by the
Response Date, the Termination Date for those Lenders consenting to
the extension (for purposes of this SECTION 2.3(a), the "ACCEPTING
LENDERS") shall be automatically extended to the date which is the
364th day after the then-current Termination Date; PROVIDED THAT,
the Termination Date may never be extended on any one date for a
period greater than 364 days.
(ii) ADDITIONAL PROCEDURES TO EXTEND THE REJECTED AMOUNT. If
the Extension Request is consented to by Determining Lenders, but
fewer than all Lenders (any Lender not consenting to the Extension
Request being referred to in this SECTION 2.3(a) as a "REJECTING
LENDER"), then Administrative Agent shall, within 48 hours of making
such determination, notify the Accepting Lenders and Borrower of the
aggregate Committed Sums held by the Rejecting Lenders (as used in
this SECTION 2.3(a), the "REJECTED AMOUNT"). Each Accepting Lender
shall have the Right, but not the obligation, to elect to increase
its respective Committed Sum by an amount not to exceed the Rejected
Amount, which election shall be made by notice from each Accepting
Lender to Administrative Agent given not later than ten days after
the date notified by Administrative Agent, specifying the amount of
such proposed increase in such Accepting Lender's Committed Sum. If
the aggregate amount of the proposed increases in the Committed Sums
of all Accepting Lenders making such an election does not equal or
exceed the Rejected Amount, then Borrower shall have the Right to
add one or more financial institutions (which are not Rejecting
Lenders and which are Eligible Assignees) as Lenders (as used in
this SECTION 2.3(a), a "PURCHASING LENDER") to replace such
Rejecting Lenders, which Purchasing Lenders shall have aggregate
Committed Sums not greater than those of the Rejecting Lenders (less
any increases in the Committed Sums of Accepting Lenders, as
described in the following CLAUSE (iii)). The transfer of Committed
Sums and outstanding Borrowings from Rejecting Lenders to Purchasing
Lenders or Accepting Lenders shall take place on the effective date
of, and pursuant to the
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execution, delivery, and acceptance of, Assignment and Acceptance
Agreements in accordance with the procedures set forth in SECTION
11.13(b).
(iii) ADJUSTMENTS TO, AND TERMINATIONS OF, COMMITMENTS.
(A) If less than 100% (but more than 51%) of the
Commitment is extended (whether by virtue of Borrower's
failure to request an extension of the full Commitment or by
virtue of any Lender not consenting to any Extension Request),
then the Commitment shall automatically be reduced on the
Termination Date on which the applicable approved extension is
effective by an amount equal to (as the case may be) (i) the
portion of the Commitment not requested to be extended by
Borrower in its Extension Request (which terminated portion of
the Commitment shall be allocated Pro Rata among the Lenders)
or (ii) the amount of the Rejected Amount (to the extent not
replaced by Accepting Lenders or Purchasing Lenders pursuant
to the procedures set forth in the foregoing SECTION
2.3(A)(II)). Each Rejecting Lender shall have no further
obligation or Committed Sum following the Termination Date on
which the applicable approved extension is effective, other
than any obligation accruing prior to such date as provided
herein.
(B) If the aggregate amount of the proposed increases in
the Committed Sums of all Accepting Lenders making an election
to increase their respective Committed Sums is in excess of
the Rejected Amount, then (i) the Rejected Amount shall be
allocated ratably among such Accepting Lenders based on the
respective amounts of the proposed increases to Committed Sums
elected by such Accepting Lenders; and (ii) the respective
Committed Sums of each such Accepting Lender shall be
increased by the respective amount allocated pursuant to
CLAUSE (I) of this SECTION 2.3(a)(iii)(B), such that, after
giving effect to the approved extensions and all such
terminations and increases, no reduction will occur in the
aggregate amount of the Commitment.
(C) If the aggregate amount of the proposed increases to
the Committed Sums of all Accepting Lenders making such an
election to so increase their respective Committed Sums equals
the Rejected Amount, then the respective Committed Sums of
such Accepting Lenders shall be increased by the respective
amounts of their proposed increases, such that, after giving
effect to the approved extensions and all such terminations
and increases, no reduction will occur in the aggregate amount
of the Commitment.
(D) If the aggregate amount of the proposed increases to
the Committed Sums of all Accepting Lenders making such an
election is less than the Rejected Amount, then (i) the
respective Committed Sums of each such Accepting Lender shall
be increased by the respective amount of its proposed
increase; and (ii) the amount of the Commitment shall be
reduced by the amount of the Rejected Amount (to the extent
not replaced by the Accepting Lenders or the Purchasing
Lenders, if any).
(b) NO OBLIGATION TO RENEW. Borrower acknowledges that (i) neither
Administrative Agent nor any Lender has made any representations to
Borrower regarding its intent to agree to any
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extensions set forth in this Section, (ii) neither Administrative Agent
nor any Lender shall have any obligation to extend the Commitment (or any
portion thereof), and (iii) Administrative Agent's and Lenders' agreement
to one or more extensions shall not commit Administrative Agent or the
Lenders to any additional extensions.
2.4 CONVERSION TO TERM LOANS. Borrower shall have the option to convert
the Principal Debt outstanding on the Termination Date (after giving effect to
any loan repayments on or prior to the Termination Date) to a Term Loan maturing
no later than one year after the Term Conversion Date (the "TERM LOAN MATURITY
DATE"); PROVIDED, HOWEVER, that (i) no Term Loan Conversion may be made on any
date on which all or any portion of the Commitment is available to be borrowed
as revolving Borrowings under the 364-Day Facility, and (ii) no Term Loan
Conversion may be made which would have the effect of extending the Termination
Date to a date later than the then-applicable "TERMINATION DATE" under the
Multi-Year Agreement. Such Term Loan conversion is subject to and on the terms
and conditions set forth below:
(a) No sooner than 90 days (and not later than 10 days) preceding
the Termination Date, Borrower shall deliver to Administrative Agent a
Term Conversion Request in substantially the form of EXHIBIT B-3 (a "TERM
CONVERSION REQUEST"), which, among other things, shall (i) specify
Borrower's election to make such conversion to a Term Loan, and (ii)
specify the Type of Borrowing or Borrowings to which the Principal Debt
shall be converted and the Interest Periods therefor (if applicable) on
the Term Conversion Date; and
(b) No Default or Potential Default shall exist on either the date
such Term Conversion Request is delivered or on the Term Conversion Date;
and no Default or Potential Default shall exist after giving effect to the
Term Loan conversion.
2.5 TERMINATION OF COMMITMENTS. Without premium or penalty, and upon
giving not less than three (3) Business Days prior written and irrevocable
notice to Administrative Agent, Borrower may permanently terminate in whole or
in part the unused portion of the Commitment; PROVIDED THAT: (a) each partial
termination shall be in an amount of not less than $5,000,000 or a greater
integral multiple of $1,000,000; (b) the amount of the Commitment may not be
reduced below the Principal Debt then outstanding; and (c) each reduction shall
be allocated among the Lenders in accordance with their respective Commitment
Percentages. Promptly after receipt of such notice of termination or reduction,
Administrative Agent shall notify each Lender of the proposed cancellation or
reduction. Such termination or partial reduction of the Commitment shall be
effective on the Business Day specified in Borrower's notice (which date must be
at least three (3) Business Days after Borrower's delivery of such notice). In
the event that the Commitment is reduced to zero at a time when there is no
outstanding Principal Debt, this Agreement shall be terminated to the extent
specified in SECTION 11.14, and all Facility Fees and other fees then earned and
unpaid hereunder and all other amounts of the Obligation relating to this
Agreement then due and owing shall be immediately due and payable, without
notice or demand by Administrative Agent or any Lender.
2.6 BORROWING PROCEDURE. The following procedures apply to Committed
Borrowings:
(a) Each Borrowing shall be made on Borrower's notice (a "NOTICE OF
BORROWING," substantially in the form of EXHIBIT B-1) to Administrative
Agent requesting that Lenders fund a Committed Borrowing on a certain date
(the "BORROWING DATE"), which notice (i) shall be irrevocable and binding
on Borrower, (ii) shall specify the Borrowing Date, amount, Type, and (for
a Committed Borrowing comprised of Eurodollar Rate Borrowings) Interest
Period, and (iii) must
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be received by Administrative Agent no later than 10:00 a.m. Dallas, Texas
time on the third Business Day preceding the Borrowing Date for any
Eurodollar Rate Borrowing or on the Business Day immediately preceding the
Borrowing Date for any Base Rate Borrowing. Administrative Agent shall
timely notify each Lender with respect to each Notice of Borrowing.
(b) Each Lender shall remit its Commitment Percentage of each
requested Committed Borrowing to Administrative Agent's principal office
in Dallas, Texas, in funds which are or will be available for immediate
use by Administrative Agent by 1:00 p.m. Dallas, Texas time on the
Borrowing Date therefor. Subject to receipt of such funds, Administrative
Agent shall (unless to its actual knowledge any of the conditions
precedent therefor have not been satisfied by Borrower or waived by
Determining Lenders) make such funds available to Borrower by causing such
funds to be deposited to Borrower's account as designated to
Administrative Agent by Borrower. Notwithstanding the foregoing, unless
Administrative Agent shall have been notified by a Lender prior to a
Borrowing Date that such Lender does not intend to make available to
Administrative Agent such Lender's Commitment Percentage of the applicable
Committed Borrowing, Administrative Agent may assume that such Lender has
made such proceeds available to Administrative Agent on such date, as
required herein, and Administrative Agent may (unless to its actual
knowledge any of the conditions precedent therefor have not been satisfied
by Borrower or waived by Determining Lenders), in reliance upon such
assumption (but shall not be required to), make available to Borrower a
corresponding amount in accordance with the foregoing terms, but, if such
corresponding amount is not in fact made available to Administrative Agent
by such Lender on such Borrowing Date, Administrative Agent shall be
entitled to recover such corresponding amount on demand (i) from such
Lender, together with interest at the Federal Funds Rate during the period
commencing on the date such corresponding amount was made available to
Borrower and ending on (but excluding) the date Administrative Agent
recovers such corresponding amount from such Lender, or (ii) if such
Lender fails to pay such corresponding amount forthwith upon such demand,
then from Borrower, TOGETHER WITH interest at a rate per annum equal to
the applicable rate for such Committed Borrowing during the period
commencing on such Borrowing Date and ending on (but excluding) the date
Administrative Agent recovers such corresponding amount from Borrower. No
Lender shall be responsible for the failure of any other Lender to make
its Commitment Percentage of any Committed Borrowing.
SECTION 3 TERMS OF PAYMENT.
3.1 LOAN ACCOUNTS, NOTES, AND PAYMENTS.
(a) The Principal Debt owed to each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender in the ordinary
course of business. The loan accounts or records maintained by
Administrative Agent (including, without limitation, the Register) and
each Lender shall be conclusive evidence absent manifest error of the
amount of the Borrowings made by Borrower from each Lender under this
Agreement (and subfacilities thereunder) and the interest and principal
payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of Borrower under
the Loan Papers to pay any amount owing with respect to the Obligation.
(b) Upon the request of any Lender made through Administrative
Agent, the Principal Debt owed to such Lender may be evidenced by one or
more of the following Notes (as the case may be): (i) a Revolving Note
(with respect to Principal Debt, prior to the Term Conversion Date, other
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than under the Competitive Bid Subfacility); (ii) a Competitive Bid Note
(with respect to Principal Debt arising and outstanding under the
Competitive Bid Subfacility under this 364-Day Facility); and (iii) a Term
Note (with respect to Principal Debt on and after the Term Conversion
Date).
(c) All payments of principal, interest, and other amounts to be
made by Borrower under this Agreement and the other Loan Papers shall be
made to Administrative Agent at its principal office in Dallas, Texas in
Dollars which are or will be available for immediate use by Administrative
Agent by 12:00 noon Dallas, Texas time on the day due, without condition
or deduction for setoff, counterclaim, defense, or recoupment. Subject to
the definition of "INTEREST PERIOD" herein, whenever any payment under
this Agreement or any other Loan Paper shall be stated to be due on a day
that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable and as the
case may be. Payments made after 12:00 noon, Dallas, Texas, time shall be
deemed made on the Business Day next following. Administrative Agent shall
pay to each Lender any payment of principal, interest, or other amount to
which such Lender is entitled hereunder on the same day Administrative
Agent shall have received the same from Borrower; PROVIDED such payment is
received by Administrative Agent prior to 12:00 noon Dallas, Texas time,
and otherwise before 12:00 noon Dallas, Texas time on the Business Day
next following. If and to the extent Administrative Agent shall not make
such payments to Lenders when due as set forth in the preceding sentence,
such unpaid amounts shall accrue interest, payable by Administrative
Agent, at the Federal Funds Rate from the due date until (but not
including) the date on which Administrative Agent makes such payments to
Lenders.
(d) Unless Borrower has notified Administrative Agent prior to the
date any payment is required to be made by it to Administrative Agent
hereunder that Borrower will not make such payment, Administrative Agent
may assume that Borrower has timely made such payment and may (but shall
not be so required to), in reliance thereon, make available a
corresponding amount to Lenders entitled thereto. If and to the extent
that such payment was not in fact made to Administrative Agent in
immediately available funds, then each Lender shall forthwith on demand
repay to Administrative Agent the portion of such assumed payment that was
made available to such Lender in immediately available funds, together
with interest thereon in respect of each day from and including the date
such amount was made available by Administrative Agent to such Lender to
the date such amount is repaid to Administrative Agent in immediately
available funds, at the Federal Funds Rate from time to time in effect. A
notice of Administrative Agent to any Lender with respect to any amount
owing under this CLAUSE (d) shall be conclusive, absent manifest error.
3.2 INTEREST AND PRINCIPAL PAYMENTS.
(a) Interest on each Eurodollar Rate Borrowing or on each Fixed Rate
Borrowing shall be due and payable as it accrues on the last day of its
respective Interest Period and on the Termination Date and the Term Loan
Maturity Date, as applicable; PROVIDED THAT if any Interest Period is a
period greater than three (3) months, then accrued interest shall also be
due and payable on each date that is a multiple of three (3) months after
the commencement of such Interest Period. Interest on each Base Rate
Borrowing shall be due and payable as it accrues on each March 31, June
30, September 30, and December 31, and on the Termination Date and Term
Loan Maturity Date.
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(b) To the extent that the Principal Debt is not converted to a Term
Loan on or prior to the Termination Date, Borrower shall pay on such
Termination Date all outstanding Principal Debt not so converted to a Term
Loan, TOGETHER WITH all accrued and unpaid interest and fees.
(c) To the extent any portion of the Principal Debt is converted to
a Term Loan, the Principal Debt outstanding under the Term Loan shall be
due and payable in a single installment on the Term Loan Maturity Date.
(d) On any date of determination, if the Principal Debt exceeds the
Commitment then in effect, then Borrower shall make a mandatory prepayment
of the Principal Debt in at least the amount of such excess, TOGETHER WITH
(i) all accrued and unpaid interest on the principal amount so prepaid and
(ii) any Consequential Loss arising as a result thereof.
(e) After giving Administrative Agent advance written notice of the
intent to prepay, Borrower may voluntarily prepay all or any part of the
Principal Debt from time to time and at any time, in whole or in part,
without premium or penalty; PROVIDED THAT: (i) such notice must be
received by Administrative Agent by 12:00 noon Dallas, Texas time on (A)
the third Business Day preceding the date of prepayment of a Eurodollar
Rate Borrowing, and (B) one Business Day preceding the date of prepayment
of a Base Rate Borrowing; (ii) each such partial prepayment must be in a
minimum amount of at least $5,000,000 or a greater integral multiple of
$1,000,000 thereof (if a Eurodollar Rate Borrowing or a Base Rate
Borrowing); (iii) all accrued interest on the Obligation must also be paid
in full, to the date of such prepayment; and (iv) Borrower shall pay any
related Consequential Loss within ten (10) days after demand therefor.
Each notice of prepayment shall specify the prepayment date, the facility
or the subfacility hereunder being prepaid, the Type of Borrowing(s) and
amount(s) of such Borrowing(s) to be prepaid and shall constitute a
binding obligation of Borrower to make a prepayment on the date stated
therein. Notwithstanding the foregoing, Borrower shall not voluntarily
prepay any Competitive Borrowing prior to the last day of the Interest
Period therefor.
3.3 INTEREST OPTIONS. Except where specifically otherwise provided,
Borrowings shall bear interest at a rate per annum equal to the LESSER OF (a) as
to the respective Type of Borrowing (as designated by Borrower in accordance
with this Agreement), the Base Rate plus the Applicable Margin for Base Rate
Borrowings, the Adjusted Eurodollar Rate plus the Applicable Margin for
Eurodollar Rate Borrowings, the Adjusted Eurodollar Rate plus the Competitive
Bid Rate for Eurodollar Rate Borrowings under the Competitive Bid Subfacility,
or any other Competitive Bid Rate under the Competitive Bid Subfacility, as the
case may be, AND (b) the Maximum Rate. Each change in the Base Rate or the
Maximum Rate, subject to the terms of this Agreement, will become effective,
without notice to Borrower or any other Person, upon the effective date of such
change.
3.4 QUOTATION OF RATES. It is hereby acknowledged that a Responsible
Officer or other appropriately designated employee of Borrower may call
Administrative Agent on or before the date on which a Notice of Borrowing is to
be delivered by Borrower in order to receive an indication of the rates then in
effect, but such indicated rates shall neither be binding upon Administrative
Agent or Lenders nor affect the rate of interest which thereafter is actually in
effect when the Notice of Borrowing is given.
3.5 DEFAULT RATE. At the option of Determining Lenders and to the extent
permitted by Law, all past-due Principal Debt and accrued interest thereon shall
bear interest from maturity (stated or by acceleration) at the Default Rate
until paid, regardless whether such payment is made before or after entry of a
judgment.
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3.6 INTEREST RECAPTURE. If the designated rate applicable to any Borrowing
exceeds the Maximum Rate, the rate of interest on such Borrowing shall be
limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Principal Debt, the total amount of interest paid or accrued is
less than the amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and to the extent
permitted by Law, Borrower shall pay an amount equal to the difference between
(a) the LESSER OF the amount of interest which would have accrued if such
designated rates had at all times been in effect AND the amount of interest
which would have accrued if the Maximum Rate had at all times been in effect,
and (b) the amount of interest actually paid or accrued on the Principal Debt.
3.7 INTEREST CALCULATIONS.
(a) All payments of interest shall be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the
case of a Eurodollar Rate Borrowing, a Fixed Rate Borrowing, or Base Rate
Borrowings calculated with reference to the Federal Funds Rate (unless
such calculation would result in the interest on the Borrowings exceeding
the Maximum Rate in which event such interest shall be calculated on the
basis of a year of 365 or 366 days, as the case may be) and 365 or 366
days, as the case may be, in the case of a Base Rate Borrowing calculated
with reference to the Base Rate. All interest rate determinations and
calculations by Administrative Agent shall be conclusive and binding
absent manifest error.
(b) The provisions of this Agreement relating to calculation of the
Base Rate, the Adjusted Eurodollar Rate, and Competitive Bid Rates are
included only for the purpose of determining the rate of interest or other
amounts to be paid hereunder that are based upon such rate.
3.8 MAXIMUM RATE. Regardless of any provision contained in any Loan Paper,
no Lender shall ever be entitled to contract for, charge, take, reserve,
receive, or apply, as interest on the Obligation, or any part thereof, any
amount in excess of the Maximum Rate, and, if Lenders ever do so, then such
excess shall be deemed a partial prepayment of principal and treated hereunder
as such and any remaining excess shall be refunded to Borrower. In determining
if the interest paid or payable exceeds the Maximum Rate, Borrower and Lenders
shall, to the maximum extent permitted under applicable Law, (a) treat all
Borrowings as but a single extension of credit (and Lenders and Borrower agree
that such is the case and that provision herein for multiple Borrowings is for
convenience only), (b) characterize any nonprincipal payment as an expense, fee,
or premium rather than as interest, (c) exclude voluntary prepayments and the
effects thereof, and (d) amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the Obligation;
PROVIDED THAT, if the Obligation is paid and performed in full prior to the end
of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Amount, Lenders shall
refund such excess, and, in such event, Lenders shall not, to the extent
permitted by Law, be subject to any penalties provided by any Laws for
contracting for, charging, taking, reserving, or receiving interest in excess of
the Maximum Amount.
3.9 INTEREST PERIODS. When Borrower requests any Eurodollar Rate Borrowing
or a Fixed Rate Borrowing, Borrower may elect the interest period (each an
"INTEREST PERIOD") applicable thereto, which shall be, at Borrower's option,
one, two, three, or six months or, if available to all Lenders, nine or twelve
months (in respect of any Eurodollar Rate Borrowing) and any period of up to six
(6) months (with respect
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to any Fixed Rate Borrowing); PROVIDED, HOWEVER, THAT: (a) the initial Interest
Period for a Eurodollar Rate Borrowing shall commence on the date of such
Borrowing (including the date of any conversion thereto), and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period applicable thereto expires; (b)
if any Interest Period for a Eurodollar Rate Borrowing begins on a day for which
there is no numerically corresponding Business Day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the next Business
Day immediately following what otherwise would have been such numerically
corresponding day in the calendar month at the end of such Interest Period
(UNLESS such date would be in a different calendar month from what would have
been the month at the end of such Interest Period, or UNLESS there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); (c) no Interest Period
may be chosen with respect to any portion of the Principal Debt which would
extend beyond the scheduled repayment date (including any dates on which
mandatory prepayments are required to be made) for such portion of the Principal
Debt; and (d) no more than an aggregate of ten (10) Interest Periods shall be in
effect at one time.
3.10 CONVERSIONS. Borrower may (a) convert a Eurodollar Rate Borrowing on
the last day of an Interest Period to a Base Rate Borrowing, (b) convert a Base
Rate Borrowing at any time to a Eurodollar Rate Borrowing, and (c) elect a new
Interest Period (in the case of a Eurodollar Rate Borrowing), by giving notice
(a "NOTICE OF CONVERSION," substantially in the form of EXHIBIT B-2) of such
intent no later than 10:00 a.m. Dallas, Texas time on the third Business Day
prior to the date of conversion or the last day of the Interest Period, as the
case may be (in the case of a conversion to a Eurodollar Rate Borrowing or an
election of a new Interest Period), and no later than 10:00 a.m. Dallas, Texas
time one Business Day prior to the last day of the Interest Period (in the case
of a conversion to a Base Rate Borrowing); PROVIDED THAT the principal amount
converted to, or continued as, a Eurodollar Rate Borrowing shall be in an amount
not less than $10,000,000 or a greater integral multiple of $1,000,000.
Administrative Agent shall timely notify each Lender with respect to each Notice
of Conversion. Absent Borrower's Notice of Conversion or election of a new
Interest Period, a Eurodollar Rate Borrowing shall be deemed converted to a Base
Rate Borrowing effective as of the expiration of the Interest Period applicable
thereto. No Eurodollar Rate Borrowing may be either made or continued as a
Eurodollar Rate Borrowing, and no Base Rate Borrowing may be converted to a
Eurodollar Rate Borrowing, if the interest rate for such Eurodollar Rate
Borrowing would exceed the Maximum Rate.
3.11 ORDER OF APPLICATION.
(a) So long as no Default or Potential Default has occurred and is
continuing, payments and prepayments of the Obligation shall be applied in
the order and manner as Borrower may direct; PROVIDED THAT, each such
payment or prepayment (other than payments of fees payable solely to
Administrative Agent or a specific Lender) shall be allocated to each
Lender in the proportion that the Principal Debt owed to such Lender bears
to the Principal Debt owed to all Lenders under this Agreement (or any
subfacility hereunder) in respect of which such payment was made.
(b) If a Default or Potential Default has occurred and is continuing
(or if Borrower fails to give directions as permitted under SECTION
3.11(a)), any payment or prepayment (including proceeds from the exercise
of any Rights) shall be applied in the following order:
(i) to the ratable payment of all fees, reasonable expenses,
and indemnities for which Agents or Lenders have not been paid or
reimbursed in accordance with the Loan
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Papers; (as used in this SECTION 3.11(b)(i), a "RATABLE PAYMENT" for
any Lender or any Agent shall be, on any date of determination, that
proportion which the portion of the total fees, expenses, and
indemnities owed to such Lender or Agent bears to the total
aggregate fees, expenses, and indemnities owed to all Lenders and
Agents on such date of determination);
(ii) to the Pro Rata payment of all accrued and unpaid
interest on the Principal Debt;
(iii) to the Pro Rata payment of the remaining Principal Debt
in such order as Determining Lenders may elect (PROVIDED THAT,
Determining Lenders will apply such proceeds in an order that will
minimize any Consequential Loss); and
(iv) to the payment of the remaining Obligation in the order
and manner Determining Lenders deem appropriate.
Subject to the provisions of SECTION 10 and provided that Administrative Agent
shall in any event not be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Determining Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby, Administrative Agent shall promptly distribute
such amounts to each Lender in accordance with this Agreement and the related
Loan Papers.
3.12 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any payment
(whether voluntary, involuntary, or otherwise, including, without limitation, as
a result of exercising its Rights under SECTION 3.13) (other than pursuant to
SECTION 3.15, 3.19, or 3.20) which is in excess of its ratable share of any such
payment, such Lender shall purchase from the other Lenders such participations
as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; PROVIDED, HOWEVER, that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery. Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this section may to the fullest extent permitted
by Law, exercise all of its Rights of payment (including the Right of offset)
with respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
3.13 OFFSET. Upon the occurrence and during the continuance of a Default,
each Lender shall be entitled to exercise (for the benefit of all Lenders in
accordance with SECTION 3.12) the Rights of offset and/or banker's Lien against
each and every account and other property, or any interest therein, which
Borrower may now or hereafter have with, or which is now or hereafter in the
possession of, such Lender to the extent of the full amount of the Obligation
owed to such Lender.
3.14 BOOKING BORROWINGS. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; PROVIDED THAT no
Affiliate shall be entitled to receive any greater payment under SECTION 3.15
than the transferor Lender would have been entitled to receive with respect to
such Borrowings.
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3.15 INCREASED COST AND REDUCED RETURN.
(a) CHANGES IN LAW. If, after the date hereof, the adoption of any
applicable Law or any change in any applicable Law, or any change in the
interpretation or administration thereof by any Governmental Authority, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending
Office) to any Tax with respect to any Eurodollar Rate Borrowing,
its Notes, or its obligation to loan Eurodollar Rate Borrowings, or
change the basis of taxation of any amounts payable to such Lender
(or it