http://smallbusiness.findlaw.com
|
http://smallbusiness.findlaw.com
|
| Wednesday, Aug. 20, 2008 |
AMENDED AND RESTATED
FACILITY B 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
$1,250,000,000
DATED AS OF AUGUST 6, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1 DEFINITIONS AND TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Number and Gender of Words; Other References . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2 BORROWING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.1 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3 TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1 Loan Accounts and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2 Interest and Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.3 Interest Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.4 Quotation of Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.5 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.6 Interest Recapture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.7 Interest Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.8 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.9 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.10 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.11 Order of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.12 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.13 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.14 Booking Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.15 Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.16 Limitation on Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.17 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.18 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.19 Compensation; Replacement of Facility B Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.20 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Treatment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 Fees of Administrative Agent and Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5 CONDITIONS PRECEDENT TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.1 Purpose of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.2 Existence, Good Standing, Authority, and Authorizations . . . . . . . . . . . . . . . . . . . . . . 28
6.3 Authorization and Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.6 Litigation, Claims, Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.8 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.9 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.10 Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
i
<PAGE> 3
<TABLE>
<S> <C> <C>
6.11 Government Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.12 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.13 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.14 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.1 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.3 Items to be Furnished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.4 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.6 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.7 Maintenance of Existence, Assets, and Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.9 Preservation and Protection of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.12 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.13 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.14 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.15 Compliance with Laws and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.16 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.17 Permitted Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.18 Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.19 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.20 Mergers and Dissolutions; Sale of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.21 Designation of Unrestricted Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.22 Financial Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.23 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.24 Repayment of Certain Existing Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 8 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.1 Payment of Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.3 Debtor Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.4 Judgments and Attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.5 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.6 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.7 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.8 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.9 Default Under 364-Day Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.10 Validity and Enforceability of Loan Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9 RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.1 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.2 Company Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.3 Performance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.4 Delegation of Duties and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.5 Not in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.6 Course of Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
9.7 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.8 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.9 Certain Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.10 Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.11 Expenditures by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.12 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 10 AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.1 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.3 Proportionate Absorption of Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.4 Delegation of Duties; Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.5 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.6 Default; Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.7 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.8 Relationship of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.9 Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.10 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.1 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.2 Nonbusiness Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.3 Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.4 Form and Number of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.5 Exceptions to Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.8 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.9 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.10 Jurisdiction; Venue; Service of Process; Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 49
11.11 Amendments, Consents, Conflicts, and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.12 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.13 Successors and Assigns; Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . 51
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances . . . . . . . . . . . . 53
11.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.16 Restatement of Existing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
iii
<PAGE> 5
SCHEDULES AND EXHIBITS
<TABLE>
<S> <C> <C>
Schedule 2.1 - Facility B Lenders
Schedule 5 - Conditions Precedent to Closing
Schedule 7.12 - Existing Debt
Schedule 7.14 - Transactions with Affiliates
Exhibit A - Form of Term Note
Exhibit B - Form of Notice of Conversion
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
</TABLE>
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
iv
<PAGE> 6
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
THIS AGREEMENT is entered into as of August 6, 1998, among WORLDCOM,
INC., a Georgia corporation ("BORROWER"), certain Facility B Lenders
(hereinafter defined), the Co-Syndication Agents (hereinafter defined), and
NATIONSBANK, N.A. (successor in interest by merger to NationsBank of Texas,
N.A.), as a Facility B Lender and as Administrative Agent (hereinafter defined)
for itself and the other Lenders.
RECITALS
A. Borrower has entered into the Facility B Revolving Credit and
Term Loan Agreement (as renewed, extended, or amended to date, the "EXISTING
AGREEMENT") dated as of July 3, 1997, with NationsBank, N.A. (in its capacity
as "Administrative Agent" thereunder and as a lender) and certain other lenders
party thereto (together with NationsBank, N.A., the "EXISTING FACILITY B
LENDERS"), providing for, among other things, a revolving credit and term loan
facility in the aggregate principal amount of $1,250,000,000.
B. Subject to the terms and conditions set forth below, Borrower
and "Determining Lenders" (as defined in the Existing Agreement) desire to
entirely amend, modify, and restate the Existing Agreement in order, among
other things, to amend certain provisions of the Existing Agreement.
C. The amendment and restatement of the Existing Agreement
hereunder is not intended by the parties to constitute either a novation or a
discharge or satisfaction of the indebtedness and obligations under the
Existing Agreement, which indebtedness and obligations under the Existing
Agreement shall remain outstanding hereunder on the terms and conditions
hereinafter provided.
In consideration of the foregoing and the mutual covenants contained
herein, Borrower, NationsBank, N.A. (in its capacity as Administrative Agent
under the Existing Agreement), and Determining Lenders under the Existing
Agreement agree that, effective upon the Closing Date, the Existing Agreement
is amended and restated in its entirety, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
364-DAY FACILITY means the revolving credit and term loan facility
described in and subject to the limitations of the 364-Day Facility Agreement.
364-DAY FACILITY AGREEMENT means that certain 364-Day Revolving Credit
and Term Loan Agreement, dated of even date herewith, among Borrower,
NationsBank, N.A., (in its capacity as "Administrative Agent" thereunder and as
a lender) and certain other Lenders party thereto (as the same may be amended,
modified, supplemented, or restated from time to time).
364-DAY FACILITY COMMITMENT means an amount (subject to availability,
reduction, or cancellation as provided in the 364-Day Facility Agreement) equal
to $7,000,000,000.
364-DAY PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the 364-Day
Facility.
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
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
<PAGE> 7
in, or otherwise transfer, undivided percentage interests in the Receivables
Program Assets; provided that, for purposes of determinations made pursuant to
SECTIONS 7.13(G) and 7.19(D), any Accounts Receivable Financing involving a
sale of Receivables Program Assets to the Receivables Subsidiary by any
Restricted Company and a subsequent substantially concurrent resale of such
Receivables Program Assets, or an interest therein, to a third party shall be
treated as a single Accounts Receivable Financing transaction.
ACCOUNTS RECEIVABLE FINANCING AMOUNT means, with respect to any
Accounts Receivable Financing and without duplication, the aggregate
outstanding principal amount of the undivided percentage interests in the
Receivables Program Assets, representing Rights to be paid a specified
principal amount from such Receivables Program Assets.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent
to be equal to the quotient obtained by dividing (a) the Eurodollar Rate for
such Eurodollar Rate Borrowing for such Interest Period by (b) 1 minus the
Reserve Requirement for such Eurodollar Rate Borrowing for such Interest
Period.
ADMINISTRATIVE AGENT means NationsBank, N.A. (successor in interest by
merger to NationsBank of Texas, N.A.) and its permitted successor or successors
as administrative agent and arranging agent for Facility B Lenders under this
Facility B Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Facility B 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).
APPLICABLE LENDING OFFICE means, for each Facility B Lender and for
each Type of Borrowing, the "Lending Office" of such Facility B Lender (or an
Affiliate of such Facility B Lender) designated on SCHEDULE 2.1 attached hereto
or such other office that such Facility B Lender (or an Affiliate of such
Facility B Lender) may from time to time specify to Administrative Agent and
Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means the lowest percentage set forth in the table
below for the Type of Borrowing or commitment fees (as the case may be) which
corresponds to Borrower's conformity, on any date of determination, with the
ratings (or implied ratings) established by both S&P and Moody's applicable to
Borrower's senior, unsecured, non-credit- enhanced, long term indebtedness for
borrowed money ("INDEX DEBT"):
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
Applicable Margin
==============================================================
Ratings Base Rate Eurodollar Rate
Borrowings Borrowings
===================================================================================================
<S> <C> <C>
Category 1
----------
BBB+ or higher by S&P; 0.0000% 0.3500%
Baa1 or higher by Moody's
---------------------------------------------------------------------------------------------------
Category 2
----------
BBB by S&P; 0.0000% 0.4000%
Baa2 by Moody's
---------------------------------------------------------------------------------------------------
</TABLE>
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
2
<PAGE> 8
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
Applicable Margin
==============================================================
Ratings Base Rate Eurodollar Rate
Borrowings Borrowings
===================================================================================================
<S> <C> <C>
Category 3
----------
BBB- by S&P; 0.0000% 0.4500%
Baa3 by Moody's
---------------------------------------------------------------------------------------------------
Category 4
----------
BB+ by S&P; 0.0000% 0.5000%
Ba1 by Moody's
---------------------------------------------------------------------------------------------------
Category 5
----------
BB or lower by S&P; 0.0000% 0.7500%
Ba2 or lower by Moody's
---------------------------------------------------------------------------------------------------
</TABLE>
(a) For purposes of determining the Applicable Margin, (i) if
neither Moody's nor S&P shall have in effect a rating for
Index Debt (other than by reason of the circumstances referred
to in the last sentence of this definition), then both such
rating agencies will be deemed to have established ratings for
Index Debt in Category 5; (ii) if only one of Moody's or S&P
shall have in effect a rating for Index Debt, Borrower and the
Facility B 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 Facility B
Lenders shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such changed
rating system. If both Moody's and S&P shall cease to be in
the business of rating corporate debt obligations, Borrower
and the Facility B 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 defined in the Facility A Agreement), the
Facility B Principal Debt, and the 364-Day Principal Debt
exceeds 33 1/3% (but less than 66 2/3%) of the Total
Commitment, then the Applicable Margin for Eurodollar Rate
Borrowings shall be increased by 0.05% (the "UTILIZATION
FEE"); provided that, if the Facility A Commitment Usage (as
defined in the Facility A Agreement), the Facility B Principal
Debt, and the 364-Day Principal Debt equals or exceeds 66 2/3%
of the Total Commitment, then such Utilization Fee shall be
increased to 0.10%.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
3
<PAGE> 9
ARRANGER means NationsBanc Montgomery Securities LLC, and its
successors and assigns, in its capacity as "Lead Arranger" under the Loan
Papers.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority (including, without limitation, the FCC and applicable PUCs),
including without limitation, any of the foregoing authorizing or permitting
the acquisition, construction, or operation of network facilities or any other
telecommunications system.
BASE RATE means, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Facility B Agreement.
BORROWING means any amount disbursed (a) by one or more Facility B
Lenders to Borrower under the Facility B Loan Papers, whether such amount
constitutes an original disbursement of funds or the continuation of an amount
outstanding, or (b) by any Facility B Lender in accordance with, and to satisfy
the obligations of any Restricted Company under, any Facility B Loan Paper.
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, or New York, New York, (b)
in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London, and (c) in addition to the foregoing, for purposes of any fundings in,
or conversions to or from, Foreign Currency, a day when commercial banks are
open for international business in the principal financial center in the
country which issues such Foreign Currency, as determined by Administrative
Agent.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Facility B Agreement has
been executed by Borrower and Determining Lenders, and all conditions precedent
specified in SECTION 5.1 have been satisfied or waived.
CO-SYNDICATION AGENTS means Bank of America NT & SA, Barclays Bank
PLC, The Chase Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company of
New York, and Royal Bank of Canada.
CODE means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D.
CONSEQUENTIAL LOSS means any loss or expense which any Facility B
Lender may reasonably incur in respect of a Eurodollar Rate Borrowing or as a
consequence of (a) any failure or refusal of Borrower (for any reasons
whatsoever other than a default by Administrative Agent or a Facility B Lender)
to accept or utilize such
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
4
<PAGE> 10
Borrowing after Borrower shall have requested it under this Facility B
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 Facility B Lenders of (a) as applicable, either
(i) prior to the MCI Merger Date, the Financial Statements for the fiscal year
ended December 31, 1997, and the three-month period ended March 31, 1998,
calculated on a consolidated basis for Borrower and the Consolidated Companies;
or (ii) on or after the MCI Merger Date, the combined consolidated financial
statements of Borrower and MCI and their consolidated Subsidiaries as then most
recently filed with the Securities and Exchange Commission; or (b) the
Financial Statements required to be delivered under SECTIONS 7.3(A) or 7.3(B),
as the case may be, calculated on a consolidated basis for the Consolidated
Companies; provided that, for purposes of SECTION 5(B), "CURRENT FINANCIALS"
shall mean both the Financial Statements described in Items (i) and (ii)
preceding, whether or not the MCI Merger Date has occurred on or prior to such
date of determination.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (A)(I) through (A)(III) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor,
guarantor, or otherwise; (c) all obligations of the type referred to in CLAUSES
(A)(I) through CLAUSE (A)(III) and CLAUSE (B) preceding of other Persons
secured by any Lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount
of the obligation so secured; (d) the face amount of all letters of credit and
banker's acceptances issued for the account of such Person, and without
duplication, all drafts drawn and unpaid thereunder; and (e) obligations
arising under any Accounts Receivable Financing which in accordance with GAAP
should be classified upon such Person's balance sheet as liabilities; provided,
however, that Debt shall not include obligations of Borrower which are owed to
a trust or other special purpose entity, all of whose common equity is
beneficially owned by Borrower, so long as such obligations are held by such
trusts or their representatives and are subordinate in right of payment to the
Obligation.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to
time in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
Base Rate Borrowings plus 2% and (b) the Maximum Rate.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
5
<PAGE> 11
DETERMINING LENDERS means:
(a) For purposes of waiving or amending any conditions
precedent under SECTION 5.2 of the Facility A Agreement, those
Facility A Lenders who collectively hold, on any date of
determination, at least 51% of the Facility A Commitment; or
(b) For all other purposes under the Loan Papers, (i) on
any date of determination occurring prior to the date upon which
Facility A has been terminated, those Lenders who collectively hold at
least 51% of the sum of (A) the Facility A Commitment and (B) the
Facility B Principal Debt; and (ii) on any date of determination
occurring on or after the date upon which Facility A Commitment has
been terminated, those Lenders who collectively hold at least 51% of
the Principal Debt and the LC Exposure (as defined in the Facility A
Agreement).
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 Facility B Lender; (b) an Affiliate of a
Facility B Lender (so long as such assignment is not made in conjunction with
the sale of such Affiliate); and (c) any other Person approved by
Administrative Agent (which approval will not be unreasonably withheld or
delayed by Administrative Agent) and, unless a Default has occurred and is
continuing at the time any assignment is effected in accordance with SECTION
11.13, Borrower, such approval not to be unreasonably withheld or delayed by
Borrower and such approval to be deemed given by Borrower if no objection is
received by the assigning Facility B 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
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
6
<PAGE> 12
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 a Borrowing bearing interest at the
sum of the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar
Rate Borrowings.
EXHIBIT means an exhibit to this Facility B Agreement unless otherwise
specified.
EXISTING AGREEMENT is defined in the Recitals to this Facility B
Agreement.
EXISTING DEBT means on any date of determination, (a) the secured and
unsecured Debt of Borrower and its Restricted Subsidiaries existing on the
Closing Date and described in PART A of SCHEDULE 7.12 (but expressly excluding
the WorldCom/Brooks Fiber Loan on and after the earlier of (i) the date of
repayment thereof in full and termination of the commitment thereunder, and
(ii) the thirtieth (30th) day after the closing date of the 364-Day Facility);
(b) on and after the MCI Merger Date, the secured and unsecured Debt of MCI and
its Subsidiaries existing on the MCI Merger Date and described in PART B of
SCHEDULE 7.12 (but expressly excluding the MCI Revolving Facility, which shall
be repaid in full and the commitment thereunder terminated on or before the MCI
Merger Date); and (c) renewals, extensions, and refinancings of any of the
Existing Debt described in CLAUSES (A) and (B) to the extent that the principal
amount under (or the maximum principal amount that may be borrowed under) such
Existing Debt is not increased on or after the Closing Date (with respect to
Existing Debt listed in PART A of SCHEDULE 7.12) or on or after the MCI Merger
Date (with respect to Existing Debt listed in PART B of SCHEDULE 7.12).
EXISTING FACILITY B LENDERS is defined in the Recitals to this
Facility B Agreement.
FACILITIES means, collectively, Facility A and Facility B; "FACILITY"
means either Facility A or Facility B, whichever the context requires.
FACILITY A means the credit facility described in and subject to the
limitations of the Facility A Agreement.
FACILITY A ADMINISTRATIVE AGENT means the "Administrative Agent" under
Facility A and its permitted successors and assigns under Facility A.
FACILITY A AGENTS means, collectively, Facility A Administrative Agent
and Co-Syndication Agents under the Facility A Agreement.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
7
<PAGE> 13
FACILITY A AGREEMENT means the Amended and Restated Facility A
Revolving Credit and Term Loan Agreement, and all Exhibits and Schedules
thereto, as each may be amended, modified, supplemented, or restated from time
to time, dated the date hereof among Borrower, Facility A Administrative Agent,
and the Facility A Lenders.
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 A COMPETITIVE BID SUBFACILITY means a subfacility of Facility
A as described in the Facility A Agreement.
FACILITY A COMPETITIVE BORROWING means a Borrowing under the Facility
A Competitive Bid Subfacility.
FACILITY A LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 (as the same may be amended from time to
time by Administrative Agent to reflect the assignments made in accordance with
SECTION 11.13(C) of the Facility A Agreement) to the Facility A Agreement, and
subject to the terms and conditions of the Facility A Agreement, their
respective successors and assigns, but not any Participant who is not otherwise
a party to the Facility A Agreement.
FACILITY A LOAN PAPERS means those Loan Papers evidencing the
Obligation arising under, in connection with, or pursuant to, Facility A, and
all renewals, extensions, or restatements of or amendments or supplements to,
any such Facility A Loan Papers.
FACILITY A PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under Facility A.
FACILITY B means the term loan facility described in and subject to
the limitations of the Facility B Agreement.
FACILITY B AGENTS means, collectively, Administrative Agent and the
Co-Syndication Agents under this Facility B Agreement.
FACILITY B AGREEMENT means this Amended and Restated Facility B Term
Loan Agreement, and all Exhibits and Schedules hereto, as each may be amended,
modified, supplemented, or restated from time to time.
FACILITY B LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 (as the same may be amended from time to
time by Administrative Agent to reflect the assignments made in accordance with
SECTION 11.13(C) of this Facility B Agreement) to this Facility B Agreement,
and subject to the terms and conditions of this Facility B Agreement, their
respective successors and assigns, but not any Participant who is not otherwise
a party to this Facility B Agreement
FACILITY B LOAN PAPERS means those Loan Papers evidencing the
Obligation arising under, in connection with, or pursuant to, Facility B, and
all renewals, extensions, or restatements of or amendments or supplements to,
any such Facility B Loan Papers.
FACILITY B PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance under Facility B.
FCC means the Federal Communications Commission and any successor
regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
8
<PAGE> 14
1/100 of 1%) determined (which determination shall be conclusive and binding,
absent manifest error) by Administrative Agent to be equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Administrative Agent (in its individual capacity) on such day on such
transactions as determined by the Administrative Agent (which determination
shall be conclusive and binding, absent manifest error).
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk of fluctuations in
interest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
or other contract which is intended to reduce or eliminate the market risk of
holding currency or a commodity in either the cash or futures markets, which
Financial Hedge under either CLAUSE (A) or CLAUSE (B) is entered into by any
Restricted Company with any Lender or an Affiliate of any Lender or any other
Person under the Laws of a jurisdiction in which such contracts are legal and
enforceable (except as enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity).
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures.
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
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
9
<PAGE> 15
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.
LC means any "LC" as defined in the Facility A Agreement.
LC AGREEMENT means any "LC Agreement" as defined in the Facility A
Agreement.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LENDERS means, collectively, on any date of determination, the
Facility A Lenders and the Facility B Lenders.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Facility B Agreement, certificates
delivered pursuant to this Facility B Agreement, and Exhibits and Schedules
hereto, (b) the Facility A Agreement, certificates delivered pursuant to the
Facility A Agreement, and exhibits and schedules thereto, (c) all agreements,
documents, or instruments in favor of Administrative Agent or Lenders (or
Administrative Agent on behalf of Lenders) ever delivered pursuant to this
Facility B Agreement or the Facility A Agreement, or otherwise delivered in
connection with all or any part of the Obligation, (d) all LCs and LC
Agreements, (e) any Financial Hedge between any Restricted Company and any
Lender or any Affiliate of any Lender, and (f) all renewals, extensions, or
restatements of, or amendments or supplements to, any of the foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Restricted Company
to perform any of its payment or other material obligations under the Loan
Papers or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers, (b)
material and adverse effect on the business, properties, condition (financial
or otherwise) or results of operations of the Restricted Companies, in each
case considered as a whole, or (c) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of operations of the
Consolidated Companies, in each case considered as a whole. The phrase "could
be a Material Adverse Event" (and any similar phrase herein) means that there
is a material probability of such Material Adverse Event occurring, and the
phrase "could not be a Material Adverse Event" (and any similar phrase herein)
means that there is not a material probability of such Material Adverse Event
occurring.
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.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
10
<PAGE> 16
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender,
the maximum non-usurious amount and the maximum non-usurious rate of interest
which, under applicable Law, such Lender is permitted to contract for, charge,
take, reserve, or receive on the Obligation.
MCI means MCI Communications Corporation.
MCI MERGER means the merger of MCI with and into TC Investments Corp.,
a wholly-owned Subsidiary of Borrower, in accordance with the terms of the MCI
Merger Agreement.
MCI MERGER AGREEMENT means the Agreement and Plan of Merger dated as
of November 9, 1997, among Borrower, MCI, and TC Investments Corp. (as amended
to date and as hereinafter amended subject to the consent of Administrative
Agent to any material amendment thereof, which consent shall not be
unreasonably withheld).
MCI MERGER DATE means the date upon which the MCI Merger closes in
accordance with the MCI Merger Agreement.
MCI REVOLVING FACILITY means the $4,000,000,000 Revolving Credit
Facility dated as of April 30, 1997, among MCI and the lenders party thereto,
as amended by that certain First Amendment to Revolving Credit Agreement dated
as of April 28, 1998.
MOODY'S means Moody's Investors Service, Inc. or any successor
thereto.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
Restricted Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make contributions.
NATIONSBANK means NationsBank, N.A. (successor in interest by merger
to NationsBank of Texas, N.A.), in its individual capacity as a Lender, and its
successors and assigns.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Term Notes.
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 Facility A Agent or Facility B Agent, or any Lender by
any Restricted Company arising from, by virtue of, or pursuant to any Loan
Paper, together with all interest accruing thereon, fees, costs, and expenses
(including, without limitation, all reasonable attorneys' fees and expenses
incurred in the enforcement or collection thereof) payable under the Loan
Papers.
PARTICIPANT is defined in SECTION 11.13(E).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED SUCCESSOR CORPORATION means any corporation into which
Borrower is merged or consolidated, so long as:
(a) immediately after giving effect to such merger or
consolidation, the surviving corporation shall have then-effective
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,
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
11
<PAGE> 17
equal to or higher than BBB- by S&P, and Baa3 by Moody's;
(b) such surviving corporation shall be a corporation
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia, and shall expressly
assume all of Borrower's obligations for the due and punctual payment
of the Obligation and the performance or observance of the Loan
Papers;
(c) immediately after giving effect to such merger or
consolidation, no Default or Potential Default shall have occurred and
be continuing;
(d) Borrower shall have delivered to Administrative Agent
a certificate signed by a Responsible Officer of Borrower and a
written opinion of counsel satisfactory to the Administrative Agent
(and its counsel), each stating that such merger or consolidation
complies with the requirements for a Permitted Successor Corporation
and that all conditions precedent herein provided for relating to such
merger or consolidation have been satisfied;
(e) No "Change of Control" (as described in SECTION 8.6)
has occurred as a result of such merger or consolidation; and
(f) on and prior to the closing of any such merger or
consolidation, such merger and consolidation shall have been approved
and recommended by the Board of Directors of Borrower.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of
any circumstance which, with the giving of notice or lapse of time or both,
would become a Default.
PRIME RATE means the per annum rate of interest established from time
to time by NationsBank, N.A. as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the sum of the
Facility A Principal Debt and the Facility B Principal Debt.
PRO RATA or PRO RATA PART means:
(a) for each Facility A Lender with respect to any
commitment to fund (or to purchase participations pursuant to SECTIONS
2.2 and 2.3, as the case may be), any reductions of commitments,
conversions or continuations of Borrowings under Facility A, or any
payment or prepayment under Facility A, or any expense reimbursements
pursuant to SECTION 10.2 -- the "Commitment Percentage" stated
opposite such Facility A Lender's name as set forth on SCHEDULE 2.1 to
the Facility A Agreement or the most recently-amended SCHEDULE 2.1, if
any (or, if the Facility A Commitments shall have expired or been
terminated, then the proportion that the Facility A Principal Debt
owed to such Facility A Lender under Facility A or any subfacility
thereunder (except the Facility A Competitive Bid Subfacility), as
applicable, bears to the Facility A Principal Debt owed to all
Facility A Lenders under Facility A or any such subfacility thereunder
(except the Facility A Competitive Bid Subfacility), as applicable;
(b) for each Facility B Lender with respect to any
conversions or continuations of borrowings under Facility B, or any
payment or prepayment under Facility B, or any expense reimbursements
pursuant to SECTION 10.2 of the Facility B Agreement -- the proportion
that the Facility B Principal Debt owed to such Facility B Lender
bears to the Facility B Principal Debt owed to all Facility B Lenders;
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
12
<PAGE> 18
(c) for each Facility A Lender with respect to any
principal or interest payments on any Facility A Competitive Borrowing
-- the proportion that the outstanding principal amount or accrued and
unpaid interest (as the case may be) owed to any Facility A Lender
participating in such Facility A Competitive Borrowing bears to the
total principal amount outstanding or accrued and unpaid interest (as
the case may be) owed to all Facility A Lenders participating in such
Facility A Competitive Borrowing;
(d) for all other purposes with respect to any Lender --
(i) for so long as the Facility A Commitment has not terminated, the
proportion that the sum of such Facility A Lender's Facility A
Committed Sum plus the Facility B Principal Debt owed to such Lender
bears to the sum of the Facility A Commitment plus the Facility B
Principal Debt, or (ii) at any time on and after the Facility A
Termination Date, the proportion that the sum of (A) the Principal
Debt owed to such Lender plus (B) such Lender's proportionate part
(whether held directly or through a participation therein and
determined after giving effect to any participations) of the LC
Exposure (as defined in the Facility A Agreement) bears to the sum of
(x) the Principal Debt plus (y) the LC Exposure (as defined in the
Facility A Agreement).
PUC means any state or local regulatory agency or governmental
authority that exercises jurisdiction over the rates or services or the
ownership, construction, or operation of network facilities or
telecommunications systems or over Persons who own, construct, or operate
network facilities or telecommunications systems.
RECEIVABLES means all Rights of any Consolidated Company (as a
"Seller" under Receivables Documents) to payments (whether constituting
accounts, chattel paper, instruments, general intangibles, or otherwise, and
including the Right to payment of any interest or finance charges) with respect
to dedicated telecommunications services provided by any such Consolidated
Company to its customers between designated customer premises.
RECEIVABLES DOCUMENTS means one or more receivables purchase
agreements entered into by one or more Consolidated Companies and each other
instrument, agreement, and document entered into by such Consolidated Companies
evidencing Accounts Receivable Financings.
RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which
undivided percentage interests are transferred by any Consolidated Company
pursuant to the Receivables Documents, (b) all Receivables Related Assets with
respect to the Receivables described in CLAUSE (A) of this definition, and (c)
all collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
documentation governing or relating to Receivables (including Rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables), (b) any proceeds of such Receivables and any lockboxes or
accounts in which such proceeds are deposited, and (c) spread accounts and
other similar accounts (and any amounts on deposit therein) established in
connection with an Accounts Receivable Financing.
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.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
13
<PAGE> 19
RELEASE means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
REPORTABLE EVENT shall have the meaning specified in Section 4043 of
ERISA or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in sections 2615.11, 2615.15
and 2615.19 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
RESERVE REQUIREMENT means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental,
or emergency reserves) are required to be maintained under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against, in the
case of Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (a) any category of liabilities which
includes deposits by reference to which the Adjusted Eurodollar Rate is to be
determined, or (b) any category of extensions of credit or other assets which
include Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Reserve Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive
officer, chief financial officer, senior vice president, or treasurer of
Borrower, or, for all purposes under the Loan Papers other than SECTION 8.6,
any other officer designated from time to time by the Board of Directors of
Borrower, which designated officer is acceptable to Administrative Agent.
RESTRICTED COMPANIES, at any time of determination thereof, means
Borrower and the Restricted Subsidiaries.
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower
(other than the Unrestricted Subsidiaries).
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate, and maintain the
network facilities.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SCHEDULE means, unless specified otherwise, a schedule attached to
this Facility B Agreement, as the same may be supplemented and modified from
time to time in accordance with the terms of the Facility B 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.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
14
<PAGE> 20
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 LOAN MATURITY DATE means the earliest of (a) June 30, 2002, and
(b) the effective date of any other termination or cancellation of Facility B
in accordance with this Facility B Agreement.
TERM NOTE means a promissory note substantially in the form of EXHIBIT
A, and all renewals and extensions of all or any part thereof.
TOTAL CAPITALIZATION means, on any date of determination, the sum of
Total Debt and Consolidated Net Worth.
TOTAL COMMITMENT means, on any date of determination, the sum of the
Facility A Commitment, the Facility B Principal Debt, and the 364-Day Facility
Commitment.
TOTAL DEBT means (without duplication) all Debt of the Restricted
Companies; provided that, in determining "Total Debt," Debt arising under the
8.00% Junior Subordinated Deferrable Interest Debentures (the "DEBENTURES")
issued by MCI pursuant to Supplemental Indenture No. 1 to the Junior
Subordinated Indenture dated as of May 29, 1996, between MCI and Wilmington
Trust Company, as Trustee (as the same has been or may be amended, modified,
supplemented, or restated, but not increased from time to time) shall not be
included, so long as no "Event of Default" under such Debentures or the related
Indenture has occurred and is continuing on any date of determination.
TYPE means any type of Borrowing determined with respect to the
interest option applicable thereto.
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
mean (a) the Receivables Subsidiary and (b) any Subsidiary of Borrower
designated as an "Unrestricted Subsidiary" from time to time in accordance with
SECTION 7.21. UNRESTRICTED SUBSIDIARY, at any time of determination, shall
mean any of the Unrestricted Subsidiaries.
UTILIZATION FEE has the meaning set forth in CLAUSE (B) of the
definition of "Applicable Margin" in this SECTION 1.1.
VOTING STOCK shall mean securities (as such term is defined in Section
2(1) of the Securities Act of 1933, as amended) of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
WORLDCOM/BROOKS FIBER LOAN means the loans under that certain
$1,250,000,000 364-Day Revolving Credit and Term Loan Agreement dated as of
February 19, 1998, among Borrower, NationsBank N.A. (in its capacity as
"Administrative Agent" thereunder and as a lender), and the other lenders party
thereto (as amended, restated and modified from time to time).
1.2 Number and Gender of Words; Other References. Unless
otherwise specified, in the Loan Papers (a) where appropriate, the singular
includes the plural and vice versa, and words of any gender include each other
gender, (b) heading and caption references may not be construed in interpreting
provisions, (c) monetary
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
15
<PAGE> 21
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 Term Loan. Subject to and in reliance upon the terms,
conditions, representations, and warranties in the Loan Papers, the "Facility B
Principal Debt" under the Existing Agreement outstanding on the Closing Date
shall automatically be continued and extended as the "Facility B Principal
Debt" owed to the Facility B Lenders under this Facility B Agreement.
SECTION 3 TERMS OF PAYMENT.
3.1 Loan Accounts and Payments.
(a) The Facility B Principal Debt owed to each Facility B
Lender shall be evidenced by one or more loan accounts or records
maintained by such Facility B Lender in the ordinary course of
business. The loan accounts or records maintained by the
Administrative Agent (including, without limitation, the Register) and
each Facility B Lender shall be conclusive evidence absent manifest
error of the amount of the Borrowings made by Borrower from each
Facility B Lender under Facility B (and subfacilities thereunder) and
the interest and principal payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect
the obligation of Borrower under the Loan Papers to pay any amount
owing with respect to the Obligation.
(b) Upon the request of any Facility B Lender made
through the Administrative Agent, the Facility B Principal Debt owed
to such Facility B Lender may be evidenced by a Term Note.
(c) All payments of principal, interest, and other
amounts to be made by Borrower under this Facility B Agreement and the
other Facility B Loan Papers shall be made to Administrative Agent at
its principal office in Dallas, Texas in Dollars and in funds which
are or will be available for immediate use by Administrative Agent by
12:00 noon Dallas, Texas time on the day due, without setoff,
deduction, or counterclaim. Subject to the definition of "Interest
Period" herein, whenever any payment under this Facility B Agreement
or any other Loan Paper shall be stated to be due on a day that is not
a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable and as
the case may be. Payments made after 12:00 noon, Dallas, Texas, time
shall be deemed made on the Business Day next following.
Administrative Agent shall pay to each Facility B Lender any payment
of principal, interest, or other
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
16
<PAGE> 22
amount to which such Facility B Lender is entitled hereunder on the
same day Administrative Agent shall have received the same from
Borrower; provided such payment is received by Administrative Agent
prior to 12:00 noon Dallas, Texas time, and otherwise before 12:00
noon Dallas, Texas time on the Business Day next following. If and to
the extent Administrative Agent shall not make such payments to
Facility B Lenders when due as set forth in the preceding sentence,
such unpaid amounts shall accrue interest, payable by Administrative
Agent, at the Federal Funds Rate from the due date until (but not
including) the date on which Administrative Agent makes such payments
to Facility B Lenders.
3.2 Interest and Principal Payments.
(a) Interest on each Eurodollar Rate Borrowing shall be
due and payable as it accrues on the last day of its respective
Interest Period and on the Term Loan Maturity Date, as applicable;
provided that if any Interest Period is a period greater than three
(3) months, then accrued interest shall also be due and payable on the
date three (3) months after the commencement of such Interest Period.
Interest on each Base Rate Borrowing shall be due and payable as it
accrues on each March 31, June 30, September 30, and December 31, and
on the Term Loan Maturity Date.
(b) Borrower shall pay on the Term Loan Maturity Date all
outstanding Facility B Principal Debt, together with all accrued and
unpaid interest and fees.
(c) After giving Administrative Agent advance written
notice of the intent to prepay, Borrower may voluntarily prepay all or
any part of the Facility B Principal Debt from time to time and at any
time, in whole or in part, without premium or penalty; provided that:
(i) such notice must be received by Administrative Agent by 12:00 noon
Dallas, Texas time on (A) the third Business Day preceding the date of
prepayment of a Eurodollar Rate Borrowing, and (B) one Business Day
preceding the date of prepayment of a Base Rate Borrowing; (ii) each
such partial prepayment must be in a minimum amount of at least
$5,000,000 or a greater integral multiple of $1,000,000 thereof (if a
Eurodollar Rate Borrowing or a Base Rate Borrowing); (iii) all accrued
interest on the Obligation must also be paid in full, to the date of
such prepayment; and (iv) Borrower shall pay any related Consequential
Loss within ten (10) days after demand therefor. Each notice of
prepayment shall specify the prepayment date, the facility or the
subfacility hereunder being prepaid, the Type of Borrowing(s) and
amount(s) of such Borrowing(s) to be prepaid and shall constitute a
binding obligation of Borrower to make a prepayment on the date stated
therein.
3.3 Interest Options. Except where specifically otherwise
provided, Borrowings shall bear interest at a rate per annum equal to the
lesser of (a) as to the respective Type of Borrowing (as designated by Borrower
in accordance with this Facility B Agreement), the Base Rate plus the
Applicable Margin for Base Rate Borrowings or the Adjusted Eurodollar Rate plus
the Applicable Margin for Eurodollar Rate Borrowings, as the case may be, and
(b) the Maximum Rate. Each change in the Base Rate or the Maximum Rate,
subject to the terms of this Facility B Agreement, will become effective,
without notice to Borrower or any other Person, upon the effective date of such
change.
3.4 Quotation of Rates. It is hereby acknowledged that a
Responsible Officer or other appropriately designated employee of Borrower may
call Administrative Agent on or before the date on which a Notice of Conversion
is to be delivered by Borrower in order to receive an indication of the rates
then in effect, but such indicated rates shall neither be binding upon
Administrative Agent or Facility B Lenders nor affect the rate of interest
which thereafter is actually in effect when the Notice of Conversion is given.
3.5 Default Rate. At the option of Determining Lenders and to the
extent permitted by Law, all past-
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
17
<PAGE> 23
due Principal Debt and accrued interest thereon shall bear interest from
maturity (stated or by acceleration) at the Default Rate until paid, regardless
whether such payment is made before or after entry of a judgment.
3.6 Interest Recapture. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing
shall be limited to the Maximum Rate, but any subsequent reductions in such
designated rate shall not reduce the rate of interest thereon below the Maximum
Rate until the total amount of interest accrued thereon equals the amount of
interest which would have accrued thereon if such designated rate had at all
times been in effect. In the event that at maturity (stated or by
acceleration), or at final payment of the Facility B Principal Debt, the total
amount of interest paid or accrued is less than the amount of interest which
would have accrued if such designated rates had at all times been in effect,
then, at such time and to the extent permitted by Law, Borrower shall pay an
amount equal to the difference between (a) the lesser of the amount of interest
which would have accrued if such designated rates had at all times been in
effect and the amount of interest which would have accrued if the Maximum Rate
had at all times been in effect, and (b) the amount of interest actually paid
or accrued on the Facility B Principal Debt.
3.7 Interest Calculations.
(a) All payments of interest shall be calculated on the
basis of actual number of days (including the first day but excluding
the last day) elapsed but computed as if each calendar year consisted
of 360 days in the case of a Eurodollar Rate Borrowing, or Base Rate
Borrowings calculated with reference to the Federal Funds Rate (unless
such calculation would result in the interest on the Borrowings
exceeding the Maximum Rate in which event such interest shall be
calculated on the basis of a year of 365 or 366 days, as the case may
be) and 365 or 366 days, as the case may be, in the case of a Base
Rate Borrowing calculated with reference to Prime Rate. All interest
rate determinations and calculations by Administrative Agent shall be
conclusive and binding absent manifest error.
(b) The provisions of this Facility B Agreement relating
to calculation of the Base Rate and the Adjusted Eurodollar Rate, are
included only for the purpose of determining the rate of interest or
other amounts to be paid hereunder that are based upon such rate.
3.8 Maximum Rate. Regardless of any provision contained in any
Loan Paper, no Lender shall ever be entitled to contract for, charge, take,
reserve, receive, or apply, as interest on the Obligation, or any part thereof,
any amount in excess of the Maximum Rate, and, if Facility B Lenders ever do
so, then such excess shall be deemed a partial prepayment of principal and
treated hereunder as such and any remaining excess shall be refunded to
Borrower. In determining if the interest paid or payable exceeds the Maximum
Rate, Borrower and Facility B Lenders shall, to the maximum extent permitted
under applicable Law, (a) treat all Borrowings as but a single extension of
credit (and Facility B Lenders and Borrower agree that such is the case and
that provision herein for multiple Borrowings is for convenience only), (b)
characterize any nonprincipal payment as an expense, fee, or premium rather
than as interest, (c) exclude voluntary prepayments and the effects thereof,
and (d) amortize, prorate, allocate, and spread the total amount of interest
throughout the entire contemplated term of the Obligation; provided that, if
the Obligation is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period
of existence thereof exceeds the Maximum Amount, Facility B Lenders shall
refund such excess, and, in such event, Facility B Lenders shall not, to the
extent permitted by Law, be subject to any penalties provided by any Laws for
contracting for, charging, taking, reserving, or receiving interest in excess
of the Maximum Amount.
3.9 Interest Periods. When Borrower requests any Eurodollar Rate
Borrowing, Borrower may elect the interest period (each an "INTEREST PERIOD")
applicable thereto, which shall be, at Borrower's option, one, two, three, or
six months or, if available to all Facility B Lenders, nine or twelve months;
provided, however, that: (a) the initial Interest Period for a Eurodollar Rate
Borrowing shall commence on the date of such Borrowing
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
18
<PAGE> 24
(including the date of any conversion thereto), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period applicable thereto expires; (b) if any
Interest Period for a Eurodollar Rate Borrowing begins on a day for which there
is no numerically corresponding Business Day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the next Business
Day immediately following what otherwise would have been such numerically
corresponding day in the calendar month at the end of such Interest Period
(unless such date would be in a different calendar month from what would have
been the month at the end of such Interest Period, or unless there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); (c) no Interest Period
may be chosen with respect to any portion of the Facility B Principal Debt
which would extend beyond the scheduled repayment date (including any dates on
which mandatory prepayments are required to be made) for such portion of the
Principal Debt; and (d) no more than an aggregate of twenty (20) Interest
Periods (including, without limitation, Interest Periods under Facility A)
shall be in effect at one time.
3.10 Conversions. Borrower may (a) convert a Eurodollar Rate
Borrowing on the last day of an Interest Period to a Base Rate Borrowing, (b)
convert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing),
by giving notice (a "NOTICE OF CONVERSION," substantially in the form of
EXHIBIT B) of such intent no later than 10:00 a.m. Dallas, Texas time on the
third Business Day prior to the date of conversion or the last day of the
Interest Period, as the case may be (in the case of a conversion to a
Eurodollar Rate Borrowing or an election of a new Interest Period), and no
later than 10:00 a.m. Dallas, Texas time one Business Day prior to the last day
of the Interest Period (in the case of a conversion to a Base Rate Borrowing);
provided that the principal amount converted to, or continued as, a Eurodollar
Rate Borrowing shall be in an amount not less than $10,000,000 or a greater
integral multiple of $1,000,000. Administrative Agent shall timely notify each
Facility B Lender with respect to each Notice of Conversion. Absent Borrower's
Notice of Conversion or election of a new Interest Period, a Eurodollar Rate
Borrowing shall be deemed converted to a Base Rate Borrowing effective as of
the expiration of the Interest Period applicable thereto. No Eurodollar Rate
Borrowing may be either made or continued as a Eurodollar Rate Borrowing, and
no Base Rate Borrowing may be converted to a Eurodollar Rate Borrowing, if the
interest rate for such Eurodollar Rate Borrowing would exceed the Maximum Rate.
3.11 Order of Application.
(a) So long as no Default or Potential Default has
occurred and is continuing, payments and prepayments of the Obligation
shall be applied in the order and manner as Borrower may direct;
provided that, each such payment or prepayment (other than payments of
fees payable solely to Administrative Agent, Facility A Administrative
Agent, or a specific Lender) shall be allocated to each Lender in the
proportion that the Principal Debt owed to such Lender bears to the
Principal Debt owed to all Lenders under the Facility (or Subfacility
thereunder) in respect of which such payment was made.
(b) If a Default or Potential Default has occurred and is
continuing (or if Borrower fails to give directions as permitted under
SECTION 3.11(A)), any payment or prepayment (including proceeds from
the exercise of any Rights) shall be applied in the following order:
(i) to the ratable payment of all fees and
reasonable expenses for which Facility A Agents, Facility B
Agents, or Lenders have not been paid or reimbursed in
accordance with the Loan Papers; (as used in this SECTION
3.11(B)(I), a "ratable payment" for any Lender, any Facility A
Agent, or any Facility B Agent shall be, on any date of
determination, that proportion which the portion of the total
fees and indemnities owed to such Lender, Facility A Agent, or
Facility B Agent bears to the total aggregate fees and
indemnities owed to all Lenders, Facility A Agents, and
Facility B Agents on such date of determination);
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
19
<PAGE> 25
(ii) to the Pro Rata payment of all accrued and
unpaid interest on the Principal Debt;
(iii) to the ratable payment of the Swing Line
Principal Debt (as defined in the Facility A Agreement) which
is due and payable and which remains unfunded by any Borrowing
under Facility A; provided that, such payments shall be
allocated among the Swing Line Lenders (as defined in the
Facility A Agreement) and the Facility A Lenders which have
funded their participation in the Swing Line Principal Debt
(as defined in the Facility A Agreement);
(iv) to the ratable payment of any reimbursement
obligation with respect to any LC issued pursuant to Facility
A which is due and payable and which remains unfunded by any
Borrowing under Facility A; provided that, such payments shall
be allocated ratably among NationsBank and the Facility A
Lenders which have funded their participation in such LC;
(v) to the Pro Rata payment of the remaining
Principal Debt in such order as Determining Lenders may elect
(provided that, Determining Lenders will apply such proceeds
in an order that will minimize any Consequential Loss);
(vi) as a deposit with Administrative Agent, for
the benefit of Facility A Lenders, as security for, and to
provide for the payment of, any reimbursement obligations, if
any, thereafter arising with respect to any issued and
outstanding LCs issued pursuant to Facility A; and
(vii) to the payment of the remaining Obligation in
the order and manner Determining Lenders deem appropriate.
Subject to the provisions of SECTION 10 and provided that Administrative Agent
shall in any event not be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Determining Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby, Administrative Agent shall (i) promptly
distribute such amounts to each Facility B Lender in accordance with the
Facility B Agreement and the related Facility B Loan Papers, and (ii) promptly
distribute all payments allocable to Facility A or the Facility A Lenders to
the Facility A Administrative Agent for distribution in accordance with
Facility A and the related Facility A Loan Papers.
3.12 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, or otherwise, including, without
limitation, as a result of exercising its Rights under SECTION 3.13) which is
in excess of its ratable share of any such payment, such Lender shall purchase
from the other Lenders such participations as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this section may to the fullest extent permitted by Law,
exercise all of its Rights of payment (including the Right of offset) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
3.13 Offset. Upon the occurrence and during the continuance of a
Default, each Lender shall be entitled to exercise (for the benefit of all
Lenders in accordance with SECTION 3.12) the Rights of offset and/or banker's
Lien against each and every account and other property, or any interest
therein, which Borrower may now or hereafter have with, or which is now or
hereafter in the possession of, such Lender to the extent of the full
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
20
<PAGE> 26
amount of the Obligation owed to such Lender.
3.14 Booking Borrowings. To the extent permitted by Law, any
Facility B Lender may make, carry, or transfer its Borrowings at, to, or for
the account of any of its branch offices or the office of any of its
Affiliates; provided that no Affiliate shall be entitled to receive any greater
payment under SECTION 3.15 than the transferor Facility B Lender would have
been entitled to receive with respect to such Borrowings.
3.15 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any
applicable Law or any change in any applicable Law, or any change in
the interpretation or administration thereof by any Governmental
Authority, or compliance by any Facility B Lender (or its Applicable
Lending Office) with any request or directive (whether or not having
the force of law) of any such Governmental Authority:
(i) shall subject such Facility B Lender (or its
Applicable Lending Office) to any Tax with respect to any
Eurodollar Rate Borrowing, its Notes, or its obligation to
loan Eurodollar Rate Borrowings, or change the basis of
taxation of any amounts payable to such Facility B Lender (or
its Applicable Lending Office) under the Facility B Loan
Papers in respect of any Eurodollar Rate Borrowings (other
than with respect to Taxes imposed on the overall net income
of such Facility B Lender by any jurisdiction and other than
liabilities, interest, and penalties incurred as a result of
the gross negligence or wilful misconduct of such Facility B
Lender;
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Facility B Lender
(or its Applicable Lending Office), including the commitment
of such Facility B Lender hereunder; or
(iii) shall impose on such Facility B Lender (or
its Applicable Lending Office) or the London interbank market
any other condition affecting the Facility B Loan Papers or
any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the actual cost
to such Facility B Lender (or its Applicable Lending Office) of
making, converting into, continuing, or maintaining any Eurodollar
Rate Borrowings or to reduce any sum received or receivable by such
Facility B Lender (or its Applicable Lending Office) under the
Facility B Loan Papers with respect to any Eurodollar Rate Borrowing,
then Borrower shall pay to such Facility B Lender on demand such
amount or amounts as will compensate such Facility B Lender for such
increased cost or reduction as provided in SECTION 3.15(C) below. If
any Facility B Lender requests compensation by Borrower under this
SECTION 3.15(A), Borrower may, by notice to such Facility B Lender
(with a copy to Administrative Agent), suspend the obligation of such
Facility B Lender to loan or continue Borrowings of the Type with
respect to which such compensation is requested, or to convert
Borrowings of any other Type into Borrowings of such Type, until the
event or condition giving rise to such request ceases to be in effect
(in which case the provisions of SECTION 3.18 shall be applicable);
provided, that such suspension shall not affect the Right of such
Facility B Lender to receive the compensation so requested.
(b) If, after the date hereof, any Facility B Lender
shall have determined that the adoption of any applicable Law
regarding capital adequacy or any change therein or in the
interpretation or
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
21
<PAGE> 27
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority has or would have the effect of
reducing the rate of return by an amount deemed by it to be material
on the capital of such Facility B Lender or any corporation
controlling such Facility B Lender as a consequence of such Facility B
Lender's obligations hereunder to a level below that which such
Facility B Lender or such corporation could have achieved but for such
adoption, change, request, or directive (taking into consideration its
policies with respect to capital adequacy), then from time to time
upon demand Borrower shall pay to such Facility B Lender such
additional amount or amounts as will compensate such Facility B Lender
for such reduction.
(c) Each Facility B Lender shall promptly notify Borrower
and Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Facility B
Lender to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Facility B Lender, be otherwise
disadvantageous to it. Any Facility B Lender claiming compensation
under this Section shall furnish to Borrower and Administrative Agent
a statement setting forth in reasonable detail the additional amount
or amounts to be paid hereunder which shall be presumed correct in the
absence of manifest error. In determining such amount, such Facility
B Lender may use any reasonable averaging and attribution methods.
3.16 Limitation on Types of Loans. If on or prior to the first day
of any Interest Period for any Eurodollar Rate Borrowing:
(a) Administrative Agent determines (which determination
shall be conclusive absent manifest error) that by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) Determining Lenders determine (which determination
shall be conclusive absent manifest error) and notify Administrative
Agent that the Adjusted Eurodollar Rate will not adequately and fairly
reflect the cost to the Facility B Lenders of funding Eurodollar Rate
Borrowings for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof specifying
the relevant amounts or periods, and so long as such condition remains in
effect, the Facility B Lenders shall be under no obligation to fund additional
Eurodollar Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert
Base Rate Borrowings into Eurodollar Rate Borrowings, and Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Rate Borrowings, either prepay such Borrowings or convert such
Borrowings into Base Rate Borrowings in accordance with the terms of this
Facility B Agreement.
3.17 Illegality. Notwithstanding any other provision of this
Facility B Agreement, in the event that it becomes unlawful for any Facility B
Lender or its Applicable Lending Office to make, maintain, or fund Eurodollar
Rate Borrowings hereunder, then such Facility B Lender shall promptly notify
Borrower thereof and such Facility B Lender's obligation to make or continue
Eurodollar Rate Borrowings and to convert other Base Rate Borrowings into
Eurodollar Rate Borrowings shall be suspended until such time as such Facility
B Lender may again make, maintain, and fund Eurodollar Rate Borrowings (in
which case the provisions of SECTION 3.18 shall be applicable); provided that,
such Facility B Lender will use best efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office so as to eliminate any illegality, if such change, in the reasonable
judgment of such Facility B Lender, is not otherwise disadvantageous to such
Facility B Lender.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
22
<PAGE> 28
3.18 Treatment of Affected Loans. If the obligation of any
Facility B Lender to fund Eurodollar Rate Borrowings or to continue, or to
convert Base Rate Borrowings into Eurodollar Rate Borrowings, shall be
suspended pursuant to SECTIONS 3.15, 3.16, or 3.17 hereof, such Facility B
Lender's Eurodollar Rate Borrowings shall be automatically converted into Base
Rate Borrowings on the last day(s) of the then current Interest Period(s) for
Eurodollar Rate Borrowings (or, in the case of a conversion required by SECTION
3.17 hereof, on such earlier date as such Facility B Lender may specify to
Borrower with a copy to Administrative Agent) and, unless and until such
Facility B Lender gives notice as provided below that the circumstances
specified in SECTIONS 3.15, 3.16, or 3.17 hereof that gave rise to such
conversion no longer exist:
(a) to the extent that such Facility B Lender's
Eurodollar Rate Borrowings have been so converted, all payments and
prepayments of principal that would otherwise be applied to such
Facility B Lender's Eurodollar Rate Borrowings shall be applied
instead to its Base Rate Borrowings; and
(b) all Borrowings that would otherwise be made or
continued by such Facility B Lender as Eurodollar Rate Borrowings
shall be made or continued instead as Base Rate Borrowings, and all
Borrowings of such Facility B Lender that would otherwise be converted
into Eurodollar Rate Borrowings shall be converted instead into (or
shall remain as) Base Rate Borrowings.
If such Facility B Lender gives notice to Borrower (with a copy to
Administrative Agent) that the circumstances specified in SECTIONS 3.15, 3.16,
or 3.17 hereof that gave rise to the conversion of such Facility B Lender's
Eurodollar Rate Borrowings pursuant to this SECTION 3.18 no longer exist (which
such Facility B Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when Eurodollar Rate Borrowings made by other Facility B
Lenders are outstanding, such Facility B Lender's Base Rate Borrowings shall be
automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the extent
necessary so that, after giving effect thereto, all Eurodollar Rate Borrowings
held by the Facility B Lenders and by such Facility B Lender are held Pro Rata
(as to principal amounts, Types, and Interest Periods) in accordance with their
respective Pro Rata Part of the Facility B Principal Debt.
3.19 Compensation; Replacement of Facility B Lenders.
(a) Upon the request of any Facility B Lender, Borrower
shall pay to such Facility B Lender such amount or amounts as shall be
sufficient (in the reasonable opinion of such Facility B Lender) to
compensate it for any Consequential Loss; provided that, in each case,
the Person claiming such Consequential Loss has furnished Borrower
with a reasonably detailed statement of such loss, which statement
shall be conclusive in the absence of manifest error.
(b) If any Facility B Lender requests compensation under
SECTION 3.15 or if Borrower is required to pay additional amounts to
or for the account of any Facility B Lender pursuant to SECTION 3.20
(collectively, "ADDITIONAL AMOUNTS"), then Borrower may, at its sole
expense and effort, upon written notice to such Facility B Lender and
Administrative Agent, require such Facility B Lender to assign and
delegate, without recourse, all its interests, Rights, and obligations
under this Facility B Agreement and the other Facility B Loan Papers
to an Eligible Assignee that shall assume such obligations; provided
that, (i) Borrower shall have received the prior written consent of
Administrative Agent to any such assignment; (ii) such Facility B
Lender shall have received payment from Borrower of any Additional
Amounts owed to such Facility B Lender by Borrower for periods prior
to the replacement of such Facility B Lender and any actual costs
incurred as a result of such replacement of a Facility B Lender; (iii)
such assignment will result in reduction or elimination of the
Additional Amounts; and (iv) such assignment and acceptance shall be
made in accordance with, and subject to the requirements and
restrictions contained in, SECTION 11.13(B). A Facility B Lender
shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Facility B Lender or
otherwise, the
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
23
<PAGE> 29
circumstances entitling such Borrowing to require such assignment and
delegation cease to apply.
3.20 Taxes.
(a) Any and all payments by Borrower to or for the
account of any Facility B Lender or Administrative Agent hereunder or
under any other Loan Paper shall be made free and clear of and without
deduction for any and all present or future Taxes, excluding, in the
case of each Facility B Lender and Administrative Agent, Taxes imposed
on its income and franchise Taxes imposed on it by any jurisdiction
and other liabilities, interest and penalties incurred as a result of
the gross negligence or wilful misconduct of such Facility B Lender or
Administrative Agent (all such Non-Excluded Taxes referred to as
"NON-EXCLUDED TAXES"). If Borrower shall be required by law to deduct
any Non-Excluded Taxes from or in respect of any sum payable under
this Facility B Agreement or any other Facility B Loan Paper to any
Facility B Lender or Administrative Agent, (i) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 3.20) such Facility B Lender or Administrative Agent receives
an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions, (iii)
Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and
(iv) Borrower shall furnish to Administrative Agent, at its address
listed in SCHEDULE 2.1, the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property Taxes which arise from any payment made under this Facility B
Agreement or any other Facility B Loan Paper or from the execution or
delivery of, or otherwise with respect to, this Facility B Agreement
or any other Facility B Loan Paper (hereinafter referred to as "OTHER
TAXES").
(c) BORROWER AGREES TO INDEMNIFY EACH FACILITY B LENDER
AND ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED TAXES
THAT SHOULD HAVE BEEN WITHHELD BY BORROWER AND OTHER TAXES (INCLUDING,
WITHOUT LIMITATION, ANY NON-EXCLUDED TAXES THAT SHOULD HAVE BEEN
WITHHELD BY BORROWER OR OTHER TAXES IMPOSED OR ASSERTED BY ANY
JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 3.20) PAID BY SUCH
FACILITY B LENDER OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) AND ANY
LIABILITY (INCLUDING PENALTIES, INTEREST, AND EXPENSES OTHER THAN
THOSE INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFUL
MISCONDUCT OF SUCH FACILITY B LENDER OR ADMINISTRATIVE AGENT) ARISING
THEREFROM OR WITH RESPECT THERETO.
(d) Each Facility B Lender organized under the Laws of a
jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Facility B Agreement in the case of
each Facility B Lender listed on the signature pages hereof and on or
prior to the date on which it becomes a Facility B Lender in the case
of each other Facility B Lender, and from time to time thereafter,
including, without limitation, upon the expiration or obsolescence of
any previously delivered form or upon the written request of Borrower
or Administrative Agent (but only so long as such Facility B Lender
remains lawfully able to do so), shall provide Borrower and
Administrative Agent with (i) Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Facility B Lender is entitled to
benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this
Facility B Agreement is effectively connected with the conduct of a
trade or business in the United States, (ii) Internal Revenue Service
Form W-8 or W-9, as appropriate, or any successor form prescribed by
the Internal Revenue Service, and (iii) any other form or certificate
required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Facility B Lender is entitled to an exemption
from or a reduced rate of tax on payments pursuant to this Facility B
Agreement or any of the other Facility B Loan Papers.
AMENDED AND RESTATED
FACILITY B TERM LOAN AGREEMENT
24
<PAGE> 30
(e) For any period with respect to which a Facility B
Lender has failed to provide Borrower and Administrative Agent with
the appropriate form pursuant to SECTION 3.20(D) (unless such failure
is due to a change in Law, occurring subsequent to the date on which a
form originally was required to be provided), such Facility B Lender
shall not be entitled to indemnification under this SECTION 3.20 with
respect to Taxes imposed by the United States; provided, however, that
should a Facility B Lender, which is otherwise exempt from or subject
to a reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, Borrower shall
take such steps as such Facility B Lender shall reasonably request to
assist such Facility B Lender to recover such Taxes.
(f) If Borrower is required to pay additional amounts to
or for the account of any Facility B Lender pursuant to this SECTION
3.20, then such Facility B Lender will use best efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the
judgment of such Facility B Lender, is not otherwise disadvantageous
to such Facility B Lender.
(g) Within thirty (30) days after the date of any payment
of Non-Excluded Taxes or Other Taxes, Borrower shall furnish to
Administrative Agent the original or a certified copy of a receipt
evidencing such payment.
(h) Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this SECTION 3.20 shall survive the termination
of this Agreement and the payment in full of the Obligation.
SECTION 4 FEES.
4.1 Treatment of Fees. Except as otherwise provided by Law, the
fees described in this SECTION 4: (a) do not constitute compensation for the
use, detention, or forbearance of money, (b) are in addition to, and not in
lieu of, interest and expenses otherwise described in this Facility B
Agreement, (c) shall be payable in accordance with SECTION 3.1, (d) shall be
non-refundable, (e) shall, to the fullest extent permitted by Law, bear
interest, if not paid when due, at the Default Rate, and (f) shall be
calculated on the basis of actual number of days (including the first day, but
excluding the last day) elapsed, but computed as if each calendar year
consisted of 360 days, unless such computation would result in interest being
computed in excess of the Maximum Rate in which event such computation shall be
made on the basis of a year of 365 or 366 days, as the case may be.
4.2 Fees of Administrative Agent and Arranger. Borrower shall pay
to Administrative Agent or Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of June 30, 1998 (as thereafter amended or modified from
time to time), among Borrower, Administrative Agent, and Arranger, which
payments shall be made on the dates specified, and in amounts calculated in
accordance with, such letter agreement.
SECTION 5 CONDITIONS PRECEDENT TO CLOSING. This Facility B Agreement
shall not become effective unless and until (a) Administrative Agent has
received all of the agreements, documents, instruments, and other items
described on SCHEDULE 5, (b) there has been no change in the consolidated
financial condition of the Consolidated Companies from that shown in the
respective Current Financials of such companies which could be a Material
Adverse Event; and (c) Determining Lenders have indicated their consent to this
amendment and restatement of the Existing Agreement by execution and delivery
of a counterpart signature page to this Facility B Agreement; upon satisfaction
of such conditions of closing, the Facility B Loan Papers shall be deemed
effective and binding upon Borrower, Facility B Agents, and all Facility B
Lenders, whether or not such Facility B Lender (other than Determining Lenders)
has executed this Facility B Agreement. Each condition precedent in this