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AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
among
WORLDCOM, INC.,
Borrower
NATIONSBANK, N.A.,
Arranging Agent and Administrative Agent
NATIONSBANC MONTGOMERY SECURITIES LLC,
Lead Arranger
BANK OF AMERICA NT & SA,
BARCLAYS BANK PLC,
THE CHASE MANHATTAN BANK,
CITIBANK, N.A.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, and
ROYAL BANK OF CANADA,
Co-Syndication Agents
and
THE LENDERS NAMED HEREIN,
Lenders
$3,750,000,000
DATED AS OF AUGUST 6, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1 DEFINITIONS AND TERMS . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Number and Gender of Words; Other References . . . . . . . . . 19
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . 20
SECTION 2 BORROWING PROVISIONS . . . . . . . . . . . . . . . . . . . . . 20
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2 LC Subfacility . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 Swing Line Subfacility . . . . . . . . . . . . . . . . . . . . 24
2.4 Competitive Bid Subfacility . . . . . . . . . . . . . . . . . 28
2.5 Termination of Commitments . . . . . . . . . . . . . . . . . . 30
2.6 Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3 TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . 32
3.1 Loan Accounts, Notes, and Payments . . . . . . . . . . . . . . 32
3.2 Interest and Principal Payments . . . . . . . . . . . . . . . 32
3.3 Interest Options . . . . . . . . . . . . . . . . . . . . . . . 33
3.4 Quotation of Rates . . . . . . . . . . . . . . . . . . . . . . 33
3.5 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.6 Interest Recapture . . . . . . . . . . . . . . . . . . . . . . 34
3.7 Interest Calculations . . . . . . . . . . . . . . . . . . . . 34
3.8 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.9 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . 35
3.10 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.11 Order of Application . . . . . . . . . . . . . . . . . . . . . 35
3.12 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . 37
3.13 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.14 Booking Borrowings . . . . . . . . . . . . . . . . . . . . . . 37
3.15 Increased Cost and Reduced Return . . . . . . . . . . . . . . 37
3.16 Limitation on Types of Loans . . . . . . . . . . . . . . . . . 39
3.17 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.18 Treatment of Affected Loans . . . . . . . . . . . . . . . . . 39
3.19 Compensation; Replacement of Facility A Lenders . . . . . . . 40
3.20 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.1 Treatment of Fees . . . . . . . . . . . . . . . . . . . . . . 42
4.2 Fees of Administrative Agent and Arranger . . . . . . . . . . 42
4.3 Standby LC Fees . . . . . . . . . . . . . . . . . . . . . . . 42
4.4 Facility A Commitment Fees . . . . . . . . . . . . . . . . . . 43
SECTION 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 43
5.1 Conditions Precedent to Closing . . . . . . . . . . . . . . . 43
5.2 Conditions Precedent to Each Borrowing. . . . . . . . . . . . 43
</TABLE>
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 44
6.1 Purpose of Credit Facility . . . . . . . . . . . . . . . . . . 44
6.2 Existence, Good Standing, Authority, and Authorizations . . . 44
6.3 Authorization and Contravention . . . . . . . . . . . . . . . 45
6.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 45
6.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . 45
6.6 Litigation, Claims, Investigations . . . . . . . . . . . . . . 45
6.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.8 Environmental Matters . . . . . . . . . . . . . . . . . . . . 46
6.9 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . 46
6.10 Properties; Liens . . . . . . . . . . . . . . . . . . . . . . 46
6.11 Government Regulations . . . . . . . . . . . . . . . . . . . . 46
6.12 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.13 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 47
6.14 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.1 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 47
7.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . 47
7.3 Items to be Furnished . . . . . . . . . . . . . . . . . . . . 47
7.4 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.6 Payment of Obligations . . . . . . . . . . . . . . . . . . . . 49
7.7 Maintenance of Existence, Assets, and Business . . . . . . . . 49
7.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.9 Preservation and Protection of Rights . . . . . . . . . . . . 50
7.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 50
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 50
7.12 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.13 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.14 Transactions with Affiliates . . . . . . . . . . . . . . . . . 52
7.15 Compliance with Laws and Documents . . . . . . . . . . . . . . 52
7.16 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.17 Permitted Distributions . . . . . . . . . . . . . . . . . . . 52
7.18 Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . 52
7.19 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . 53
7.20 Mergers and Dissolutions; Sale of Capital Stock . . . . . . . 53
7.21 Designation of Unrestricted Companies . . . . . . . . . . . . 53
7.22 Financial Covenant . . . . . . . . . . . . . . . . . . . . . . 53
7.23 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . 54
7.24 Repayment of Certain Existing Debt . . . . . . . . . . . . . . 54
SECTION 8 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.1 Payment of Obligation . . . . . . . . . . . . . . . . . . . . 54
8.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.3 Debtor Relief . . . . . . . . . . . . . . . . . . . . . . . . 54
8.4 Judgments and Attachments . . . . . . . . . . . . . . . . . . 54
8.5 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
8.6 Change of Control . . . . . . . . . . . . . . . . . . . . . . 55
8.7 Default Under Other Agreements . . . . . . . . . . . . . . . . 55
8.8 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 55
8.9 Default Under 364-Day Facility . . . . . . . . . . . . . . . . 56
8.10 Validity and Enforceability of Loan Papers . . . . . . . . . . 56
SECTION 9 RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . 56
9.1 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . 56
9.2 Company Waivers . . . . . . . . . . . . . . . . . . . . . . . 57
9.3 Performance by Administrative Agent . . . . . . . . . . . . . 57
9.4 Delegation of Duties and Rights . . . . . . . . . . . . . . . 57
9.5 Not in Control . . . . . . . . . . . . . . . . . . . . . . . . 57
9.6 Course of Dealing . . . . . . . . . . . . . . . . . . . . . . 58
9.7 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . 58
9.8 Application of Proceeds . . . . . . . . . . . . . . . . . . . 58
9.9 Certain Proceedings . . . . . . . . . . . . . . . . . . . . . 58
9.10 Limitation of Rights . . . . . . . . . . . . . . . . . . . . . 58
9.11 Expenditures by Lenders . . . . . . . . . . . . . . . . . . . 58
9.12 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10 AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . . . 60
10.1 Administrative Agent . . . . . . . . . . . . . . . . . . . . . 60
10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.3 Proportionate Absorption of Losses . . . . . . . . . . . . . . 62
10.4 Delegation of Duties; Reliance . . . . . . . . . . . . . . . . 62
10.5 Limitation of Liability . . . . . . . . . . . . . . . . . . . 63
10.6 Default; Collateral . . . . . . . . . . . . . . . . . . . . . 64
10.7 Limitation of Liability . . . . . . . . . . . . . . . . . . . 64
10.8 Relationship of Lenders . . . . . . . . . . . . . . . . . . . 64
10.9 Benefits of Agreement . . . . . . . . . . . . . . . . . . . . 64
10.10 Co-Syndication Agents . . . . . . . . . . . . . . . . . . . . 64
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 65
11.1 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
11.2 Nonbusiness Days . . . . . . . . . . . . . . . . . . . . . . . 65
11.3 Communications . . . . . . . . . . . . . . . . . . . . . . . . 65
11.4 Form and Number of Documents . . . . . . . . . . . . . . . . . 65
11.5 Exceptions to Covenants . . . . . . . . . . . . . . . . . . . 65
11.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
11.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 66
11.8 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . 66
11.9 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
11.10 Jurisdiction; Venue; Service of Process; Jury Trial . . . . . 66
11.11 Amendments, Consents, Conflicts, and Waivers . . . . . . . . . 67
11.12 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . 68
11.13 Successors and Assigns; Assignments and Participations . . . . 68
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . 70
11.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 71
11.16 Restatement of Existing Agreement . . . . . . . . . . . . . . 71
</TABLE>
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
iii
<PAGE> 5
SCHEDULES AND EXHIBITS
Schedule 2.1 - Facility A Lenders and Facility A Committed Sums
Schedule 2.3 - Swing Line Lenders and Swing Line 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 Facility A Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of Swing Line Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit B-3 - Form of Notice of LC
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 B-7 - Form of Notice of Swing Line Borrowing
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
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
iv
<PAGE> 6
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
THIS AGREEMENT is entered into as of August 6, 1998, among WORLDCOM,
INC., a Georgia corporation ("BORROWER"), certain Facility A Lenders
(hereinafter defined), the Co-Syndication Agents (hereinafter defined), and
NATIONSBANK, N.A. (successor in interest by merger to NationsBank of Texas,
N.A.), as a Facility A Lender and as Administrative Agent (hereinafter defined)
for itself and the other Lenders.
RECITALS
A. Borrower has entered into the Facility A Revolving Credit
Agreement (as renewed, extended, or amended to date, the "EXISTING AGREEMENT")
dated as of July 3, 1997, with NationsBank, N.A. (in its capacity as
"Administrative Agent" thereunder and as a lender) and certain other lenders
party thereto (together with NationsBank, N.A., the "EXISTING FACILITY A
LENDERS"), providing for, among other things, a revolving loan and standby
letter of credit facility in the aggregate principal amount of $3,750,000,000.
B. Subject to the terms and conditions set forth below, Borrower and
"Determining Lenders" (as defined in the Existing Agreement) desire to entirely
amend, modify, and restate the Existing Agreement in order, among other
things, to amend certain provisions of the Existing Agreement.
C. The amendment and restatement of the Existing Agreement hereunder
is not intended by the parties to constitute either a novation or a discharge
or satisfaction of the indebtedness and obligations under the Existing
Agreement, which indebtedness and obligations under the Existing Agreement
shall remain outstanding hereunder on the terms and conditions hereinafter
provided.
In consideration of the foregoing and the mutual covenants contained
herein, Borrower, NationsBank, N.A. (in its capacity as Administrative Agent
under the Existing Agreement), and Determining Lenders under the Existing
Agreement agree that, effective upon the Closing Date, the Existing Agreement
is amended and restated in its entirety, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
364-DAY FACILITY means the revolving credit and term loan facility
described in and subject to the limitations of the 364-Day Facility Agreement.
364-DAY FACILITY AGREEMENT means that certain 364-Day Revolving Credit
and Term Loan Agreement, dated of even date herewith, among Borrower,
NationsBank, N.A., (in its capacity as "Administrative Agent" thereunder and as
a lender) and certain other Lenders party thereto (as the same may be amended,
modified, supplemented, or restated from time to time).
364-DAY FACILITY COMMITMENT means an amount (subject to availability,
reduction, or cancellation as provided in the 364-Day Facility Agreement) equal
to $7,000,000,000.
364-DAY PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the 364-Day
Facility.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
<PAGE> 7
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 the 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.
ADMINISTRATIVE AGENT means NationsBank, N.A. (successor in interest by
merger to NationsBank of Texas, N.A.) and its permitted successor or successors
as administrative agent and arranging agent for Facility A Lenders under this
Facility A Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Facility A 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).
ALTERNATE RATE means on any date of determination, for any Swing Line
Borrowing, the sum of (i) the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for 30-day deposits in
Dollars at approximately 11:00 a.m. Dallas, Texas time on the date of such
Swing Line Borrowing plus (ii) the Applicable Margin for Eurodollar Rate
Borrowings in effect on such date of determination. If for any reason such
rate is not available, the term "Alternate Rate" shall mean for any Swing Line
Borrowing, the sum of (i) the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for 30-day deposits in Dollars at approximately 11:00
a.m., Dallas, Texas time, on the date of such Swing Line Borrowing; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%) plus (ii) the Applicable
Margin for Eurodollar Rate Borrowings in effect on such date of determination.
ALTERNATE RATE SWING LINE BORROWING has the meaning as defined in
SECTION 2.3(a).
APPLICABLE LENDING OFFICE means, for each Facility A Lender and for
each Type of Borrowing, the "Lending
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
2
<PAGE> 8
Office" of such Facility A Lender (or an Affiliate of such Facility A Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such
Facility A Lender (or an Affiliate of such Facility A 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 commitment 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>
---------------------------------------------------------------------------------------------------------
APPLICABLE MARGIN
===================================================
RATINGS BASE RATE EURODOLLAR RATE FACILITY A
BORROWINGS BORROWINGS COMMITMENT FEES
=========================================================================================================
<S> <C> <C> <C>
Category 1
----------
BBB+ or higher by S&P; 0.0000% 0.3500% 0.1100%
Baa1 or higher by Moody's
---------------------------------------------------------------------------------------------------------
Category 2
----------
BBB by S&P; 0.0000% 0.4000% 0.1250%
Baa2 by Moody's
---------------------------------------------------------------------------------------------------------
Category 3
----------
BBB- by S&P; 0.0000% 0.4500% 0.1500%
Baa3 by Moody's
---------------------------------------------------------------------------------------------------------
Category 4
----------
BB+ by S&P; 0.0000% 0.5000% 0.1750%
Ba1 by Moody's
---------------------------------------------------------------------------------------------------------
Category 5
----------
BB or lower by S&P; 0.0000% 0.7500% 0.2500%
Ba2 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 5; (ii) if only one of Moody's or S&P shall have in
effect a rating for Index Debt, Borrower and the Facility A
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
numerically lower Category: (for example, if the rating from S&P
is in Category 1 and the rating from Moody's is in Category 2,
the Applicable Margin shall be determined by reference to
Category 1); (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
numerical Category lower than the numerically higher of the two
Categories corresponding to the 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),
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
3
<PAGE> 9
such change shall be effective as of the date on which such
change is first 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
the Facility A 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 the Facility A 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) On any date of determination of the Applicable Margin for
Eurodollar Rate Borrowings, if the sum of the Facility A
Commitment Usage, the Facility B Principal Debt, and the 364-Day
Principal Debt exceeds 33 1/3% (but less than 66 2/3%) of the
Total Commitment, then the Applicable Margin for Eurodollar Rate
Borrowings shall be increased by 0.05% (the "UTILIZATION FEE");
provided that, if the Facility A Commitment Usage, the Facility B
Principal Debt, and the 364-Day Principal Debt equals or exceeds
66 2/3% of the Total Commitment, then such Utilization Fee shall
be increased to 0.10%.
ARRANGER means NationsBanc Montgomery Securities LLC, and its successors
and assigns, in its capacity as "Lead Arranger" under the Loan Papers.
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.
BASE RATE means, for any day, the 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 Prime Rate for such day. Any change in the Base Rate due to a change
in the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or Federal Funds Rate.
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 Facility A Agreement.
BORROWING means any amount disbursed (a) by one or more Facility A
Lenders to Borrower under the Facility A Loan Papers (whether under the LC
Subfacility, the Competitive Bid Subfacility, or the Swing Line Subfacility, or
otherwise), whether such amount constitutes an original disbursement of funds,
the continuation of an amount outstanding, or payment of a draft under an LC,
or (b) by any Facility A Lender in accordance with, and to satisfy the
obligations of any Restricted Company under, any Facility A 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, (b)
in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
4
<PAGE> 10
United States dollars are conducted in the London interbank market and
commercial banks are open for international business in London, and (c) in
addition to the foregoing, for purposes of any fundings in, or conversions to
or from, Foreign Currency, a day when commercial banks are open for
international business in the principal financial center in the country which
issues such Foreign Currency, as determined by Administrative Agent.
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 Facility A Agreement has
been executed by Borrower and Determining Lenders, and all conditions precedent
specified in SECTION 5.1 have been satisfied or waived.
CO-SYNDICATION AGENTS means Bank of America NT & SA, Barclays Bank PLC,
The Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of New
York, and Royal Bank of Canada.
CODE means the Internal Revenue Code of 1986, as amended, together with
rules and regulations promulgated thereunder.
COMMITMENT PERCENTAGE means, at the time of any determination, the
proportion which any Facility A Lender's Committed Sum bears to the Facility A
Commitment then in effect.
COMMITTED SUM means, on any date of determination for any Facility A
Lender, the amount stated beside its name on the most recently amended SCHEDULE
2.1 to the Facility A Agreement (which amount is subject to availability,
increase, reduction, or cancellation in accordance with this Facility A
Agreement.)
COMPETITIVE BID means an offer by a Facility A Lender to fund a
Borrowing under the Competitive Bid Subfacility pursuant to SECTION 2.4.
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Facility
A Lender pursuant to SECTION 2.4, (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 Facility A Lender making such
Competitive Bid.
COMPETITIVE BID REQUEST means a request for Competitive Bids made
pursuant to SECTION 2.4(B) substantially in the form of EXHIBIT B-4.
COMPETITIVE BID SUBFACILITY means a subfacility of Facility A as
described in and subject to the limitations of SECTION 2.4.
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
Subfacility.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D.
CONSEQUENTIAL LOSS means any loss or expense which any Facility A Lender
may reasonably incur in respect of a Eurodollar Rate Borrowing or a Fixed Rate
Borrowing as a consequence of (a) any failure or refusal of Borrower (for any
reasons whatsoever other than a default by Administrative Agent or a Facility A
Lender) to accept or utilize such Borrowing after Borrower shall have requested
it under this Facility A Agreement, or (b) any prepayment or payment of such
Borrowing or conversion of such Borrowing to a Borrowing of another Type, in
each
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
5
<PAGE> 11
case, prior to the last day of the Interest Period therefor.
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 Facility A Lenders of (a) as applicable, either (i)
prior to the MCI Merger Date, the Financial Statements for the fiscal year
ended December 31, 1997, and the three-month period ended March 31, 1998,
calculated on a consolidated basis for Borrower and the Consolidated Companies;
or (ii) on or after the MCI Merger Date, the combined consolidated financial
statements of Borrower and MCI and their consolidated Subsidiaries as then most
recently filed with the Securities and Exchange Commission; or (b) the
Financial Statements required to be delivered under SECTIONS 7.3(a) or 7.3(b),
as the case may be, calculated on a consolidated basis for the Consolidated
Companies; provided that, for purposes of SECTION 5.1(b), "Current Financials"
shall mean both the Financial Statements described in ITEMS (i) and (ii)
preceding, whether or not the MCI Merger Date has occurred on or prior to such
date of determination.
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.
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.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
6
<PAGE> 12
DETERMINING LENDERS means:
(a) For purposes of waiving or amending any conditions
precedent under SECTION 5.2 of this Facility A Agreement, those Facility
A Lenders who collectively hold, on any date of determination, at least
51% of the Facility A Commitment; or
(b) For all other purposes under the Loan Papers, (i) on any
date of determination occurring prior to the date upon which the
Facility A Commitment has been terminated, those Lenders who
collectively hold at least 51% of the sum of (A) the Facility A
Commitment and (B) the Facility B Principal Debt; and (ii) on any date
of determination occurring on or after the date upon which the Facility
A Commitment has been terminated, those Lenders who collectively hold at
least 51% of the Principal Debt and the LC Exposure.
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.
DOLLAR-EQUIVALENT, at any time, means, (a) any amount denominated in
Dollars and (b) for any amount denominated in a Foreign Currency, an amount of
Dollars into which Administrative Agent determines that it could convert the
relevant amount of that Foreign Currency by using the applicable-quoted-spot
rate reported on the appropriate page of the Reuters Screen at 11:00 a.m.
(London time) three Business Days before the day on which the calculation is
made.
DOLLARS and the symbol $ shall mean lawful money of the United States of
America.
ELIGIBLE ASSIGNEE means (a) a Facility A Lender; (b) an Affiliate of a
Facility A Lender (so long as such assignment is not made in conjunction with
the sale of such Affiliate); and (c) 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 Facility A Lender and the 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. Section 9601 et seq.) ("CERCLA"), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section
2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. Section 136 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
201 and Section 300f et seq.) and the Rivers and Harbors Act (33 U.S.C.
Section
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
7
<PAGE> 13
401 et seq.), the Oil Pollution Act (33 U.S.C. Section 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 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, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
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%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
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 Facility A Agreement unless otherwise
specified.
EXISTING AGREEMENT is defined in the Recitals to this Facility A
Agreement.
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 (but expressly excluding
the WorldCom/Brooks Fiber Loan on and after the earlier of (i) the date of
repayment thereof in full and termination of the commitment thereunder and (ii)
the thirtieth (30th) day after the closing date of the 364-Day Facility); (b)
on and after the MCI Merger Date, the secured and unsecured Debt of MCI and its
Subsidiaries existing on the MCI Merger Date and described in PART B of
SCHEDULE 7.12 (but expressly excluding the MCI Revolving Facility, which shall
be repaid in full and the commitment thereunder terminated on or before the MCI
Merger Date); and (c) renewals, extensions, and refinancings of any of the
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 MCI Merger
Date (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).
EXISTING FACILITY A LENDERS is defined in the Recitals to this Facility
A Agreement.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
8
<PAGE> 14
FACILITIES means, collectively, Facility A and Facility B; "FACILITY"
means either Facility A or Facility B, whichever the context requires.
FACILITY A means the credit facility described in and subject to the
limitations of the Facility A Agreement.
FACILITY A AGENTS means, collectively, Administrative Agent and Co-
Syndication Agents under the Facility A Agreement.
FACILITY A AGREEMENT means this Amended and Restated Facility A
Revolving Agreement, and all Exhibits and Schedules hereto, as each may be
amended, modified, supplemented, or restated from time to time.
FACILITY A COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $3,750,000,000.
FACILITY A COMMITMENT USAGE means, at the time of any determination
thereof, the sum of (a) the aggregate Facility A Principal Debt (whether under
the Competitive Bid Subfacility, the Swing Line Subfacility, or otherwise),
plus (b) the LC Exposure.
FACILITY A 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.
FACILITY A LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 (as the same may be amended from time to
time by Administrative Agent to reflect the assignments made in accordance with
SECTION 11.13(C) of this Facility A Agreement) to this Facility A Agreement,
and subject to the terms and conditions of this Facility A Agreement, their
respective successors and assigns, but not any Participant who is not otherwise
a party to this Facility A Agreement
FACILITY A LOAN PAPERS means those Loan Papers evidencing the Obligation
arising under, in connection with, or pursuant to, Facility A, and all
renewals, extensions, or restatements of or amendments or supplements to, any
such Facility A Loan Papers.
FACILITY A NOTE means a promissory note substantially in the form of
EXHIBIT A-1, and all renewals and extensions of all or any part thereof.
FACILITY A PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under Facility A.
FACILITY A TERMINATION DATE means the earliest of (a) June 30, 2002, and
(b) the effective date of any other termination or cancellation of Facility A
Lenders' commitments to lend under, and in accordance with, this Facility A
Agreement.
FACILITY B means the term loan facility described in and subject to the
limitations of the Facility B Agreement.
FACILITY B ADMINISTRATIVE AGENT means the "Administrative Agent" under
Facility B and its permitted successors and assigns under Facility B.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
9
<PAGE> 15
FACILITY B AGENTS means, collectively, Facility B Administrative Agent
and the "Co-Syndication Agents" appointed under the Facility B Agreement.
FACILITY B AGREEMENT means the Amended and Restated Term Loan Agreement
dated the date hereof among Borrower, Facility B Administrative Agent, and the
Facility B Lenders (as the same may be amended, modified, supplemented, or
restated from time to time).
FACILITY B LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 (as the same may be amended from time to
time by Administrative Agent to reflect the assignments made in accordance with
SECTION 11.13(c) of the Facility B Agreement) to the Facility B Agreement, and
subject to the terms and conditions of the Facility B Agreement, their
respective successors and assigns, but not any Participant who is not otherwise
a party to the Facility B Agreement.
FACILITY B LOAN PAPERS means those Loan Papers evidencing the Obligation
arising under, in connection with, or pursuant to, Facility B, and all
renewals, extensions, or restatements of or amendments or supplements to, any
such Facility B Loan Papers.
FACILITY B PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance under Facility B.
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 the Administrative Agent
(in its individual capacity) on such day on such transactions as determined by
the 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 Lender or an Affiliate of any Lender or any other
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).
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
Facility A Lender pursuant to
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
10
<PAGE> 16
SECTION 2.4 based upon an actual percentage rate per annum offered by such
Facility A Lender, expressed as a decimal (to no more than four decimal places)
and accepted by Borrower.
FOREIGN CURRENCY means any freely-convertible lawful currency acceptable
to Administrative Agent, so long as (a) such currency is dealt with in the
London interbank deposit market, (b) such currency is freely transferable and
convertible into Dollars in the London foreign exchange market, and (c) no
central bank or other governmental authorization in the country of issue of
such currency is required to permit use of such currency by Administrative
Agent for issuing LCs or honoring drafts presented under LCs in such currency;
provided, that if, after the issuance of an LC in a Foreign Currency, the
Foreign Currency denominated in such LC ceases to be lawful currency freely-
convertible into Dollars and is replaced by a European single or common
currency (the "EURO"), then thereafter the Foreign Currency for purposes of
such LC shall be the Euro.
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
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
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, 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 MCI Merger Date, references to "INDENTURES" shall
also include the 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.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
11
<PAGE> 17
LC means any standby letter of credit issued by Administrative Agent
under this Facility A Agreement or under the Existing Agreement pursuant to an
LC Agreement.
LC AGREEMENT means a standby letter of credit application and agreement
(in form and substance satisfactory to Administrative Agent) submitted by
Borrower to Administrative Agent for an LC for its own account (and for its
benefit or the benefit of any other Restricted Company); provided that this
Facility A Agreement shall control any conflict between this Facility A
Agreement and any such LC Agreement.
LC COMMITMENT means an amount (subject to availability, reduction, or
cancellation as herein provided) equal to the Dollar-Equivalent of $75,000,000.
LC EXPOSURE means, at any time and without duplication, the sum of the
Dollar-Equivalent of (a) the aggregate undrawn portion of all uncancelled and
unexpired LCs plus (b) the aggregate unpaid reimbursement obligations of
Borrower in respect of drawings of drafts under any LC.
LC SUBFACILITY means a subfacility for the issuance of LCs (the LC
Exposure in connection with which may never exceed $75,000,000), as described
in and subject to the limitations of SECTION 2.2.
LENDERS means, collectively, on any date of determination, the Facility
A Lenders and the Facility B Lenders.
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 Facility A Agreement, certificates delivered
pursuant to this Facility A Agreement, and Exhibits and Schedules hereto, (b)
the Facility B Agreement, certificates delivered pursuant to the Facility B
Agreement, and exhibits and schedules thereto, (c) all agreements, documents,
or instruments in favor of Administrative Agent or Lenders (or Administrative
Agent on behalf of Lenders) ever delivered pursuant to this Facility A
Agreement or the Facility B Agreement, or otherwise delivered in connection
with all or any part of the Obligation, (d) all LCs and LC Agreements, (e) any
Financial Hedge between any Restricted Company and any Lender or any Affiliate
of any Lender, and (f) 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.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
12
<PAGE> 18
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.
MCI MERGER means the merger of MCI with and into TC Investments Corp., a
wholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
Merger Agreement.
MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as of
November 9, 1997, among Borrower, MCI, and TC Investments 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).
MCI MERGER DATE means the date upon which the MCI Merger closes in
accordance with the MCI Merger Agreement.
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
Facility dated as of April 30, 1997, among MCI and the lenders party thereto,
as amended by that certain First Amendment to Revolving Credit Agreement dated
as of April 28, 1998.
MOODY'S means Moody's Investors Service, Inc. or any successor thereto.
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.
NATIONSBANK means NationsBank, N.A. (successor in interest by merger to
NationsBank of Texas, N.A.), in its individual capacity as a Lender, and its
successors and assigns.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Facility A Notes, Facility A Competitive Bid Notes, and the Swing
Line Note.
NOTICE OF BORROWING is defined in SECTION 2.6(a).
NOTICE OF CONVERSION is defined in SECTION 3.10.
NOTICE OF LC is defined in SECTION 2.2(a).
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 Facility A Agent or Facility B 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.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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PARTICIPANT is defined in SECTION 11.13(E).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERCENTAGE PART means, at the time of any determination, the proportion
which any Swing Line Lender's Swing Line Committed Sum bears to the Swing Line
Commitment then in effect.
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
ratings (or implied 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 the Administrative Agent (and its
counsel), each stating that such merger or consolidation complies with
the 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.
PRIME RATE means the per annum rate of interest established from time to
time by NationsBank, N.A. as its prime rate, which rate may not be the lowest
rate of interest charged by NationsBank, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the sum of the
Facility A Principal Debt and the Facility B Principal Debt.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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<PAGE> 20
PRO RATA or PRO RATA PART means:
(a) for each Facility A Lender with respect to any commitment
to fund (or to purchase participations pursuant to SECTIONS 2.2 and 2.3,
as the case may be), any reductions of commitments, conversions or
continuations of Borrowings under Facility A, or any payment or
prepayment under Facility A, or any expense reimbursements pursuant to
SECTION 10.2 -- the Commitment Percentage stated opposite such Facility
A Lender's name as set forth on SCHEDULE 2.1 to the Facility A Agreement
or the most recently-amended SCHEDULE 2.1, if any (or, if the Facility A
Commitments shall have expired or been terminated, then the proportion
that the Facility A Principal Debt owed to such Facility A Lender under
Facility A or any subfacility thereunder (except the Competitive Bid
Subfacility), as applicable, bears to the Facility A Principal Debt owed
to all Facility A Lenders under Facility A or any such subfacility
thereunder (except the Competitive Bid Subfacility), as applicable;
(b) for each Facility B Lender with respect to any commitment
to fund, any reductions of commitments, conversions or continuations of
borrowings under Facility B, or any payment or prepayment under Facility
B, or any expense reimbursements pursuant to SECTION 10.2 of the
Facility B Agreement -- the proportion that the Facility B Principal
Debt owed to such Facility B Lender bears to the Facility B Principal
Debt owed to all Facility B Lenders;
(c) for each Facility A Lender with respect to any principal
or interest payments on any Competitive Borrowing -- the proportion that
the outstanding principal amount or accrued and unpaid interest (as the
case may be) owed to any Facility A Lender participating in such
Competitive Borrowing bears to the total principal amount outstanding or
accrued and unpaid interest (as the case may be) owed to all Facility A
Lenders participating in such Competitive Borrowing;
(d) for all other purposes with respect to any Lender -- (i)
for so long as the Facility A Commitment has not terminated, the
proportion that the sum of such Lender's Committed Sum under Facility A
plus the Facility B Principal Debt owed to such Lender bears to the sum
of the Facility A Commitment plus the Facility B Principal Debt, or (ii)
at any time on and after the Facility A Termination Date, the proportion
that the sum of (A) the Principal Debt owed to such Lender plus (B) such
Lender's proportionate part (whether held directly or through a
participation therein and determined after giving effect to any
participations) of the LC Exposure bears to the sum of (x) the Principal
Debt plus (y) the LC Exposure.
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.
QUOTED SWING LINE BORROWINGS has the meaning as defined in SECTION
2.3(a).
QUOTED SWING LINE RATE has the meaning as defined in SECTION 2.3(a).
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.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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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.
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 2615.11, 2615.15
and 2615.19 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, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental,
or emergency reserves) are required to be maintained under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against, in the
case of Eurodollar Rate Borrowings, "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 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.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
16
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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).
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 Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SCHEDULE means, unless specified otherwise, a schedule attached to this
Facility A Agreement, as the same may be supplemented and modified from time to
time in accordance with the terms of the Facility A 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% (in number of votes) of the stock (or equivalent interests) is owned
of record or beneficially, directly or indirectly, by such Person.
SWING LINE BORROWING means any Borrowing under the Swing Line
Subfacility, including Alternate Rate Swing Line Borrowings and Quoted Rate
Swing Line Borrowings.
SWING LINE COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $175,000,000.
SWING LINE COMMITTED SUM means, on any date of determination for any
Swing Line Lender, the amount stated beside its name on the most-recently
amended SCHEDULE 2.3 to the Facility A Agreement (which amount is subject to
availability, increase, reduction, or cancellation in accordance with this
Facility A Agreement).
SWING LINE LENDERS means, collectively, NationsBank, those Lenders
listed on SCHEDULE 2.3, and any Facility A Lender designated by borrower as a
"Swing Line Lender" pursuant to and in accordance with SECTION 2.3(G), and
their respective permitted successors and assigns.
SWING LINE NOTE means a promissory note in substantially the form of
EXHIBIT A-3, and all renewals and extensions of all or any part thereof.
SWING LINE PRINCIPAL DEBT means, on any date of determination, that
portion of the Principal Debt outstanding under the Swing Line Subfacility.
SWING LINE SUBFACILITY means the subfacility under Facility A described
in, and subject to the limitations of, SECTION 2.3.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
17
<PAGE> 23
such Person, its income, or any of its properties, franchises, or assets.
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
Facility A Commitment, the Facility B Principal Debt, and the 364-Day Facility
Commitment.
TOTAL DEBT means (without duplication) all Debt of the Restricted
Companies; 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 has 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.
UNREFUNDED SWING LINE BORROWINGS has the meaning set forth in SECTION
2.3(d).
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, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
WORLDCOM/BROOKS FIBER LOAN means the loans under that certain
$1,250,000,000 364-Day Revolving Credit and Term Loan Agreement dated as of
February 19, 1998, among Borrower, NationsBank N.A. (in its capacity as
"Administrative Agent" thereunder and as a lender), and the other lenders party
thereto (as amended, restated and modified from time to time).
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"
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
18
<PAGE> 24
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.
SECTION 2 BORROWING PROVISIONS.
2.1 Commitments. Subject to and in reliance upon the terms,
conditions, representations, and warranties in the Facility A Loan Papers, each
Facility A Lender severally and not jointly agrees to lend to Borrower such
Facility A Lender's Pro Rata Part of one or more Borrowings under this Facility
A Agreement not to exceed such Facility A Lender's Committed Sum under this
Facility A Agreement, which, subject to the Facility A Loan Papers, Borrower
may borrow, repay, and reborrow under this Facility A Agreement; provided that
(i) each such Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Facility A Termination Date; (ii) each
such 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), (B) $10,000,000 or
a greater integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing), (C)
$5,000,000 or a greater integral multiple of $1,000,000 (if a Competitive
Borrowing), or (D) $1,000,000 or an integral multiple of $250,000 if in excess
thereof (if a Swing Line Borrowing); and (iii) on any date of determination,
the Facility A Commitment Usage shall never exceed the Facility A Commitment.
2.2 LC Subfacility.
(a) Subject to the terms and conditions of this Facility A
Agreement and applicable Law, Administrative Agent agrees to issue LCs
upon Borrower's application therefor (denominated in Dollars or, upon
Borrower's request and subject to this SECTION 2.2, in a Foreign
Currency) by delivering to Administrative Agent a properly completed
notice (a "NOTICE OF LC," substantially in the form of EXHIBIT B-3) and
an LC Agreement with respect thereto no later than 10:00 a.m. Dallas,
Texas time three Business Days before such LC is to be issued; provided
that (i) on any date of determination and after giving effect to any LC
to be issued on such date, the Facility A Commitment Usage (calculated
at the then Dollar-Equivalent of that amount) shall never exceed the
Facility A Commitment then in effect, (ii) on any date of determination
and after giving effect to any LC to be issued on such date, the LC
Exposure (calculated at the then Dollar-Equivalent of that amount) shall
never exceed the LC Commitment, (iii) at the time of issuance of such
LC, no Default or Potential Default shall have occurred and be
continuing, and (iv) each LC must expire no later than the earlier of
the thirtieth (30th) day prior to the Facility A Termination Date and
two years from its issuance; provided that any LC may provide for
automatic renewal for successive twelve month periods (but no renewal
period may extend beyond the thirtieth (30th) day prior to the Facility
A Termination Date) unless Administrative Agent has given prior notice
to the applicable beneficiary of its election not to extend such LC.
(b) Immediately upon the issuance by Administrative Agent of
any LC, Administrative Agent
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
19
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shall be deemed to have sold and transferred to each other Facility A
Lender, and each other such Facility A Lender shall be deemed
irrevocably and unconditionally to have purchased and received from
Administrative Agent, without recourse or warranty, an undivided
interest and participation, to the extent of such Facility A Lender's
Pro Rata Part in such LC (calculated from time to time at the Dollar-
Equivalent amount of such LC) and all Rights of Administrative Agent in
respect thereof (other than Rights to receive certain fees provided for
in SECTION 2.2(c)).
(c) In order to induce Administrative Agent to issue and
maintain LCs and Facility A Lenders to participate therein, Borrower
agrees to pay or reimburse Administrative Agent (i) on the date on which
any draft is presented under any LC, the Dollar-Equivalent amount
(calculated at the then Dollar-Equivalent of such amount) of any draft
paid or to be paid by Administrative Agent and (ii) promptly, upon
demand, the amount of any fees in addition to the fees described in
SECTION 4 Administrative Agent customarily charges to a Person similarly
situated in the ordinary course of its business for amending LC
Agreements, for honoring drafts, and taking similar action in connection
with letters of credit; provided that, (x) if Borrower has not
reimbursed Administrative Agent for any drafts paid or to be paid within
24 hours of demand therefor by Administrative Agent, Administrative
Agent is hereby irrevocably authorized to fund such reimbursement
obligations (calculated at the then Dollar-Equivalent of such amount) as
a Borrowing under this Facility A Agreement to the extent of
availability under this Facility A Agreement; the proceeds of such
Borrowing under this Facility A Agreement shall be advanced directly to
Administrative Agent in payment of Borrower's reimbursement obligation
with respect to the draft under the LC; and (y) if for any reason, funds
are not advanced pursuant to this Facility A Agreement, then Borrower's
reimbursement obligation shall continue to be due and payable.
Borrower's obligations under this SECTION 2.2(c) shall be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim, or defense to payment which Borrower may have at
any time against Administrative Agent or any other Person, and shall be
made in accordance with the terms and conditions of this Facility A
Agreement under all circumstances, including, without limitation, any of
the following circumstances: (A) any lack of validity or enforceability
of this Facility A Agreement or any of the Facility A Loan Papers; (B)
the existence of any claim, setoff, defense, or other Right which
Borrower may have at any time against a beneficiary named in a LC, any
transferee of any LC (or any Person for whom any such transferee may be
acting), Administrative Agent, any Facility A Lender, or any other
Person, whether in connection with this Facility A Agreement, any LC,
the transactions contemplated herein, or any unrelated transactions
(including any underlying transaction between Borrower and the
beneficiary named in any such LC); (C) any draft, certificate, or any
other document presented under the LC proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; and (D) the occurrence of any
Potential Default or Default. To the extent any funding of a draft has
been made by Facility A Lenders pursuant to SECTION 2.2(e) or under this
Facility A Agreement, Administrative Agent shall promptly distribute any
such payments received from Borrower with respect to such draft to all
Facility A Lenders funding such draft according to their ratable share.
Interest on any amounts remaining unpaid by Borrower (and unfunded by a
Borrowing under this Facility A Agreement) under this clause at any time
from and after the date such amounts become payable until paid in full
shall be payable by Borrower to Administrative Agent at the Default
Rate. In the event any payment by Borrower received by Administrative
Agent with respect to an LC and distributed to Facility A Lenders on
account of their participations therein is thereafter set aside,
avoided, or recovered from Administrative Agent in connection with any
receivership, liquidation, or bankruptcy proceeding, each Facility A
Lender which received such distribution shall, upon demand by
Administrative Agent, contribute such Facility A Lender's ratable
portion of the amount (calculated at the then Dollar-Equivalent of such
amount) set aside, avoided, or recovered, together with interest at the
rate required to be paid by Administrative Agent upon the amount
required to be repaid by it.
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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(d) If any draft shall be presented for honor under any LC,
Administrative Agent shall promptly notify Borrower of the date and
amount of such draft (calculated at the then Dollar- Equivalent of such
amount); provided that, failure to give any such notice shall not affect
the obligations of Borrower hereunder. Administrative Agent shall make
payment (calculated at the then Dollar-Equivalent of such amount) upon
presentment of a draft for honor unless it appears that presentment on
its face does not comply with the terms of such LC, regardless of
whether (i) any default or potential default under any other agreement
has occurred and (ii) the obligations under any other agreement have
been performed by the beneficiary or any other Person (and
Administrative Agent shall not be liable for any obligation of any
Person thereunder). Administrative Agent and Facility A Lenders shall
not be responsible for, and Borrower's reimbursement obligations for
honored drafts shall not be affected by, any matter or event whatsoever
(including, without limitation, the validity or genuineness of documents
or of any endorsements thereof, even if such documents should in fact
prove to be in any respect invalid, fraudulent, or forged), or any
dispute among any Consolidated Company, the beneficiary of any LC, or
any other Person to whom any LC may be transferred, or any claims
whatsoever of any Consolidated Company against any beneficiary of any LC
or any such transferee; provided that, nothing in this Facility A
Agreement shall constitute a waiver of Borrower's Rights to assert any
claim based upon the gross negligence or wilful misconduct of
Administrative Agent or any Facility A Lender.
(e) If Borrower fails to reimburse Administrative Agent as
provided in SECTION 2.2(c) within 24 hours of the demand therefor by
Administrative Agent, Administrative Agent shall promptly notify each
Facility A Lender of such failure, of the date and amount of the draft
(calculated at the then Dollar-Equivalent of such amount) paid, and of
such Facility A Lender's Pro Rata Part thereof. Each Facility A Lender
shall promptly and unconditionally make available to Administrative
Agent in immediately available funds such Facility A Lender's Pro Rata
Part of such unpaid reimbursement obligation (calculated at the then
Dollar-Equivalent of such amount), which funds shall be paid to
Administrative Agent on or before the close of business on the Business
Day on which such notice was given by Administrative Agent (if given
prior to 1:00 p.m., Dallas, Texas time) or on the next succeeding
Business Day (if notice was given after 1:00 p.m., Dallas, Texas time).
All such amounts payable by any such Facility A Lender shall include
interest thereon accruing at the Federal Funds Rate from the day the
applicable draft is paid by Administrative Agent to (but not including)
the date such amount is paid by such Facility A Lender to Administrative
Agent. The obligations of Facility A Lenders to make payments to
Administrative Agent with respect to LCs shall be irrevocable and not
subject to any qualification or exception whatsoever (other than the
gross negligence or wilful misconduct of Administrative Agent) and shall
be made in accordance with the terms and conditions of this Facility A
Agreement under all circumstances, including, without limitation, any of
the following circumstances: (i) any lack of validity or enforceability
of this Facility A Agreement or any of the Facility A Loan Papers; (ii)
the existence of any claim, setoff, defense, or other Right which
Borrower may have at any time against a beneficiary named in a LC, any
transferee of any LC (or any Person for whom any such transferee may be
acting), Administrative Agent, any Facility A Lender, or any other
Person, whether in connection with this Facility A Agreement, any LC,
the transactions contemplated herein, or any unrelated transactions
(including any underlying transaction between Borrower and the
beneficiary named in any such LC); (iii) any draft, certificate, or any
other document presented under the LC proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; and (iv) the occurrence of any
Potential Default or Default.
(f) Borrower acknowledges that each LC will be deemed issued
upon delivery to its beneficiary or Borrower. If Borrower requests any
LC be delivered to Borrower rather than the beneficiary, and Borrower
subsequently cancels such LC, Borrower agrees to return it to
Administrative
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FACILITY A REVOLVING CREDIT AGREEMENT
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Agent together with Borrower's written certification that it has never
been delivered to such beneficiary. If any LC is delivered to its
beneficiary pursuant to Borrower's instructions, no cancellation thereof
by Borrower shall be effective without written consent of such
beneficiary to Administrative Agent and return of such LC to
Administrative Agent. Borrower hereby agrees that if Administrative
Agent becomes involved in any dispute as a result of Borrower's
cancellation of any LC, it shall indemnify Administrative Agent and
Facility A Lenders for all losses, costs, damages, expenses, and
reasonable attorneys' fees suffered or incurred by Administrative Agent
and Facility A Lenders as a direct result thereof.
(g) Administrative Agent agrees with each Facility A Lender
that it will exercise and give the same care and attention to each LC as
it gives to its other letters of credit, and Administrative Agent's sole
liability to each Facility A Lender with respect to such LCs (other than
liability arising from the gross negligence or willful misconduct of
Administrative Agent) shall be to distribute promptly to each Facility A
Lender who has acquired a participating interest therein such Facility A
Lender's ratable portion of any payments made to Administrative Agent by
Borrower pursuant to SECTION 2.2(c). Each Facility A Lender and
Borrower agree that, in paying any draw under any LC, Administrative
Agent shall not have any responsibility to obtain any document (other
than any documents required by the respective LC) or to ascertain or
inquire as to the validity or accuracy of any such document or the
authority of the Person delivering any such document. Administrative
Agent, Facility A Lenders, and their respective Representatives shall
not be liable to any other Facility A Lender or any Consolidated Company
for the use which may be made of any LC or for any acts or omissions of
any beneficiary thereof in connection therewith. Any action, inaction,
error, delay, or omission taken or suffered by Administrative Agent or
any of its Representatives under or in connection with any LC, the
draws, drafts, or documents relating thereto, or the transmission,
dispatch, or delivery of any message or advice related thereto, if in
good faith and in conformity with such Laws as Administrative Agent or
any of its Representatives may deem applicable and in accordance with
the standards of care specified in the Uniform Customs and Practice for
Documentary Credits, as in effect on the date of issue of such LC by the
International Chamber of Commerce, shall be binding upon the
Consolidated Companies and Facility A Lenders and shall not place
Administrative Agent or any of its Representatives under any resulting
liability to any Consolidated Company or any Facility A Lender. Any
action taken or omitted to be taken by Administrative Agent under or in
connection with any LC if taken or omitted in the absence of gross
negligence or wilful misconduct shall not create for Administrative
Agent any resulting liability to any Facility A Lender or any
Consolidated Company.
(h) On the Facility A Termination Date or upon any demand by
Administrative Agent upon the occurrence and during continuance of a
Default, Borrower shall provide to Administrative Agent, for the benefit
of Facility A Lenders, (i) cash collateral in an amount equal to the LC
Exposure existing on such date (calculated at the then Dollar-Equivalent
of such amount) and (ii) such additional cash collateral as
Administrative Agent may from time to time require to adjust for
fluctuations in exchange rates, so that the cash collateral amount shall
at all times equal or exceed the LC Exposure (calculated at the then
Dollar-Equivalent of such amount).
(i) IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE PROVIDED IN
THIS FACILITY A AGREEMENT, BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY,
PAY (CALCULATED AT THE THEN DOLLAR-EQUIVALENT OF SUCH AMOUNT) AND SAVE
ADMINISTRATIVE AGENT AND EACH FACILITY A LENDER HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF,
OR OWED TO THIRD PARTIES, AND ANY AND ALL RELATED COSTS, CHARGES, AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES, INCLUDING ALLOCATED COST
OF INTERNAL COUNSEL), WHICH ADMINISTRATIVE AGENT, OR ANY FACILITY A
LENDER MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR INDIRECT,
OF (A) THE ISSUANCE OF ANY LC, OR (B) THE FAILURE OF ADMINISTRATIVE
AGENT
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FACILITY A REVOLVING CREDIT AGREEMENT
22
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TO HONOR A DRAFT UNDER SUCH LC AS A RESULT OF ANY ACT OR OMISSION,
WHETHER RIGHTFUL OR WRONGFUL, OF ANY PRESENT OR FUTURE GOVERNMENTAL
AUTHORITY; PROVIDED THAT, BORROWER SHALL HAVE NO LIABILITY TO INDEMNIFY
ADMINISTRATIVE AGENT OR ANY FACILITY A LENDER IN RESPECT OF ANY
LIABILITY ARISING OUT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF
SUCH PARTY OR ANY REPRESENTATIVES OF SUCH PARTY. THE PROVISIONS OF AND
UNDERTAKINGS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 2.2(I) SHALL
SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION
OF THIS FACILITY A AGREEMENT.
(j) Although referenced in any LC, terms of any particular
agreement or other obligation to the beneficiary are not in any manner
incorporated herein. The fees and other amounts payable with respect to
each LC shall be as provided in this Facility A Agreement, drafts under
any LC shall be deemed part of the Obligation, and in the event of any
conflict between the terms of this Facility A Agreement and any LC
Agreement, the terms of this Facility A Agreement shall be controlling.
2.3 Swing Line Subfacility.
(a) Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Swing
Line Lender agrees, severally and not jointly, on and after the Closing
Date and until the earlier of the Business Day immediately preceding the
Facility A Termination Date or the termination of the Swing Line
Committed Sum of such Swing Line Lender, (i) to make available to
Borrower requested Swing Line Borrowings ("QUOTED SWING LINE
BORROWINGS") on the basis of quoted interest rates (each, a "QUOTED
SWING LINE RATE") furnished by such Swing Line Lender from time to time
in its discretion to Borrower (through Administrative Agent) and
accepted by Borrower in its discretion and (ii) to lend to Borrower such
Swing Line Lender's Percentage Part of any requested Swing Line
Borrowing ("ALTERNATE RATE SWING LINE BORROWINGS"), bearing interest at
a rate equal to the Alternate Rate; provided that, (A) the aggregate
Swing Line Principal Debt outstanding on any date of determination shall
not exceed the Swing Line Commitment; (B) on any date of determination,
the Facility A Commitment Usage shall never exceed the Facility A
Commitment; (C) at the time of such Swing Line Borrowing, no Default or
Potential Default shall have occurred and be continuing; (D) no Swing
Line Borrowing may be made on any date on which a Borrowing under
Facility A pursuant to SECTION 2.1 is being made; (E) no additional
Swing Line Borrowing shall be made at any time after any Facility A
Lender has refused, notwithstanding the requirements of SECTIONS 2.3(c)
and (d), to either fund a Borrowing under Facility A or to purchase a
participation in the Swing Line Principal Debt as required in such
Sections (such unavailability of the Swing Line Subfacility shall
continue until such funding or purchase shall occur or until the Swing
Line Principal Debt has been repaid); and (F) at any time after Facility
A Lenders are deemed to have purchased a participation in any Unrefunded
Swing Line Borrowing pursuant to SECTION 2.3(d), such Unrefunded Swing
Line Borrowings shall bear interest at the Default Rate. On any date of
determination, (i) as a result of Quoted Swing Line Borrowings, the
Swing Line Principal Debt owed to any Swing Line Lender may exceed such
Swing Line Lender's Swing Line Committed Sum and (ii) as a result of
Swing Line Borrowings, the Facility A Principal Debt owed to any Swing
Line Lender may exceed its Facility A Commitment. Each Quoted Swing
Line Borrowing shall be made only by the Swing Line Lender furnishing
the relevant Quoted Swing Line Rate. Each Alternate Rate Swing Line
Borrowing shall be made by all Swing Line Lenders ratably in accordance
with their respective Percentage Parts. Swing Line Borrowings shall be
made in a minimum aggregate principal amount of $1,000,000 or an
integral multiple of $250,000 if in excess thereof (or an aggregate
principal amount equal to the remaining balance of the available Swing
Line Commitment). Each Swing Line Lender shall make the portion of each
Swing Line Borrowing to be made by it available to Borrower by means of
a credit to the general deposit account of Borrower with Administrative
Agent or by a wire transfer, at the expense of Borrower, to an account
designated in writing by Borrower, in each case by 2:30 p.m, Dallas,
Texas time, on the date such Swing Line Borrowing is requested to be
made pursuant to SECTION 2.3(b) below, in immediately available funds.
Borrower may borrow, prepay, and reborrow Swing Line Borrowings on
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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or after the Closing Date and prior to the Facility A Termination Date
(or such earlier date on which the Swing Line Commitment shall terminate
in accordance herewith) on the terms and subject to the conditions and
limitations set forth herein.
(b) Borrowings under the Swing Line Subfacility shall be
subject to those terms and conditions applicable to Borrowings as set
forth in SECTIONS 5.2(c), (d), (e), and (f). Borrower shall give
Administrative Agent telephonic, written, or telecopy notice
substantially in the form of EXHIBIT B-7 (provided that, in the case of
telephonic notice, such notice shall be promptly confirmed by telecopy)
no later than 1:30 p.m., Dallas, Texas time (or, in the case of a
proposed Quoted Swing Line Borrowing, 11:00 a.m., Dallas, Texas time),
on the day of a proposed Swing Line Borrowing. Such notice shall be
delivered on a Business Day, shall be irrevocable (subject, in the case
of Quoted Swing Line Borrowings, to receipt by Borrower of Quoted Swing
Line Rates acceptable to it) and shall refer to this Facility A
Agreement and shall specify the requested Borrowing Date (which shall be
a Business Day) and the amount of such requested Swing Line Borrowing.
Administrative Agent shall promptly advise the Swing Line Lenders of any
notice received from Borrower pursuant to this SECTION 2.3(b). In the
event that Borrower accepts a Quoted Swing Line Rate in respect of a
requested Quoted Swing Line Borrowing, Borrower shall notify
Administrative Agent (which shall in turn notify the relevant Swing Line
Lender) of such acceptance no later than 1:30 p.m., Dallas, Texas time,
on the relevant Borrowing Date.
(c) Upon the occurrence of a Default or in the event that any
Swing Line Borrowing shall be outstanding for more than five Business
Days, Administrative Agent shall, on behalf of Borrower (which hereby
irrevocably directs and authorizes Administrative Agent to act on its
behalf), request a Base Rate Borrowing from the Facility A Lenders,
including the Swing Line Lenders (and each Facility A Lender shall fund
its Pro Rata Part of), in an amount sufficient to repay the Swing Line
Principal Debt outstanding under such Swing Line Borrowing; provided
that, such Borrowings under Facility A shall be made notwithstanding
Borrower's noncompliance with SECTION 5.2. Each Facility A Lender will
remit its Pro Rata Part of such Borrowing to Administrative Agent for
the account of the Swing Line Lenders at the office of Administrative
Agent prior to 12:00 Noon, Dallas, Texas time, in funds immediately
available on the Business Day next succeeding the date such notice is
given. The proceeds of such Borrowings under Facility A shall be
immediately applied to repay such Swing Line Borrowing.
(d) If, for any reason, Borrowings under Facility A may not be
(as determined by Administrative Agent in its sole discretion), or are
not, made pursuant to SECTION 2.3(c) to repay any Swing Line Borrowing
as required by such Section, then, effective on the date such Borrowing
under Facility A would otherwise have been made, each Lender severally,
unconditionally, and irrevocably agrees that it shall be deemed to have
purchased an undivided participating interest in such Swing Line
Borrowings ("UNREFUNDED SWING LINE BORROWINGS") to the extent of such
Facility A Lender's Pro Rata part thereof. Each Facility A Lender shall
fund a Borrowing under Facility A or a participation in the Unrefunded
Swing Line Borrowings no later than the close of business on the date
notice of such funding requirement is given by Administrative Agent if
such notice was given prior to 12:00 noon, Dallas, Texas time, on any
Business Day, or if made at any other time, on the next Business Day
following the date of such notice. All such amounts payable by any
Facility A Lender under this SECTION 2.3(d) shall include interest
thereon from the date on which such payment is payable by such Facility
A Lender to, but not including, the date such amount is paid by such
Facility A Lender to Administrative Agent, at the Federal Funds Rate.
If such Facility A Lender does not promptly pay such amount upon
Administrative Agent's demand therefor, and until such time as such
Facility A Lender makes the required payment, each Swing Line Lender
shall be deemed to continue to have outstanding its ratable portion of
the Swing Line Principal Debt in the amount of such unpaid obligation.
Each payment by Borrower of all or any part of any Swing
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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Line Borrowings shall be paid to Administrative Agent for the benefit of
the applicable Swing Line Lender (in the case of a Quoted Swing Line
Borrowing) or (in the case of Alternate Rate Swing Line Borrowings) for
the benefit of the Swing Line Lenders and those Facility A Lenders who
hold funded participations in such Unrefunded Swing Line Borrowings
under this SECTION 2.3(d); provided that, with respect to any such
participation, all interest on the Swing Line Principal Debt to which
such participation relates, accruing prior to the date of funding such
participation, shall be payable solely to Administrative Agent for the
account of the Swing Line Lenders (and all Facility A Lenders holding
funded participations in any Unrefunded Swing Line Borrowing prior to
such date). Any Lender holding a participation in any Unrefunded Swing
Line Borrowing may exercise any and all Rights of banker's lien, setoff,
or counterclaim with respect to any and all moneys owing by Borrower to
such Facility A Lender by reason thereof as fully as if such Facility A
Lender had extended such Borrowing under Facility A directly to Borrower
in the amount of such participation.
(e) Whenever, at any time after any Swing Line Lender has
received from any Facility A Lender such Facility A Lender's
participating interest in any Swing Line Borrowing, such Swing Line
Lender receives any payment on account thereof, such Swing Line Lender
will promptly distribute to such Facility A Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Facility A
Lender's participating interest was outstanding and funded); provided,
however, that in the event that such payment received by such Swing Line
Lender is required to be returned, such Facility A Lender will return to
such Swing Line Lender any portion thereof previously distributed by
such Swing Line Lender to it.
(f) Notwithstanding anything to the contrary in this Facility
A Agreement, each Facility A Lender's obligation to fund the Facility A
Borrowings referred to in SECTION 2.3(c) and to purchase and fund
participating interests pursuant to SECTION 2.3(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any setoff, counterclaim, recoupment, defense,
or other right which such Facility A Lender or Borrower may have against
any Swing Line Lender, Borrower, or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Potential Default or
a Default or the failure to satisfy any of the conditions specified in
SECTION 5; (iii) any adverse change in the condition (financial or
otherwise) of Borrower or any of its Subsidiaries; (iv) any breach of
this Facility A Agreement by Borrower or any Facility A Lender; or (v)
any other circumstance, happening, or event whatsoever, whether or not
similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swing Line Lenders
and to Administrative Agent, Borrower may at any time terminate, or
from time to time reduce in part or increase (with the approval of the
relevant Swing Line Lender), the Swing Line Committed Sum of any Swing
Line Lender, so long as the Swing Line Commitment is not increased. At
any time when there shall be fewer than seven Swing Line Lenders,
Borrower may appoint from among the Facility A Lenders a new Swing Line
Lender, subject to the prior consent of such new Swing Line Lender and
prior notice to Administrative Agent, so long as at no time shall there
be more than seven Swing Line Lenders. Notwithstanding anything to the
contrary in this Facility A Agreement, (i) if any Alternate Rate Swing
Line Borrowings shall be outstanding at the time of any termination,
reduction, increase, or appointment pursuant to the preceding two
sentences, Borrower shall on the date thereof prepay or borrow Alternate
Rate Swing Line Borrowings to the extent necessary to ensure that at all
times the outstanding Alternate Rate Swing Line Borrowings held by the
Swing Line Lenders shall be ratable according to the respective Swing
Line Committed Sums of the Swing Line Lenders and (ii) in no event may
the aggregate Swing Line Committed Sums of the Swing Line Lenders exceed
the Swing Line Commitment then in effect. On the date of any
termination or reduction of Swing Line Committed
AMENDED AND RESTATED
FACILITY A REVOLVING CREDIT AGREEMENT
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Sums pursuant to this SECTION 2.3(g), Borrower shall pay or prepay so
much of the Swing Line Principal Debt as shall be necessary in order
that, after giving effect to such termination or reduction, (i) the
aggregate outstanding principal amount of the Alternate Rate Swing Line
Borrowings of any Swing Line Lender will not exceed the Swing Line
Committed Sum of such Swing Line Lender and (ii) the aggregate
outstanding principal amount of all Swing Line Borrowings will not
exceed the Swing Line Commitment then in effect.
(h) Borrower may prepay any Swing Line Borrowing in whole or
in part at any time without premium or penalty; provided that, Borrower
shall have given the Administrative Agent written or telecopy notice (or
telephone notice promptly confirmed in writing or by telecopy) of such
prepayment not later than 9:30 a.m., Dallas, Texas time, on the Business
Day designated by Borrower for such prepayment; and provided further
that, each partial prepayment shall be in a minimum principal amount of
$1,000,000 or an integral multiple of $250,000 if in excess thereof.
Each notice of prepayment under this SECTION 2.3(h) shall specify the
prepayment date and the principal amount of each Swing Line Borrowing
(or portion thereof) to be prepaid, shall be irrevocable, and shall
commit Borrower to prepay such Swing Line Borrowing (or portion thereof)
by the amount stated therein on the date stated therein. All accrued
interest on Swing Line Borrowings is payable quarterly in arrears. Each
payment of principal of or interest on Alternate Rate Swing Line
Borrowings shall be allocated, as between the Swing Line Lenders,
ratably in accordance with their respective Swing Line Committed Sums.
2.4 Competitive Bid Subfacility.
(a) In addition to Borrowings under Facility A otherwise
provided for herein, but subject to the terms and conditions of the
Facility A Loan Papers, Borrower may, as set forth in this SECTION 2.4,
request Facility A Lenders to make offers to make Competitive Borrowings
under Facility A. Facility A 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 Facility A made by all Facility A
Lenders shall not exceed the Facility A Commitment then in effect; (ii)
on any date of determination, the Facility A Commitment Usage shall not
exceed the Facility A Commitment; and (iii) each Borrowing under the
Competitive Bid Subfacility in respect of Facility A must occur on a
Business Day and prior to the Business Day immediately preceding the
Facility A 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 Facility A 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