AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
MCI WORLDCOM, INC.,
Borrower
BANK OF AMERICA, N.A.
Administrative Agent
BANC OF AMERICA SECURITIES, LLC,
Sole Lead Arranger and Book Manager
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
$7,000,000,000
DATED AS OF AUGUST 5, 1999
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS AND TERMS...........................................................................1
1.1 Definitions.....................................................................................1
1.2 Number and Gender of Words; Other References...................................................15
1.3 Accounting Principles..........................................................................15
SECTION 2 BORROWING PROVISIONS...........................................................................15
2.1 The Facility...................................................................................15
2.2 Swing Line Subfacility.........................................................................16
2.3 Competitive Bid Subfacility....................................................................19
2.4 Optional Renewal of Commitments................................................................21
2.5 Conversion to Term Loans.......................................................................23
2.6 Termination of Commitments.....................................................................24
2.7 Borrowing Procedure............................................................................24
SECTION 3 TERMS OF PAYMENT...............................................................................25
3.1 Loan Accounts, Notes, and Payments.............................................................25
3.2 Interest and Principal Payments................................................................25
3.3 Interest Options...............................................................................26
3.4 Quotation of Rates.............................................................................26
3.5 Default Rate...................................................................................27
3.6 Interest Recapture.............................................................................27
3.7 Interest Calculations..........................................................................27
3.8 Maximum Rate...................................................................................27
3.9 Interest Periods...............................................................................28
3.10 Conversions....................................................................................28
3.11 Order of Application...........................................................................28
3.12 Sharing of Payments, Etc.......................................................................29
3.13 Offset.........................................................................................29
3.14 Booking Borrowings.............................................................................29
3.15 Increased Cost and Reduced Return..............................................................29
3.16 Limitation on Types of Loans...................................................................31
3.17 Illegality.....................................................................................31
3.18 Treatment of Affected Loans....................................................................31
3.19 Compensation; Replacement of Lenders...........................................................32
3.20 Taxes..........................................................................................32
SECTION 4 FEES...........................................................................................34
4.1 Treatment of Fees..............................................................................34
4.2 Fees of Administrative Agent and Arranger......................................................34
4.3 Commitment Fees................................................................................34
SECTION 5 CONDITIONS PRECEDENT...........................................................................34
5.1 Conditions Precedent to Closing................................................................34
5.2 Conditions Precedent to Each Borrowing.........................................................34
SECTION 6 REPRESENTATIONS AND WARRANTIES.................................................................35
6.1 Purpose of Credit Facility.....................................................................35
6.2 Existence, Good Standing, Authority, and Authorizations........................................35
6.3 Authorization and Contravention................................................................36
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
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6.4 Binding Effect.................................................................................36
6.5 Financial Statements..........................................................................36
6.6 Litigation, Claims, Investigations.............................................................36
6.7 Taxes..........................................................................................36
6.8 Environmental Matters.........................................................................36
6.9 ERISA Compliance...............................................................................37
6.10 Properties; Liens..............................................................................37
6.11 Government Regulations.........................................................................37
6.12 No Default.....................................................................................37
6.13 Senior Indebtedness............................................................................37
6.14 Year 2000 Compliance...........................................................................37
SECTION 7 COVENANTS......................................................................................38
7.1 Use of Proceeds................................................................................38
7.2 Books and Records..............................................................................38
7.3 Items to be Furnished..........................................................................38
7.4 Inspections....................................................................................39
7.5 Taxes..........................................................................................39
7.6 Payment of Obligations.........................................................................39
7.7 Maintenance of Existence, Assets, and Business.................................................40
7.8 Insurance......................................................................................40
7.9 Preservation and Protection of Rights..........................................................40
7.10 Employee Benefit Plans.........................................................................40
7.11 Environmental Laws.............................................................................40
7.12 Debt...........................................................................................40
7.13 Liens..........................................................................................41
7.14 Transactions with Affiliates...................................................................42
7.15 Compliance with Laws and Documents.............................................................42
7.16 Assignment.....................................................................................42
7.17 Permitted Distributions........................................................................42
7.18 Restrictions on Subsidiaries...................................................................43
7.19 Sale of Assets.................................................................................43
7.20 Mergers and Dissolutions; Sale of Capital Stock................................................43
7.21 Designation of Unrestricted Companies..........................................................43
7.22 Financial Covenant.............................................................................43
7.23 Year 2000 Compliance...........................................................................44
SECTION 8 DEFAULT........................................................................................44
8.1 Payment of Obligation..........................................................................44
8.2 Covenants......................................................................................44
8.3 Debtor Relief..................................................................................44
8.4 Judgments and Attachments......................................................................44
8.5 Misrepresentation..............................................................................44
8.6 Change of Control..............................................................................44
8.7 Default Under Other Agreements.................................................................45
8.8 Employee Benefit Plans.........................................................................45
8.9 Default Under Facility A.......................................................................45
8.10 Validity and Enforceability of Loan Papers.....................................................46
SECTION 9 RIGHTS AND REMEDIES............................................................................46
9.1 Remedies Upon Default..........................................................................46
9.2 Company Waivers................................................................................46
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
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9.3 Performance by Administrative Agent............................................................46
9.4 Delegation of Duties and Rights................................................................47
9.5 Not in Control.................................................................................47
9.6 Course of Dealing..............................................................................47
9.7 Cumulative Rights..............................................................................47
9.8 Application of Proceeds........................................................................47
9.9 Certain Proceedings............................................................................47
9.10 Limitation of Rights...........................................................................48
9.11 Expenditures by Lenders........................................................................48
9.12 INDEMNIFICATION................................................................................48
SECTION 10 AGREEMENT AMONG LENDERS........................................................................49
10.1 Administrative Agent...........................................................................49
10.2 Expenses.......................................................................................51
10.3 Proportionate Absorption of Losses.............................................................51
10.4 Delegation of Duties; Reliance.................................................................51
10.5 Limitation of Liability........................................................................51
10.6 Default; Collateral............................................................................52
10.7 Limitation of Liability........................................................................52
10.8 Relationship of Lenders........................................................................52
10.9 Benefits of Agreement..........................................................................53
10.10 Co-Syndication Agents..........................................................................53
SECTION 11 MISCELLANEOUS..................................................................................53
11.1 Headings.......................................................................................53
11.2 Nonbusiness Days...............................................................................53
11.3 Communications.................................................................................53
11.4 Form and Number of Documents...................................................................53
11.5 Exceptions to Covenants........................................................................53
11.6 Survival.......................................................................................54
11.7 Governing Law..................................................................................54
11.8 Invalid Provisions.............................................................................54
11.9 Entirety.......................................................................................54
11.10 Jurisdiction; Venue; Service of Process; Jury Trial............................................54
11.11 Amendments, Consents, Conflicts, and Waivers...................................................55
11.12 Multiple Counterparts..........................................................................56
11.13 Successors and Assigns; Assignments and Participations.........................................56
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances....................58
11.15 Confidentiality................................................................................59
11.16 Restatement of Existing Agreement..............................................................59
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
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iii
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SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Committed Sums
Schedule 2.2 - 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 Amended and Restated Revolving Note
Exhibit A-2 - Form of Amended and Restated Competitive Bid Note
Exhibit A-3 - Form of Amended and Restated Swing Line Note
Exhibit A-4 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit B-3 - Form of Term Conversion Request
Exhibit B-4 - Form of Competitive Bid Request
Exhibit B-5 - Form of Notice to Lenders of Competitive Bid Request
Exhibit B-6 - Form of Competitive Bid
Exhibit B-7 - Form of Swing Line Borrowing Request
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 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
iv
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AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AGREEMENT is entered into as of August 5, 1999, among MCI
WORLDCOM, INC. (formerly known as WORLDCOM, INC.), a Georgia corporation
("BORROWER"), certain Lenders (hereinafter defined), the Co-Syndication Agents
(hereinafter defined), and BANK OF AMERICA, N.A., as a Lender and as
Administrative Agent (hereinafter defined) for itself and the other Lenders.
RECITALS
A. Borrower has entered into the 364-Day Revolving Credit and Term Loan
Agreement (as renewed, extended, or amended to date, the "EXISTING AGREEMENT")
dated as of August 6, 1998, with Bank of America, N.A., formerly known as Bank
of America National Trust and Savings Association, successor by merger to Bank
of America, N.A., formerly known as NationsBank, N.A.(in its capacity as
"Administrative Agent" thereunder and as a lender) and certain other lenders
party thereto (together with Bank of America, N.A., the "EXISTING 364-DAY
FACILITY LENDERS"), providing for, among other things, a revolving credit and
term loan facility in the aggregate principal amount of $7,000,000,000.
B. Subject to the terms and conditions set forth below, Borrower and
Lenders desire to entirely amend, modify, and restate the Existing Agreement in
order, among other things, to (i) extend the Termination Date to August 3, 2000
and (ii) provide for an increase in the Commitment Fee and Utilization Fee
(hereinafter defined).
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, Bank of America, N.A. (in its capacity as Administrative Agent
under this Agreement and the Existing Agreement), and Lenders 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
(including any extension of the facility as permitted herein) described in and
subject to the limitations of this Agreement.
ACCOUNTS RECEIVABLE FINANCING means any transaction or series of
transactions that may be entered into by any Consolidated Company pursuant to
which such Consolidated Company may sell, convey, grant a security interest in,
or otherwise transfer, undivided percentage interests in the Receivables Program
Assets; provided that, for purposes of determinations made pursuant to SECTIONS
7.13(G) and 7.19(D), any Accounts Receivable Financing involving a sale of
Receivables Program Assets to the Receivables Subsidiary by any Restricted
Company and a subsequent substantially concurrent resale of such Receivables
Program Assets, or an interest therein, to a third party shall be treated as a
single Accounts Receivable Financing transaction.
ACCOUNTS RECEIVABLE FINANCING AMOUNT means, with respect to any
Accounts Receivable Financing and without duplication, the aggregate outstanding
principal amount of the undivided percentage interests in the Receivables
Program Assets, representing Rights to be paid a specified principal amount from
such Receivables Program Assets.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
<PAGE> 7
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 Bank of America, N.A. and its permitted
successor or successors as administrative agent and arranging agent for Lenders
under this Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Lender shall complete
and provide to Administrative Agent.
AFFILIATE of any Person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "control,"
"controlled by," and "under common control with" mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, Administrative Agent and Co-Syndication
Agents under this Agreement.
AGREEMENT means this Amended and Restated 364-Day Revolving Credit and
Term Loan Agreement and all Exhibits and Schedules hereto, as each may be
amended, modified, supplemented, or restated from time to time.
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 2.2(A).
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an Affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means the lowest percentage set forth in the table
below for the Type of Borrowing or 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"):
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
2
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APPLICABLE MARGIN
=============================================================
EURODOLLAR
RATINGS BASE RATE RATE COMMITMENT
BORROWINGS BORROWINGS FEES
============================================ ==================== ==================== ===================
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Category 1
A or higher by S&P; 0.0000% 0.2250% 0.0600%
A2 or higher by Moody's
-------------------------------------------- -------------------- -------------------- -------------------
Category 2
A- by S&P; 0.0000% 0.2500% 0.0700%
A3 by Moody's
-------------------------------------------- -------------------- -------------------- -------------------
Category 3
BBB+ by S&P; 0.0000% 0.3500% 0.1000%
Baa1 by Moody's
-------------------------------------------- -------------------- -------------------- -------------------
Category 4
BBB by S&P; 0.0000% 0.4000% 0.1250%
Baa2 by Moody's
-------------------------------------------- -------------------- -------------------- -------------------
Category 5 0.0000% 0.4500% 0.1500%
BBB- or lower by S&P;
Baa3 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 paragraph), 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 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), 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 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 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.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
3
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(b) On any date of determination of the Applicable Margin for
Eurodollar Rate Borrowings, if the sum of the "Facility A
Commitment Usage" (as such term is defined in the Facility A
Agreement) and the Principal Debt exceeds an amount equal to
331/3% (but less than 662/3%) of the Total Commitment, then the
Applicable Margin for Eurodollar Rate Borrowings shall be
increased by 0.100% (the "UTILIZATION FEE"); provided that, if
the sum of the "Facility A Commitment Usage" (as such term is
defined in the Facility A Agreement) and the Principal Debt
equals or exceeds an amount equal to 662/3% of the Total
Commitment, then such Utilization Fee shall be increased to
0.200%.
ARRANGER means Banc of America Securities LLC, and its successors and
assigns in its capacity as "Sole 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.
BANK OF AMERICA means Bank of America, N.A., in its individual capacity
as a Lender and its successors and assigns.
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 Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to
Borrower under the Loan Papers (whether under the Competitive Bid Subfacility,
the Swing Line Subfacility, or otherwise), whether such amount constitutes an
original disbursement of funds or the continuation of an amount outstanding, or
(b) by any Lender in accordance with, and to satisfy the obligations of any
Restricted Company under, any Loan Paper.
BORROWING DATE is defined in SECTION 2.7(A).
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, or New York, New York and
(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been executed
by Borrower, Lenders, and Administrative Agent, and all conditions precedent
specified in SECTION 5.1 have been satisfied or waived.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
4
<PAGE> 10
CO-SYNDICATION AGENTS means 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 means an amount (subject to availability, reduction, or
cancellation as provided in this Agreement) equal to $7,000,000,000.
COMMITMENT FEE is defined in SECTION 4.3.
COMMITTED SUM means, on any date of determination for any Lender, the
amount stated beside its name on the most recently amended SCHEDULE 2.1 to the
Agreement (which amount is subject to availability, increase, reduction, or
cancellation in accordance with this Agreement.)
COMPETITIVE BID means an offer by a Lender to fund a Borrowing under
the Competitive Bid Subfacility pursuant to SECTION 2.3.
COMPETITIVE BID NOTE means a promissory note in substantially the form
of EXHIBIT A-2 and all renewals and extensions of all or any part thereof.
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Lender
pursuant to SECTION 2.3, (a) in the case of a Eurodollar Rate Borrowing, the
margin which shall be added to or subtracted from the Adjusted Eurodollar Rate,
and (b) in the case of a Fixed Rate Borrowing, the fixed rate of interest, in
each case offered by the Lender making such Competitive Bid.
COMPETITIVE BID REQUEST means a request for Competitive Bids made
pursuant to SECTION 2.3(B) substantially in the form of EXHIBIT B-4.
COMPETITIVE BID SUBFACILITY means a subfacility of this 364-Day
Facility as described in and subject to the limitations of SECTION 2.3.
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 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 Lender) to
accept or utilize such Borrowing after Borrower shall have requested it under
this Agreement, or (b) any prepayment or payment of such Borrowing or conversion
of such Borrowing to a Borrowing of another Type, in each 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 Lenders of (a) the Financial Statements of Borrower
for the fiscal year ended December 31, 1998, and the
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
5
<PAGE> 11
three-month period ended March 31, 1999, calculated on a consolidated basis for
Borrower and the Consolidated Companies; or (b) the Financial Statements
required to be delivered under SECTION 7.3(A) or 7.3(B), as the case may be,
calculated on a consolidated basis for the Consolidated Companies.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (A)(I) through (A)(III) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor, guarantor,
or otherwise; (c) all obligations of the type referred to in CLAUSES (A)(I)
through CLAUSE (A)(III) and CLAUSE (B) preceding of other Persons secured by any
Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; (d) the face amount of all letters of credit and banker's
acceptances issued for the account of such Person, and without duplication, all
drafts drawn and unpaid thereunder; and (e) obligations arising under any
Accounts Receivable Financing which in accordance with GAAP should be classified
upon such Person's balance sheet as liabilities; provided, however, that Debt
shall not include obligations of Borrower which are owed to a trust or other
special purpose entity, all of whose common equity is beneficially owned by
Borrower, so long as such obligations are held by such trusts or their
representatives and are subordinate in right of payment to the Obligation.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to time
in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
Base Rate Borrowings plus 2% and (b) the Maximum Rate.
DETERMINING LENDERS means for all purposes under the Loan Papers (i) on
any date of determination occurring prior to the earlier of the Term Conversion
Date or the Termination Date, those Lenders who collectively hold at least 51%
of the Commitment; and (ii) on any date of determination occurring on or after
the earlier of the Termination Date or the Term Conversion Date, those Lenders
who collectively hold at least 51% of the Principal Debt.
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any
such securities, (b) the declaration or payment of any dividend on or with
respect to any such securities, and (c) any other payment by such Person with
respect to such securities.
DOLLARS and the symbol $ shall mean lawful money of the United States
of America.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of 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 Lender and the
Administrative Agent
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from Borrower within five Business Days after notice of such proposed assignment
has been provided by the assigning Lender to Borrower; provided, however, that
neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
but not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. ss. 9601 et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 et seq.) ("RCRA"), the Clean Water Act (33
U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.), the Safe
Drinking Water Act (42 U.S.C. ss. 201 and ss. 300f et seq.) and the Rivers and
Harbors Act (33 U.S.C. ss. 401 et seq.), the Oil Pollution Act (33 U.S.C. ss.
2701 et seq.) and analogous state and local Laws, as any of the foregoing may
have been and may be amended or supplemented from time to time, and any
analogous future enacted or adopted Law, or (d) the Release or threatened
Release of Hazardous Substances.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means, with respect to Borrower or any of its
Subsidiaries, any company, trade, or business (whether or not incorporated)
which, for purposes of Title IV of ERISA, is a member of Borrower's 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 Agreement unless otherwise specified.
EXISTING AGREEMENT is defined in the Recitals to this Agreement.
EXISTING 364-DAY LENDERS is defined in the Recitals of this Agreement.
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EXISTING DEBT means on any date of determination, (a) the secured and
unsecured Debt of Borrower and its Restricted Subsidiaries existing on August 6,
1998 and described in PART A of SCHEDULE 7.12, (b) on and after September 14,
1998 (the "MCI Merger Date" under the Existing Agreement), the secured and
unsecured Debt of MCI and its Subsidiaries existing on that date and described
in PART B of SCHEDULE 7.12, 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.
FACILITY A means the credit facility described in and subject to the
limitations of the Facility A Agreement.
FACILITY A AGREEMENT means the Amended and Restated Facility A
Revolving Credit Agreement dated August 6, 1998, among Borrower, NationsBank,
N.A., predecessor in interest to Bank of America, N.A., as "Administrative
Agent" thereunder, and the lenders party thereto (as the same may be amended,
modified, supplemented, or restated from time to time).
FACILITY A COMMITMENT means an amount (subject to availability,
reduction, or cancellation as provided in the Facility A Agreement) equal to
$3,750,000,000.
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 Lender
pursuant to SECTION 2.3 based upon an actual percentage rate per annum offered
by such Lender, expressed as a decimal (to no more than four decimal places) and
accepted by Borrower.
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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.
GRANTING BANK has the meaning specified in SECTION 11.13(H).
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 23, 1996 between MFS
Communications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
Indenture dated as of February 26, 1996, between Brooks Fiber Properties, Inc.
and The Bank of New York, as trustee; and Indenture dated as of May 29, 1997,
between Brooks Fiber Properties, Inc. and The Bank of New York, as trustee,
Indenture dated as of October 15, 1989, between MCI and Citibank, N.A., as
trustee; Indenture dated as of February 17, 1995, between MCI and Citibank,
N.A., as trustee; and Junior Subordinated Indenture dated as of May 29, 1996,
between MCI and Wilmington Trust Company, as trustee, in each case as the same
have been or may be amended, modified, supplemented or restated from time to
time.
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.
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 Agreement), and subject to the terms and conditions of this
Agreement, their respective successors and assigns, but not any Participant who
is not otherwise a party to this Agreement.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Agreement, certificates delivered pursuant
to this Agreement, and Exhibits and Schedules hereto, (b) all agreements,
documents, or instruments in favor of Agents or Lenders (or Administrative Agent
on behalf of Lenders) delivered pursuant to this Agreement or otherwise
delivered in
AMENDED AND RESTATED 364-DAY REVOLVING
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connection with all or any part of the Obligation, and (c) all renewals,
extensions, or restatements of, or amendments or supplements to, any of the
foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Restricted Company
to perform any of its payment or other material obligations under the Loan
Papers or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers, (b)
material and adverse effect on the business, properties, condition (financial or
otherwise) or results of operations of the Restricted Companies, in each case
considered as a whole, or (c) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of operations of the
Consolidated Companies, in each case considered as a whole. The phrase "could be
a Material Adverse Event" (and any similar phrase herein) means that there is a
material probability of such Material Adverse Event occurring, and the phrase
"could not be a Material Adverse Event" (and any similar phrase herein) means
that there is not a material probability of such Material Adverse Event
occurring.
MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary
of Borrower (or any group of Subsidiaries of Borrower) that individually or
collectively own 10% or more of the book value of the consolidated assets of the
Restricted Companies determined as of the date of, and with respect to, the
Current Financials and the related Compliance Certificate.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MCI means MCI Communications Corporation.
MOODY'S means Moody's Investors Service, Inc. or any successor thereto.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
Restricted Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make contributions.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Revolving Notes, Competitive Bid Notes, Term Notes, and the Swing
Line Notes.
NOTICE OF BORROWING is defined in SECTION 2.7(A).
NOTICE OF CONVERSION is defined in SECTION 3.10.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to any Agent, or any Lender by any Restricted Company arising
from, by virtue of, or pursuant to any Loan Paper, together with all interest
accruing thereon, fees, costs, and expenses (including, without limitation, all
reasonable attorneys' fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Papers.
PARTICIPANT is defined in SECTION 11.13(E).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
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.
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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 Bank of America, N.A. as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the aggregate
unpaid principal balance of all Borrowings under this Agreement.
PRO RATA or PRO RATA PART means on any date of determination for any
Lender, (a) at any time prior to the earlier of the Termination Date or the Term
Conversion Date, the proportion that such Lender's Committed Sum bears to the
Commitment, or (b) at any time on or after the earlier of the Termination Date
or the Term Conversion Date, the proportion that the Principal Debt owed to such
Lender bears to the Principal Debt owed to all Lenders; provided that with
respect to any principal or interest payments on any Competitive Borrowing, Pro
Rata or Pro Rata Part means the proportion that the outstanding principal amount
or accrued and unpaid interest (as the case may be) owed to any 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
Lenders participating in such Competitive Borrowing.
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
AMENDED AND RESTATED 364-DAY REVOLVING
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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
2.2(A).
QUOTED SWING LINE RATE has the meaning as defined in SECTION 2.2(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.
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 4043.21, 4043.24
and 4043.28 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
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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.
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).
REVOLVING NOTE means a promissory note in substantially the form of
EXHIBIT A-1, and all renewals and extensions of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate, and maintain the
network facilities.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SPC has the meaning specified in SECTION 11.13(H).
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Papers.
SOLVENT means, as to a Person, that (a) the aggregate fair market value
of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such Person has
sufficient cash flow to enable it to pay its Debts as they mature, and (c) such
Person does not have unreasonably small capital to conduct such Person's
businesses.
SUBSIDIARY of any Person means any entity of which an aggregate of more
than 50% (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 Swing
Line Borrowings.
SWING LINE COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $175,000,000.
AMENDED AND RESTATED 364-DAY REVOLVING
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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 2.2 to this Agreement (which amount is subject to availability,
increase, reduction, or cancellation in accordance with this Agreement).
SWING LINE LENDERS means, collectively, Bank of America, those Lenders
listed on SCHEDULE 2.2, and any Lender designated by Borrower as a "Swing Line
Lender" pursuant to and in accordance with SECTION 2.2(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 this 364-Day
Facility described in, and subject to the limitations of, SECTION 2.2.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERM CONVERSION DATE means the date upon which the Principal Debt is
converted to a Term Loan in accordance with SECTION 2.5.
TERM CONVERSION REQUEST is defined in SECTION 2.5(A).
TERM LOAN means loans made by Lenders pursuant to SECTION 2.5.
TERM LOAN MATURITY DATE has the meaning set forth in SECTION 2.5.
TERM NOTE means a promissory note in substantially the form of EXHIBIT
A-4, and all renewals and extensions of all or any part thereof.
TERMINATION DATE means the earlier of (a) August 3, 2000, as such date
may be extended pursuant to SECTION 2.4, and (b) the effective date of any other
termination or cancellation of Lenders' Commitments to lend under, and in
accordance with, this Agreement.
TOTAL CAPITALIZATION means, on any date of determination, the sum of
Total Debt and Consolidated Net Worth.
TOTAL COMMITMENT means, on any date of determination, the sum of the
Facility A Commitment and the 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 have been or may be amended, modified,
supplemented, or restated, but not increased from time to time) shall not be
included, so long as no "Event of Default" under such Debentures or the related
Indenture has occurred and is continuing on any date of determination.
AMENDED AND RESTATED 364-DAY REVOLVING
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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
2.2(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.
1.2 Number and Gender of Words; Other References. Unless otherwise
specified, in the Loan Papers (a) where appropriate, the singular includes the
plural and vice versa, and words of any gender include each other gender, (b)
heading and caption references may not be construed in interpreting provisions,
(c) monetary references are to currency of the United States of America, (d)
section, paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Paper in which they are used, (e) references to "telecopy,"
"facsimile," "fax," or similar terms are to facsimile or telecopy transmissions,
(f) references to "including" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items that follow references to specific items are limited
to the same type or character of those specific items is not applicable in the
Loan Papers, (h) references to any Person include that Person's heirs, personal
representatives, successors, trustees, receivers, and permitted assigns, (i)
references to any Law include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for it, and (j)
references to any Loan Paper or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
1.3 Accounting Principles. All accounting and financial terms used in
the Loan Papers and the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period.
SECTION 2 BORROWING PROVISIONS.
2.1 The Facility.
(a) Subject to and in reliance upon the terms, conditions,
representations, and warranties in the Loan Papers, each Lender
severally and not jointly agrees to lend to Borrower such Lender's Pro
Rata Part of one or more Borrowings under this Agreement not to exceed
such Lender's Committed Sum under this Agreement, which, subject to the
Loan Papers, Borrower may borrow, repay, and reborrow under this
Agreement; provided that (i) each such Borrowing must occur on a
Business Day and no later than the Business Day immediately preceding
the Termination Date; (ii) each such Borrowing shall be in an amount
not less than (A) $5,000,000 or a greater integral multiple of
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$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 Principal Debt shall never exceed the
Commitment.
(b) On the Closing Date, this Agreement amends and restates
the Existing Agreement; provided, however, that the execution and
delivery of this Agreement and the other Loan Papers shall not in any
circumstances be deemed to have terminated, extinguished, or discharged
the Debt (if any) under the Existing Agreement all of which Debt (if
any) shall continue under and be governed by this Agreement and the
other Loan Papers. On the Effective Date, each Lender shall advance its
respective Pro Rata Share of the first Borrowing (if any), which may be
netted against its outstandings under the Existing Agreement and shall
be used to repay all outstanding Debt (if any) under the Existing
Agreement due the Existing 364-Day Lenders which are not Lenders under
this Agreement.
(c) Lenders hereby agree among themselves (and Borrower hereby
consents to such agreement) that, concurrently with the Closing Date,
there shall be deemed to have occurred assignments and assumptions with
respect to the Obligation, liens, rights, and obligations under this
Agreement and the other Loan Papers (including, without limitation, the
Commitment and the Principal Debt) such that, after giving effect to
such assignments and assumptions, the Lender's Committed Sum and the
Commitment percentage are as stated on SCHEDULE 2.1, and the Lenders
hereby make such assignments and assumptions. The Lenders shall make
all appropriate payments and adjustments among themselves to effectuate
the appropriate purchase price for and other amounts payable with
respect to such assignments and assumptions.
2.2 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 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 Principal
Debt shall never exceed the 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 this Agreement pursuant to SECTION 2.1 is being
made; (E) no additional Swing Line Borrowings shall be made at any time
after any Lender has refused, notwithstanding the requirements of
SECTIONS 2.2(C) and (D), to either fund a Borrowing under this
Agreement 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 Lenders are deemed to have purchased a participation
in any Unrefunded Swing Line Borrowing pursuant to SECTION 2.2(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 Principal Debt owed to
any Swing Line Lender may exceed its Commitment. Each
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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 2.2(B)
below, in immediately available funds. Borrower may borrow, prepay, and
reborrow Swing Line Borrowings on or after the Closing Date and prior
to the 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 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 2.2(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 Lenders, including the
Swing Line Lenders (and each 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 this Agreement shall be made notwithstanding
Borrower's noncompliance with SECTION 5.2. Each 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 this Agreement shall be immediately
applied to repay such Swing Line Borrowing.
(d) If, for any reason, Borrowings under this Agreement may
not be (as determined by Administrative Agent in its sole discretion),
or are not, made pursuant to SECTION 2.2(C) to repay any Swing Line
Borrowing as required by such Section, then, effective on the date such
Borrowing under this Agreement 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 Lender's Pro Rata Part thereof. Each Lender shall fund a
Borrowing under this Agreement 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,
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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 Lender under this SECTION 2.2(D) shall include
interest thereon from the date on which such payment is payable by such
Lender to, but not including, the date such amount is paid by such
Lender to Administrative Agent, at the Federal Funds Rate. If such
Lender does not promptly pay such amount upon Administrative Agent's
demand therefor, and until such time as such 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 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 Lenders who hold funded participations in such Unrefunded Swing
Line Borrowings under this SECTION 2.2(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 Lenders
holding funded participations in any Unrefunded Swing Line Borrowing
prior to such date). Subject to SECTION 3.12, 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 Lender by reason
thereof as fully as if such Lender had extended such Borrowing under
this Agreement directly to Borrower in the amount of such
participation.
(e) Whenever, at any time after any Swing Line Lender has
received from any Lender such 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 Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such 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
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
Agreement, each Lender's obligation to fund the Borrowings referred to
in SECTION 2.2(C) and to purchase and fund participating interests
pursuant to SECTION 2.2(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 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 Agreement
by Borrower or any 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 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 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
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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 Sums pursuant to this
SECTION 2.2(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 2.2(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.
2.3 Competitive Bid Subfacility.
(a) In addition to Borrowings under this Agreement otherwise
provided for herein, but subject to the terms and conditions of the
Loan Papers, Borrower may, as set forth in this SECTION 2.3, request
Lenders to make offers to make Competitive Borrowings under this
Agreement. Lenders may, but shall have no obligation to, make any such
offers, and Borrower may, but shall have no obligation to, accept any
such offers. Any Competitive Borrowings made available to Borrower
hereunder shall be subject, however, to the conditions that (i) on any
date of determination: the aggregate principal outstanding under all
Competitive Borrowings under this Agreement made by all Lenders shall
not exceed the Commitment then in effect; (ii) on any date of
determination, the Principal Debt shall not exceed the Commitment; and
(iii) each Borrowing under the Competitive Bid Subfacility in respect
of this Agreement must occur on a Business Day and prior to the
Business Day immediately preceding the Termination Date.
(b) In order to request Competitive Bids, Borrower shall
deliver a Competitive Bid Request to Administrative Agent (i) not later
than 10:00 a.m. Dallas, Texas time on the fourth Business Day preceding
the Borrowing Date for any requested Competitive Borrowing that will be
comprised of Eurodollar Rate Borrowings, or (ii) not later than 10:00
a.m. Dallas, Texas time one Business Day before the Borrowing Date for
any requested Competitive Borrowing that will be comprised of Fixed
Rate Borrowings. A Competitive Bid Request that does not conform
substantially to the format of EXHIBIT B-4 may be rejected by
Administrative Agent, and Administrative Agent shall promptly notify
Borrower of such rejection. Each Competitive Bid Request shall refer to
this Agreement and shall specify (i) whether the Competitive Borrowing
then being requested will be comprised of Eurodollar Rate Borrowings or
Fixed Rate Borrowings, (ii) the Borrowing Date of such Competitive
Borrowing (which shall be a Business Day) and the aggregate principal
amount thereof (which shall not be less than $5,000,000 or a greater
integral multiple of $1,000,000), and (iii) the Interest Period with
respect thereto (which may not be more than six months and which may
not
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extend beyond the Termination Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid,
Administrative Agent shall notify Lenders of the Competitive Bid
Request on a form substantially similar to EXHIBIT B-5 hereto, pursuant
to which the Lenders are invited to bid, subject to the terms and
conditions of this Agreement, to make Competitive Borrowings pursuant
to such Competitive Bid Request. Notwithstanding the foregoing,
Administrative Agent shall have no obligation to invite any Lender to
make a Competitive Bid pursuant to this SECTION 2.3 until such Lender
has delivered a completed Administrative Questionnaire to
Administrative Agent.
(c) Each Lender may make one or more Competitive Bids to
Borrower responsive to each respective Competitive Bid Request. Each
Competitive Bid by a Lender must be received by Administrative Agent
substantially in the form of EXHIBIT B-6, (i) no later than 11:00 a.m.
Dallas, Texas time on the third Business Day preceding the Borrowing
Date for any requested Competitive Borrowing that will be comprised of
Eurodollar Rate Borrowings, or (ii) prior to 10:00 a.m. Dallas, Texas
time on the Borrowing Date for any requested Competitive Borrowing that
will be comprised of Fixed Rate Borrowings. Competitive Bids that do
not conform substantially to the format of EXHIBIT B-6 may be rejected
by Administrative Agent after conferring with, and upon the instruction
of, Borrower, and Administrative Agent shall notify the appropriate
Lender of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and shall (x) specify the principal
amount (which shall be in a minimum principal amount of $5,000,000 or a
greater integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by Borrower and
may exceed such Lender's Committed Sum under this Agreement, subject to
the limitations set forth in SECTION 2.3(A) hereof) of the Competitive
Borrowing such Lender is willing to make to Borrower, (y) specify the
Competitive Bid Rate at which such Lender is prepared to make its
Competitive Borrowing, and (z) confirm the Interest Period with respect
thereto specified by Borrower in its Competitive Bid Request. A
Competitive Bid submitted by a Lender pursuant to this SECTION 2.3(C)
shall be irrevocable.
(d) Administrative Agent shall promptly notify Borrower of all
Competitive Bids made and the Competitive Bid Rate and the principal
amount of each Competitive Borrowing in respect of which a Competitive
Bid was made and the identity of the Lender that made each bid.
(e) Borrower may, subject only to the provisions of this
SECTION 2.3(E), accept or reject any or all of the Competitive Bids for
this Agreement referred to in SECTION 2.3(C); provided, however, that
the aggregate amount of the Competitive Bids so accepted by Borrower
may not exceed the principal amount of the Competitive Borrowing
requested by Borrower (subject to the further limitations of SECTION
2.3(A) hereof). Borrower shall notify Administrative Agent whether and
to what extent it has decided to accept or reject any or all of the
bids referred to in SECTION 2.3(C), (i) not later than 10:45 a.m.
Dallas, Texas time three Business Days before the Borrowing Date
specified for a proposed Competitive Borrowing that is deemed a
Eurodollar Rate Borrowing or (ii) not later than 11:00 a.m., Dallas,
Texas time on the day specified for a proposed Competitive Borrowing
that is deemed a Fixed Rate Borrowing; provided, however, that (w) the
failure by Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in SECTION 2.3(C), (x) Borrower
shall not accept a bid under this Agreement in the same or lower
principal amount made at a particular Competitive Bid Rate if Borrower
has decided to reject a bid made at a lower Competitive Bid Rate, (y)
if Borrower shall accept bids made at a particular Competitive Bid Rate
but shall be restricted by other conditions hereof from borrowing the
principal amount of the Competitive Borrowing in respect of which bids
at such Competitive Bid Rate have been made, then Borrower shall accept
a ratable portion of each bid made at such Competitive Bid Rate based
as nearly as possible on the respective principal amounts of the
Competitive Borrowing for which such bids were made, and (z) no bid
shall be accepted for a Competitive Borrowing under this Agreement
unless the aggregate principal amount to be funded pursuant to all
accepted bids under this Agreement shall be in a minimum amount of
$5,000,000 or a greater integral multiple of $1,000,000 for each
respective Lender whose bid is
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accepted. Notwithstanding the foregoing, if it is necessary for
Borrower to accept a ratable allocation of the bids for this Agreement
made in response to a Competitive Bid Request (whether pursuant to the
events specified in CLAUSE (Y) above or otherwise) and the available
principal amount of the Competitive Borrowing to be allocated among the
Lenders submitting Competitive Bids is not sufficient to enable
Competitive Borrowings to be allocated to each such Lender in a minimum
principal amount of $5,000,000 or a greater integral multiple of
$1,000,000, then Borrower shall select the Lenders to be allocated such
Competitive Borrowings and shall round allocations up or down to the
next higher or lower multiple of $500,000 as it shall deem appropriate.
A notice given by Borrower pursuant to this SECTION 2.3(E) shall be
irrevocable.
(f) Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (which
notice to those Lenders whose Competitive Bids have been accepted will
be given within one hour from the time such bid was accepted by
Borrower and shall further indicate in what amount and at what
Competitive Bid Rate), and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to advance
the Competitive Borrowing in respect of which its bid has been
accepted. After completing the notifications referred to in the
immediately preceding sentence, Administrative Agent shall notify each
bidding Lender of the aggregate principal amount of all Competitive
Bids under this Agreement accepted for and the range of Competitive Bid
Rates submitted in connection with that Competitive Borrowing.
(g) If Administrative Agent shall at any time elect to submit
a Competitive Bid in its capacity as a Lender, it shall submit such bid
directly to Borrower one-half hour earlier than the latest time at
which the other Lenders are required to submit their bids to
Administrative Agent pursuant to SECTION 2.3(C).
(h) Each Competitive Borrowing shall be due and payable on the
last day of the applicable Interest Period; provided that if Borrower
fails to repay any Competitive Borrowing on such day, Borrower shall be
deemed to have given a Notice of Borrowing requesting the Lenders to
make a Base Rate Borrowing under this Agreement in the amount of such
Competitive Borrowing, subject to satisfaction of the conditions
specified in SECTIONS 2.1 and 5.2; provided that failure to repay such
Competitive Borrowing on the last day of the applicable Interest Period
shall not constitute a failure to satisfy such conditions.
2.4 Optional Renewal of Commitments.
(a) Optional Renewal Procedures. Borrower may request that the
Termination Date be extended for all or a portion of the Commitment to
a date which is no later than the 364th day after the then-current
Termination Date; provided that, (i) any such extension request shall
be made in writing (an "EXTENSION REQUEST") by Borrower and delivered
to Administrative Agent no more than 60 days prior to (but no later
than 30 days prior to) the then-current Termination Date; (ii) no more
than one such Extension Request may be made by Borrower; and (iii) no
Extension Request may be made after the Term Conversion Date or which
would have the effect of extending the Termination Date to a date later
than the last day of the second 364-day period following the Closing
Date. Promptly upon receipt of an Extension Request, Administrative
Agent shall notify Lenders of such request.
(i) Lenders' Response to Extension Request. Lenders
may, at their option, accept or reject such Extension Request
by giving written notice to Administrative Agent delivered no
earlier than 30 days prior to (but no later than 25 days prior
to) the then-effective Termination Date (such 25th day being
the "RESPONSE DATE"). If any Lender shall fail to give such
notice to Administrative Agent by the Response Date, such
Lender shall be deemed to
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have rejected the requested extension. If the Extension
Request is not consented to by Determining Lenders by the
Response Date, the Extension Request will be rejected, and
this Commitment will terminate on the then-effective
Termination Date (unless prior to such Termination Date,
Borrower elects to convert the Principal Debt, or a portion
thereof, in accordance with SECTION 2.5 hereof). If
Determining Lenders consent to the Extension Request by the
Response Date, the Termination Date for those Lenders
consenting to the extension (for purposes of this SECTION
2.4(A), the "ACCEPTING LENDERS") shall be automatically
extended to the date which is the 364th day after the
then-current Termination Date; provided that (i) the
Termination Date may never be extended on any one date for a
period greater than 364 days; and (ii) no more than one such
364-day extension of the Termination Date may be granted by
Determining Lenders.
(ii) Additional Procedures to Extend the Rejected
Amount. If the Extension Request is consented to by
Determining Lenders, but fewer than all Lenders (any Lender
not consenting to the Extension Request being referred to in
this SECTION 2.4(A) as a "REJECTING LENDER"), then
Administrative Agent shall, within 48 hours of making such
determination, notify the Accepting Lenders and Borrower of
the aggregate Committed Sums held by the Rejecting Lenders (as
used in this SECTION 2.4(A), the "REJECTED AMOUNT"). Each
Accepting Lender shall have the Right, but not the obligation,
to elect to increase its respective Committed Sum by an amount
not to exceed the Rejected Amount, which election shall be
made by notice from each Accepting Lender to the
Administrative Agent given not later than ten days after the
date notified by Administrative Agent, specifying the amount
of such proposed increase in such Accepting Lender's Committed
Sum. If the aggregate amount of the proposed increases in the
Committed Sums of all Accepting Lenders making such an
election does not equal or exceed the Rejected Amount, then
Borrower shall have the Right to add one or more financial
institutions (which are not Rejecting Lenders and which are
Eligible Assignees) as Lenders (as used in this SECTION
2.4(A), a "PURCHASING LENDER") to replace such Rejecting
Lenders, which Purchasing Lenders shall have aggregate
Committed Sums not greater than those of the Rejecting Lenders
(less any increases in the Committed Sums of Accepting
Lenders, as described in the following CLAUSE (III)). The
transfer of Committed Sums and outstanding Borrowings from
Rejecting Lenders to Purchasing Lenders or Accepting Lenders
shall take place on the effective date of, and pursuant to the
execution, delivery, and acceptance of, Assignment and
Acceptance Agreements in accordance with the procedures set
forth in SECTION 11.13(B).
(iii) Adjustments to, and Terminations of,
Commitments.
(A) If less than 100% (but more than 51%) of
the Commitment is extended (whether by virtue of
Borrower's failure to request an extension of the
full Commitment or by virtue of any Lender not
consenting to any Extension Request), then the
Commitment shall automatically be reduced on the
Termination Date on which the applicable approved
extension is effective by an amount equal to (as the
case may be) (i) the portion of the Commitment not
requested to be extended by Borrower in its Extension
Request (which terminated portion of the Commitment
shall be allocated Pro Rata among the Lenders) or
(ii) the amount of the Rejected Amount (to the extent
not replaced by Accepting Lenders or Purchasing
Lenders pursuant to the procedures set forth in the
foregoing SECTION 2.4(A)(II)). Each Rejecting Lender
shall have no further obligation or Committed Sum
following the Termination Date on which the
applicable approved extension is effective, other
than any obligation accruing prior to such date as
provided herein.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
22
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(B) If the aggregate amount of the proposed
increases in the Committed Sums of all Accepting
Lenders making an election to increase their
respective Committed Sums is in excess of the
Rejected Amount, then (i) the Rejected Amount shall
be allocated pro rata among such Accepting Lenders
based on the respective amounts of the proposed
increases to Committed Sums elected by such Accepting
Lenders; and (ii) the respective Committed Sums of
each such Accepting Lender shall be increased by the
respective amount allocated pursuant to CLAUSE (I) of
this SECTION 2.4(A)(III)(B), such that, after giving
effect to the approved extensions and all such
terminations and increases, no reduction will occur
in the aggregate amount of the Commitment.
(C) If the aggregate amount of the proposed
increases to the Committed Sums of all Accepting
Lenders making such an election to so increase their
respective Committed Sums equals the Rejected Amount,
then the respective Committed Sums of such Accepting
Lenders shall be increased by the respective amounts
of their proposed increases, such that, after giving
effect to the approved extensions and all such
terminations and increases, no reduction will occur
in the aggregate amount of the Commitment.
(D) If the aggregate amount of the proposed
increases to the Committed Sums of all Accepting
Lenders making such an election is less than the
Rejected Amount, then (i) the respective Committed
Sums of each such Accepting Lender shall be increased
by the respective amount of its proposed increase;
and (ii) the amount of the Commitment shall be
reduced by the amount of the Rejected Amount (to the
extent not replaced by the Accepting Lenders or the
Purchasing Lenders, if any).
(b) No Obligation to Renew. Borrower acknowledges that (i)
neither Administrative Agent nor any Lender has made any
representations to Borrower regarding its intent to agree to any
extensions set forth in this Section, (ii) neither Administrative Agent
nor any Lender shall have any obligation to extend the Commitment (or
any portion thereof), and (iii) Administrative Agent's and Lenders'
agreement to one or more extensions shall not commit Administrative
Agent or the Lenders to any additional extensions.
2.5 Conversion to Term Loans. Borrower shall have the option to convert
up to $4,000,000,000 of the Principal Debt outstanding on the Termination Date
(after giving effect to any loan repayments on or prior to the Termination Date)
to a Term Loan maturing no later than one year after the Term Conversion Date
(the "TERM LOAN MATURITY DATE"); provided, however, that no Term Loan Conversion
may be made on any date on which all or any portion of the Commitment is
available to be borrowed as revolving Borrowings under the 364-Day Facility.
Such Term Loan conversion is subject to and on the terms and conditions set
forth below:
(a) No sooner than 90 days (and not later than 10 days)
preceding the Termination Date, Borrower shall deliver to
Administrative Agent a Term Conversion Request in substantially the
form of EXHIBIT B-3 (a "TERM CONVERSION REQUEST"), which, among other
things, shall (i) specify Borrower's election to make such conversion
to a Term Loan, and (ii) specify the Type of Borrowing or Borrowings to
which the Principal Debt shall be converted and the Interest Periods
therefor (if