364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
WORLDCOM, INC.,
Borrower
NATIONSBANK, N.A.,
Arranging Agent and Administrative Agent
NATIONSBANC MONTGOMERY SECURITIES, LLC,
Lead Arranger
BANK OF AMERICA NT & SA,
BARCLAYS BANK PLC,
THE CHASE MANHATTAN BANK,
CITIBANK, N.A.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, and
ROYAL BANK OF CANADA,
Co-Syndication Agents
and
THE LENDERS NAMED HEREIN,
Lenders
$7,000,000,000
DATED AS OF AUGUST 6, 1998
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2 BORROWING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Swing Line Subfacility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3 Competitive Bid Subfacility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4 Optional Renewal of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.5 Conversion to Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.6 Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.7 Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.8 Mandatory Commitment Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3 TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.1 Loan Accounts, Notes, and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 Interest and Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Interest Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.4 Quotation of Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.5 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.6 Interest Recapture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.7 Interest Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.8 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.9 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.10 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.11 Order of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.12 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.13 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.14 Booking Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.15 Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.16 Limitation on Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.17 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.18 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.19 Compensation; Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.20 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.1 Treatment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.2 Fees of Administrative Agent and Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.3 Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.1 Conditions Precedent to Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.2 Conditions Precedent to Each Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.1 Purpose of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.2 Existence, Good Standing, Authority, and Authorizations . . . . . . . . . . . . . . . . . . . . . . 39
6.3 Authorization and Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.6 Litigation, Claims, Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.8 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.9 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.10 Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.11 Government Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.12 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.13 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.14 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.1 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.3 Items to be Furnished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.4 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.6 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.7 Maintenance of Existence, Assets, and Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.9 Preservation and Protection of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.12 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.13 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.14 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.15 Compliance with Laws and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.16 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.17 Permitted Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.18 Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.19 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.20 Mergers and Dissolutions; Sale of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.21 Designation of Unrestricted Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.22 Financial Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.23 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.24 Repayment of Certain Existing Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.1 Payment of Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.3 Debtor Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.4 Judgments and Attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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8.5 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.6 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.7 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.8 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.9 Default Under Facility A or Facility B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.10 Validity and Enforceability of Loan Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9 RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.1 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.2 Company Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.3 Performance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.4 Delegation of Duties and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.5 Not in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.6 Course of Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.7 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.8 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.9 Certain Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.10 Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.11 Expenditures by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.12 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10 AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.1 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.3 Proportionate Absorption of Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.4 Delegation of Duties; Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.5 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.6 Default; Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.7 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.8 Relationship of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.9 Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.10 Co-Syndication Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.1 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.2 Nonbusiness Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.3 Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.4 Form and Number of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.5 Exceptions to Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.8 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.9 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.10 Jurisdiction; Venue; Service of Process; Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 60
11.11 Amendments, Consents, Conflicts, and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.12 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.13 Successors and Assigns; Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . 62
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances . . . . . . . . . . . . 65
11.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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SCHEDULES AND EXHIBITS
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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 Revolving Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of 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 Notice of Swing Line Borrowing
Exhibit C - Form of Administrative Questionnaire
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Acceptance Agreement
Exhibit F-1 - Form of Opinion of General Counsel of Borrower
Exhibit F-2 - Form of Opinion of Special New York Counsel
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364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AGREEMENT is entered into as of August 6, 1998, among WORLDCOM,
INC., a Georgia corporation ("BORROWER"), certain Lenders (hereinafter
defined), the Co-Syndication Agents (hereinafter defined), and NATIONSBANK,
N.A., as a Lender and as Administrative Agent (hereinafter defined) for itself
and the other Lenders.
RECITALS
A. Borrower has requested that Lenders extend credit to Borrower,
providing for a 364-Day revolving credit and term loan facility in the
aggregate principal amount of $7,000,000,000, for general corporate purposes,
including, without limitation, liquidity support for commercial paper.
B. Upon and subject to the terms and conditions of this
Agreement, Lenders are willing to extend such credit to Borrower.
In consideration of the foregoing and the mutual covenants contained
herein, Borrower, Administrative Agent, and Lenders agree, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
364-DAY FACILITY means the revolving credit and term loan facility
(including any 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.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent
to be equal to the quotient obtained by dividing (a) the Eurodollar Rate for
such Eurodollar Rate Borrowing for such Interest Period by (b) 1 minus the
Reserve Requirement for such Eurodollar Rate Borrowing for such Interest
Period.
ADMINISTRATIVE AGENT means NationsBank, N.A. 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
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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 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"):
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
2
<PAGE> 8
<TABLE>
<CAPTION>
=====================================================================================================
Applicable Margin
-------------------------------------------------------
Ratings Base Rate Eurodollar Rate Commitment Fees
Borrowings Borrowings
=====================================================================================================
<S> <C> <C> <C>
Category 1
----------
A or higher by S&P; 0.0000% 0.2250% 0.0550%
A2 or higher by Moody's
-----------------------------------------------------------------------------------------------------
Category 2
----------
A- by S&P; 0.0000% 0.2500% 0.0600%
A3 by Moody's
-----------------------------------------------------------------------------------------------------
Category 3
----------
BBB+ by S&P; 0.0000% 0.3500% 0.0900%
Baa1 by Moody's
-----------------------------------------------------------------------------------------------------
Category 4
----------
BBB by S&P; 0.0000% 0.4000% 0.1000%
Baa2 by Moody's
-----------------------------------------------------------------------------------------------------
Category 5
----------
BBB- or lower by S&P; 0.0000% 0.4500% 0.1200%
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 definition), then both such
rating agencies will be deemed to have established ratings for
Index Debt in Category 5; (ii) if only one of Moody's or S&P
shall have in effect a rating for Index Debt, Borrower and the
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.
(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), the "Facility B Principal Debt" (as such term is
defined in the Facility B Agreement), and the Principal Debt
exceeds 33 1/3% (but less than 66 2/3%) of the Total
Commitment, then the Applicable Margin for Eurodollar Rate
Borrowings shall be increased by 0.05% (the "UTILIZATION
FEE"); provided that, if the "Facility A Commitment Usage" (as
such term is defined in the Facility A
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
3
<PAGE> 9
Agreement), the "Facility B Principal Debt" (as such term is
defined in the Facility B Agreement), and the Principal Debt
equals or exceeds 66 2/3% of the Total Commitment, then such
Utilization Fee shall be increased to 0.10%.
ARRANGER means NationsBanc Montgomery Securities LLC, and its
successors and assigns in its capacity as "Lead Arranger" under the Loan
Papers.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority (including, without limitation, the FCC and applicable PUCs),
including without limitation, any of the foregoing authorizing or permitting
the acquisition, construction, or operation of network facilities or any other
telecommunications system.
BASE RATE means, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this 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.
CO-SYNDICATION AGENTS means Bank of America NT & SA, Barclays Bank
PLC, The Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of
New York, and Royal Bank of Canada.
CODE means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
4
<PAGE> 10
COMMITMENT means an amount (subject to availability, reduction, or
cancellation as provided in this Agreement) equal to $7,000,000,000.
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) as applicable, either (i) prior
to the MCI Merger Date, the Financial Statements for the fiscal year ended
December 31, 1997, and the three-month period ended March 31, 1998, calculated
on a consolidated basis for Borrower and the Consolidated Companies; or (ii) on
or after the MCI Merger Date, the combined consolidated financial statements of
Borrower and MCI and their consolidated Subsidiaries as then most recently
filed with the Securities and Exchange Commission; or (b) the Financial
Statements required to be delivered under
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
5
<PAGE> 11
SECTIONS 7.3(a) or 7.3(b), as the case may be, calculated on a consolidated
basis for the Consolidated Companies; provided that, for purposes of SECTION
5.1(b), "CURRENT FINANCIALS" shall mean both the Financial Statements described
in ITEMS (I) and (II) preceding, whether or not the MCI Merger Date has
occurred on or prior to such date of determination.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor,
guarantor, or otherwise; (c) all obligations of the type referred to in CLAUSES
(a)(i) through CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons
secured by any Lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount
of the obligation so secured; (d) the face amount of all letters of credit and
banker's acceptances issued for the account of such Person, and without
duplication, all drafts drawn and unpaid thereunder; and (e) obligations
arising under any Accounts Receivable Financing which in accordance with GAAP
should be classified upon such Person's balance sheet as liabilities; provided,
however, that Debt shall not include obligations of Borrower which are owed to
a trust or other special purpose entity, all of whose common equity is
beneficially owned by Borrower, so long as such obligations are held by such
trusts or their representatives and are subordinate in right of payment to the
Obligation.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to
time in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
Base Rate Borrowings plus 2% and (b) the Maximum Rate.
DETERMINING LENDERS means for all purposes under the Loan Papers (i)
on any date of determination occurring prior to the earlier of the Term Loan
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 Loan 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
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
6
<PAGE> 12
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 from
Borrower within five Business Days after notice of such proposed assignment has
been provided by the assigning Lender to Borrower; provided, however, that
neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
but not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. Section 136 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
201 and Section 300f et seq.) and the Rivers and Harbors Act (33 U.S.C.
Section 401 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.)
and analogous state and local Laws, as any of the foregoing may have been and
may be amended or supplemented from time to time, and any analogous future
enacted or adopted Law, or (d) the Release or threatened Release of Hazardous
Substances.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means, with respect to Borrower or any of its
Subsidiaries, any company, trade, or business (whether or not incorporated)
which, for purposes of Title IV of ERISA, is a member of Borrower's controlled
group or which is under common control with Borrower within the meaning of
Section 414(b), (c) or (m) of the Code.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means, as the case may be, either (a) a
Borrowing (other than a Competitive Borrowing) bearing interest at the sum of
the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings or (b) a Competitive Borrowing bearing interest at the sum of the
Adjusted Eurodollar Rate plus or
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
7
<PAGE> 13
minus the margin indicated for such Competitive Borrowing in the related
Competitive Bid.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
EXISTING DEBT means on any date of determination, (a) the secured and
unsecured Debt of Borrower and its Restricted Subsidiaries existing on the
Closing Date and described in PART A of SCHEDULE 7.12 (but expressly excluding
the WorldCom/Brooks Fiber Loan on and after the earlier of (i) the date of
repayment thereof in full and termination of the commitment thereunder and (ii)
the thirtieth (30th) day after the closing date of this 364-Day Facility); (b)
on and after the MCI Merger Date, the secured and unsecured Debt of MCI and its
Subsidiaries existing on the MCI Merger Date and described in PART B of
SCHEDULE 7.12 (but expressly excluding the MCI Revolving Facility, which shall
be repaid in full and the commitment thereunder terminated on or before the MCI
Merger Date); and (c) renewals, extensions, and refinancings of any of the
Existing Debt described in CLAUSES (a) and (b) to the extent that the principal
amount under (or the maximum principal amount that may be borrowed under) such
Existing Debt is not increased on or after the Closing Date (with respect to
Existing Debt listed in PART A of SCHEDULE 7.12) or on or after the MCI Merger
Date (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).
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 of even date herewith, among Borrower,
NationsBank, 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.
FACILITY B means the term loan facility described in and subject to
the limitations of the Facility B Agreement.
FACILITY B AGREEMENT means the Amended and Restated Term Loan
Agreement dated of even date herewith among Borrower, NationsBank, N.A., as the
"Administrative Agent" thereunder, and the lenders party thereto (as the same
may be amended, modified, supplemented, restated, or increased from time to
time).
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
364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
8
<PAGE> 14
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.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which (a) with respect to the covenant
contained in SECTION 7.22 (and, to the extent used in or relating to such
covenant, any defined terms), are in effect on the date hereof, and (b) for all
other purposes hereunder, are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or
federal judicial, executive, or legislative instrumentality, (b) private
arbitration board or panel, or (c) central bank.
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
defined or classified as a hazardous waste, hazardous material, pollutant,
contaminant or toxic or hazardous substance under any Environmental Law,
including without limitation, any hazardous substance within the meaning of
Section 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil,
motor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons,
(c) regulated asbestos and asbestos-containing materials in any form, (d)
polychlorinated biphenyls, or (e) urea formaldehyde foam.
INDENTURES means any indentures or other agreements pursuant to which
notes, debentures, bonds, or debt securities are issued by any Restricted
Company, including, without limitation, the following: Indenture dated as of
March 1, 1997, between Borrower and The Chase Manhattan Trust Company, N.A., as
successor trustee; Indenture dated as of January 26, 1994, between MFS
Communications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
Indenture dated as of January 23, 1996 between MFS Communications Company, Inc.
and IBJ Schroder Bank & Trust Co., as trustee; Indenture dated as of February
26, 1996, between Brooks Fiber Properties, Inc. and The Bank of New York, as
trustee; and Indenture dated as of May 29, 1997, between Brooks Fiber
Properties, Inc. and The Bank of New York, as trustee, in each case as the same
have been or may be amended, modified, supplemented or restated from time to
time; and on and after the MCI Merger Date, references to "INDENTURES" shall
also include the Indenture dated as of October 15, 1989, between MCI and
Citibank, N.A., as trustee; Indenture dated as of February 17, 1995, between
MCI and Citibank, N.A., as trustee; and Junior Subordinated Indenture dated as
of May 29, 1996, between MCI and Wilmington Trust Company, as trustee, in each
case as the same have been or may be amended, modified, supplemented, or
restated from time to time.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
364-DAY REVOLVING
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9
<PAGE> 15
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 connection with all or any part of the Obligation, (c) any
Financial Hedge between any Restricted Company and any Lender or any Affiliate
of any Lender, and (d) 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.
MCI MERGER means the merger of MCI with and into TC Investments Corp.,
a wholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
Merger Agreement.
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MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as
of November 9, 1997, among Borrower, MCI, and TC Investments Corp. (as amended
to date and as hereinafter amended subject to the consent of Administrative
Agent to any material amendment thereof, which consent shall not be
unreasonably withheld).
MCI MERGER DATE means the date upon which the MCI Merger closes in
accordance with the MCI Merger Agreement.
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
Facility dated as of April 30, 1997, among MCI and the lenders party thereto,
as amended by that certain First Amendment to Revolving Credit Agreement dated
as of April 28, 1998.
MOODY'S means Moody's Investors Service, Inc. or any successor
thereto.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
Restricted Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make contributions.
NATIONSBANK means NationsBank, N.A., in its individual capacity as a
Lender and its successors and assigns.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid 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.
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;
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(b) such surviving corporation shall be a corporation
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia, and shall expressly
assume all of Borrower's obligations for the due and punctual payment
of the Obligation and the performance or observance of the Loan
Papers;
(c) immediately after giving effect to such merger or
consolidation, no Default or Potential Default shall have occurred and
be continuing;
(d) Borrower shall have delivered to Administrative Agent
a certificate signed by a Responsible Officer of Borrower and a
written opinion of counsel satisfactory to the Administrative Agent
(and its counsel), each stating that such merger or consolidation
complies with the requirements for a Permitted Successor Corporation
and that all conditions precedent herein provided for relating to such
merger or consolidation have been satisfied;
(e) No "Change of Control" (as described in SECTION 8.6)
has occurred as a result of such merger or consolidation; and
(f) on and prior to the closing of any such merger or
consolidation, such merger and consolidation shall have been approved
and recommended by the Board of Directors of Borrower.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of
any circumstance which, with the giving of notice or lapse of time or both,
would become a Default.
PRIME RATE means the per annum rate of interest established from time
to time by NationsBank, N.A. as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the 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 Loan 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 Loan 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
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).
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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 2615.11, 2615.15
and 2615.19 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
RESERVE REQUIREMENT means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental,
or emergency reserves) are required to be maintained under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against, in the
case of Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (a) any category of liabilities which
includes deposits by reference to which the Adjusted Eurodollar Rate is to be
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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).
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate, and maintain the
network facilities.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SCHEDULE means, unless specified otherwise, a schedule attached to
this 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 Rate
Swing Line Borrowings.
SWING LINE COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $175,000,000.
SWING LINE COMMITTED SUM means, on any date of determination for any
Swing Line Lender, the amount stated beside its name on the most-recently
amended SCHEDULE 2.2 to the Agreement (which amount is subject to availability,
increase, reduction, or cancellation in accordance with this Agreement).
SWING LINE LENDERS means, collectively, NationsBank, 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
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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 earliest of (a) August 5, 1999, 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, the Facility B Principal Debt, 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.
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
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Unrestricted Subsidiaries.
UTILIZATION FEE has the meaning set forth in CLAUSE (b) of the
definition of "Applicable Margin" in this SECTION 1.1.
VOTING STOCK shall mean securities (as such term is defined in Section
2(1) of the Securities Act of 1933, as amended) of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
WORLDCOM/BROOKS FIBER LOAN means the loans under that certain
$1,250,000,000 364-Day Revolving Credit and Term Loan Agreement dated as of
February 19, 1998, among Borrower, NationsBank N.A. (in its capacity as
"Administrative Agent" thereunder and as a lender), and the other lenders party
thereto (as amended, restated and modified from time to time).
1.2 Number and Gender of Words; Other References. Unless
otherwise specified, in the Loan Papers (a) where appropriate, the singular
includes the plural and vice versa, and words of any gender include each other
gender, (b) heading and caption references may not be construed in interpreting
provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Paper in which they are used, (e)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (f) references to "including" mean including without
limiting the generality of any description preceding that word, (g) the rule of
construction that references to general items that follow references to
specific items are limited to the same type or character of those specific
items is not applicable in the Loan Papers, (h) references to any Person
include that Person's heirs, personal representatives, successors, trustees,
receivers, and permitted assigns, (i) references to any Law include every
amendment or supplement to it, rule and regulation adopted under it, and
successor or replacement for it, and (j) references to any Loan Paper or other
document include every renewal and extension of it, amendment and supplement to
it, and replacement or substitution for it.
1.3 Accounting Principles. All accounting and financial terms
used in the Loan Papers and the compliance with each financial covenant therein
shall be determined in accordance with GAAP, and, all accounting principles
shall be applied on a consistent basis so that the accounting principles in a
current period are comparable in all material respects to those applied during
the preceding comparable period.
SECTION 2 BORROWING PROVISIONS.
2.1 Commitments. Subject to and in reliance upon the terms,
conditions, representations, and warranties in the 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
$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
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Line Borrowing); and (iii) on any date of determination, the Principal Debt
shall never exceed the Commitment.
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 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,
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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, 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.
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(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 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
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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
on any date of determination: (i) the aggregate principal
outstanding under all Competitive Borrowings under this Agreement made
by all Lenders shall not exceed the Commitment then in effect; (ii) on
any date of determination, the Principal Debt shall not exceed the
Commitment; and (iii) each Borrowing under the Competitive Bid
Subfacility in respect of this Agreement must occur on a Business Day
and prior to the Business Day immediately preceding the Termination
Date.
(b) In order to request Competitive Bids, Borrower shall
deliver a Competitive Bid Request to Administrative Agent (i) not
later than 10:00 a.m. Dallas, Texas time on the fourth Business Day
preceding the Borrowing Date for any requested Competitive Borrowing
that will be comprised of Eurodollar Rate Borrowings, or (ii) not
later than 10:00 a.m. Dallas, Texas time one Business Day before the
Borrowing Date for any requested Competitive Borrowing that will be
comprised of Fixed Rate Borrowings. A Competitive Bid Request that
does not conform substantially to the format of EXHIBIT B-4 may be
rejected by Administrative Agent, and Administrative Agent shall
promptly notify Borrower of such rejection. Each Competitive Bid
Request shall refer to this Agreement and shall specify (i) whether
the Competitive Borrowing then being requested will be comprised of
Eurodollar Rate Borrowings or Fixed Rate Borrowings, (ii) the
Borrowing Date of such Competitive Borrowing (which shall be a
Business Day) and the aggregate principal amount thereof (which shall
not be less than $5,000,000 or a greater integral multiple of
$1,000,000), and (iii) the Interest Period with respect thereto (which
may not be more than six months and which may not extend beyond the
Termination Date). Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, Administrative Agent shall
notify Lenders of the Competitive Bid Request on a form substantially
similar to EXHIBIT B-5 hereto, pursuant to which the Lenders are
invited to bid, subject to the terms and conditions of this Agreement,
to make Competitive Borrowings pursuant to such Competitive Bid
Request. Notwithstanding the foregoing, Administrative Agent shall
have no obligation to invite any Lender to make a Competitive Bid
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
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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 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
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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 (a "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 two such Extension Requests 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 third
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 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 two such
364-day extensions 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
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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 11.14(c).
(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.
(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
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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 (i) no
Term Loan Conversion may be made on any date on which all or any portion of the
Commitment is available to be borrowed as revolving Borrowings under the
364-Day Facility; and (ii) notwithstanding the foregoing, if the mandatory
Commitment reductions required by SECTION 2.8 have been effected, Borrower may
only convert up to $1,714,000,000 of the Principal Debt to a Term Loan pursuant
to this SECTION 2.5. 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