<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[x] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1997
------------------
or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
-------------- --------------
Commission file number 0-21602
-------
LCI INTERNATIONAL, INC.
-----------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3498232
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8180 Greensboro Drive, Suite 800
McLean, Virginia 22102
- --------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(703) 442-0220
----------------------------------------------------
(Registrant's telephone number, including area code)
---------------------------------------------------------------
(Former name, former address and former fiscal year, if changed
since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
As of October 31, 1997, there were 83,500,312 shares of LCI International,
Inc. Common Stock (par value $.01 per share) outstanding.
<PAGE> 2
LCI INTERNATIONAL, INC.
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Unaudited Condensed Consolidated Statements of Operations--
For the Three Months and Nine Months Ended
September 30, 1997 and 1996 3
Condensed Consolidated Balance Sheets--
As of September 30, 1997 (unaudited) and December 31, 1996 4 - 5
Unaudited Condensed Consolidated Statement of Shareowners' Equity--
For the Nine Months Ended September 30, 1997 6
Unaudited Condensed Consolidated Statements of Cash Flows--
For the Nine Months Ended September 30, 1997 and 1996 7
Notes to Interim Unaudited Condensed Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Item 6. Exhibits and Reports on Form 8-K
SIGNATURE
EXHIBIT INDEX
EXHIBITS
</TABLE>
2
<PAGE> 3
ITEM 1. FINANCIAL STATEMENTS
LCI INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(in millions, except for earnings per common share)
<TABLE>
<CAPTION>
For the Three Months For the Nine Months
Ended September 30, Ended September 30,
-------------------------------- -------------------------------
1997 1996 1997 1996
--------------- ------------- --------------- ------------
<S> <C> <C> <C> <C>
REVENUES $ 364.8 $ 289.2 $ 1,017.9 $ 809.1
Cost of services 213.5 166.6 596.6 472.8
--------------- ------------- --------------- ------------
GROSS MARGIN 151.3 122.6 421.3 336.3
Selling, general and administrative expenses 83.0 67.7 230.8 185.9
Depreciation and amortization 22.8 16.3 61.4 46.0
--------------- ------------- --------------- ------------
OPERATING INCOME 45.5 38.6 129.1 104.4
Interest and other expense, net 8.5 7.7 22.2 22.9
--------------- ------------- --------------- ------------
INCOME BEFORE INCOME TAXES 37.0 30.9 106.9 81.5
Income tax expense 14.4 10.8 42.4 28.5
--------------- ------------- --------------- ------------
NET INCOME 22.6 20.1 64.5 53.0
Preferred dividends -- .5 -- 2.8
--------------- ------------- --------------- ------------
INCOME ON COMMON STOCK $ 22.6 $ 19.6 $ 64.5 $ 50.2
=============== ============= =============== ============
PER SHARE DATA
- --------------
Earnings Per Common Share
Primary $ 0.26 $ 0.23 $ 0.75 $ 0.61
=============== ============= =============== ============
Fully Diluted $ 0.26 $ 0.23 $ 0.74 $ 0.61
=============== ============= =============== ============
Weighted Average Number of Common Shares 86.9 87.7 86.6 87.5
=============== ============= =============== ============
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE> 4
LCI INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in millions)
<TABLE>
<CAPTION>
ASSETS September 30, December 31,
------ 1997 1996
------------------ -----------------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS:
Trade accounts receivable, net $ 162.5 $ 85.2
Current deferred tax assets, net 34.3 48.9
Prepaids and other 20.0 16.4
------------------ -----------------
Total current assets 216.8 150.5
------------------ -----------------
PROPERTY AND EQUIPMENT:
Fiber optic network 437.0 392.5
Technology platforms, equipment and building leases 203.9 123.2
Less - Accumulated depreciation and amortization (187.5) (171.8)
------------------ -----------------
453.4 343.9
Property and equipment under construction 140.9 58.9
------------------ -----------------
Total property and equipment, net 594.3 402.8
------------------ -----------------
OTHER ASSETS:
Excess of cost over net assets acquired, net 348.1 350.5
Other, net 54.2 46.2
------------------ -----------------
Total other assets 402.3 396.7
------------------ -----------------
Total Assets $ 1,213.4 $ 950.0
================== =================
</TABLE>
(Continued on next page)
4
<PAGE> 5
LCI INTERNATIONAL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Continued)
(in millions)
<TABLE>
<CAPTION>
LIABILITIES AND SHAREOWNERS' EQUITY September 30, December 31,
----------------------------------- 1997 1996
---------------------- -------------------
(Unaudited)
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 37.2 $ 37.1
Facility costs accrued and payable 108.4 123.0
Accrued expenses and other 72.5 53.3
---------------------- -------------------
Total current liabilities 218.1 213.4
---------------------- -------------------
LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS 396.1 235.8
---------------------- -------------------
OTHER LIABILITIES AND DEFERRED CREDITS 89.4 70.0
---------------------- -------------------
COMMITMENTS AND CONTINGENCIES
SHAREOWNERS' EQUITY:
Preferred Stock - Authorized 15.0 shares, no shares issued
and outstanding -- --
Common stock - Authorized 300.0 shares, issued and
outstanding 78.6 shares as of September 30, 1997 and 77.5
shares as of December 31, 1996 0.8 0.8
Paid-in capital 441.7 427.2
Retained earnings 67.3 2.8
---------------------- -------------------
Total shareowners' equity 509.8 430.8
---------------------- -------------------
Total Liabilities and Shareowners' Equity $ 1,213.4 $ 950.0
====================== ===================
</TABLE>
The accompanying notes are an integral part of these statements.
5
<PAGE> 6
LCI INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF SHAREOWNERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997
(Unaudited)
(in millions)
<TABLE>
<CAPTION>
Common Stock
-----------------------
Issued
and $.01 Par Paid- Retained
Outstanding Value In Capital Earnings Total
----------- -------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1996 77.5 $ 0.8 $ 427.2 $ 2.8 $ 430.8
Employee stock purchases and
exercise of options/warrants,
including related tax benefits 1.1 -- 14.5 -- 14.5
Net Income -- -- -- 64.5 64.5
----------- -------- ---------- ---------- ----------
BALANCE AT SEPTEMBER 30, 1997 78.6 $ 0.8 $ 441.7 $ 67.3 $ 509.8
=========== ======== ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
6
<PAGE> 7
LCI INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in millions)
<TABLE>
<CAPTION>
For the Nine Months
Ended September 30,
1997 1996
----------------- ------------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net cash provided by operating activities $ 80.6 $ 238.9
----------------- ------------------
INVESTING ACTIVITIES:
Capital expenditures (224.5) (105.8)
Payments for acquisitions and other (7.8) (118.2)
----------------- ------------------
Net cash used in investing activities (232.3) (224.0)
----------------- ------------------
FINANCING ACTIVITIES:
Net debt (payments) borrowings (204.2) (16.0)
Senior Notes issuance proceeds 350.0 --
Financing fee payments (8.6) (2.7)
Preferred dividend payments -- (2.8)
Proceeds from employee stock plans and warrants 14.5 6.6
----------------- ------------------
Net cash provided by financing activities 151.7 (14.9)
----------------- ------------------
Net increase in cash and cash equivalents -- --
----------------- ------------------
CASH AND CASH EQUIVALENTS AT THE
BEGINNING OF THE PERIOD -- --
----------------- ------------------
CASH AND CASH EQUIVALENTS AT THE
END OF THE PERIOD $ -- $ --
================= ==================
</TABLE>
The accompanying notes are an integral part of these statements.
7
<PAGE> 8
LCI INTERNATIONAL, INC.
NOTES TO INTERIM CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
September 30, 1997
(Unaudited)
(1) GENERAL
The results of operations for the interim periods shown are not
necessarily indicative of results to be expected for the fiscal year. In the
opinion of management, the information contained herein reflects all
adjustments necessary to make a fair statement of the results for the three and
nine months ended September 30, 1997 and 1996. All such adjustments are of a
normal recurring nature.
(2) BUSINESS ORGANIZATION AND PURPOSE
The financial statements presented herein are for LCI International,
Inc., a Delaware corporation, and its subsidiaries (collectively LCI or the
Company). Included are the condensed consolidated statements of operations for
the three and nine months ended September 30, 1997 and 1996, the condensed
consolidated balance sheets as of September 30, 1997 and December 31, 1996, the
condensed consolidated statement of shareowners' equity for the nine months
ended September 30, 1997, and the condensed consolidated statements of cash
flows for the nine months ended September 30, 1997 and 1996.
LCI is a facilities-based telecommunications company that provides
voice and data transmission services to business, residential and local
customers, as well as other telecommunications carriers, throughout the United
States and international locations. The Company serves its customers through
owned and leased digital fiber-optic facilities (the Network).
(3) ACCOUNTING POLICIES
Note 2 of the Notes to Consolidated Financial Statements in LCI's 1996
Annual Report to Shareowners summarizes the Company's significant accounting
policies.
PRINCIPLES OF CONSOLIDATION. The accompanying Condensed Consolidated
Financial Statements (Unaudited) include the accounts of LCI and its
wholly-owned subsidiaries. All material intercompany transactions and balances
have been eliminated.
WEIGHTED AVERAGE NUMBER OF COMMON SHARES. For all periods presented,
the weighted average number of common shares includes the Company's Common
Stock, par value $.01 per share (Common Stock), and the impact of Common Stock
equivalents using the treasury stock method. For 1996, the weighted average
number of common shares includes the actual common shares issued for the
conversion of previously outstanding 5% Cumulative Convertible Exchangeable
Preferred Stock, par value $.01 per share (Preferred Stock) and the assumed
conversion of any remaining Preferred Stock outstanding during the period.
8
<PAGE> 9
EARNINGS PER COMMON SHARE. For the three and nine months ended
September 30, 1997 and 1996, earnings per common share is calculated as net
income before preferred dividends divided by the weighted average number of
common shares, as defined above.
(4) ACCOUNTS RECEIVABLE SECURITIZATION
Under the Company's agreement to sell trade accounts receivable
(Securitization Program), LCI SPC I, Inc. (SPC), a bankruptcy-remote subsidiary
of the Company, sells accounts receivable. Receivables sold are not included
in the accompanying condensed consolidated balance sheets as of September 30,
1997 and December 31, 1996. SPC had approximately $141 million of accounts
receivable available for sale and had sold, but not yet collected, a total of
approximately $70 million as of September 30, 1997. The Company retains
substantially the same risk of credit loss as if the receivables had not been
sold, and has established reserves for such estimated credit losses.
Under the Securitization Program, the Company acts as agent for the
purchaser of the receivables by performing recordkeeping and collection
functions on the participation interest sold. The agreement also contains
certain covenants regarding the quality of the accounts receivable portfolio,
as well as financial covenants which are substantially identical to those
contained in the Company's Revolving Credit Facility (See Note 5). Except in
certain limited circumstances, SPC is subject to certain contractual
prohibitions concerning the payment of dividends and the making of loans and
advances to LCI.
(5) DEBT AGREEMENTS
In June 1997, the Company issued $350 million of 7.25% Senior Notes
(Notes), which mature on June 15, 2007. The net proceeds from the issuance of
the Notes were used to repay outstanding indebtedness and for working capital
and general corporate purposes.
The Company also has a $750 million Revolving Credit Facility (Credit
Facility) from a syndicate of banks. The Credit Facility is comprised of two
separate facilities of $500 million and $250 million. The first facility has a
term of 5-years, while the second facility has a one-year term. Each facility
may be extended for a limited number of periods. Both facilities bear interest
at a rate consisting of two components: The base rate component is dependent
upon a market indicator; the second component varies from 0.30% to 0.75% based
on the more favorable of the relationship of borrowings levels to operating
cash flow (leverage ratio) or senior unsecured debt rating. As of September 30,
1997, the Company had no outstanding balance under the Credit Facility. The
Credit Facility contains various financial covenants, the most restrictive
being the leverage ratio requirement. As of September 30, 1997, the Company was
in compliance with all Credit Facility covenants.
The Company has an interest rate cap agreement to manage interest rate
risk on the Credit Facility. The agreement limits the base interest rate
exposure to 7.5% on $130 million notional principal balance of the Credit
Facility. In the event of non-performance by the syndicate banks, the Company
would be obligated to make the contractual payments under the Credit Facility,
and would have exposure to the extent of any increase in the base rate
component above 7.5%. The Company believes the probability of such an event is
remote.
9
<PAGE> 10
(6) COMMITMENTS AND CONTINGENCIES
VENDOR AGREEMENTS. The Company has agreements with certain
telecommunications interexchange carriers and third party vendors that require
the Company to maintain minimum monthly and/or annual billings based on usage.
The Company has historically met all minimum billing requirements and believes
the minimum usage commitments will continue to be met.
CAPITAL REQUIREMENTS. During 1997, the Company expects its nonbinding
commitment for capital expenditures, which is dependent on the Company's
geographic and revenue growth, to increase from the level expended in 1996. The
Company's on-going capital requirements are primarily for switching and
transmission facilities and technology platforms arising from the Company's
strategic expansion plans.
In addition to its ongoing capital requirements, the Company has
entered into several agreements to extend its fiber-optic network. These
commitments will extend the Network throughout several geographic areas of the
United States, and are expected to require incremental capital expenditures of
approximately $270 million for fiber-optic capacity and related equipment. In
September 1997, the Company accepted approximately 1,500 route-miles of fiber
between Chicago, Illinois and Dallas, Texas, and paid $40 million for the
position in the fiber. The timing of other payments will depend on the delivery
and acceptance of facilities, which is expected to be completed in the first
half of 1998.
On September 18, 1997, the Company signed a definitive agreement to
acquire USLD Communications Corp. (USLD), in a stock-for-stock transaction that
will be accounted for as a pooling of interests. USLD provides long-distance
telecommunications services principally to business customers in the Southwest,
Southeast, Pacific Northwest and Western regions of the United States. In
addition, USLD offers operator services for the hospitality and pay phone
industries, and local telephone services in selected markets. The Company
expects the acquisition to close by the end of the year. The Company will
exchange that fraction of a share of Common Stock having a value of $20 per
share (valued pursuant to the formula contained in the agreement) for each
outstanding share of USLD common stock resulting in a purchase price between
$350 and $370 million. This acquisition is contingent on regulatory approval
and on the ability to qualify as a pooling transaction.
LEGAL MATTERS. The Company has been named as a defendant in various
litigation matters. Management intends to vigorously defend these outstanding
claims. The Company believes it has adequate accrued loss contingencies and,
although the ultimate outcome of these claims cannot be ascertained at this
time, current pending or threatened litigation matters will not have a material
adverse impact on the Company's results of operations or financial position.
(7) SHAREOWNERS' EQUITY
RIGHTS AGREEMENT AND PREFERRED STOCK. In January 1997, the Company
adopted a shareholder rights agreement (Rights Agreement), designed to ensure
that its shareowners receive fair and equal treatment in the event of any
proposed takeover of the Company. One preferred share purchase right (Right)
has been attached to each share of the Company's Common Stock and, until
distributed, may be transferred only with the Common Stock. The Rights will be
distributed and become exercisable only in the event that any person or entity,
together with its affiliates or associates, acquires more than a certain
percentage of Common Stock of the Company. As of September 30, 1997, no such
preferred stock was issued or outstanding.
10
<PAGE> 11
COMMON STOCK. The Company has stock option plans that grant options
to purchase shares of Common Stock to directors and key employees. During the
nine months ended September 30, 1997, the Company granted options to purchase
2.7 million shares of Common Stock. The option price for all options granted
was the fair market value of the shares on the date of grant. The Company
issued 0.8 million shares of Common Stock during the nine months ended
September 30, 1997 pursuant to options exercised under all stock option plans.
The Company also has an Employee Stock Purchase Plan and a defined
contribution retirement plan for its employees which allow participants to
invest in Common Stock of the Company. The Company issued a total of 0.3
million shares of Common Stock under these employee benefit plans for the nine
months ended September 30, 1997.
(8) INCOME TAXES
The provision for income taxes for the three and nine months ended
September 30, 1997 and 1996, consists of:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
----------------------------- ----------------------------
(in millions) 1997 1996 1997 1996
-------------- ------------ ------------ -----------
<S> <C> <C> <C> <C>
Current tax expense:
Federal $ 0.5 $ 1.7 $ 1.6 $ 2.6
State 1.4 1.3 1.8 1.7
-------------- ------------ ------------ -----------
Total current tax expense 1.9 3.0 3.4 4.3
-------------- ------------ ------------ -----------
Deferred tax expense:
(Decrease) increase in deferred tax
liabilities (4.3) (0.7) 11.4 0.7
Decrease in deferred tax assets 16.8 11.0 27.6 28.5
Decrease in valuation allowance, net -- (2.5) -- (5.0)
-------------- ------------ ------------ -----------
Total deferred tax expense 12.5 7.8 39.0 24.2
-------------- ------------ ------------ -----------
Total income tax expense $ 14.4 $10.8 $ 42.4 $28.5
============== ============ ============ ===========
</TABLE>
11
<PAGE> 12
The effective income tax rate reconciliation for the three and nine
months ended September 30, 1997 and 1996, is as follows:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
-------------------------- --------------------------
1997 1996 1997 1996
------------ ----------- ----------- -----------
<S> <C> <C> <C> <C>
Expected tax at Federal
statutory income tax rate 35.0% 35.0% 35.0% 35.0%
Effect of:
State income tax expense 2.5 5.2 3.5 5.2
Non-deductible expenses 1.2 1.5 1.2 1.5
Decrease in valuation allowance, net -- (5.0) -- (5.0)
Other, net 0.3 (1.7) (0.2) (1.7)
------------ ----------- ----------- -----------
Effective income tax rate 39.0% 35.0% 39.5% 35.0%
============ =========== =========== ===========
</TABLE>
The effective tax rate of 39.6% and 35.0% for the nine months ended
September 30, 1997 and 1996, respectively, represents the Company's estimated
effective tax rate for the period. This effective tax rate is evaluated
quarterly based on the Company's estimate of future taxable income.
The Company has generated net operating losses (NOLs) that may be used
to offset future taxable income. Each NOL has a 15-year carryforward period.
The Company's ability to fully use its NOL carryforwards is dependent upon
future taxable income. As of September 30, 1997, the Company had NOL
carryforwards for income tax purposes of $66.6 million, subject to various
expiration dates from 2000 to 2010. The Company believes the use of its NOLs
is likely.
The Company's deferred income tax balances include $34.3 million in
current deferred tax assets, net and $74.2 million in other noncurrent
liabilities as of September 30, 1997. As of December 31, 1996, deferred income
tax balances included $48.9 million in current deferred tax assets, net and
$53.4 million in other noncurrent liabilities.
12
<PAGE> 13
(9) EARNINGS PER SHARE
In February 1997, Statement of Financial Accounting Standards (SFAS)
No. 128 "Earnings per Share" was issued, which changes the method used to
calculate earnings per share. Implementation of SFAS 128 is required for
financial statements issued for periods ending after December 15, 1997,
including interim periods; earlier adoption is not permitted. Pro forma
information in accordance with SFAS 128 is:
<TABLE>
<CAPTION>
For the Three Months Ended September 30, 1997
---------------------------------------------------
Per Share
(in millions, except per share amounts) Income Shares Amount
-------------- ---------------- ---------------
<S> <C> <C> <C>
Basic Earnings per Share:
Income available to common shareowners 22.6 78.5 $ 0.29
===============
Effect of Dilutive Securities:
Stock options -- 3.3
Warrants -- 4.5
-------------- ----------------
Diluted Earnings per Share:
Income available to common shareowners
plus assumed conversions $ 22.6 86.3 $ 0.26
============== ================ ===============
<CAPTION>
For the Nine Months Ended September 30, 1997
---------------------------------------------------
Per Share
Income Shares Amount
-------------- ---------------- ---------------
<S> <C> <C> <C>
Basic Earnings per Share:
Income available to common shareowners 64.5 78.1 $ 0.83
===============
Effect of Dilutive Securities:
Stock options -- 3.0
Warrants -- 4.5
-------------- ----------------
Diluted Earnings per Share:
Income available to common shareowners
plus assumed conversions $ 64.5 85.6 $ 0.75
============== ================ ===============
</TABLE>
Options to purchase 0.4 million and 2.1 million shares of Common Stock
were outstanding but not included in the computation of diluted earnings per
share during the three months and nine months ended September 30, 1997,
respectively. The options were excluded because the exercise price of such
options was greater than the average market price of the Common Stock for the
period.
13
<PAGE> 14
(9) EARNINGS PER SHARE (CONTINUED)
<TABLE>
<CAPTION>
For the Three Months Ended September 30, 1996
---------------------------------------------------
Per Share
(in millions, except per share amounts) Income Shares Amount
-------------- ---------------- ---------------
<S> <C> <C> <C>
Net income $20.1
Less: preferred stock dividends (0.5)
--------------
Basic Earnings per Share:
Income available to common shareowners 19.6 74.6 $ 0.26
===============
Effect of Dilutive Securities:
Stock options -- 5.9
Warrants -- 4.8
Convertible Preferred Stock 0.5 2.4
-------------- ----------------
Diluted Earnings per Share:
Income available to common shareowners
plus assumed conversions $20.1 87.7 $ 0.23
============== ================ ===============
<CAPTION>
For the Nine Months Ended September 30, 1996
---------------------------------------------------
Per Share
Income Shares Amount
-------------- ---------------- ---------------
<S> <C> <C> <C>
Net income $ 53.0
Less: preferred stock dividends (2.8)
--------------
Basic Earnings per Share:
Income available to common shareowners 50.2 70.0 $0.72
===============
Effect of Dilutive Securities:
Stock options -- 5.3
Warrants -- 4.7
Convertible preferred stock 2.8 7.0
-------------- ----------------
Diluted Earnings per Share:
Income available to common shareowners
plus assumed conversions $ 53.0 87.0 $0.61
============== ================ ===============
</TABLE>
14
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
LCI International, Inc., together with its subsidiaries (LCI or the
Company), is a facilities-based telecommunications carrier that provides a
broad range of domestic and international telecommunications services,
including long-distance, data and local services. The Company targets all
markets - retail and wholesale businesses, residential and local - and sells
through a variety of channels, including an internal sales force and external
channels. The Company serves its customers primarily through owned and leased
digital fiber-optic facilities, including switches strategically located
throughout the United States. Collectively, these facilities constitute the
Company's network (the Network).
INDUSTRY ENVIRONMENT
Historically, the Company has operated in the $80 billion
long-distance telecommunications industry. Recent legislative and regulatory
activity is designed to create one telecommunications industry to encompass
both long-distance and local telecommunications services. The Company intends
to provide combined local and long-distance services to compete in what is
estimated to be a $150 billion combined market. The current industry
environment subjects the Company to varying degrees of regulatory oversight on
both the national and state levels. The following developments in the
legislative and regulatory environment can impact the nature and degree of
competition in the telecommunications industry.
LEGISLATIVE MATTERS
Telecommunications Act of 1996. In February 1996, the
Telecommunications Act of 1996 (the Act) was enacted to increase competition in
the long-distance and local telecommunications industries. The legislation
opens competition in the local services market and, at the same time, contains
provisions intended to protect consumers and business from unfair competition
by incumbent local exchange carriers (LECs), including the regional Bell
operating companies (RBOCs). The Act allows RBOCs to provide long-distance
service outside of their local service territories after certain
pro-competition conditions, including a list of 14 specific "competitive
checklist" requirements for operating in the local market are met.
On July 2, 1997, SBC Communications Inc. (SBC) and its local exchange
carrier subsidiaries filed a lawsuit in the United States District Court for
the Northern District of Texas challenging on constitutional grounds the
restrictions contained in the Act applicable to RBOCs only. The plaintiffs in
the case seek both a declaratory judgment and an injunction against the
enforcement of the challenged provisions. If SBC's challenge were to succeed,
it could result in all RBOCs being able to provide long-distance services
within their local services territories.
The Act provides a framework for the Company and other long-distance
carriers to compete with LECs by reselling local retail telephone service,
leasing unbundled elements of the incumbent LEC networks or building new local
service facilities. The Company has signed local service agreements with
Ameritech, BellSouth, Bell Atlantic and NYNEX (for the state of Massachusetts)
and is currently in formal negotiations with several other LECs. LCI intends to
vigorously compete in the local service market. Initially, the Company will
provide local service to customers on a bundled resale basis. However, the
Company is also evaluating providing service through the recombination of
unbundled network elements in light of the recent ruling by the Court of
Appeals for the Eight Circuit which does not require the LECs to recombine the
various network
15
<PAGE> 16
element on behalf of their local competitors. The Company could also decide in
the future to build, or otherwise acquire, local service facilities or use a
competitive LEC to provide local service. The Company's decision on the timing
and method of providing local service is dependent on the economic viability of
its options, the resolution of various operational issues, and the outcome of
several regulatory proceedings, which may differ state-by-state.
REGULATORY MATTERS
In order to implement the Act, the FCC was required to undertake a
variety of regulatory actions, which impact competition in the
telecommunications industry. Certain of these regulatory actions are described
below.
Interconnection Order. In August 1996, the FCC adopted an
Interconnection Order (the Interconnection Order) which established a minimum
national framework relating to the manner in which new entrants seeking entry
into local services markets would be able to interconnect with the LECs. The
Interconnection Order covered several important interconnection issues
including unbundled local network elements purchases, resale discounts and
arbitration procedures between LECs and interexchange carriers. Under the
Interconnection Order, state regulatory commissions would have an important
role implementing and applying local interconnection policies, rules and
procedures.
Several states, companies, associations and other entities appealed
the Interconnection Order. On July 18, 1997, the United Stated Court of Appeals
for the Eighth Circuit (the Court) overturned many of the rules established in
the Interconnection Order governing, among other things, the pricing of
interconnection, resale, and unbundled network elements. In addition, the Court
overturned the "pick and choose" rule, which would have allowed new entrants to
receive the benefit of the most favorable provisions contained in a LEC's
interconnection agreements with other carriers. On October 14, 1997, the Court
further overturned the FCC's rules pertaining to the unbundled network elements
platform. The Court concluded that the FCC's rules prohibiting a LEC from
separating network elements that may be currently combined in the incumbent
LEC's network, are contrary to the Act. The FCC has announced its intent to
appeal the Court's July 18, 1997 and October 14, 1997 rulings to the United
States Supreme Courts.
The Court's decisions substantially limit the FCC's jurisdiction and
expand the jurisdiction of state regulators to establish and enforce rules
governing the development of local competition. As a result, it is more likely
that the rules governing local competition will vary substantially from state
to state. If a patchwork of state regulations were to develop, it could make
competitive entry in some markets more difficult and expensive than in others
and could increase the costs of regulatory compliance associated with local
entry. Because of the uncertainty regarding the outcome of any forthcoming
appeals and how various state commissions will seek to facilitate and regulate
local competition, the Company is unable to predict what impact the Court's
decisions will have on LCI's ability to offer competitive local service and the
cost associated with the local service.
Bell Operating Company (BOC) Applications to Provide In-Region
interLATA Long-Distance. In January 1997, Ameritech Michigan became the first
BOC to apply for authority to provide in-region interLATA service. It withdrew
its application in February 1997, after the FCC struck from the record the
interconnection agreement between Ameritech and AT&T which formed the basis for
the application. In May 1997, Ameritech Michigan refiled its application for
in-region
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<PAGE> 17
interLATA authority in Michigan, but on August 19, 1997, the FCC released an
order rejecting the application. The FCC determined that Ameritech Michigan had
not demonstrated compliance with the competitive checklist or the safeguards of
the Act. In the August order, the FCC also established conditions and standards
for future applications for in-region, interLATA relief, including the
requirement that RBOC applications comply with the pricing standards originally
adopted in the Interconnection Order. Several RBOCs have asked the Eighth
Circuit to declare these pricing requirements a violation of the Court's
Interconnection Order decision. Those requests are pending.
In April 1997, SBC applied to the FCC for authority to provide
in-region interLATA service in Oklahoma. In June 1997, the FCC released an
order rejecting SBC's application on the grounds that SBC had not demonstrated
that the prospective facilities-based carriers with which SBC had entered into
interconnection agreements were providing local telephone service over their
own facilities to residential and business customers in Oklahoma, as required
by the Act. In July 1997, SBC filed an appeal of the June 1997 order with
United States Court of Appeals for the District of Columbia Circuit, which is
currently pending.
On September 30, 1997, BellSouth of South Carolina applied for
authority to provide in-region interLATA service. The Commission is currently
seeking comments on BellSouth's application. The Commission has 90 days to
make a ruling on BellSouth's application. The Company expects other RBOCs to
apply for in-region interLATA long-distance authority in the near future.
Access Charge Reform. In May 1997, the FCC issued orders designed to
reform the system of interstate access charges levied by LECs on long-distance
service carriers. Access charges currently represent approximately one-half of
the revenues for the long-distance telecommunications industry. In the May
orders, the FCC decided to rely on a combination of prescriptive rate
reductions and increased competition in interstate access to bring interstate
access charges closer to actual economic cost. The FCC has stated that it will
issue a further order designed to permit incumbent LECs to lower interstate
access charges in response to competition. The manner in which the FCC
implements its approach in lowering access charge levels will have a material
effect on the prices the Company and its competitors pay for originating and
terminating interstate traffic. Various parties have filed petitions for
reconsideration with the FCC and some parties, including LCI, have appealed the
FCC's May orders to the appropriate federal court. The ultimate outcome of the
FCC and resultant court actions are uncertain and the Company is unable to
predict what impact the FCC's revised access charge scheme will have on the
Company's access charge cost structure.
Universal Service. In May 1997, the FCC released an order establishing
a significantly expanded federal telecommunications subsidy regime. Providers
of interstate telecommunications services, such as the Company, as well as
certain other entities, must pay to subsidize services for schools, libraries
and rural health care providers. The Company's share of the federal subsidy
will be based on its market share of defined telecommunications services and
certain defined telecommunications end user revenues. Several parties have
appealed the May 1997 order, and those appeals have been transferred and
consolidated in the United States Court of Appeals for the Fifth Circuit.
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Payphone Compensation. In September 1996, the FCC adopted rules to
implement the Act's requirement to fairly compensate payphone service
providers. This order included a specific fee to be paid to each payphone
service provider by long-distance carriers and interLATA toll providers
(including LECs) on all "dial around" calls, including debit card and calling
card calls. In orders released July 1, and September 16, 1997, the United
States Court of Appeals for the D.C. Circuit vacated and remanded some of the
FCC rules. On October 9, 1997, the FCC issued an order addressing the default
per-call compensation rate in light of the Court's decision vacating and
remanding portions of the FCC's payphone orders. In response to the Court's
actions the FCC has established a default per-call rate of $0.284 for a
two-year period, which will increase the Company's costs to carry "dial-around"
calls that originate from payphones. This decision is expected to appeal. In
light of potential appeals and any court's ultimate actions in these
proceedings, the Company is unable to predict what impact, if any, this
decision will have on the Company.
Petition For Expedited Rulemaking. In May 1997, LCI and the
Competitive Telecommunications Association (CompTel) jointly filed a Petition
For Expedited Rulemaking requesting the FCC to establish performance standards
for LECs to meet the operations support systems (OSS) requirements of the Act
and applicable FCC regulations. The OSS requirements are in ensuring that
access to the LECs' internal systems are provided at a level of quality
consistent with LEC provided services. In its comments, LCI proposed that an
industry group consisting of local and long-distance carriers, trade
associations and regulators be given approximately nine weeks to establish
measurement categories, measurement formulas and default performance intervals
for several OSS categories. In June 1997, the FCC issued a public notice
requesting comments on LCI's petition. Numerous parties, including the
California Public Service Commission, Wisconsin Public Service Commission, and
the National Association of Regulatory Utilities Commissioners, have filed
comments in support of LCI's petition. This petition is currently pending.
Local Service. The Company is involved in regulatory proceedings in
various states to secure approval to resell local service, which would enable
the Company to provide combined local and long-distance services to existing
and prospective customers. As of September 30, 1997, the Company has received
approval to resell local service in 35 states and the District of Columbia, and
has applications for local service authority pending in another 13 states. The
Company is currently reselling local telecommunications service in 31 markets.
Impact of Regulatory Issues. The regulatory actions discussed above
could impact the Company's cost structure by changing access, per-line and pay
phone charges. The Company is unable to predict whether these changes will
impact its pricing, revenue growth or gross margin.
COMPETITION
The long-distance telecommunications market is highly competitive. The
principal competitive factors affecting the Company's market share are pricing,
regulatory developments (as described above), customer service, and diversity
of services and features. The Act is expected to change the nature of the
industry by allowing carriers other than incumbent LECs to provide local
service while permitting RBOCs to provide long-distance services. As a result,
the Company expects competition within the industry to increase in both the
long-distance and local markets.
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Several of the Company's competitors are substantially larger and have
substantially greater financial, technical and marketing resources. In addition
to the largest telecommunications companies, AT&T, MCI and Sprint, the Company
also competes with hundreds of other long-distance carriers, as well as LECs,
in various types of telecommunications services. The Company's principal
pricing strategy is to offer a simple, flat-rate pricing structure with rates
competitive to those of AT&T, MCI and Sprint. Although LCI is prepared to
respond to competitive offerings from other carriers, the Company continues to
believe that its "Simple, Fair and Inexpensive" marketing and service pricing
approach is very competitive in retaining existing customers, as well as
obtaining new customers. The Company's ability to compete effectively will
depend on maintaining exceptional customer service and high quality, market
responsive services at prices generally equal to or below those charged by its
major competitors.
Industry Mergers. Several very large mergers are currently being
contemplated in the telecommunications industry. Among these proposed mergers
are MCI and WorldCom, Inc.; MCI and British Telecommunications; and GTE and
MCI. At this time the Company is unable to predict the impact, if any, on the
Company or competition within the industry as a whole.
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<PAGE> 20
GENERAL - RESULTS OF OPERATIONS
The Company's revenues primarily consist of switched and private line
revenues. Switched revenues are a function of switched minutes of use (MOUs)
and rate structure (rates charged per MOU), which are based on the Company's
customer and service mix. Private line revenues are a function of fixed rates
that do not vary with usage. The Company's cost of services consists primarily
of expenses incurred for origination, termination and transmission of calls
through LECs and over the Company's Network.
RESULTS OF OPERATIONS FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1997 AS
COMPARED TO THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1996
REVENUES. Revenues increased 26% to $364.8 million and 26% to
$1,017.9 million for the three and nine months ended September 30, 1997,
respectively, over the comparable periods in 1996. MOUs increased 33% to 2.8
billion minutes for the three months and 37% to 8.1 billion minutes for the
nine month periods in 1997 over 1996. The following table provides further
information regarding the Company's revenues:
<TABLE>
<CAPTION>
(in millions, Three Months Nine Months
except switched revenue per MOU) Ended September 30, Ended September 30,
------------------------------------- ------------------------------------
1997 1996 Change 1997 1996 Change
------------------------------------- ------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total Revenues $ 364.8 $ 289.2 26% $1,017.9 $809.1 26%
MOUs 2,837 2,131 33% 8,067 5,896 37%
Switched Revenue per MOU (1) $ 0.119 $ 0.125 (5)% $ 0.117 $0.126 (7)%
</TABLE>
(1)Switched revenue divided by MOUs
Revenues from business customers increased in excess of 25% for the
three and nine months ended September 30, 1997 over the comparable periods in
1996, and represented approximately two-thirds of the Company's total revenues.
Residential/small business revenues represented approximately one-third of
total revenues and increased in excess of 20% and 30% for the three and nine
months ended September 30, 1997, respectively, over the comparable periods in
the prior year. Growth in international service revenues across all revenue
service lines was approximately 100% and 70% for the three and nine months
ended September 30, 1997, respectively compared to the same periods in 1996.
The Company experienced a decrease in average revenue per MOU for both
the three and nine months ended September 30, 1997, as compared to the same
periods in 1996. Revenue per MOU reflects changing cost of services, changes in
the mix of services by market segments and competitive pricing. The growth in
business and international service volumes, as measured in MOUs, exceeded the
growth in revenue due to competitive pricing pressures and changes in the mix
of international country traffic. In addition, the Company has experienced MOU
growth from high volume business customers who primarily use dedicated access
services rather than switched services, which have a lower revenue per MOU. The
Company's growth in various segments, which have different rate structures and
generate different gross margins, has changed its revenue mix and consequently
impacted the average revenue per MOU.
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The Company has experienced an increase in sales allowance in 1997,
reflected as a charge to gross revenue, as a result of the growth in revenue
and a shift in the customer mix towards the residential/small business service
segment. A significant portion of the residential/small business accounts
receivable balance is billed and collected through LECs. The Company continues
to evaluate and monitor performance of the LECs, as these costs of
uncollectible accounts have exceeded historical expectations. The Company's
experience with a higher level of uncollectible accounts in the
residential/small business segment is consistent with industry trends.
The Company uses a variety of channels to market its services. In
addition to its internal sales force, the Company uses a combination of other
channels, such as advertising and third party sales agents. For certain third
party sales agents, compensation is paid to agents in the form of an ongoing
commission based upon collected long distance revenue attributable to customers
sold by the agents. The Company retains responsibility for the customer
relationship, including billing and customer service. American Communications
Network, Inc., a nationwide network of third party sales agents, continued to
be the largest of the Company's sales agents for residential/small business
customers. The Company does, however, continue to expand its sales presence
across the country using a variety of channels.
GROSS MARGIN. The Company's gross margin increased 23% to $151.3
million and 25% to $421.3 million for the three and nine months ended September
30, 1997, respectively, as compared to the same periods in 1996. During the
three and nine months ended September 30, 1997, gross margin as a percentage of
revenue decreased to 41.5% and 41.4%, respectively, from 42.4% and 41.6% for
the same periods in 1996, respectively. The decrease as a percentage of revenue
reflects a shift in revenue mix to high volume customers with lower gross
margins per MOU as well as continued competitive pricing pressures.
The Company's fiber expansion planned for the second half of 1997 and
early 1998, will temporarily result in redundant facilities and increased costs
while traffic is moved from current leased facilities to the new owned
facilities. However, once this transition is completed, which is expected to be
throughout 1998, the Company will realize a lower cost of service. The Company
continues to evaluate strategies to reduce its cost of services and improve the
reliability and efficiency of the Network.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased 23% to $83.0 million and 24% to $230.8
million for the three and nine months ended September 30, 1997, respectively,
as compared to the same periods in 1996. As a percentage of revenues, selling,
general and administrative expenses were 22.8% and 22.7% for the three and nine
months ended September 30, 1997, respectively, as compared to 23.4% and 23.0%
for the same periods in 1996, respectively. Annualized revenue per employee has
remained at approximately $500,000 per employee through the nine months ended
September 30, 1997.
The Company's selling, general and administrative expense increases
year-over-year were substantially impacted by payroll and commissions. Payroll
expenses increased 23% and 26% for the three and nine months ended September
30, 1997, respectively. Payroll expenses increased at a slower rate than the
revenue increase which resulted from business segments which do not require
concurrent increases in selling, general and administrative expenses.
The increase in selling, general and administrative expenses includes
a $5.2 million and $13.7 million increase in commission expense for the three
and nine months ended September 30,
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<PAGE> 22
1997, respectively, over the comparable prior periods. The growth in
residential/small business revenue sold by third party sales agents with
upfront and ongoing commissions impacted commission expense. The costs incurred
for third party sales agents' commissions primarily replace other variable
marketing and selling expenses for this revenue segment.
The Company anticipates an incremental increase in selling, general
and administrative expenses due to the expansion of its geographic sales
presence, entrance into the local service market, and temporarily, due to
acquisition activity. During the nine months ended September 30, 1997, the
growth in selling, general, and administration expenses has been less than
revenue growth, which reflects productivity and operating efficiencies.
DEPRECIATION AND AMORTIZATION EXPENSE. Depreciation and amortization
expense for the three and nine months ended September 30, 1997 was $22.8
million and $61.4 million, respectively. The increase reflects the investments
made in infrastructure for sales, customer service and other service delivery
systems in support of the Company's growth in revenues and MOUs. The Company
anticipates that depreciation and amortization will continue to increase due to
investments in new technology, as well as the expansion of the owned portion of
the Network. The increase in depreciation and amortization for the additional
Network facilities is expected in first quarter of 1998. Depreciation and
amortization expense as a percentage of revenues was 6.3% and 6.0% for the
three and nine months ended September 30, 1997, respectively, as compared to
5.6% and 5.7% for the same periods in 1996, respectively.
OPERATING INCOME. Operating income increased 18% to $45.5 million and
24% to $129.1 million for the three and nine months ended September 30, 1997,
respectively, over the same periods in 1996. As a percentage of revenues,
operating income was 12.5% and 12.7% for the three and nine months ended
September 30, 1997, respectively, compared to 13.4% and 12.9% for the same
periods in 1996. The decline in operating income as a percentage of revenue
reflects the competitive pressures on gross margin, and the increased
depreciation for the Company's capital expenditures prior to the full benefit
of these investments being reflected in the results of operations.
INTEREST AND OTHER EXPENSE, NET. Interest and other expense, net of
capitalized interest, increased to $8.5 million and decreased to $22.2 million
for the three and nine months ended September 30, 1997, respectively, compared
to $7.7 million and $22.9 million for the same periods in 1996, respectively.
Interest expense included a full quarter of interest from the newly issued
Senior Notes, which resulted in the increase for the third quarter 1997 over
1996. The Company was able to reduce the level of outstanding debt during the
first half 1997 compared to 1996, through the Securitization Program, which
provided a lower cost of capital, as well as a lower interest expense on the
Credit Facility. Although interest expense decreased year-over-year, interest
expense is expected to increase due to a higher rate of the interest associated
with the Senior Notes compared to the short-term rates currently available
under existing facilities. The Company also expects a higher average borrowing
as a result of the Senior Notes during the second half of 1997, compared to the
same period in 1996. However, the fixed interest rate on the Senior Notes
provides interest rate stability and frees capacity under the Company's other
short-term facilities.
INCOME TAX EXPENSE. Income tax expense was $14.4 million and $42.4
million for the three and nine months ended September 30, 1997, respectively,
as compared to $10.8 million and $28.5 million for the same periods in 1996,
respectively. The Company's net operating loss (NOL)
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<PAGE> 23
carryforwards for financial statement purposes were fully utilized in 1996,
resulting in an increase in the estimated effective tax rate to 39.5% in 1997
from 35% in 1996. The increase in income tax expense resulted from the increase
in the estimated effective tax rate and the growth in earnings before taxes.
The Company analyzes and adjusts its effective tax rate, if necessary, on a
quarterly basis.
PREFERRED DIVIDENDS. The Company's previously outstanding shares of 5%
Cumulative Convertible Exchangeable Preferred Stock (Preferred Stock) were
redeemed on September 3, 1996, thereby eliminating the corresponding preferred
dividend payments. The annual savings from the eliminated dividend payments is
approximately $5.8 million, based upon the original 4.6 million shares issued
in August 1993.
LIQUIDITY AND CAPITAL RESOURCES
LCI International, Inc. (LCII) is a holding company and conducts its
operations through its direct and indirect wholly-owned subsidiaries. The
Company's discussion of its liquidity is based on the consolidated group.
CASH FLOWS - OPERATING ACTIVITIES. The Company provided $80.6 million
of cash from operations for the nine months ended September 30, 1997, compared
to $238.9 million for the same period in 1996. Excluding the net securitization
activity, cash from operations was $122.8 million for the nine month period
ended September 30, 1997, compared to $130.9 million for the same period in
1996. The Company's growth in revenues and net income has provided consistent
operating cash flows.
CASH FLOWS - INVESTING ACTIVITIES. The Company has supported its
growth strategy with capital expenditures and acquisitions, resulting in $232.3
million in cash used for investing activities during nine months ended
September 30, 1997, compared to $224.0 million in 1996. During the nine months
ended September 30, 1997, the Company spent $224.5 million in capital
expenditures to acquire additional switching, transmission and distribution
capacity, as well as to develop and license information systems support,
representing an increase of $118.7 million from the same period in 1996. This
increase includes the $40 million payment for the Chicago-Dallas fiber purchase
in September 1997.
CASH FLOWS - FINANCING ACTIVITIES. Financing activities provided a net
$151.7 million for the nine months ended September 30, 1997, compared with
$14.9 million used in financing activities during the same period in 1996. In
June 1997, the Company received proceeds of $350 million from the issuance of
long-term debt (see Capital Resources below) and the proceeds were used, in
part, to repay other then outstanding indebtedness.
CAPITAL RESOURCES. The net proceeds from the issuance of the Notes
were used to repay outstanding indebtedness and for working capital and general
corporate purposes.
The Company has a $750 million Credit Facility with a syndicate of
banks, which allows the Company to borrow funds on a daily basis. As a result,
the Company uses its available cash to reduce the balance of its borrowings and
usually maintains no cash on hand. As of September 30, 1997, there was no
outstanding balance on the Credit Facility. The interest rate on the debt
outstanding is variable based on several indices (See Note 5 to the Condensed
Consolidated Financial Statements).
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<PAGE> 24
The Credit Facility contains certain financial and negative covenant
requirements. As of September 30, 1997, the Company was in compliance with all
covenants.
The Company has three separate Discretionary Line of Credit Agreements
(Lines of Credit) with commercial banks for a total of $75 million. The Lines
of Credit provide flexible short-term borrowing facilities at competitive rates
dependent upon a market indicator. Any outstanding balance is reflected in
long-term debt in the accompanying consolidated balance sheets due to
borrowing availability under the Credit Facility to repay such balances. As of
September 30, 1997, there was a $17.9 million outstanding balance on the Lines
of Credit.
The Company maintains a Securitization Program to sell a percentage
ownership interest in a defined pool of the Company's trade accounts
receivable. The Company can transfer an undivided interest in a designated pool
of accounts receivable on an ongoing basis to maintain the participation
interest up to $150 million. At September 30, 1997, the pool of trade accounts
receivable which was available for sale was approximately $141 million and the
amount of receivables sold was approximately $70 million.
CAPITAL REQUIREMENTS. During 1997, the Company expects that its
non-binding commitment for capital expenditures, which is dependent on the
Company's geographic and revenue growth, to increase from 1996 levels. These
on-going capital requirements are primarily for switching and transmission
facilities, technology platforms and information systems applications.
In addition to its ongoing capital requirements, the Company has
entered into several agreements to extend its owned fiber-optic network
throughout several geographic areas of the United States. The Company has
binding commitments to purchase will make payments of approximately $270
million of fiber-optic capacity and related equipment. In September 1997, the
company accepted approximately 1,500 route-miles from Chicago, Illinois to
Dallas, Texas and paid approximately $40 million for the position in the fiber.
The timing of other payments will depend on the delivery and acceptance of
facilities, which is expected to occur in the first half of 1998. The Company
believes it has adequate cash flow and borrowing capacity to fund planned
capital expenditures.
On September 18, 1997, the Company signed a definitive agreement to
acquire USLD Communications Corp. (USLD), in a stock-for-stock transaction that
will be accounted for as a pooling of interests. USLD provides long-distance
telecommunications services primarily to business customers in the Southwest,
Southeast, Pacific Northwest and Western regions of the United States. In
addition, USLD offers operator services for the hospitality and pay phone
industries, and local telephone services in selected markets. The Company
expects the acquisition to close by the end of the year. The Company will
exchange the fraction of a share of Common Stock having a value of $20 per
share (valued pursuant to the formula contained in the agreement), for each
outstanding share of USLD common stock resulting in a purchase price of between
$350 -$370 million. This acquisition is contingent on regulatory approval and
on the ability to qualify as a pooling transaction.
The Company has used strategic acquisitions as one means of expanding
its network, sales and service presence, and revenues across the country. The
Company evaluates each potential acquisition to determine its strategic fit
within the Company's growth, operating margin and income objectives. The
Company expects to continue to actively explore potential acquisitions and may
enter into discussions from time to time with potential acquisition candidates,
but there can be no assurance the Company will be able to enter into or
complete acquisition agreements on acceptable terms.
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<PAGE> 25
COMMITMENTS AND CONTINGENCIES. The Company has agreements with certain
interexchange carriers, LECs and third party vendors to lease facilities for
originating, terminating and transport services. The third party carriers
include WorldCom Network Services, Inc. d/b/a WilTel, Frontier Corporation,
AT&T, Sprint and MCI. In addition, the Company uses services provided by each
RBOC, GTE and other smaller LECs. Some agreements require the Company to
maintain minimum monthly and/or annual billings based on usage. The Company has
met and expects to continue to meet such minimum usage requirements.
In October 1997, the Company amended a contract with a significant
carrier. Under the original contract, the Company had an obligation to use that
carrier for a significant percentage of domestic and international services
that the Company provides through its leased facilities. Under the terms of the
amended contract, the Company received a reduction in usage commitments and a
usage credit, in exchange for agreeing to increases in certain rates. The
Company expects to mitigate the impact of these increased rates by applying the
usage credit against future activity over the life of the amended contract and
by migrating traffic to other lower priced vendors. In addition, under the
amended contract the Company will swap fiber along routes with excess capacity
in exchange for fiber along strategic routes beneficial to the Company. If the
Company is unable to identify lower cost traffic routes, it may incur increased
facility costs when the available usage credit is exhausted. The Company does
not expect that the amended contract will have a material adverse impact on the
results of operations.
The Company has engineered its Network to minimize the impact on its
customers of a service failure by any third party carrier and has established
contingency plans to reroute traffic as quickly as possible if a service
failure by a third party carrier should occur. Although most service failures
that the Company has experienced have been corrected in a relatively short time
period, a catastrophic service failure could interrupt the provision of service
by both the Company and its competitors for a lengthy time period. The
restoration period for a catastrophic service failure cannot be reasonably
determined; however, the Company has not experienced a catastrophic service
failure in its history.
The Company has an agreement with American Communications Network,
Inc. (ACN), a third party sales agent, through April 2011. The agreement
contains a provision whereby ACN will receive a payment if there is a change in
the control of the Company. In consideration for this change in control
payment, the acquiring company would receive a 31% reduction in the ongoing
commission rates paid to ACN. The change in control payment is calculated based
on a multiple of three times the average monthly collected revenue generated by
customers signed up by ACN to use the Company's long-distance services. The
monthly collected revenue average is calculated over a 24-month performance
period subsequent to the change in control. The amount of this payment, if any,
is therefore dependent upon ACN's level of performance during the entire
performance period, and cannot be reasonably estimated at this time.
The Company has been named as a defendant in various litigation
matters. Management intends to vigorously defend these outstanding claims. The
Company believes it has adequate accrued loss contingencies and that current
pending or threatened litigation matters will not have a material adverse
impact on the Company's results of operations or financial condition. (See
Note 6 to the Condensed Consolidated Financial Statements.)
FEDERAL INCOME TAXES. The Company has generated significant NOLs in
prior years that are available to reduce cash requirements for income taxes.
See Note 8 of the Condensed
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Consolidated Financial Statements for a discussion of the availability and
expected utilization of the existing NOLs.
IMPACT OF SEASONALITY. The Company's revenue is subject to seasonal
variations based on each business segment. Use of long-distance services by
commercial customers is typically lower in the fourth quarter due to holidays.
An increase in residential/small business revenue as a proportion of the
Company's total revenues would cause the seasonal impact due to changes in
commercial calling patterns to be reduced. The Company is unable to predict
the revenue impact of a shift to a larger residential customer base.
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 - SAFE HARBOR
CAUTIONARY STATEMENT. This report contains forward-looking statements as
defined by the Private Securities Litigation Reform Act of 1995 (the Reform
Act). These forward-looking statements express the beliefs and expectations of
management regarding LCI's future results and performance and include, without
limitation, the following: statements concerning the Company's future outlook;
the Company's plans to enter the local service market; the effect of FCC and
judicial rulings pertaining to the Act, local service competition and RBOC
entry into the long-distance market; the impact of marketplace competition on
pricing strategies and rates; expected revenue growth; the cost reduction
strategies and opportunities to expand the Network which may allow for
increased gross margin; expected future interest rates; funding of capital
expenditures and operations; the Company's beliefs regarding a catastrophic
service failure; and other similar expressions concerning matters that are not
historical facts.
Such statements are based on current expectations and involve a number
of known and unknown risks and uncertainties that could cause the actual
results, performance and/or achievements of the Company to differ materially
from any future results, performance or achievements, expressed or implied by
the forward-looking statements. Readers are cautioned not to place undue
reliance on these forward-looking statements and any such statement is
qualified by reference to the following cautionary statements. In connection
with the safe harbor provisions of the Reform Act, the Company's management is
hereby identifying important factors that could cause actual results to differ
materially from management's expectations including, without limitation, the
following: increased levels of competition in the telecommunications industry
(including the competitive factors described in Industry Environment),
including RBOC entry into the interLATA long-distance industry and the
corresponding impact on pricing; the adoption and application of rules and
regulations implementing the Act, including the decisions of Federal and state
regulatory agencies and courts interpreting and applying the Act; the impact of
access charge reform; the ability to negotiate appropriate local service
agreements with LECs; the timely delivery of planned Network expansions and
other risks described from time to time in the Company's periodic filings with
the Securities and Exchange Commission. The Company is not required to publicly
release any changes to these forward-looking statements for events occurring
after the date hereof or to reflect other unanticipated events.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Vanus James v. LCI International, Inc. et al. and American
Communications Network, Inc. was commenced in late May 1995 in the Supreme
Court, Kings County, New York. The plaintiff purported to bring a class action
lawsuit against the Company, certain of its affiliates, and American
Communications Network, Inc., one of the Company's sales agents. In March 1997,
the court approved a settlement of this class action suit that became effective
as of April 25, 1997. The Company has complied with all aspects of the
settlement and the settlement did not have a material adverse impact on the
Company's results of operations or financial condition.
The Company has also been named as a defendant in various other
litigation matters incident to the character of its business. The Company
believes it has adequate accrued loss contingencies with respect to all
litigation matters and, although the ultimate outcome of these claims cannot be
ascertained at this time, these current pending or threatened litigation
matters are not expected to have a material adverse effect on the consolidated
financial position or results of operations of the Company.
27
<PAGE> 28
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The exhibits filed as part of this report are set forth in
the Index of Exhibits on page 30 of this report.
(b) Reports on Form 8-K: On September 23, 1997, the Company filed a report
on Form 8-K to report the signing of a definitive Agreement and Plan
of Merger between the Company and USLD Communications Corp.
28
<PAGE> 29
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LCI INTERNATIONAL, INC.
DATE: November 12, 1997 BY: /s/ Joseph A. Lawrence
----------------- ----------------------
Joseph A. Lawrence
Chief Financial Officer,
Executive Vice President and
Chief Financial Officer
(as duly authorized officer and
principal financial officer)
29
<PAGE> 30
EXHIBIT INDEX
The following Exhibits are included in this Quarterly Report on Form 10-Q:
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Description
- ----------- ---------------------------------------------------------------
<S> <C>
2(b) Agreement and Plan of Merger, dated as of September 17, 1997,
by and among LCI International, Inc., LCI Acquisition Corp.
and USLD Communications Corp. (1)
3(i)(a) Amended and Restated Certificate of Incorporation. (2)
3(i)(c) Certification of Designation, Preferences and Rights of Junior
Participating Preferred Stock. (3)
3(ii) Amended and Restated By-laws. (4)
4(c)(xv) Third Amended and Restated Credit Agreement, dated as of
September 5, 1997, by and among LCI International, Inc., First
Union National Bank, Nationsbank of Texas, N.A., and The Bank
of New York.
4(c)(xvi) 364 Day Credit Agreement, dated as of September 5, 1997, by
and among LCI International, Inc., First Union National Bank,
Nationsbank of Texas, N.A., and The Bank of New York.
11 Statement Regarding Computation of Per Share Earnings
27 Financial Data Schedule
</TABLE>
(1) Incorporated by reference from the Company's Current Report on
Form 8-K dated September 17, 1997.
(2) Incorporated by reference from the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1996.
(3) Incorporated by reference from the Company's Quarterly Report on
Form 10-Q/A for the quarterly period ended March 31, 1997.
(4) Incorporated by reference from the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996.
30
<PAGE> 1
Exhibit 4(c)(xv)
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of September 5, 1997
by and among
LCI INTERNATIONAL, INC.,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Documentation Agent,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent,
and
THE BANK OF NEW YORK,
as Syndication Agent.
<PAGE> 2
EXHIBITS
Exhibit A-1 - Form of Third Amended and Restated Revolving Credit Note
Exhibit A-2 - Form of Third Amended and Restated Swingline Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Notice of Account Designation
Exhibit B-3 - Notice of Prepayment
Exhibit C-1 - Form of Competitive Bid Request
Exhibit C-2 - Form of Invitation to Bid
Exhibit C-3 - Form of Competitive Bid
Exhibit C-4 - Form of Competitive Bid Accept/Reject Letter
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G-1 - Form of New Lender Supplement
Exhibit G-2 - Form of Commitment Increase Supplement
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification to
Do Business as Foreign Corporation of Borrower and
its Subsidiaries
Schedule 6.1(b) - Subsidiaries of Borrower and Capitalization of
Borrower and Subsidiaries
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Intellectual Property Matters
Schedule 6.1(m) - Material Contracts
Schedule 6.1(n) - Labor and Collective Bargaining Agreements
Schedule 6.1(q) - Material Adverse Change Disclosure
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 6.1(v) - Regulatory Matters
Schedule 8.5 - Excluded Taxes
Schedule 10.3 - Existing Liens
Schedule 10.4 - Loans, Advances and Investments
Schedule 10.9 - Transactions with Affiliates
<PAGE> 3
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 5th day
of September, 1997, by and among LCI INTERNATIONAL, INC., a corporation
organized under the laws of Delaware, as Borrower, the Lenders who are or may
become a party to this Agreement, FIRST UNION NATIONAL BANK, as Documentation
Agent, NATIONSBANK OF TEXAS, N.A., as Administrative Agent and THE BANK OF NEW
YORK, as Syndication Agent.
STATEMENT OF PURPOSE
The Borrower has requested and the Lenders have agreed to amend and
restate the Prior Credit Agreement referred to below, pursuant to which the
Lenders will provide a five (5) year (subject to extension pursuant to the terms
hereof) revolving credit facility in an aggregate principal amount not to exceed
Five Hundred Million Dollars ($500,000,000) (subject to increase pursuant to the
terms hereof) with (a) a sublimit not to exceed Fifty Million Dollars
($50,000,000) for the issuance of standby letters of credit and (b) a
Twenty-Five Million Dollar ($25,000,000) swingline facility provided by the
Swingline Lender, all on the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"364-Day Credit Agreement" means the 364-Day Credit Agreement of even date
herewith by and among the Borrower, the Lenders and the Lead Agents, and the
Syndication Agent, as amended or supplemented from time to time.
"Administrative Agent" means NationsBank in its capacity as administrative
agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"Affiliate" means, with respect to any Person and its Subsidiaries, any
other Person (other than a Subsidiary thereof) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person or any of its Subsidiaries. The term
"control" means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
<PAGE> 4
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or increased at any time or
from time to time pursuant to the terms hereof. As of the Closing Date, the
Aggregate Commitment shall be Five Hundred Million Dollars ($500,000,000).
"Agreement" means this Third Amended and Restated Credit Agreement, as
amended or modified from time to time.
"Alternative Currency" means any lawful currency (other than Dollars)
which is freely transferrable and convertible into Dollars in the United States
currency market and freely available to banks in the London interbank market and
which is approved by the Issuing Lender for the issuance of a Letter of Credit
denominated in such currency.
"Annualized Operating Cash Flow" means, with respect to the Borrower and
its Restricted Subsidiaries at any date of determination, Operating Cash Flow
for the period of two (2) consecutive fiscal quarters ending on, or most
recently ended prior to, such date times two (2).
"Applicable Law" means all applicable provisions of constitutions,
treaties, statutes, laws, rules, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in
Section 4.1(c).
"Approved Preferred Stock" means any preferred stock issued by the
Borrower or any Restricted Subsidiary, provided that (a) such preferred stock
(and any security into which such preferred stock is convertible) shall not
contain restrictive covenants or other terms more restrictive than those
contained in the Loan Documents, (b) such preferred stock shall not provide for
any mandatory prepayments or redemptions at any time where similar payments are
not required under the Loan Documents and (c) documents evidencing such
preferred stock (and other security) must be reasonably satisfactory to the Lead
Agents, unless the Lead Agents agree otherwise in a written approval executed
before the issuance of such stock.
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 13.10.
"Bank Investors" shall have the meaning assigned thereto in the
Securitization Documents.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate as determined by the Administrative Agent plus 1/2 of 1%;
each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate determined with
reference to the Base Rate as provided in Section 4.1(a) hereof.
"Borrower" means LCI in its capacity as borrower hereunder.
<PAGE> 5
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Dallas, Texas and New York City are open for the conduct of their
commercial banking business (and with respect to the determination of any Dollar
Equivalent amount, any such day on which such banks are open for the conduct of
their foreign exchange business), and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Rate Loan, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in U.S. Dollar deposits in
the London interbank market.
"Capital Lease" means, with respect to the Borrower and its Restricted
Subsidiaries, any lease of any property that would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on a Consolidated
balance sheet of the Borrower and its Restricted Subsidiaries.
"Cash Equivalents" shall have the meaning assigned thereto in
Section 10.4(b).
"Change in Control" shall have the meaning assigned thereto in
Section 11.1(i).
"Closing Date" means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied in a
manner satisfactory to the Lead Agents.
"Co-Agent" means any Lender designated as such on the signature
pages hereto.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Revolving Credit Loans to and issue or participate in Letters of Credit
issued for the account of the Borrower hereunder in an aggregate principal or
face amount at any time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 1 hereto (or as set forth on any amendment
thereto), as the same may be reduced or increased at any time or from time to
time pursuant to the terms hereof.
"Commitment Percentage" means, with respect to any Lender, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan pursuant to Section 2.4.
"Competitive Bid Interest Period" shall have the meaning assigned thereto
in Section 4.1(b)(ii).
"Competitive Bid Loan" means any Loan bearing interest at the Competitive
Bid Rate determined in accordance with Section 2.4.
<PAGE> 6
"Competitive Bid Notes" means the separate Competitive Bid Notes made by
the Borrower payable to the order of each of the Lenders, substantially in the
form of Exhibit A-3 hereto, and any amendments and supplements thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Lender
pursuant to Section 2.4, the fixed percentage rate per annum (expressed in the
form of a decimal to no more than four decimal places) specified by the Lender
making such Competitive Bid.
"Competitive Bid Request" shall have the meaning assigned thereto in
Section 2.4(a).
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrower and its Restricted Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Consolidated Net Worth" means, with respect to the Borrower and its
Restricted Subsidiaries at any date of determination thereof, the amount of
equity of the holders of all and any capital stock and other ownership interests
of such Persons which would appear on the Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of such date (excluding any amount
set forth therein for currency translation adjustments), determined in
accordance with GAAP.
"CP Issuer" means Enterprise Funding Corporation, a Delaware corporation,
and its permitted successors and assigns.
"Credit Facility" means the collective reference to the credit facility
established pursuant to Article II and the L/C Facility.
"Current Assets" means, with respect to the Borrower and its Restricted
Subsidiaries at a particular date, all amounts which would, in conformity with
GAAP, be included under current assets on a Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at such date.
"Current Liabilities" means, with respect to the Borrower and its
Restricted Subsidiaries at a particular date, all amounts which would, in
conformity with GAAP, be included under current liabilities on a Consolidated
balance sheet of the Borrower and its Restricted Subsidiaries as at such date,
but in any event including the amount of (a) all Debt of any such Person payable
on demand or, at the option of the Person to whom such Debt is owed, not more
than twelve months after such date, (b) any payments in respect of any Debt of
any such Person (whether installment, serial maturity or sinking fund payments
or otherwise) required to be made not more than twelve months after such date,
and (c) all reserves in respect of liabilities or Debt payable on demand or, at
the option of the Person to whom such Debt is owed, not more than twelve months
after such date, the validity of which is contested at such date.
"Debt" means, with respect to the Borrower and its Restricted Subsidiaries
at any date and without duplication, the sum of the following calculated in
accordance with GAAP: (a) all
<PAGE> 7
liabilities, obligations and indebtedness for borrowed money including but not
limited to obligations evidenced by bonds, debentures, notes or other similar
instruments of the Borrower or any Restricted Subsidiary, (b) all obligations to
pay the deferred purchase price of property or services of the Borrower or any
Restricted Subsidiary, except (i) trade payables arising in the ordinary course
of business not more than ninety (90) days past due and (ii) documented disputes
with vendors arising from the provision or use of telecommunications services
which disputes are in the process of resolution and for which adequate reserves
have been established in accordance with GAAP, (c) all obligations as lessee
under Capital Leases, (d) all Debt of any other Person secured by a Lien on any
asset of the Borrower or any Restricted Subsidiary up to the lesser of the
amount of such Debt or the fair market value of such property as determined in
the reasonable discretion of the Lead Agents, (e) all Guaranty Obligations of
the Borrower or any Restricted Subsidiary, (f) all obligations, contingent or
otherwise, of the Borrower or any Restricted Subsidiary relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any Reimbursement Obligation, and banker's acceptances issued for the account of
the Borrower or any Restricted Subsidiary, and (g) all payment obligations
incurred by any such Person under any Hedging Agreement.
"Default" means any of the events specified in Section 11.1 which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Equivalent" shall mean, with respect to any Letter of Credit
denominated in an Alternative Currency, the amount of Dollars which is
equivalent to the face amount or other applicable amount under such Letter of
Credit at the most favorable spot exchange rate determined by the Administrative
Agent at approximately 11:00 A.M. (Charlotte time) two (2) Business Days prior
to such date.
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having total assets in excess of $500,000,000, (b)
a finance company, insurance company or other financial institution which in the
ordinary course of business extends credit of the type extended hereunder and
that has total assets in excess of $1,000,000,000, (c) already a Lender (or
Affiliate thereof) hereunder (whether as an original party to this Agreement or
as the assignee of another Lender), (d) the successor (whether by transfer of
assets, merger or otherwise) to all or substantially all of the commercial
lending business of the assigning Lender, or (e) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower and the
Documentation Agent (such approval not to be unreasonably withheld).
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
<PAGE> 8
"Environmental Laws" means any and all applicable federal, foreign, state
and local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended or modified from time to time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Existing Securitization" means the transactions contemplated by and
entered into pursuant to the Securitization Documents.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans and Competitive Bid Loans made by such Lender then outstanding and (b)
such Lender's Commitment Percentage of the L/C Obligations and Swingline Loans
then outstanding.
"FCC" means the Federal Communications Commission or any
successor Governmental Authority.
"FCC License" means any long distance telecommunications or other license,
permit, consent, certificate of compliance, franchise, approval, waiver or
authorization granted or issued by the FCC, including, without limitation, any
of the foregoing authorizing or permitting the acquisition, construction or
operation of Network Facilities or any other long distance telecommunications
system.
"Federal Funds Rate" means, for any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published at 11:00 a.m. (Charlotte time) for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"First Union" means First Union National Bank, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on December 31.
<PAGE> 9
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including without limitation all FCC Licenses and PUC
Authorizations.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing, including
without limitation the FCC and any PUC.
"Guaranty Obligation" means, with respect to the Borrower and its
Restricted Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or
indirectly guaranteed any Debt of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
condition or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided, that
the term Guaranty Obligation shall not include endorsements for collection or
deposit in the ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are deemed
to constitute a nuisance, a trespass or pose a health or safety hazard to
persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk
<PAGE> 10
exposure, and any confirming letter executed pursuant to such hedging agreement,
all as amended or modified.
"Intercompany Notes" means any Debt for borrowed money owing by the
Borrower to any Restricted Subsidiary, which Debt shall be evidenced by a
promissory note subordinated to the Obligations in form and substance
satisfactory to the Lead Agents.
"Interest Expense" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, total interest expense of the Borrower and its
Restricted Subsidiaries (including without limitation, interest expense
attributable to Capital Leases) determined in accordance with GAAP and net costs
under any Hedging Agreement and currency agreement to the extent that such costs
are included within interest expense under GAAP plus, to the extent not included
therein, total interest expense, whether shown as interest expense, other
expense, discount or as loss and expense on the sale of receivables, in any such
case incurred pursuant to any Permitted Securitization, plus, solely with
respect to the determination of Interest Expense for the purpose of calculating
the Leverage Ratio hereunder, the aggregate amount of Basic Rent (as defined in
the Office Property Lease) paid or payable by LCI during such period under the
Office Property Lease.
"Issuing Lender" means NationsBank, in its capacity as issuer of
any Letter of Credit.
"L/C Commitment" means the lesser of the Aggregate Commitment and Fifty
Million Dollars ($50,000,000).
"L/C Facility" means the letter of credit facility established pursuant to
Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of Credit
and (b) the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders other
than the Issuing Lender.
"LCI" means LCI International, Inc., a Delaware corporation, and
its successors.
"LCI Trust I" means the grantor trust created pursuant to the Trust
Agreement.
"Lead Agents" means the collective reference to the Documentation
Agent and the Administrative Agent.
"Lender" means each Person executing this Agreement as a Lender (including
without limitation the Issuing Lender and Swingline Lender unless the context
otherwise requires) set forth on the signature pages hereto and each Person that
hereafter becomes a party to this Agreement as a Lender pursuant to Section
13.10.
<PAGE> 11
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Letter of Credit Application" means an application in the Issuing
Lender's customary form requesting the Issuing Lender to issue a Letter of
Credit.
"Letters of Credit" shall have the meaning assigned thereto in
Section 3.1.
"Leverage Ratio" means, at any date of determination, the ratio of the
following calculated without duplication in accordance with GAAP: (a) the sum of
(i) Total Debt of the Borrower and its Restricted Subsidiaries at such date less
(ii) cash and Cash Equivalents which are immediately available to the Borrower
for the payment of Obligations hereunder to (b) Annualized Operating Cash Flow
of the Borrower and its Restricted Subsidiaries at such date (including in the
determination thereof on a pro forma basis for the relevant period Operating
Cash Flow for any Person acquired in accordance with Section 10.4(c) and any
Person in which an investment was consummated in accordance with Section 10.4(d)
in each case during such Period, and excluding on a pro forma basis for the
relevant period Operating Cash Flow attributable to any property, business or
other assets sold (and not replaced) during such period in accordance with
Section 10.6(f)).
"LIBOR" means the rate of interest determined by the Administrative Agent
to be the arithmetic average (rounded upward, if necessary, to the nearest one
hundredth of one percent (1/100%)) of the rate per annum at which deposits in
Dollars are offered by first class banks in the London interbank market to the
London offices of the Administrative Agent (or the Administrative Agent's London
branch) at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of the applicable LIBOR Interest Period for a period equal to such
Interest Period and in an amount substantially equal to the amount of the
applicable Loan.
"LIBOR Interest Period" shall have the meaning assigned thereto in Section
4.1(b)(i).
"LIBOR Rate" means (a) LIBOR divided by (b) one (1) less the
Reserve Percentage.
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 4.1(a) hereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan" means any Revolving Credit Loan made to the Borrower pursuant to
Section 2.1(a), any Competitive Bid Loan made to the Borrower pursuant to
Section 2.1(b) or any Swingline Loan made to the Borrower pursuant to Section
2.2, and all such Loans collectively as the context requires.
<PAGE> 12
"Loan Documents" means, collectively, this Agreement, the Notes, the
Letter of Credit Applications, any Hedging Agreement hedging interest rate risk
under this Agreement and executed with a Lender or an Affiliate thereof, and
each other document, instrument and agreement executed and delivered by the
Borrower, its Restricted Subsidiaries or their counsel in connection with this
Agreement or otherwise referred to herein or contemplated hereby, all as may be
amended or modified from time to time.
"Material Adverse Effect" means, with respect to the Borrower or any of
its Restricted Subsidiaries, a material adverse effect on the properties,
business, prospects, operations or condition (financial or otherwise) of such
Persons taken as a whole or the ability of any such Person to perform its
obligations under the Loan Documents or Material Contracts, in each case to
which it is a party.
"Material Contract" means (a) any contract or other agreement, written or
oral, of the Borrower or any of its Restricted Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $15,000,000 per
annum, or (b) any other contract or agreement, written or oral, of the Borrower
or any of its Restricted Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect; provided that Material
Contract shall not include any contract or agreement terminable by the Borrower
or any of its Restricted Subsidiaries in accordance with its terms upon notice
of thirty (30) days or less without liability for further payment other than a
nominal penalty.
"Money Market Rate" means a money market based rate as determined by the
Administrative Agent.
"Moody's" means Moody's Investors Service, Inc., and its
successors and assigns.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six years.
"NationsBank" means NationsBank of Texas, N.A., a national
banking association.
"Net Cash Proceeds" means the gross cash proceeds received by the Borrower
or any of its Restricted Subsidiaries from any offering of capital stock or
other ownership interests (excluding the issuance to qualified employees or
directors of capital stock pursuant to the stock option plan or stock purchase
plan, as applicable, of the Borrower as then in effect) or Debt securities less
all legal, underwriting and other fees and expenses incurred in connection
therewith.
"Net Income" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, the Consolidated net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period determined in
accordance with GAAP; provided, that there shall be excluded from net income (or
loss) (a) the income (or loss) of any Person accrued prior to the date such
Person becomes a Restricted Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries or that
Person's assets are acquired by the Borrower or any of its Restricted
Subsidiaries, (b) if the ability of the Borrower to receive, recover or
<PAGE> 13
repatriate cash or receive the economic benefits (other than any increase in
value of the Borrower's stock or ownership interest in a Restricted Subsidiary
thereof) from any of its Restricted Subsidiaries is materially limited or
restricted for a material period of time at any date of determination by
operation of the terms of the charter of such Restricted Subsidiary or any
agreement, instrument, or Applicable Law, the portion of the income of each such
Restricted Subsidiary so restricted, (c) the net income of any Person not a
Wholly-Owned Restricted Subsidiary of the Borrower, and the net income of any
Person that is accounted for by the equity method of accounting, except in each
case to the extent of the amount received by the Borrower in a cash distribution
and (d) the effect of any currency translation adjustments.
"Net Investment" means the total amount of the Borrower's investment in a
Subsidiary whether in the form of debt, equity or otherwise less any returns on
or repayments of such investment received by the Borrower during the term of
this Agreement in cash or Cash Equivalents, or the fair market value of any
other return or repayment as reasonably determined by the Borrower and approved
by the Lead Agents in their reasonable discretion.
"Network Agreement" means any document or agreement entered into by the
Borrower or any of its Restricted Subsidiaries regarding the use, operation,
maintenance or otherwise concerning any of the Network Facilities.
"Network Facilities" means the network of digital facilities and capacity
owned or leased by the Borrower or any of its Restricted Subsidiaries.
"Notes" means the Revolving Credit Notes, the Competitive Bid Notes, or
the Swingline Note, or any combination thereof, and "Note" means any of such
Notes.
"Notice of Account Designation" shall have the meaning assignation thereto
in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.3(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.5(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all payment and other obligations owing by the Borrower to any
Lender, any Affiliate of any Lender or any of the Lead Agents under any Hedging
Agreement hedging interest rate risk under this Agreement and (d) all other fees
and commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower to the Lenders or to any of the Lead Agents, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any
<PAGE> 14
note, and whether or not for the payment of money under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents.
"Office Property" means the certain real property located in Ballston,
Virginia acquired pursuant to the Synthetic Lease Documents, including the
approximately 306,000 square foot office building, approximately 660-car
underground parking garage, and related improvements and facilities constructed
thereon pursuant to the Synthetic Lease Documents.
"Officer's Compliance Certificate" shall have the meaning assigned thereto
in Section 7.2.
"Operating Cash Flow" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, the following, each calculated for such
period without duplication in accordance with GAAP: (a) Net Income, plus (b) to
the extent deducted in determining Net Income (i) income and franchise taxes
paid or payable by the Borrower and its Restricted Subsidiaries, (ii) Interest
Expense paid or payable by the Borrower and its Restricted Subsidiaries and
(iii) amortization and depreciation and other similar non-cash charges less (c)
the sum of (i) interest income, (ii) non-cash income and (iii) any items of gain
(or plus any non-cash items of loss) which were included in determining Net
Income and were not realized in the ordinary course of business.
"Other Taxes" shall have the meaning assigned thereto in Section
4.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for employees of the Borrower or any ERISA
Affiliates or (b) has at any time within the preceding six years been maintained
for the employees of the Borrower or any of their current or former ERISA
Affiliates.
"Permitted Securitization" means the Existing Securitization and any other
sale, conveyance or other transfer of accounts receivable of LCI or any
Subsidiary pursuant to an accounts receivable securitization financing
transaction; provided that (a) on any date of determination the aggregate amount
outstanding pursuant to all accounts receivable financing transactions does not
exceed the greater of (i) $200,000,000 or (ii) fifteen percent (15%) of Total
Revenues of the Borrower and its Restricted Subsidiaries for the four (4)
consecutive fiscal quarter period ending on or most recently prior to such date
of determination and (b) such accounts receivable securitization financing
transaction is pursuant to material terms and conditions satisfactory to, and
evidenced by documents approved by, the Lead Agents.
"Person" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, limited liability company,
Governmental Authority or any other form of entity or group.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate at its
principal office in Dallas, Texas.
<PAGE> 15
Each change in the Prime Rate shall be effective as of the opening of business
on the day such change in the Prime Rate occurs. The parties hereto acknowledge
that the rate announced publicly by the Administrative Agent as its Prime Rate
is an index or base rate and shall not necessarily be its lowest rate charged to
its customers or other banks.
"Prior Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of February 14, 1996, by and among LCI, as Borrower, the
Prior Lenders, First Union National Bank of North Carolina, as Syndication Agent
and Credit Agent, and NationsBank of Texas, N.A., as Syndication Agent and
Administrative Agent, as amended or modified.
"Prior Lenders" means, collectively, the lenders party to the
Prior Credit Agreement.
"Projections" shall have the meaning set forth in Section 7.1(c).
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any Network Facility or long distance telecommunications systems or
over Persons who own, construct or operate a Network Facility or long distance
telecommunications systems, in each case by reason of the nature or type of the
business subject to regulation and not pursuant to laws and regulations of
general applicability to Persons conducting business in said state.
"PUC Authorizations" means all applications, filings, reports, documents,
recordings and registrations with, and all validations, exemptions, franchises,
waivers, approvals, orders or authorizations, consents, licenses, certificates
and permits from any PUC.
"Receivables Subsidiary" means SPC and any other special purpose
Subsidiary of LCI formed to consummate a Permitted Securitization.
"Register" shall have the meaning assigned thereto in Section
13.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Replacement Lender" shall have the meaning assigned thereto in
Section 4.7(d).
"Required Lenders" means, at any date, the holders of at least fifty-one
percent (51%) of the aggregate unpaid principal amount of the Revolving Credit
Notes, or if no amounts are outstanding under the Revolving Credit Notes, any
combination of Lenders whose Commitment Percentages aggregate at least fifty-one
percent (51%).
"Reserve Percentage" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable LIBOR Interest Period or Competitive Bid
Interest Period as of the first day of such LIBOR Interest Period or Competitive
Bid Interest Period, but subject to any changes in such reserve requirement
becoming effective during the LIBOR Interest Period or Competitive Bid Interest
Period. For purposes of calculating
<PAGE> 16
the Reserve Percentage, the reserve requirement shall be as set forth in
Regulation D without benefit of credit for prorations, exemptions or offsets
under Regulation D, and further without regard to whether or not any Lender
elects to actually fund any Loan or portion thereof with Eurocurrency
liabilities. Each calculation by the Administrative Agent of the LIBOR Rate
shall be conclusive and binding for all purposes, absent manifest error.
"Restricted Subsidiary" means a Subsidiary of the Borrower which is not
an Unrestricted Subsidiary.
"Revolving Credit Loans" means the revolving credit loans made by the
Lenders to the Borrower pursuant to Section 2.1(a).
"Revolving Credit Notes" means the separate Third Amended and Restated
Revolving Credit Notes made by the Borrower payable to the order of each of the
Lenders, substantially in the form of Exhibit A-1 hereto, evidencing the
Revolving Credit Loans, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extension
thereof, in whole or in part.
"Securitization Documents" means the collective reference to the
following documents:
(a) transfer and administration agreement dated as of August 29, 1996 (the
"Transfer and Administration Agreement"), among the SPC, as Transferor,
LCI International Telecom Corp., as the initial collection agent, the CP
Issuer, NationsBank, N.A., as agent for the CP Issuer and Bank Investors
and as a Bank Investor, and those other financial institutions from time
to time parties thereto as Bank Investors;
(b) Receivables Purchase Agreement dated as of August 29, 1996 (the
"Receivables Purchase Agreement"), by and among the Transferors and the
SPC;
(c) revolving subordinated promissory notes executed by the SPC in
favor of each of the Transferors (the "SPC Notes");
(d) lock-box agreements executed by the lock-box bank party thereto, the
SPC, and the applicable Transferor with respect to the lock-boxes and/or
lock-box accounts maintained by such Transferor at such lock-box bank;
(e) support agreement dated as of August 29, 1996 (the "Support
Agreement") entered into by LCI in favor of the SPC and its permitted
successors and assignees with respect to the obligations of the
Transferors under the Securitization Documents; and
(f) each other agreement or document executed in connection with or in
furtherance of the above-referenced Securitization Documents, and any
amendment or modification of any documents referred to in this definition
to which, if such
<PAGE> 17
amendment or modification could reasonably be expected to be adverse to
the interests of the Lenders, the Lead Agents have consented in writing.
"Senior Notes" means the collective reference to the Borrower's 7.25%
senior notes due June 15, 2007 issued pursuant to the prospectus supplement
dated as of June 23, 1997 to the prospectus dated as of March 10, 1997.
"Senior Unsecured Debt Rating" means the rating, as determined by either
Moody's or Standard & Poor's, of the Borrower's senior unsecured non-credit
enhanced long term Debt.
"Solvent" means, as to the Borrower and its Restricted Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"SPC" means that certain special purpose Subsidiary of LCI formed in
connection with the Existing Securitization, and its permitted successors and
assigns.
"Standard & Poor's" means Standard & Poor's Ratings Group, a Division of
McGraw-Hill Corporation, and its successors and assigns.
"Subordinated Debt" means the collective reference to (a) the Intercompany
Notes and (b) any other Debt of the Borrower or any Subsidiary subordinated in
right and time of payment to the Obligations on terms satisfactory to the
Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership or other
entity of which more than fifty percent (50%) of the outstanding capital stock
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity is at the time, directly or indirectly, owned by or the management
is otherwise controlled by such Person (irrespective of whether, at the time,
capital stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency). Unless
otherwise qualified references to "Subsidiary" or "Subsidiaries" herein shall
refer to those of the Borrower.
"Swingline Commitment" means Twenty-Five Million Dollars
($25,000,000).
"Swingline Facility" means the Swingline Facility established pursuant to
Article II hereof.
"Swingline Lender" means NationsBank in its capacity as swingline
lender hereunder.
"Swingline Loan" means the swingline loans made by the Swingline Lender to
the Borrower pursuant to Section 2.2.
<PAGE> 18
"Swingline Note" means the Third Amended and Restated Swingline Note made
by the Borrower payable to the order of the Swingline Lender, substantially in
the form of Exhibit A-2 hereto, evidencing the Swingline Loans, and any
amendments and supplements thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"Swingline Termination Date" means the earliest to occur of (a) September
4, 1998 (as such date may be extended pursuant to the terms hereof or in writing
to the Borrower by the Swingline Lender in its sole discretion), (b) the
resignation of NationsBank as Administrative Agent in accordance with Section
12.9 and (c) the Termination Date.
"Syndication Agent" means any Lender designated as such on the
signature pages hereto.
"Synthetic Lease Documents" means the collective reference to the
following documents:
(a) unconditional guaranty agreement (the "LCI Guaranty") dated as of
November 15, 1996 executed by LCI in favor of NationsBank, as agent for
the lenders under the Real Estate Facility, as amended or supplemented
from time to time;
(b) lease agreement (the "Office Property Lease") dated as of November 15,
1996 executed by LCI Trust I, as lessor, and LCI, as Lessee, with respect
to the Office Property, as amended or supplemented from time to time;
(c) credit agreement (the "Real Estate Facility") dated as of November 15,
1996 among First Security Bank, National Association, as the owner trustee
under LCI Trust I, as Borrower, the lenders who are or may become party
thereto, and NationsBank, as agent for the lenders thereunder, as amended
or supplemented from time to time;
(d) trust agreement (the "Trust Agreement") dated as of November 15, 1996,
between NationsBank, the other holders who are or may become party thereto
and First Security Bank, National Association, as the owner trustee
thereunder, as amended or supplemented from time to time; and
(e) each other agreement or document executed in connection with or in
furtherance of the above-referenced Synthetic Lease Documents, and any
amendment or modification of any documents referred to in this definition
to which, if such amendment or modification could reasonably be expected
to be adverse to the interests of the Lenders, the Lead Agent have
consented in writing.
"Taxes" shall have the meaning assigned thereto in Section
4.10(a).
"Termination Date" means the earliest of the dates referred to in
Section 2.8.
<PAGE> 19
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA; or (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Pension Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA; or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA; or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC; or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan; or (f) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan; or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA; or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Commitments" means the sum of (i) the Aggregate Commitment
hereunder and (ii) the Aggregate Commitment under the 364-Day Credit Agreement.
"Total Debt" means, with respect to the Borrower and its Restricted
Subsidiaries at any date of determination and without duplication, all Debt of
the Borrower and its Restricted Subsidiaries.
"Total Revenue" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, gross revenue for the Borrower and its Restricted
Subsidiaries on a Consolidated basis for such period determined in accordance
with GAAP.
"Transferors" means the collective reference to those Subsidiaries of LCI
which, pursuant to the Existing Securitization, transfer certain accounts
receivable, payments in respect thereof and other related assets to SPC, in
accordance with the terms and conditions of the Securitization Documents.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1994 Revision), International Chamber of Commerce
Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State
of North Carolina.
"United States" means the United States of America.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
designated as an Unrestricted Subsidiary by the Borrower in writing to the Lead
Agents; provided, however, that at no time will the aggregate Net Investment in
all Unrestricted Subsidiaries exceed $30,000,000.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
<PAGE> 20
SECTION 1.2. General. All terms of an accounting nature not specifically
defined herein shall have the meaning assigned thereto by GAAP. Unless otherwise
specified, a reference in this Agreement to a particular section, subsection,
Schedule or Exhibit is a reference to that section, subsection, Schedule or
Exhibit of this Agreement. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter. Any reference herein to
"Charlotte time" shall refer to the applicable time of day in Charlotte, North
Carolina.
SECTION 1.3. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents.
(b) Accounting Terms. All accounting terms not specifically defined herein
shall have the meaning given thereto by GAAP, and all accounting terms which are
defined by reference to the Borrower and its Subsidiaries shall, when used
herein with respect to any other Person, be calculated in accordance with such
definition with respect to such other Person.
(c) Miscellaneous. The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Revolving Credit and Competitive Bid Loans.
(a) Revolving Credit Loans. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Revolving Credit Loans to the
Borrower from time to time from the Closing Date through the Termination Date as
requested by the Borrower in accordance with the terms of Section 2.3; provided,
that (i) the aggregate principal amount of all outstanding Revolving Credit
Loans (after giving effect to any amount requested) shall not exceed the
Aggregate Commitment less the sum of the outstanding Competitive Bid Loans,
Swingline Loans and L/C Obligations and (ii) the principal amount of outstanding
Revolving Credit Loans from any Lender to the Borrower shall not at any time
exceed such Lender's Commitment less such Lender's Commitment Percentage of the
L/C Obligations and Swingline Loans then outstanding. Each Revolving Credit Loan
by a Lender shall be in a principal amount equal to such Lender's Commitment
Percentage of the aggregate principal amount of Revolving Credit Loans requested
on such occasion. Subject to the terms and conditions hereof, the Borrower may
borrow, repay and reborrow Revolving Credit Loans hereunder until the
Termination Date.
<PAGE> 21
(b) Competitive Bid Loans. Subject to the terms and conditions of this
Agreement, the Borrower may, prior to the Termination Date and pursuant to the
procedures set forth in Section 2.4, request the Lenders to make offers to make
Competitive Bid Loans; provided, that the aggregate principal amount of all
outstanding Competitive Bid Loans (after giving effect to any amount requested
and the use of proceeds thereof) shall not exceed the Aggregate Commitment less
the sum of all outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations. The Lenders may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in Section 2.4.
SECTION 2.2. Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement,
the Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time from the Closing Date through the Swingline Termination Date; provided,
that the aggregate principal amount of all outstanding Swingline Loans (after
giving effect to the amount of Swingline Loans requested), shall not exceed the
lesser of (i) the Aggregate Commitment less the sum of all outstanding Revolving
Credit Loans, the Competitive Bid Loans and L/C Obligations and (ii) the
Swingline Commitment. Subject to the terms and conditions hereof, the Borrower
may borrow, repay and reborrow Swingline Loans hereunder until the Swingline
Termination Date.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Lenders in accordance
with their respective Commitment Percentages and shall thereafter be reflected
as Revolving Credit Loans of the Lenders on the books and records of the
Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 3:00 p.m. (Charlotte time) on the Business Day such demand
is made if made on or before 1:00 p.m. (Charlotte time) on such date and no
later than 12:00 noon (Charlotte time) on the next succeeding Business Day if
demand therefor is made after 1:00 p.m. (Charlotte time).
(ii) The Borrower shall pay to the Swingline Lender on demand the amount of
such Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. In addition, the Borrower hereby authorizes the
Administrative Agent to charge any account maintained by it with the Swingline
Lender (up to the amount available therein) in order to immediately pay the
Swingline Lender the amount of such Swingline Loans to the extent amounts
received from the Lenders are not sufficient to repay in full the outstanding
Swingline Loans requested or required to be refunded. If any portion of any such
amount paid to the Swingline Lender shall be recovered by or on behalf of the
Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Lenders in accordance
with their respective Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund
Swingline Loans in accordance with the terms of this Section 2.2(b) is absolute
and unconditional and shall not be affected by any circumstance whatsoever;
provided, that (i) the Swingline Lender shall not make
<PAGE> 22
any Swingline Loans during the continuance of any Event of Default of which it
has received notice and (ii) if prior to the refunding of any outstanding
Swingline Loans pursuant to this Section 2.2(b), one of the events described in
Section 11.1(j) or (k) shall have occurred, each Lender will, on the date the
applicable Revolving Credit Loan would have been made, purchase an undivided
participating interest in the Swingline Loan to be refunded in an amount equal
to its Commitment Percentage of the aggregate amount of such Swingline Loan.
Each Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the
Swingline Lender will deliver to such Lender a certificate evidencing such
participation dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Swingline Lender has received from any Lender
such Lender's participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will distribute to
such Lender its participating interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which
such Lender's participating interest was outstanding and funded).
SECTION 2.3. Procedure for Advances of Revolving Credit and
Swingline Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as Exhibit B
(a "Notice of Borrowing") not later than 12:00 noon (Charlotte time) (i) on the
same Business Day as each Base Rate Loan and Swingline Loan and (ii) at least
three Business Days before each LIBOR Rate Loan, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be with respect to LIBOR Rate Loans in
an aggregate principal amount of $10,000,000 or a whole multiple of $5,000,000
in excess thereof and with respect to Base Rate Loans in an aggregate principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and
with respect to Swingline Loans in an aggregate principal amount of $1,000,000
or whole multiples of $1,000,000 in excess thereof, (C) whether the Loans are to
be Revolving Credit Loans or Swingline Loans, (D) in the case of Revolving
Credit Loans, whether the Loans are to be LIBOR Rate Loans or Base Rate Loans,
and (E) in the case of a LIBOR Rate Loan, the duration of the LIBOR Interest
Period applicable thereto. Any notices received after 11:00 a.m. (Charlotte
time) for Base Rate Loans or LIBOR Rate Loans shall be deemed received on the
next Business Day. The Administrative Agent shall promptly notify the Lenders of
each Notice of Borrowing with Respect to a Revolving Credit Loan.
(b) Disbursement of Revolving Credit Loans and Swingline Loans. Not later
than 1:00 p.m. (Charlotte time) on the proposed borrowing date, (i) each Lender
will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the Revolving Credit Loans to be made on such borrowing date and (ii) the
Swingline Lender will make available to the Administrative Agent, for the
account of the Borrower, at the office of the Administrative Agent, in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made to the Borrower on such borrowing date. The Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.3 in immediately available funds by
crediting such proceeds to the deposit account or accounts of the Borrower
specified in the most recent Notice of Account Designation substantially in the
form of Exhibit B-2 hereto (a "Notice of Account Designation") delivered by the
<PAGE> 23
Borrower or as may be agreed upon by the Borrower and the Administrative Agent
from time to time. Subject to Section 4.6 hereof, the Administrative Agent shall
not be obligated to disburse the proceeds of any Revolving Credit Loan requested
pursuant to this Section 2.3 until each Lender shall have made available to the
Administrative Agent its Commitment Percentage of such Revolving Credit Loan.
SECTION 2.4. Procedure for Advances of Competitive Bid Loans.
(a) Competitive Bid Request. In order to request Competitive Bids, the
Borrower shall deliver to the Administrative Agent a duly completed Competitive
Bid Request in the form of Exhibit C-1 hereto (a "Competitive Bid Request") to
be received by the Administrative Agent not later than 11:00 a.m. (Charlotte
time) two Business Days before each proposed Competitive Bid Loan; provided
that, the Borrower may not submit more than five (5) Competitive Bid Requests
during any period of ten (10) consecutive Business Days. A Competitive Bid
Request that does not conform substantially to the form of Exhibit C-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by telephone promptly
confirmed by telecopy. Such request shall in each case refer to this Agreement
and specify (i) the date of such borrowing (which shall be a Business Day), (ii)
the aggregate principal amount of such borrowing which shall be in a minimum
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (iii) the Competitive Bid Interest Period with respect thereto.
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit C-2 hereto) the Lenders to bid, on the terms and conditions of
this Agreement, to make Competitive Bid Loans pursuant to the Competitive Bid
Request.
(b) Competitive Bids.
(i) Each Lender may, in its sole discretion, make Competitive Bids
to the Borrower in response to a Competitive Bid Request. Each Competitive Bid
by a Lender must be received by the Administrative Agent via telecopier, in the
form of Exhibit C-3 hereto not later than 10:30 a.m., Charlotte time, on the day
of a proposed Competitive Bid Loan, and any Competitive Bid received by the
Administrative Agent after such time can be rejected by the Administrative
Agent. Competitive Bids that do not conform substantially to the form of Exhibit
C-3 or otherwise include additional conditions to funding shall be rejected by
the Administrative Agent and the Administrative Agent shall notify the Lender
making such nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (A) the principal
amount of the Competitive Bid Loan or Loans that the Lender is willing to make
to the Borrower, which shall be in a minimum principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and may equal the entire
principal amount of the Competitive Bid Loan requested by the Borrower, (B) the
Competitive Bid Rate or Rates at which the Lender is prepared to make the
Competitive Bid Loan or Loans and (C) the Competitive Bid Interest Period with
respect thereto. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(ii) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such bid directly to the
Borrower at least one quarter of an
<PAGE> 24
hour earlier than the latest time at which the other Lenders are required to
submit their bids to the Administrative Agent pursuant to clause (i) above.
(iii) No later than 11:00 a.m., Charlotte time, on the day
Competitive Bids are received from the Lenders, the Administrative Agent shall
notify the Borrower by telecopier of all the Competitive Bids made, the
Competitive Bid Rates and the principal amount of each Competitive Bid Loan in
respect of which a Competitive Bid was made and the identity of the Lender that
made each bid. The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.4.
(c) Acceptance/Rejection.
(i) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this paragraph (c), accept or reject any Competitive
Bid referred to in paragraph (b) above. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopier in the form of
Exhibit C-4 hereto (a "Competitive Bid Accept/Reject Letter"), whether and to
what extent it has decided to accept or reject any or all of the bids referred
to in paragraph (b) above not later than 12:00 noon, Charlotte time, on the day
of each proposed Competitive Bid Loan; provided, that (A) the failure by the
Borrower to give such notice shall be deemed to be a rejection of all the bids
referred to in paragraph (b) above, (B) the acceptance of bids by the Borrower
shall be made on the basis of ascending order (from lowest to highest) of bids
made at a particular Competitive Bid Rate for a particular Competitive Bid
Interest Period and the Borrower shall not accept a bid made at a particular
Competitive Bid Rate for a particular Competitive Bid Interest Period if the
Borrower has rejected a bid made at a lower Competitive Bid Rate for the same
Competitive Bid Interest Period; provided, however, that this clause (B) will
not require the Borrower to accept the portion of a Lender's bid, if any, which
exceeds such Lender's Commitment, (C) if Competitive Bids are made by two or
more Lenders for the same Competitive Bid Rate and the same Competitive Bid
Interest Period, the principal amount accepted shall be allocated among such
Lenders by the Borrower (after consultation with the Administrative Agent) in
integral multiples of not less than $1,000,000, (D) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request and (E) except pursuant to clause (D)
above, no bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. A notice given by the Borrower
pursuant to this paragraph (c) shall be irrevocable.
(ii) The Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy, and each successful bidder
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Bid Loan in respect of which its bid has been accepted.
(d) Disbursement of Competitive Bid Loans. Not later than 2:00 p.m.
(Charlotte time) on the proposed borrowing date, each Lender whose Competitive
Bid was accepted will make available to the Administrative Agent, for the
account of the Borrower, at the office of the
<PAGE> 25
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Competitive Bid Loan to be made on such borrowing date. After
receipt thereof from the applicable Lenders, the Administrative Agent shall
disburse not later than 3:30 p.m. (Charlotte time) the proceeds of each
borrowing accepted pursuant to Section 2.4(c) in immediately available funds by
crediting such proceeds to the deposit account or accounts specified in the most
recent Notice of Account Designation delivered by the Borrower or as may be
agreed upon by the Borrower and the Administrative Agent from time to time. The
Administrative Agent shall not be obligated to disburse the proceeds of any
Competitive Bid Loan accepted pursuant to Section 2.4(c) until the applicable
Lender shall have made available to the Administrative Agent its Competitive Bid
Loan.
(e) Administrative Agent's Fee. For each Competitive Bid Request received
by the Administrative Agent hereunder, the Borrower shall pay to the
Administrative Agent the fee set forth in the separate letter executed by the
Borrower dated as of August 25, 1997.
SECTION 2.5. Repayment of Loans.
(a) Repayment on Termination Date. The Borrower shall repay the
outstanding principal amount of (i) all Revolving Credit Loans in full, together
with all accrued but unpaid interest thereon, on the Termination Date, if not
sooner repaid, (ii) each Competitive Bid Loan on the expiration of the
Competitive Bid Interest Period applicable thereto and (iii) all Swingline Loans
in accordance with Section 2.2(b), together, in each such case, with all accrued
but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time the outstanding
principal amount of all Loans exceeds the Aggregate Commitment less the L/C
Obligations, the Borrower shall repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders, the Loans in an amount equal to such excess with such excess
applied first to the principal amount of outstanding Swingline Loans, then to
the principal amount of outstanding Revolving Credit Loans, and then to the
principal amount of outstanding Competitive Bid Loans, in the inverse order of
maturity of such Competitive Bid Loans. Each such repayment shall be accompanied
by any amount required to be paid pursuant to Section 4.8 hereof. If at any time
the outstanding principal amount of the L/C Obligations exceeds the L/C
Commitment, the Borrower shall deposit an amount equal to such excess with the
Administrative Agent to be held as cash collateral in accordance with Section
11.2(b).
(c) Optional Repayments. Subject to Section 2.5(d), the Borrower may at
any time and from time to time repay the Loans, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the Administrative Agent
with respect to LIBOR Rate Loans and Competitive Bid Loans and same Business Day
notice with respect to Base Rate Loans and Swingline Loans, in the form attached
hereto as Exhibit B-3 (a "Notice of Prepayment"), specifying the date and amount
of repayment and whether the repayment is of LIBOR Rate Loans, Competitive Bid
Loans, Base Rate Loans, Swingline Loans, or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such notice,
the Administrative Agent shall promptly notify each Lender. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date set forth in such notice. Partial repayments shall be in an aggregate
amount of $10,000,000 or a whole multiple of $5,000,000 in excess thereof with
respect to LIBOR Rate
<PAGE> 26
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to Competitive Bid Loans, and $1,000,000 or a whole multiple of
$1,000,000 in excess thereof with respect to Base Rate Loans and Swingline
Loans.
(d) Limitation on Repayment of Certain Loans. The Borrower may not repay
any LIBOR Rate Loan or any Competitive Bid Loan on any day other than on the
last day of the LIBOR Interest Period or Competitive Bid Interest Period,
respectively, applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.8 hereof.
SECTION 2.6. Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and the
obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such Lender's
Commitment or, if less, the aggregate unpaid principal amount of all Revolving
Credit Loans made and to be made by such Lender to the Borrower hereunder, plus
interest and all other fees, charges and other amounts due thereon. Each
Revolving Credit Note shall be dated the date hereof and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 4.1(a).
(b) Competitive Bid Notes. Each Lender's Competitive Bid Loans and the
obligation of the Borrower to repay such Competitive Bid Loans shall be
evidenced by a Competitive Bid Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such Lender's
Competitive Bid Loans in a principal amount up to the Aggregate Commitment or,
if less, the aggregate unpaid principal amount of all Competitive Bid Loans made
by such Lender to the Borrower hereunder, plus interest on such principal
amounts and all other fees, charges and other amounts due thereon. Each
Competitive Bid Note shall be dated the Closing Date and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 4.1(a).
(c) Swingline Note. The Swingline Loans and the obligation of the Borrower
to repay such Swingline Loans shall be evidenced by a Swingline Note executed by
the Borrower payable to the order of the Swingline Lender representing the
Borrower's obligation to pay the Swingline Lender's Swingline Commitment or, if
less, the aggregate unpaid principal amount of all Swingline Loans made by the
Swingline Lender to the Borrower hereunder, plus interest on such principal
amounts and all other fees, charges and other amounts due thereon. The Swingline
Note shall be dated the date hereof and shall bear interest on the unpaid
principal amount thereof at the applicable interest rate per annum specified in
Section 4.1(a).
SECTION 2.7. Permanent Reduction of the Aggregate Commitment.
(a) The Borrower shall have the right at any time and from time to time,
upon at least three (3) Business Days prior written notice to the Administrative
Agent, to permanently reduce, in whole at any time or in part from time to time,
without premium or penalty, the Aggregate Commitment in an aggregate principal
amount not less than $10,000,000 or any whole multiple of $5,000,000 in excess
thereof.
<PAGE> 27
(b) Each permanent reduction permitted pursuant to this Section 2.7 shall
be accompanied by a payment of principal (or, with respect to any L/C
Obligations, payment of cash collateral into a cash collateral account opened by
the Borrower with the Administrative Agent) sufficient to reduce the aggregate
outstanding Extensions of Credit after such reduction to the Aggregate
Commitment as so reduced and by payment of accrued interest on the amount of
such repaid principal. Any reduction of the Aggregate Commitment to zero shall
be accompanied by payment of all outstanding Obligations (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C Obligations) and
termination of the Commitments and Credit Facility. If the reduction of the
Aggregate Commitment requires the repayment of any LIBOR Rate Loan or
Competitive Bid Loan, such reduction may be made only on the last day of the
then current LIBOR Interest Period or Competitive Bid Interest Period,
respectively, applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.8 hereof.
SECTION 2.8. Termination Date. The Credit Facility (subject to Section
2.2(a) with respect to Swingline Loans) shall terminate on the earliest of (a)
the fifth anniversary of the Closing Date, (b) the date of termination by the
Borrower pursuant to Section 2.7(a) and (c) the date of termination by the
Documentation Agent on behalf of the Lenders pursuant to Section 11.2(a);
provided, that not earlier than the ninetieth (90th) day and not later than the
forty-fifth (45th) day prior to each of the first five (5) anniversaries of the
Closing Date (each, an "Extension Date"), the Borrower may, by written notice
(an "Extension Request") given to the Administrative Agent, request that the
date set forth in clause (a) above be extended in each such instance to a date
that is the earlier to occur of (i) the date of which is one (1) year after such
Termination Date then in effect or (ii) the seventh anniversary of the Closing
Date. The Administrative Agent shall promptly advise each Lender of its receipt
of any Extension Request and furnish each Lender with a copy thereof. Each
Lender may, in its sole discretion, consent to the Extension Request by giving
written notice thereof to the Administrative Agent not later than the Business
Day (the "Extension Confirmation Date") immediately preceding the date which is
thirty (30) days after receipt by the Administrative Agent of the Extension
Request. No Lender shall be under any obligation or commitment to extend such
date and no such obligation or commitment on the part of any Lender shall be
inferred from the provisions of this Section 2.8. Failure on the part of any
Lender to respond to an Extension Request by the applicable Extension
Confirmation Date shall be deemed to be a denial of such request by such Lender.
The requested extension shall not be granted unless (i) Lenders holding
Commitments aggregating at least 66 2/3% of the Aggregate Commitment as of the
date the Extension Request is given shall have consented in writing to such
extension and (ii) the Borrower shall have obtained all such necessary
regulatory approvals as determined by the Lead Agents prior to the applicable
Extension Date. If Lenders holding Commitments aggregating less than 100% but
equal to or greater than 66 2/3% of such Aggregate Commitment so consent to such
an extension, and the Borrower obtains all necessary regulatory approvals, the
Borrower may elect by written notice to the Administrative Agent and Lenders to
(i) continue this Agreement for such additional period with an Aggregate
Commitment equal to the then effective Aggregate Commitment less the total
Commitments of Lenders who have not consented to such an extension
(collectively, the "Non-Consenting Lenders") or (ii) require any such
Non-Consenting Lender to transfer and assign without recourse (in accordance
with the provisions of Section 13.10) its Commitment and other interests, rights
and obligations under this Agreement to an Eligible Assignee, which assignee
shall assume such obligations; provided that (A) such Eligible Assignee consents
to such assignment, (B)
<PAGE> 28
no such assignment shall conflict with any Applicable Law, (C) such assignment
shall be at the expense of the Borrower and (D) the purchase price to be paid to
such Non-Consenting Lender shall be an amount equal to the outstanding principal
amount of Loans of such Non-Consenting Lender plus all interest accrued and
unpaid thereon and all fees and other amounts owing to such Non-Consenting
Lender hereunder. Promptly following the applicable Extension Confirmation Date
and in any event within five (5) Business Days thereafter, the Administrative
Agent shall provide notice to the Borrower in writing as to whether the
requested extension has been granted and, if applicable, the list of
Non-Consenting Lenders (an "Extension Confirmation Notice"). If granted, such
extension shall become effective with respect to each Lender consenting thereto
pursuant to the terms hereof upon the date of issuance of such Extension
Confirmation Notice. The Administrative Agent shall promptly thereafter provide
a copy of such Extension Confirmation Notice to each Lender.
SECTION 2.9. Increase in Commitments. The Borrower shall have the right,
so long as no Default or Event of Default shall have occurred and be continuing,
without the consent of any Lender (except as described in clause (i) below) but
with the consent of each Lead Agent (which consents shall not be unreasonably
withheld), at any time prior to the fifth anniversary of the Closing Date, to
increase the total amount of the Aggregate Commitments hereunder by (a)
accepting the offer or offers of any Person or Persons (not then a Lender)
constituting an Eligible Assignee to become a new Lender hereto with a
Commitment or Commitments up to the amount (or aggregate amount) of any such
increase and/or (b) accepting the offer of any existing Lender or Lenders to
increase its (or their) Commitment (or Commitments) up to the amount of any such
increase; provided, however, that (i) in no event shall any Lender's Commitment
be increased without the consent of such Lender, (ii) if any Loans (other than
Competitive Bid Loans) are outstanding hereunder on the date that any such
increase is to become effective, the Administrative Agent shall make such
transfers of funds as are necessary in order that the outstanding balance of
such Loans reflect the Commitment Percentages of the Lenders after giving effect
to any increase pursuant to this Section 2.9, (iii) in no event shall the
Aggregate Commitment hereunder be increased unless the Aggregate Commitment
under the 364-Day Credit Agreement, if still in effect, is increased by a
proportionate amount pursuant to the terms thereof and (iv) in no event shall
any such increase result in the amount of the Total Commitments exceeding
$1,000,000,000. Any increase to the Aggregate Commitment pursuant to clause (a)
of the first sentence of this Section 2.9 shall become effective upon the
execution of a New Lender Supplement in the form of Exhibit G-1 hereto by the
Borrower, Lead Agents and relevant new Lender or Lenders and any increase to the
Aggregate Commitment pursuant to clause (b) of the first sentence of this
Section 2.9 shall become effective upon the execution of a Commitment Increase
Supplement in the form of Exhibit G-2 hereto, executed by the Borrower, the Lead
Agents and the increasing Lender or Lenders. The Administrative Agent shall
forward copies of any such supplement to the Lenders promptly upon receipt
thereof.
SECTION 2.10. Use of Proceeds. The Borrower shall use the proceeds of the
Loans (a) to finance the acquisition of capital assets, (b) in connection with
acquisitions and investments permitted by Section 10.4, and (c) for working
capital and general corporate requirements of the Borrower and its Subsidiaries,
including the payment of certain fees and expenses incurred in connection with
the transactions contemplated hereby.
<PAGE> 29
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
Credit") for the account of the Borrower on any Business Day from the Closing
Date through but not including the Termination Date in such form as may be
approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall not issue any Letter of Credit (i) during the continuance of any
Event of Default of which it has received notice and (ii) if, after giving
effect to such issuance, the L/C Obligations would exceed the L/C Commitment or
the Commitment of any Lender less such Lender's Commitment Percentage of the L/C
Obligations, Revolving Credit Loans and Swingline Loans then outstanding would
be less than zero. Each Letter of Credit shall (A) be denominated in Dollars in
a minimum amount of $100,000 (or the Dollar Equivalent thereof with respect to
any Letter of Credit denominated in an Alternative Currency) and shall be a
standby letter of credit issued to support obligations of the Borrower or any of
its Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (B) expire on a date satisfactory to the Issuing Lender, which date
shall be no later than the Termination Date and (C) be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
North Carolina. The Issuing Lender shall not issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2. Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at the Administrative Agent's Office a Letter
of Credit Application therefor, completed to the satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may request. Upon receipt of any Letter of Credit
Application, the Issuing Lender will process such Letter of Credit Application
and the certificates, documents and other papers and information delivered to it
in connection therewith in accordance with its customary procedures and shall,
subject to Section 3.1 and Article V hereof, promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three Business Days after its receipt of the
Letter of Credit Application therefor and all such other certificates, documents
and other papers and information relating thereto) by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
by the Issuing Lender and the Borrower. The Issuing Lender shall furnish to the
Borrower a copy of such Letter of Credit and furnish to each Lender a copy of
such Letter of Credit and the amount of each Lender's L/C Participation therein,
all promptly following the issuance of such Letter of Credit.
<PAGE> 30
SECTION 3.3. Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in an amount equal to the product of (i) the
Applicable Margin with respect to LIBOR Rate Loans (on a per annum basis) and
(ii) an amount equal to the daily average amount available to be drawn under
such Letter of Credit during the period for which such commission is payable
(or, with respect to any Letter of Credit denominated in an Alternative
Currency, the Dollar Equivalent of such average amount). Such commission shall
be payable quarterly in arrears on the last Business Day of each calendar
quarter and on the Termination Date.
(b) In addition to the foregoing commissions, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit, including
without limitation a facing fee equal to 0.125% per annum of the face amount of
each Letter of Credit issued hereunder, payable on the issuance date and on each
anniversary of the issuance date that such Letter of Credit remains outstanding.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
SECTION 3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from
<PAGE> 31
and including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this Section shall be conclusive in the absence of
manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Commitment
Percentage of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise), or any payment of interest on account thereof,
the Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5. Reimbursement Obligation of the Borrower. The Borrower agrees
to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft paid under any Letter of
Credit for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by the Issuing Lender in connection with
such payment. Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in Dollars (or an Alternative Currency with
respect to any Letter of Credit denominated in an Alternative Currency) and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Article III from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue. If the Borrower fails to
timely reimburse the Issuing Lender on the date the Borrower receives the notice
referred to in this Section 3.5, the Borrower shall be deemed to have timely
given a Notice of Borrowing hereunder to the Administrative Agent requesting the
Lenders to make a Base Rate Loan on such date in an amount equal to the amount
of such drawing (or the Dollar Equivalent thereof with respect to any Letter of
Credit denominated in an Alternative Currency) and, subject to the satisfaction
or waiver of the conditions precedent specified in Article V, the Lenders shall
make Base Rate Loans in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses.
SECTION 3.6. Obligations Absolute. The Borrower's obligations under this
Article III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit.
The Borrower also agrees with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrower's Reimbursement Obligation under
Section 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
<PAGE> 32
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of a Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
the Uniform Customs and, to the extent not inconsistent therewith, the UCC,
shall be binding on the Borrower and shall not result in any liability of the
Issuing Lender to the Borrower. The responsibility of the Issuing Lender to the
Borrower in connection with any draft presented for payment under any Letter of
Credit shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.
SECTION 3.7. Letter of Credit Application. To the extent that any
provision of any Letter of Credit Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions of this
Article III shall apply.
SECTION 3.8. Alternative Currency Letters of Credit. On the last Business
Day of each calendar month (or at such other times as it reasonably deems
appropriate) the Administrative Agent will determine the aggregate Dollar
Equivalent of the L/C Obligations with respect to all outstanding Letters of
Credit denominated in an Alternative Currency. If, based upon such Dollar
Equivalent amount, (a) the total L/C Obligations exceed the L/C Commitment (such
excess, an "L/C Excess") or (b) the aggregate principal amount of outstanding
Revolving Credit Loans exceeds the maximum permitted amount pursuant to clause
(a) of Section 2.1 (such amount, an "Aggregate Excess"), the Administrative
Agent shall notify the Borrower who shall on the date of receipt of such notice
if such notice is received prior to 1:00 P.M. (Charlotte time) on any Business
Day or on the immediately succeeding Business Day if such notice is received
after such time (i) cash collateralize such L/C Excess with the Administrative
Agent in accordance with Section 11.2(b) and (ii) repay any outstanding
Revolving Credit Loans in an amount equal to any Aggregate Excess, together with
any amount required to be paid under Section 4.8. If on any measurement date on
which any amount is so held as cash collateral no L/C Excess exists, such amount
shall be promptly disbursed to the Borrower by the Administrative Agent.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1. Interest.
(a) Interest Rate Options. Subject to the provisions of this Section 4.1,
at the election of the Borrower, the aggregate principal balance of any
Revolving Credit Loan shall bear interest at (A) the Base Rate plus the
Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin.
<PAGE> 33
Competitive Bid Loans shall bear interest at a Competitive Bid Rate and
Swingline Loans shall bear interest at the Money Market Rate plus the Applicable
Margin then applicable to LIBOR Rate Loans. The Borrower shall select the rate
of interest and the LIBOR Interest Period, if any, applicable to any Loan at the
time a Notice of Borrowing is given pursuant to Section 2.3 or at the time a
Notice of Conversion/Continuation is given pursuant to Section 4.2. The
Competitive Bid Interest Period, if any, shall be determined in accordance with
Section 2.4. Each Loan or portion thereof bearing interest based on the Base
Rate shall be a "Base Rate Loan", and each Loan or portion thereof bearing
interest based on the LIBOR Rate shall be a "LIBOR Rate Loan". Any Loan or any
portion thereof as to which the Borrower has not duly specified an interest rate
as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods.
(i) In connection with each LIBOR Rate Loan, the Borrower, by giving
notice at the times described in Sections 2.3 and 4.2, shall elect an interest
period (each, a "LIBOR Interest Period") to be applicable to such Loan, which
Interest Period shall be a period of one, two, three, or six months or if the
Administrative Agent notifies the Borrower that each Lender has agreed thereto,
twelve months; provided that:
(A) each LIBOR Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive LIBOR Interest Periods, each successive LIBOR Interest Period shall
commence on the date on which the next preceding LIBOR Interest Period expires;
(B) if any LIBOR Interest Period would otherwise expire on a
day that is not a Business Day, such LIBOR Interest Period shall expire on the
next succeeding Business Day; provided, that if any LIBOR Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such LIBOR Interest
Period shall expire on the next preceding Business Day;
(C) any LIBOR Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Interest
Period) shall end on the last Business Day of the relevant calendar month at the
end of such LIBOR Interest Period; and
(D) no LIBOR Interest Period shall extend beyond
the Termination Date;
(ii) In connection with each Competitive Bid Loan, the Borrower, by
giving notice at the times described in Section 2.4, shall request an interest
period (each a "Competitive Bid Interest Period") to be applicable to such Loan,
which Competitive Bid Interest Period shall be a period of such duration as
mutually agreed upon by the applicable Competitive Bid Loan Lender and the
Borrower pursuant to Section 2.4(c); provided that:
(A) the Competitive Bid Interest Period shall not be less than
seven (7) days nor more than one hundred eighty (180) days;
<PAGE> 34
(B) if any Competitive Bid Interest Period would otherwise
expire on a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; and
(C) no Competitive Bid Interest Period shall expire on a date
later than the first Business Day prior to the Termination Date.
(iii) There shall be no more than eight (8) LIBOR Interest Periods
and Competitive Bid Interest Periods (collectively) in effect at any time.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered on the
Closing Date pursuant to Section 5.2(d)(iv) and (ii) for each fiscal quarter
thereafter be determined by reference to the better (as determined by the
Borrower) of (A) the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate or (B) the Senior Unsecured Debt Rating announced by Standard &
Poor's or Moody's as follows:
Leverage Ratio Senior
as of Fiscal Unsecured Applicable Margin Per Annum
Quarter End Debt Ratings Base Rate + LIBOR Rate +
>/= 3.25 to 1.00 BB or Ba2 -0- 0.750%
>/= 2.50 to 1.00
< 3.25 to 1.00 BB+ or Ba1 -0- 0.500%
>/= 1.75 to 1.00
< 2.50 to 1.00 BBB- or Baa3 -0- 0.425%
>/= 1.00 to 1.00
< 1.75 to 1.00 BBB or Baa2 -0- 0.375%
< 1.00 to 1.00 BBB+ or Baa1
or higher -0- 0.300%
; provided that, at all times when the Senior Unsecured Debt Rating is
unavailable, the Leverage Ratio shall control. In the event that the Borrower's
Senior Unsecured Debt Ratings, as determined by Moody's and Standard & Poor's,
differ by up to two levels, the lower Applicable Margin will apply. In the event
that the Borrower's Senior Unsecured Debt Ratings, as determined by Moody's and
Standard & Poor's, differ by more than two levels, the Applicable Margin for the
level immediately below the highest debt rating shall apply (if for example, the
debt ratings were BBB+ and Ba1, then the Applicable Margin for BBB/Baa2 shall
apply (0.375%)).
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent (i) three (3) Business Days following receipt by the
Administrative Agent of quarterly or annual financial
<PAGE> 35
statements for the Borrower and its Restricted Subsidiaries and the accompanying
Officer's Compliance Certificate for the Borrower setting forth the Leverage
Ratio of the Borrower and its Restricted Subsidiaries or (ii) three (3) Business
Days after the Administrative Agent has received written notice from the
Borrower of a change in the Senior Unsecured Debt Rating, as applicable. In the
event the Borrower fails to deliver such financial statements and certificate
within the time required by Section 7.2 hereof, the Applicable Margin until the
delivery of such financial statements and certificate shall be the Applicable
Margin set forth above applicable to the Borrower's Senior Unsecured Debt
Rating; provided that if such rating is not available, the Applicable Margin
shall be the highest Applicable Margin set forth above.
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrower shall no longer have the option to request
LIBOR Rate Loans, Competitive Bid Loans or Swingline Loans, (ii) all outstanding
LIBOR Rate Loans shall bear interest at a rate per annum two percent (2%) in
excess of the then applicable LIBOR Rate plus the Applicable Margin until the
end of the applicable LIBOR Interest Period and thereafter at a rate equal to
two percent (2%) in excess of the then applicable Base Rate plus the Applicable
Margin, (iii) all outstanding Base Rate Loans shall bear interest at a rate per
annum equal to two percent (2%) in excess of the then applicable Base Rate plus
the Applicable Margin, (iv) all outstanding Swingline Loans shall bear interest
at a rate per annum equal to two percent (2%) in excess of the rate then
applicable to such Swingline Loans until such Swingline Loans are refunded
pursuant to Section 2.3 and (v) all outstanding Competitive Bid Loans shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to such Competitive Loans until the end of the applicable
Competitive Bid Interest Period and thereafter at a rate equal to two percent
(2%) in excess of the rate then applicable to Base Rate Loans. Interest shall
continue to accrue on the Notes after the filing by or against the Borrower of
any petition seeking any relief in bankruptcy or under any act or law pertaining
to insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan and
each Swingline Loan shall be payable in arrears on the last Business Day of each
calendar quarter and on the Termination Date. Interest on each LIBOR Rate Loan
and Competitive Bid Loan shall be payable on the last day of each LIBOR Interest
Period and Competitive Bid Interest Period, respectively, applicable thereto,
and on the Termination Date, and if such LIBOR Interest Period or Competitive
Bid Interest Period extends over three (3) months, at the end of each three
month interval during such LIBOR Interest Period or Competitive Bid Interest
Period, respectively. All interest rates, fees and commissions provided
hereunder shall be computed on the basis of a 360-day year and assessed for the
actual number of days elapsed, except that interest with respect to each Base
Rate Loan, Swingline Loan and the commitment fee referenced in Section 4.3(a)
shall be computed on the basis of a 365-day year.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall
<PAGE> 36
at the Administrative Agent's option promptly refund to the Borrower any
interest received by Lenders in excess of the maximum lawful rate or shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that the Borrower not pay or contract to pay, and that no Agent or any Lender
receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrower under Applicable
Law.
SECTION 4.2. Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time all or
any portion of its outstanding Base Rate Loans in a principal amount equal to
$10,000,000 or any whole multiple of $5,000,000 in excess thereof into one or
more LIBOR Rate Loans, and (b) upon the expiration of any Interest Period,
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
into Base Rate Loans or to continue such LIBOR Rate Loans as LIBOR Rate Loans.
Whenever the Borrower desires to convert or continue Loans as provided above,
the Borrower shall give the Administrative Agent irrevocable prior written
notice in the form attached as Exhibit D (a "Notice of Conversion/Continuation")
not later than 12:00 noon (Charlotte time) three (3) Business Days before the
day on which a proposed conversion or continuation of such Loan is to be
effective specifying (i) the Loans to be converted or continued, and, in the
case of a LIBOR Rate Loan to be converted or continued, the last day of the
Interest Period therefor, (ii) the effective date of such conversion or
continuation (which shall be a Business Day), (iii) the principal amount of such
Loans to be converted or continued, and (iv) the Interest Period to be
applicable to such converted or continued LIBOR Rate Loan. The Administrative
Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3. Commitment Fee. Commencing on the Closing Date, the Borrower
shall pay to the Administrative Agent for the account of the Lenders (other than
the Swingline Lender in such capacity), for each fiscal quarter a non-refundable
commitment fee in an amount equal to the product of (i) the Applicable
Commitment Fee Rate as determined by reference to the better (as determined by
the Borrower) of (A) the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate or (B) the Senior Unsecured Debt Rating announced by Standard &
Poor's or Moody's, as applicable according to the chart set forth in this
Section 4.3 and (ii) the unused portion of the Aggregate Commitment as follows:
Leverage Ratio Senior
as of Fiscal Unsecured
Quarter End Debt Ratings Applicable Commitment Fee
>/= 3.25 to 1.00 BB or Ba2 0.250%
>/= 2.50 to 1.00
< 3.25 to 1.00 BB+ or Ba1 0.175%
>/= 1.75 to 1.00
< 2.50 to 1.00 BBB- or Baa3 0.150%
<PAGE> 37
>/= 1.00 to 1.00
< 1.75 to 1.00 BBB or Baa2 0.125%
< 1.00 to 1.00 BBB+ or Baa1
or higher 0.100%
; provided that, (i) at all times when the Senior Unsecured Debt Rating is
unavailable, the Leverage Ratio shall control and (ii) solely for the purposes
of determining the Applicable Commitment Fee, outstandings under the Competitive
Bid Loans shall not be considered usage of the Aggregate Commitment. In the
event that the Borrower's Senior Unsecured Debt Ratings, as determined by
Moody's and Standard & Poor's, differ by up to two levels the lower Applicable
Commitment Fee Rate will apply. In the event that the Borrower's Senior
Unsecured Debt Ratings, as determined by Moody's and Standard & Poor's, differ
by more than two levels, the Applicable Commitment Fee Rate for the level
immediately below the highest debt rating shall apply (if for example, the debt
ratings were BBB+ and Ba1, then the Applicable Commitment Fee Rate for BBB/Baa2
shall apply (0.125%)). Adjustments, if any, to the Applicable Commitment Fee
Rate shall occur contemporaneously as adjustments, if any, to the Applicable
Margin.
The commitment fee shall be payable in arrears on the last Business Day of each
calendar quarter during the term of this Agreement and on the date the Credit
Facility has been terminated in full. The commitment fee to the Lenders (other
than the Swingline Lender) shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with such Lenders' respective Commitment
Percentages.
SECTION 4.4. Manner of Payment. Each payment by the Borrower on account of
the principal of or interest on the Loans or of any fee or other amounts
(including the Reimbursement Obligation) payable to the Lenders under this
Agreement or any Note shall be made not later than 2:00 p.m. (Charlotte time) on
the date specified for payment under this Agreement to the Administrative Agent
for the account of the Lenders pro rata in accordance with their respective
Commitment Percentages at the Administrative Agent's Office, in Dollars (or in
an Alternative Currency with respect to Letters of Credit denominated in an
Alternative Currency), in immediately available funds and shall be made without
any set-off, counterclaim or deduction whatsoever. Any payment received after
2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such date
for the purposes of Section 11.1, but for all other purposes shall be deemed to
have been made on the next succeeding Business Day. Upon receipt by the
Administrative Agent of each such payment the Administrative Agent shall credit
each Lender's account with its pro rata share of such payment in accordance with
such Lender's Commitment Percentage and shall wire advice of the amount of such
credit to each Lender. Each payment to the Administrative Agent of Agents' fees
or L/C Participants' commissions shall be made in like manner, but for the
account of the applicable Agent or the L/C Participants, as the case may be. All
amounts payable by the Borrower to the Swingline Lender with respect to the
Swingline Note shall be made to the Administrative Agent for the account of the
Swingline Lender, all amounts payable by the Borrower on account of any
Competitive Bid Loan shall be for the account of the applicable Lender of such
Loan, and all amounts payable to any Lender under Sections 4.7, 4.8, 4.9, 4.10
and 13.13 shall be payable to the Administrative Agent for the account of such
Lender. Subject to Section 4.1(b)(i)(B), if any
<PAGE> 38
payment under this Agreement or any Note shall be specified to be made upon a
day which is not a Business Day, it shall be made on the next succeeding day
which is a Business Day and such extension of time shall in such case be
included in computing any interest if payable along with such payment.
SECTION 4.5. Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all expenses then due
and payable by the Borrower hereunder, then to all indemnity obligations then
due and payable by the Borrower hereunder, then to all Agents' and Issuing
Lender's fees then due and payable, then to all commitment and other fees and
commissions then due and payable, then to the principal and accrued and unpaid
interest on the Swingline Note, then to accrued and unpaid interest on the
Revolving Credit Notes, the Reimbursement Obligation and any termination
payments due in respect of a Hedging Agreement hedging interest rate risk under
this Agreement with any Lender or any Affiliate thereof (pro rata in accordance
with all such amounts due), then to the principal amount of the Revolving Credit
Notes and Reimbursement Obligation, then to the cash collateral account
described in Section 11.2(b) hereof to the extent of any L/C Obligations then
outstanding, then to accrued and unpaid interest on the Competitive Bid Notes
(in inverse order of maturity) and then to the principal amount outstanding
under any Competitive Bid Notes (in inverse order of maturity) in that order.
SECTION 4.6. Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans and issue or participate in Letters of Credit
are several and are not joint or joint and several. Unless the Administrative
Agent shall have received notice from a Lender prior to a proposed borrowing
date that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of the amount to be borrowed on such date (which notice
shall not release such Lender of its obligations hereunder), the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with Section
2.3(b) and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If such amount is
made available to the Administrative Agent on a date after such borrowing date,
such Lender shall pay to the Administrative Agent on demand an amount, until
paid, equal to the product of (a) the amount of such Lender's Commitment
Percentage of such borrowing, times (b) the daily average Federal Funds Rate
during such period as determined by the Administrative Agent, times (c) a
fraction the numerator of which is the number of days that elapse from and
including such borrowing date to the date on which such Lender's Commitment
Percentage of such borrowing shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such borrowing date, the Administrative Agent
shall be entitled to recover such amount made available by the Administrative
Agent with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower. The failure of any Lender to make its
Commitment Percentage of any Loan available shall not relieve it or any other
<PAGE> 39
Lender of its obligation, if any, hereunder to make its Commitment Percentage of
such Loan available on such borrowing date, but no Lender shall be responsible
for the failure of any other Lender to make its Commitment Percentage of such
Loan available on the borrowing date.
SECTION 4.7. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any LIBOR Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being offered to the
Administrative Agent or such Lender for such LIBOR Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist (which notification shall be given within thirty
(30) days after the Administrative Agent obtains actual knowledge that such
circumstances no longer exist), the obligation of the Lenders to make LIBOR Rate
Loans, and the right of the Borrower to convert any Loan to or continue any Loan
as a LIBOR Rate Loan, shall be suspended, and the Borrower shall repay in full
(or cause to be repaid in full) the then outstanding principal amount of each
such LIBOR Rate Loan, together with accrued interest thereon, on the last day of
the then current LIBOR Interest Period applicable to such LIBOR Rate Loan or
convert the then outstanding principal amount of each such LIBOR Rate Loan to a
Base Rate Loan as of the last day of such LIBOR Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until Administrative Agent notifies the Borrower that
such circumstances no longer exist (which notification shall be given within
thirty (30) days after the Administrative Agent obtains actual knowledge that
such circumstances no longer exist), (i) the obligations of the Lenders to make
LIBOR Rate Loans and the right of the Borrower to convert any Loan or continue
any Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
LIBOR Interest Period applicable thereto as a LIBOR Rate Loan, the applicable
LIBOR Rate Loan shall immediately be converted to a Base Rate Loan for the
remainder of such LIBOR Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable
<PAGE> 40
agency shall impose, modify or deem applicable any reserve (including, without
limitation, any imposed by the Board of Governors of the Federal Reserve
System), special deposit, insurance or capital or similar requirement against
assets of, deposits with or for the account of, or credit extended by any of the
Lenders (or any of their respective Lending Offices) or shall impose on any of
the Lenders (or any of their respective Lending Offices) or the foreign exchange
and interbank markets any other condition affecting any LIBOR Rate Loan or any
Note, Letter of Credit or Letter of Credit Application;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Letter of Credit
Application, then such Lender shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify the Borrower of such fact and
demand compensation therefor and, within fifteen (15) days after such notice by
Administrative Agent, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or Lenders for such increased
cost or reduction; provided, that each affected Lender will designate a
different Lending Office if such designation will avoid the need for, or
materially reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender. The Administrative
Agent will promptly notify the Borrower of any event of which it has knowledge
which will entitle such Lender to compensation pursuant to this Section 4.7(c);
provided, that the Administrative Agent shall incur no liability whatsoever to
the Lenders or the Borrower in the event it fails to do so. A certificate of the
Administrative Agent setting forth the basis for determining such additional
amount or amounts necessary to compensate such Lender or Lenders shall be
conclusively presumed to be correct save for manifest error.
(d) Replacement Lenders. At any time within sixty (60) days after any
payment by the Borrower of any amount pursuant to Section 4.7 that the Borrower
reasonably deems to be material, the Borrower, by writing addressed to the Lead
Agents and each Lender that requested the payment of such amount, may nominate
or propose an Eligible Assignee that is willing to become the assignee of the
Commitment and other obligations of such Lender (a "Replacement Lender")
pursuant to Section 13.10(b), and within fifteen (15) Business Days after
receipt of such proposal from the Borrower, each such Lender shall execute and
deliver to the Administrative Agent an Assignment and Acceptance of its entire
Commitment in favor of the proposed Replacement Lender in accordance with
Section 13.10(b) unless, prior to the expiration of such period, either Lead
Agent shall have notified the Borrower and such Lender that the proposed
Replacement Lender is not reasonably acceptable to such Lead Agent; provided,
that in no event will (i) any Lender be required to enter into an Assignment and
Acceptance at a price less than par plus accrued interest and prorated fees and
other costs due hereunder to the effective date thereof, (ii) either a Lead
Agent or Lenders be obligated to assist the Borrower in identifying any Eligible
Assignees that are willing to become such a Replacement Lender or (iii) any such
assignment be required if consummation conflicts with any Applicable Law. The
assignment fee payable to the Administrative Agent in connection with any such
assignment pursuant to Section 13.10(b) shall be for the account of the
Borrower.
<PAGE> 41
SECTION 4.8. Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain the Loans (a) as a consequence of any failure by the Borrower
to make any payment when due of any amount due hereunder in connection with a
LIBOR Rate Loan or a Competitive Bid Loan, (b) due to any failure of the
Borrower to borrow on a date specified therefor in a Notice of Borrowing, Notice
of Continuation/Conversion or Competitive Bid Request or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan or a Competitive Bid Loan on a
date other than the last day of the LIBOR Interest Period or Competitive Bid
Interest Period, as applicable therefor. Each Lender's calculations of any such
loss shall be furnished to the Borrower and shall be conclusively presumed to be
correct save for manifest error.
SECTION 4.9. Capital Requirements. If either (a) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type, below the rate
which the Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrower shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 4.10. Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and each Agent, income,
franchise, capital and branch profit taxes imposed by the jurisdiction under the
laws of which such Lender or Agent (as the case may be) is organized or is or
should be qualified to do business or any political subdivision thereof and (ii)
in the case of each Lender, income, franchise, capital and branch profit taxes
imposed by (x) the jurisdiction of such Lender's Lending Office or any political
subdivision thereof and (y) a jurisdiction or a political subdivision thereof as
a result of a Lender changing its designated Lending Office to a lending office
located in such jurisdiction (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or Letter of Credit
to any Lender or any Agent, (A) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.10) such Lender or
Agent (as the case may be) receives an amount equal to the amount such party
would have received had no such deductions been made, (B) the Borrower shall
make such deductions, (C) the Borrower shall pay the full amount deducted to the
relevant taxing authority or
<PAGE> 42
other authority in accordance with Applicable Law, and (D) the Borrower shall
deliver to the Administrative Agent evidence of such payment to the relevant
taxing authority or other authority in the manner provided in Section 4.10(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any present
or future stamp, registration, recordation or documentary taxes or any other
similar fees or charges or excise or property taxes (other than excise and
property taxes to which any Agent or Lender would have been subject in the
absence of this Agreement and the provision for security in connection with the
execution of this Agreement), levies of the United States or any state or
political subdivision thereof or any applicable foreign jurisdiction which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the Loans, the Letters of
Credit, the other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and each Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 4.10) paid by such Lender or Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date such Lender or Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance or on
the day that a Lender sells a participation to another bank or banks in
accordance with Section 13.10 (f) hereof, as applicable, (i) two United States
Internal Revenue Service Forms 4224 or Forms 1001, as applicable (or successor
forms) properly completed and certifying in each case that such Lender is
entitled to a complete exemption from withholding or deduction for or on account
of any United States federal income taxes, and (ii) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding taxes. Each such Lender
further agrees to deliver to the Borrower, with a copy to the Administrative
Agent, a Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Borrower,
certifying in the case of a Form 1001 or 4224 that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes (unless in any such case a change in
Applicable Law, including without limitation any change in procedure or
pronouncement of any Governmental Authority) has occurred prior to the date on
which any such delivery would otherwise be required which renders such forms
inapplicable or the exemption to
<PAGE> 43
which such forms relate unavailable and such Lender notifies the Borrower and
the Administrative Agent in writing that it is not entitled to receive payments
without deduction or withholding of United States federal income taxes
specifying the reasons why that is the case) and, in the case of a Form W-8 or
W-9, establishing an exemption from United States backup withholding tax. Any
Lender that fails to provide such certificates or forms (claiming exemption from
the applicable tax) that it is required to provide under this Section 4.10 (e)
shall not be entitled to the benefits of Section 4.10 (a) hereof, and, to the
extent required by law, Borrower shall deduct taxes from payments made to such
Lender.
(f) Replacement Lender. At any time within sixty (60) days after the
payment by the Borrower of any amount pursuant to Section 4.10(c) that the
Borrower reasonably deems material, the Borrower may seek to effect the
assignment by such Lender of such Lender's Commitment and other obligations
hereunder pursuant to Section 13.10(b) in accordance with and subject to the
terms of Section 4.7(d).
(g) Survival. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 4.10 shall survive the payment in full of the Obligations and
the termination of the Commitments.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1. Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, 100 North Tryon Street, Suite 4200,
Charlotte, North Carolina 28202 at 10:00 a.m. on September 5, 1997 or on such
other date as the parties hereto shall mutually agree.
SECTION 5.2. Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and make the initial Loans or
issue or participate in the initial Letter of Credit, if any, is subject to the
satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in form and
substance satisfactory to the Documentation Agent and each Lender: (i) this
Agreement, (ii) the 364-Day Credit Agreement and each Loan Document referred to
therein and (iii) the Notes shall have been duly authorized, executed and
delivered to the Documentation Agent by the parties thereto, shall be in full
force and effect and no default shall exist thereunder, and the Borrower shall
have delivered original counterparts thereof to the Documentation Agent.
<PAGE> 44
(b) Closing Certificates; etc.
(i) Certificate of the Borrower. The Documentation Agent shall have
received a certificate from the Chief Financial Officer or Treasurer of the
Borrower, in form and substance satisfactory to the Documentation Agent, to the
effect that all representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents are true, correct and complete; that
neither the Borrower nor any of its Restricted Subsidiaries is in violation of
any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that the
Borrower or applicable Restricted Subsidiary has satisfied each of the closing
conditions to be satisfied thereby.
(ii) Certificate of Secretaries of the Borrower. The Documentation
Agent shall have received a certificate of the secretary, assistant secretary or
other approved officer of the Borrower certifying that attached thereto is a
true and complete copy of the articles of incorporation of the Borrower and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of the Borrower as in effect
on the date of such certification; that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of the Borrower,
authorizing the execution, delivery and performance of the Loan Documents; and
as to the incumbency and genuineness of the signature of each officer of the
Borrower executing Loan Documents.
(iii) Certificates of Good Standing. The Documentation Agent shall
have received long-form certificates as of a recent date of the good standing of
the Borrower and each Restricted Subsidiary under the laws of their respective
jurisdictions of organization and such other jurisdictions, in each such case as
requested by the Documentation Agent and a certificate of the relevant taxing
authorities of such jurisdictions requested by the Documentation Agent
certifying that the Borrower and such Restricted Subsidiary have filed required
tax returns and owe no delinquent taxes.
(iv) Opinions of Counsel. The Documentation Agent shall have received
favorable opinions of counsel to the Borrower and its Restricted Subsidiaries
addressed to the Agents and Lenders with respect to the Borrower and its
Restricted Subsidiaries, the Loan Documents and such other matters, including
without limitation FCC and PUC matters, as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received copies
of the United States Internal Revenue Service forms required by Section 4.10(e)
hereof.
(c) Consents; No Adverse Change.
(i) Governmental and Third Party Approvals. All necessary approvals,
authorizations and consents, if any be required, of any Person and of all
Governmental Authorities and courts having jurisdiction with respect to the
transactions contemplated by this Agreement and the other Loan Documents shall
have been obtained.
<PAGE> 45
(ii) Permits and Licenses. All permits and licenses, including
permits and licenses required under Applicable Laws, necessary to the conduct of
business by the Borrower and its Restricted Subsidiaries shall have been
obtained, except where the failure to obtain such permits and licenses by the
Borrower or its Restricted Subsidiaries could not reasonably be expected to have
a Material Adverse Effect.
(iii) Additional Consents. The Borrower shall have obtained such
consents, amendments, or other modifications to the Synthetic Lease Documents
and the Securitization Documents in each case as are necessary in the reasonable
judgment of the Lead Agents to permit the execution, delivery and performance of
this Agreement and the other Loan Documents.
(iv) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Lead Agents' discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(v) No Material Adverse Change. There shall not have occurred any
material adverse change in the business, condition (financial or otherwise),
operations, prospects or properties of the Borrower and its Restricted
Subsidiaries taken as a whole, or any event, condition or state of facts that
will or could be reasonably expected to have a Material Adverse Effect.
(vi) No Event of Default. No Default or Event of Default shall have
occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Documentation Agent shall have
received the most recent audited Consolidated financial statements of the
Borrower and its Restricted Subsidiaries, all in form and substance satisfactory
to the Documentation Agent.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Documentation Agent a certificate, in form and substance
satisfactory thereto, and certified as accurate in all material respects by the
Chief Financial Officer or Treasurer of the Borrower, that (A) the Borrower's
payables are current and not past due (except for those being contested in good
faith by the Borrower), (B) the Borrower's liquidity position (including credit
balances, other Current Assets and Current Liabilities) as of the date thereof
is not materially different from the financial information previously furnished
to the Lead Agents and (C) the financial projections previously delivered to the
Lead Agents represent the good faith opinion of the Borrower and senior
management thereof as to the projected results contained therein.
(iii) Payment at Closing; Fee Letters. There shall have been paid by
the Borrower to the Lead Agents and the Lenders the fees set forth or referenced
in the separate letter
<PAGE> 46
agreement dated as of August 1, 1997, executed by the Borrower and any other
accrued and unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses), and to any other Person such amount as may
be due thereto in connection with the transactions contemplated hereby,
including all taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan Documents. The
Administrative Agent shall also have received a duly executed copy of the letter
agreement referred to in Section 2.4(e) hereof providing for the payment of a
fee to the Administrative Agent for each Competitive Bid Request submitted by
the Borrower hereunder.
(iv) Applicable Margin Certificate. The Borrower shall have delivered
to the Lead Agents a certificate executed by the Chief Financial Officer or
Treasurer of the Borrower setting forth the calculation of the Applicable Margin
pursuant to Section 4.1(c).
(e) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received written instructions from the Borrower in accordance with Section
2.3(a) to the Administrative Agent directing the payment of any proceeds of
Loans made under this Agreement that are to be paid on the Closing Date.
Further, the Borrower shall have delivered a Notice of Account Designation in
accordance with Section 2.3(b) specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be deposited.
(ii) Proceedings and Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory in form and substance to the Lenders.
The Lenders shall have received copies of all other instruments and other
evidence as the Lender may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. The Borrower shall have
delivered to the Documentation Agent such other documents, certificates and
opinions as the Agents and Lenders reasonably request, including without
limitation, copies of each document evidencing or governing the Subordinated
Debt, certified by a secretary or assistant secretary of the Borrower as a true
and correct copy thereof.
(f) Refinancing. On the Closing Date hereunder, (i) all loans under the
Prior Credit Agreement ("Existing Loans") made by any Prior Lender who is not a
Lender hereunder shall be repaid in full and the commitments and other
obligations and (except as expressly set forth in the Prior Credit Agreement)
rights of such Prior Lender shall be terminated, (ii) all outstanding Existing
Loans shall be deemed Loans hereunder and the Administrative Agent shall make
such transfers of funds as are necessary in order that the outstanding balance
of such Loans, together with any Loans funded on the Closing Date, reflect the
Commitments of the Lenders hereunder, (iii) all outstanding letters of credit
issued pursuant to the Prior Credit Agreement shall be deemed Letters of Credit
hereunder and each Lender shall purchase a participation therein pursuant to
Section 3.4 in accordance with its Commitment Percentage, (iv) there shall have
been paid in cash in full all accrued but unpaid interest due on the Existing
Loans to but excluding the Closing Date, (v) there
<PAGE> 47
shall have been paid in cash in full all accrued but unpaid fees under the Prior
Credit Agreement due to but excluding the Closing Date and all other amounts,
costs and expenses then owing to any of the Prior Lenders and/or any Agent, as
agent under the Prior Credit Agreement, in each case to the satisfaction of such
Agent or Prior Lender, as the case may be, regardless of whether or not such
amounts would otherwise be due and payable at such time pursuant to the terms of
the Prior Credit Agreement and (vi) all outstanding promissory notes issued by
the Borrower to the Prior Lenders under the Prior Credit Agreement shall be
deemed canceled and the originally executed copies thereof shall be promptly
returned to the Administrative Agent who shall forward such notes to the
Borrower.
SECTION 5.3. Conditions to All Loans and Letters of Credit. The
obligations of the Lenders to make any Loan (subject to Section 2.2(b) with
respect to the refunding of Swingline Loans) or issue any Letter of Credit is
subject to the satisfaction of the following conditions precedent on the
relevant borrowing or issue date, as applicable:
(a) Continuation of Representations and Warranties. The representations
and warranties made by the Borrower contained in Article VI shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date; except for any representation and warranty made as
of an earlier date which representation and warranty shall remain true and
correct as of such date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder (i) on the borrowing date with respect to
such Loan or after giving effect to the Loans to be made on such date or (ii) or
the issue date with respect to such Letter of Credit or after giving affect to
such Letters of Credit on such date.
(c) Additional Documents. The Documentation Agent shall have received each
additional document, endorsement, instrument, legal opinion or item of
information reasonably requested by it, including, without limitation, a copy of
any debt instrument, security agreement or other Material Contract to which the
Borrower may be a party.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 6.1. Representations and Warranties. To induce the Agents to enter
into this Agreement and the Lenders to make the Loans or issue or participate in
the Letters of Credit, the Borrower hereby represents and warrants to the Agents
and Lenders that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the
<PAGE> 48
nature of its business requires such qualification and authorization, except
where the failure to be so qualified and authorized will not have a Material
Adverse Effect. As of the Closing Date, the jurisdictions in which the Borrower
and its Restricted Subsidiaries are organized and qualified to do business are
described on Schedule 6.1(a).
(b) Ownership. Each Restricted Subsidiary of the Borrower, as of the
Closing Date, is listed on Schedule 6.1(b). The capitalization of the Borrower
and its Restricted Subsidiaries, as of the Closing Date, consists of the number
of shares, authorized, issued and outstanding, of such classes and series, with
or without par value, described on Schedule 6.1(b). All outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
The shareholders of the Restricted Subsidiaries of the Borrower and the number
of shares owned by each, as of the Closing Date, are described on Schedule
6.1(b). There are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature
whatsoever, as of the Closing Date, which are convertible into, exchangeable for
or otherwise provide for or permit the issuance of capital stock or other
ownership interests of the Borrower or its Restricted Subsidiaries, except as
described on Schedule 6.1(b).
(c) Authorization of Agreement, Notes, Loan Documents and Borrowing. The
Borrower has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance
of this Agreement, the Notes and each of the other Loan Documents to which it is
a party in accordance with their respective terms. This Agreement, the Notes and
each of the other Loan Documents have been duly executed and delivered by the
duly authorized officers of the Borrower and, on and after such dates, each such
document constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Borrower of the Loan
Documents, in accordance with their respective terms, the borrowings hereunder
and the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice as of the Closing Date or otherwise, (i) require any
Governmental Approval or violate any Applicable Law relating to the Borrower or
any of its Restricted Subsidiaries; (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of the Borrower or any of its Restricted Subsidiaries
or any material indenture, agreement or other instrument to which such Person is
a party or by which any of its properties may be bound or any Governmental
Approval relating to such Person; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Loan
Documents.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower and
its Restricted Subsidiaries (i) has all material Governmental Approvals required
by any Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of its knowledge, threatened
<PAGE> 49
attack by direct or collateral proceeding; and (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties, except where
the failure to so comply will not have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Restricted
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except where the failure
to so file or pay will not have a Material Adverse Effect. No Governmental
Authority has asserted any Lien or other claim against the Borrower or
Restricted Subsidiary thereof with respect to material unpaid taxes which has
not been discharged or resolved or is not being contested in good faith. The
charges, accruals and reserves on the books of the Borrower and any of its
Restricted Subsidiaries in respect of federal, state, local and other taxes for
all Fiscal Years and portions thereof since the organization of the Borrower and
any of its Restricted Subsidiaries are in the judgment of the Borrower adequate,
and the Borrower does not anticipate any additional material taxes or
assessments for any of such years.
(g) Copyright Matters. The Borrower and its Restricted Subsidiaries have
recorded or deposited with and paid to the United States Copyright Offices, and
the Register of Copyrights all notices, statements of account, royalty fees and
other documents and instruments required under the United States Copyright Act,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect, and neither the Borrower nor any Restricted Subsidiary
thereof is liable to any Person for copyright infringement under the United
States Copyright Act as a result of its business operations which liability
could reasonably be expected to have a Material Adverse Effect.
(h) Environmental Matters. (i) The properties of the Borrower and its
Restricted Subsidiaries do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of, or (B) could give rise to
liability under, applicable Environmental Laws, except for any violation or
liability that will not have a Material Adverse Effect;
(ii) Such properties and all operations conducted in connection
therewith are in material compliance, and have in the last eight years been in
material compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
materially interfere with the continued operation of such properties or
materially impair the fair saleable value thereof;
(iii) Neither the Borrower nor any Restricted Subsidiary thereof has
received any notice of material violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of their properties or the operations
conducted in connection therewith, nor does the Borrower or any Restricted
Subsidiary thereof have knowledge or reason to believe that any such notice will
be received or is being threatened;
<PAGE> 50
(iv) Hazardous Materials have not been transported or disposed of
from the properties of the Borrower and its Restricted Subsidiaries in violation
of, or in a manner or to a location which could give rise to material liability
under, Environmental Laws, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of such properties in
material violation of, or in a manner that could give rise to material liability
under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Restricted Subsidiary thereof is
or will be named as a party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to such properties or such operations; and
(vi) There has been no release, or to the best of the Borrower's
knowledge, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give rise to
material liability under Environmental Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 6.1(i). If requested by
the Documentation Agent, the Borrower shall provide the Documentation Agent
accurate and complete copies of all contracts, agreements and documents
described on Schedule 6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans except
where failure to comply would not result in a material liability to the Borrower
and except for any required amendments for which the remedial amendment period
as defined in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of the Code
has been determined by the Internal Revenue Service to be so qualified, and each
trust related to such plan has been determined to be exempt under Section 501(a)
of the Code. No material liability has been incurred by the Borrower or any
ERISA Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate
failed to make any contributions or to pay any amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there
<PAGE> 51
been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a)
of ERISA with respect to any Pension Plan, except where the occurrence of any
such event will not have a Material Adverse Effect;
(iv) To the extent it could have a Material Adverse Effect, neither
the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or Section 4975 of the Code;
(B) incurred any liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and unpaid;
(C) failed to make a required contribution or payment to a Multiemployer Plan;
or (D) failed to make a required installment or other required payment under
Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to
occur which in either case could reasonably be expected to have a Material
Adverse Effect; and
(vi) No material proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined in
Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or
any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Restricted Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each such term is defined or used in Regulations G and U of the Board
of Governors of the Federal Reserve System). No part of the proceeds of any of
the Loans or Letters of Credit will be used for purchasing or carrying margin
stock or for any purpose which violates, or which would be inconsistent with,
the provisions of Regulation G, T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Restricted
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Borrower nor any Restricted
Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Public Utility Holding Company Act of 1935
or the Interstate Commerce Act, each as amended, or any other Applicable Law
which materially limits its ability to incur or consummate the transactions
contemplated hereby.
(l) Franchises, Licenses, Patents and Trademarks. Except as set forth on
Schedule 6.1(l) as of the Closing Date, each of the Borrower and its Restricted
Subsidiaries owns or possesses rights to use all franchises, licenses, patents,
patent rights or licenses, patent applications, trademarks, trademark rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business as now and presently
planned to be conducted without conflict with the rights of others, except where
the failure to so own or possess will not have a Material Adverse Effect. No
event has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights.
(m) Material Contracts. Schedule 6.1(m) sets forth a complete and accurate
list of all Material Contracts of the Borrower and its Restricted Subsidiaries
in effect as of the Closing Date
<PAGE> 52
not listed on any other Schedule hereto; each such Material Contract is, and
after giving effect to the consummation of the transactions contemplated by the
Loan Documents will be, in full force and effect in accordance with the terms
thereof. The Borrower and its Restricted Subsidiaries have delivered to the
Documentation Agent a true and complete copy of each Material Contract required
to be listed on Schedule 6.1(m) in a form satisfactory to the Documentation
Agent (subject to existing confidentiality agreements which the Borrower or
applicable Restricted Subsidiary has executed with respect to any such Material
Contract).
(n) Employee Relations. Each of the Borrower and its Restricted
Subsidiaries has a stable work force in place and is not as of the Closing Date,
except as set forth on Schedule 6.1(n), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of its
employees. The Borrower knows of no pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its employees or
those of its Restricted Subsidiaries.
(o) Burdensome Provisions. Neither the Borrower nor any Restricted
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law which is so unusual or burdensome as in the
foreseeable future could be reasonably expected to have a Material Adverse
Effect. The Borrower and its Restricted Subsidiaries do not presently anticipate
that future expenditures needed to meet the provisions of any statutes, orders,
rules or regulations of a Governmental Authority will be so burdensome as to
have a Material Adverse Effect.
(p) Financial Statements. The (i) Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of December 31, 1996 and the related
statements of income and retained earnings and cash flows for the Fiscal Year
then ended and (ii) unaudited Consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of June 30, 1997 and related unaudited interim
statements of revenue and retained earnings, copies of which have been furnished
to the Documentation Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position of the Borrower and its
Restricted Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended, subject, with respect
to the financial statements referred to in clause (ii), normal year-end
adjustments. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP. The Borrower and its
Restricted Subsidiaries have no material Debt, obligation or other unusual
forward or long-term commitment which is not fairly reflected in the foregoing
financial statements or in the notes thereto.
(q) No Material Adverse Change. Since December 31, 1996, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Borrower and its Restricted
Subsidiaries, including, but not limited to, any material adverse change
resulting from any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God, or of the public enemy or other casualty (whether or not
covered by insurance).
(r) Titles to Properties. Each of the Borrower and its Restricted
Subsidiaries has such title to the real property owned by it as is necessary or
desirable to the conduct of its business and
<PAGE> 53
valid and legal title to all of its personal property and assets, including, but
not limited to, those reflected on the balance sheets of the Borrower and its
Restricted Subsidiaries delivered pursuant to Section 6.1(p), except those which
have been disposed of by the Borrower or its Restricted Subsidiaries subsequent
to such date which dispositions have been in the ordinary course of business or
as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Restricted Subsidiary thereof is subject to any Lien, except Liens permitted
pursuant to Section 10.3. No financing statement under the Uniform Commercial
Code of any state which names the Borrower or any Restricted Subsidiary thereof
or any of their respective trade names or divisions as debtor and which has not
been terminated, has been filed in any state or other jurisdiction and neither
the Borrower nor any Restricted Subsidiary thereof has signed any such financing
statement or any security agreement authorizing any secured party thereunder to
file any such financing statement, except to perfect those Liens permitted by
Section 10.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 6.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Restricted Subsidiaries in excess of $10,000,000 as of the Closing Date. The
Borrower and its Restricted Subsidiaries have performed and are in compliance
with all of the terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Borrower or its Restricted
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. As of the Closing Date, except as set forth on Schedule
6.1(u), there are no actions, suits or proceedings pending nor, to the knowledge
of the Borrower, threatened against or in any other way relating adversely to or
affecting the Borrower or any Restricted Subsidiary thereof or any of their
respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority, which will or could reasonably be
expected to have a Material Adverse Effect. There are no outstanding or unpaid
final judgments (excluding any judgment which is stayed pending appeal) against
the Borrower or any Restricted Subsidiary thereof.
(v) FCC and PUC Regulatory Matters.
(i) Each Network Agreement has been duly executed and delivered by the
respective parties thereto, is in full force and effect and none of the parties
thereto is in default of any of the provisions thereof in any material respect,
except where any such failure not to be in full force and effect or any such
default could not reasonably be expected to have a Material Adverse Effect.
(ii) Schedule 6.1(v) hereto sets forth, as of the Closing Date, a true and
complete list of the following information for each FCC License or PUC
Authorization issued to the Borrower or any its Restricted Subsidiaries: (A) for
all FCC Licenses, the name of the licensee, the type of service and the
expiration dates; and (B) for each PUC Authorization, the geographic area
covered by such PUC Authorization, the services that may be provided thereunder
and the expiration date, if any.
<PAGE> 54
(iii) The FCC Licenses and PUC Authorizations specified on Schedule 6.1(v)
hereto are valid and in full force and effect without conditions except (A) for
such conditions as are generally applicable to holders of such FCC Licenses and
PUC Authorizations and (B) where the failure of any such FCC License or PUC
Authorization to be in full force and effect could not reasonably be expected to
have a Material Adverse Effect. No event has occurred and is continuing which
could reasonably be expected to (A) result in the imposition of a material
forfeiture or the revocation, termination or adverse modification of any such
FCC License or PUC Authorization or (B) materially and adversely affect any
rights of the Borrower or any of its Restricted Subsidiaries thereunder. The
Borrower has no reason to believe and has no knowledge that FCC Licenses and PUC
Authorizations will not be renewed in the ordinary course.
(iv) All of the material properties, equipment and systems owned, leased or
managed by the Borrower and its Restricted Subsidiaries are, and (to the best
knowledge of the Borrower) all such property, equipment and systems to be
acquired or added in connection with any contemplated system expansion or
construction will be, in good repair, working order and condition and are and
will be in compliance with all terms and conditions of the FCC Licenses and PUC
Authorizations and all standards or rules imposed by any Governmental Authority
or as imposed under any agreements with telephone companies and customers,
except where failure to so comply will not have a Material Adverse Effect.
(w) Fees and Charges. The Borrower and each of its Restricted Subsidiaries
have paid all franchise, license or other fees and charges which have become due
pursuant to any Governmental Approval in respect of its business and has made
appropriate provision as is required by GAAP for any such fees and charges which
have accrued, except where failure to so pay or make appropriate provision will
not have a Material Adverse Effect.
(x) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Restricted Subsidiary thereof under
any Material Contract or judgment, decree or order to which the Borrower or its
Restricted Subsidiaries is a party or by which the Borrower or its Restricted
Subsidiaries or any of their respective properties may be bound or which would
require the Borrower or its Restricted Subsidiaries to make any payment
thereunder prior to the scheduled maturity date therefor, to the extent any of
the foregoing could reasonably be expected to have a Material Adverse Effect.
(y) Senior Debt. All of the Obligations of the Borrower and its
Subsidiaries under the Loan Documents constitute "Senior Indebtedness" as such
term is used (and defined) in the Intercompany Notes and the Lead Agents and the
Lenders are entitled to the benefits of the subordination provisions of the
documents evidencing the Subordinated Debt. The Borrower acknowledges that the
Lead Agents and Lenders are entering into this Agreement and the Lenders are
making Extensions of Credit and the Swingline Lender is making Swingline Loans
in reliance upon such subordination provisions.
(z) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Restricted Subsidiary thereof
<PAGE> 55
and furnished to the Lenders were, at the time the same were so furnished,
complete and correct in all material respects to the extent necessary to give
the recipient a true and accurate knowledge of the subject matter. No document
furnished or written statement made to the Lead Agents or the Lenders by the
Borrower or any Restricted Subsidiary thereof in connection with the
negotiation, preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact material to
the creditworthiness of the Borrower or its Restricted Subsidiaries or omits or
will omit to state a material fact necessary in order to make the statements
contained therein not misleading. The Borrower is not aware of any facts which
it has not disclosed in writing to the Lead Agents having a Material Adverse
Effect, or insofar as the Borrower can now foresee, could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full, unless consent has been obtained in the manner set forth in
Section 13.11 hereof, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office (with copies for each
Lender, which copies shall be promptly forwarded by the Administrative Agent to
the Lenders) at its address set forth in Section 13.1 hereof, or such other
office as may be designated by such Agents from time to time:
SECTION 7.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of the first three (3) fiscal
quarters of each Fiscal Year, an unaudited Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter
and unaudited Consolidated statements of income, retained earnings and cash
flows for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and the
corresponding figures in the Projections for the portion of the Fiscal Year then
ended and prepared by the Borrower in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the chief financial officer of the
Borrower to present fairly in all material respects the financial condition of
the Borrower and its Restricted Subsidiaries as of their respective dates and
the results of operations
<PAGE> 56
of the Borrower and its Restricted Subsidiaries for the respective periods then
ended, subject to normal year end adjustments; and
(b) Annual Financial Statements. As soon as practicable and in any event
within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of
the close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Lead Agents in
accordance with GAAP and, if applicable, containing disclosure of the effect on
the financial position or results of operation of any change in the application
of accounting principles and practices during the year, and accompanied by a
report thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by the Borrower or any of its Restricted
Subsidiaries or with respect to accounting principles followed by the Borrower
or any of its Restricted Subsidiaries not in accordance with GAAP.
(c) Annual Financial Projections. As soon as practicable and in any event
within sixty (60) days after the end of each Fiscal Year, a business plan of the
Borrower and its Restricted Subsidiaries for the ensuing four fiscal quarters,
such plan to be prepared in accordance with GAAP and to include, on a quarterly
basis, the following: a quarterly operating and capital budget, a projected
income statement, statement of cash flows and balance sheet (such business plan
and projections, the "Projections"), accompanied by a certificate from the chief
financial officer or treasurer of the Borrower to the effect that, to the best
of such officer's knowledge, the Projections are good faith estimates of the
financial condition and operations of the Borrower and its Restricted
Subsidiaries for such four quarter period.
SECTION 7.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Lead Agents shall reasonably request, a certificate of the chief
executive officer, chief financial officer or treasurer of the Borrower in the
form of Exhibit E attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officers have reviewed such financial statements and
such statements fairly present the financial condition of the Borrower as of the
dates indicated and the results of their operations and cash flows for the
periods indicated;
(b) stating that to such officers' knowledge, based on a reasonable
examination sufficient to enable him to make an informed statement, no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default and its nature, when it occurred, whether it is continuing
and the steps being taken by the Borrower with respect to such Default or Event
of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year, as
the case may be, the calculations required to establish whether or not the
Borrower and its Restricted Subsidiaries were in compliance with the financial
covenants set forth in Article IX hereof as at the end of each respective
period, and the calculation of the Applicable Margin pursuant to Section 4.1(c)
as at the end of each respective period.
<PAGE> 57
SECTION 7.3. Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto;
(b) As soon as practicable, copies of all financial statements and reports
that the Borrower shall send to its shareholders and copies of all registration
statements and all regular or periodic reports which the Borrower shall file
with the Securities and Exchange Commission or any successor commission;
(c) If requested by the Lead Agents, statements in conformity with the
requirements of Federal Reserve Form G-1 or U-1 referred to in Regulations G and
U, respectively, of the Board of Governors of the Federal Reserve System;
(d) As soon as available and in any event within forty-five (45) days
after the end of each Fiscal Year of the Borrower, an updated Schedule 6.1(v)
accompanied by a report identifying any FCC License or material PUC
Authorization lost, surrendered or canceled during such period, and within ten
(10) Business Days after the receipt by the Borrower or any of its Restricted
Subsidiaries of notice that any FCC License or material PUC Authorization has
been lost or canceled, copies of any such notice accompanied by a report
describing the measures undertaken by the Borrower or any of its Restricted
Subsidiaries to prevent such loss or cancellation (and the anticipated impact,
if any, that such loss or cancellation will have upon the business of the
Borrower and its Restricted Subsidiaries); and
(e) Such other information regarding the operations, business affairs and
financial condition of the Borrower or any of its Restricted Subsidiaries as the
Agents or any Lender may reasonably request.
SECTION 7.4. Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of the Borrower obtains (or
reasonably should have obtained) knowledge thereof) telephonic and written
notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Restricted
Subsidiary thereof or any of their respective properties, assets or businesses,
which proceedings, investigations or actions involve potential liability to the
Borrower or any Restricted Subsidiary thereof equal to or in excess of
$15,000,000 or otherwise could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any material violation received by the Borrower or any
Restricted Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws;
<PAGE> 58
(c) any labor controversy that has resulted in, or threatens to result in,
a strike or other work action against the Borrower or any Restricted Subsidiary
thereof;
(d) any attachment, judgment, lien, levy or order exceeding $15,000,000
that may be assessed against or threatened against the Borrower or any
Restricted Subsidiary thereof;
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Subordinated Debt or other Material
Contract to which the Borrower or any of its Restricted Subsidiaries is a party
or by which the Borrower or any Restricted Subsidiary thereof or any of their
respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by any
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by any Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) any Borrower obtaining knowledge or
reason to know that any Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA;
(g) the enactment or promulgation after the date hereof of any federal,
state or local statute, regulation or ordinance or judicial or administrative
decision or order (or, to the extent the Borrower has knowledge thereof, any
such proposed statute, regulation, ordinance, decision or order, whether by the
introduction of legislation or the commencement of rulemaking or similar
proceedings or otherwise) affecting or relating to the operation of the Network
Facilities by the Borrower or any of its Restricted Subsidiaries (including,
without limitation, any statutes, decisions or orders affecting long distance
telecommunication resellers generally and not directed against the Borrower or
any of its Restricted Subsidiaries specifically) which have been issued or
adopted (or which have been proposed) and which will or could reasonably be
expected to have a Material Adverse Effect;
(h) any change in the Senior Unsecured Debt Rating;
(i) any event which makes any of the representations set forth
in Section 6.1 inaccurate in any material respect; and
(j) any proposed amendment, change or modification to, or waiver of any
material provision of, or any termination of, any Material Contract which could
reasonably be expected to have a Material Adverse Effect.
SECTION 7.5. Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to any Lead Agent or any Lender (other than financial forecasts) whether
pursuant to this Article VII or any other provision of this Agreement, shall be,
at the time the same is so furnished, complete and correct in all material
<PAGE> 59
respects to the extent necessary to give such Lead Agent or Lender complete,
true and accurate knowledge of the subject matter based on the Borrower's
knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, the Borrower will, and
will cause each of its Restricted Subsidiaries to:
SECTION 8.1. Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.5, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business; and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect.
SECTION 8.2. Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition all buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 8.3. Insurance. Maintain insurance with responsible insurance
companies against such risks and in such amounts as are customarily maintained
by similar businesses and as may be required by Applicable Law and on the
Closing Date and from time to time thereafter deliver to the Documentation Agent
upon its request a detailed list of the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the
dates of the expiration thereof and the properties and risks covered thereby.
SECTION 8.4. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 8.5. Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents, including
without limitation the Obligations, and pay or perform (a) except as disclosed
on Schedule 8.5, all taxes, assessments and other governmental charges that may
be levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Restricted Subsidiary may contest
any item described in clauses (a) and (b) hereof in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
<PAGE> 60
SECTION 8.6. Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable or
necessary to the conduct of its business.
SECTION 8.7. Environmental Laws. In addition to and without limiting
the generality of Section 8.6, (a) comply in all material respects with, and
ensure such compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply in all material respects
with all lawful orders and directives of any Governmental Authority regarding
Environmental Laws; and (c) defend, indemnify and hold harmless the Lead Agents
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the Borrower or
such Restricted Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor.
SECTION 8.8. Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, make timely payment of contributions required to
meet the minimum funding standards set forth in ERISA with respect to any
Employee Benefit Plan; not take any action or fail to take action the result of
which could be a material liability to the PBGC or to a Multiemployer Plan; not
participate in any prohibited transaction that could result in any material
civil penalty under ERISA or material tax under the Code; furnish to the
Documentation Agent upon the Documentation Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Documentation Agent; and operate each Employee Benefit Plan in such a manner
that will not incur any material tax liability under Section 4980B of the Code
or any material liability to any qualified beneficiary as defined in Section
4980B of the Code.
SECTION 8.9. Compliance With Agreements. Comply in all material
respects with each term, condition and provision of all material leases,
agreements and other instruments entered into in the conduct of its business
including, without limitation, any Material Contract; provided, that the
Borrower or such Restricted Subsidiary may contest any such lease, agreement or
other instrument in good faith so long as adequate reserves are maintained in
accordance with GAAP.
SECTION 8.10. Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and the resale of local exchange, cellular and paging communications services,
and to the extent permitted by Section 10.4(c), in lines of business reasonably
related thereto.
<PAGE> 61
SECTION 8.11. Visits and Inspections. Permit representatives of any of
the Lead Agents or Lenders, from time to time, as often as may be reasonably
requested, but only during normal business hours (except upon, and during the
continuance of an Event of Default), to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent accountants; and
discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 8.12. Year 2000 Compatibility. The Borrower shall take all
actions reasonably necessary to assure that Borrower's computer based systems
are able to operate and effectively process data which includes dates on and
after January 1, 2000. At the request of the Lead Agents, the Borrower shall
provide reasonable assurances satisfactory to the Lead Agents of the Borrower's
Year 2000 compatibility.
SECTION 8.13. Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as any Lead Agent or
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure each Lead Agent and the
Lenders their respective rights under this Agreement, the Notes, the Letters of
Credit and the other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrower will not:
SECTION 9.1. Maximum Leverage Ratio. Permit the Leverage Ratio to
exceed 4.00 to 1.00 at any time.
SECTION 9.2. Minimum Net Worth. Permit Consolidated Net Worth at any
time to be less than (i) 75% of the audited Consolidated Net Worth as of
December 31, 1996, plus (ii) 50% of the positive Consolidated Net Income after
the fiscal quarter ended December 31, 1996, plus (iii) 75% of the Net Cash
Proceeds of any issuance of equity after the date hereof. For purposes of
determining compliance with this Section 9.2, the Borrower shall be permitted to
add one-time cash and/or non-cash charges relating to acquisitions permitted
pursuant to Section 10.4(c) in an amount not to exceed $50,000,000 in the
aggregate during the term hereof to Consolidated Net Income to the extent such
charges are deducted from Consolidated Net Income.
ARTICLE X
NEGATIVE COVENANTS
<PAGE> 62
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrower will not
and will not permit any of its Restricted Subsidiaries to:
SECTION 10.1. Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) Guaranty Obligations permitted by Section 10.2 and the Obligations;
(b) the Obligations hereunder and the Obligations referred to in the
364-Day Credit Agreement;
(c) Debt incurred in connection with a Hedging Agreement in form and
substance and with a counterparty reasonably satisfactory to the Lead Agents;
(d) the SPC Notes, any other notes issued in connection with any
Permitted Securitization, the Intercompany Notes and Debt owing by a Restricted
Subsidiary to the Borrower or any other Restricted Subsidiary;
(e) additional Debt of the Borrower arising under or in connection with
public or privately placed notes, debentures, bonds, or debt securities or
related indentures or other agreements (including without limitation in
connection with the conversion or exchange of Approved Preferred Stock pursuant
to clause (ii) of Section 10.8) so long as:
(i) no Default or Event of Default exists on the date
any such Debt is created or arises as a result of any borrowing
thereunder;
(ii) the provisions of the documents evidencing such
Debt are not materially more restrictive (as reasonably determined by
the Lead Agents) than the covenants in the Loan Documents, including,
without limitation, any "change in control" provision;
(iii) such Debt provides for no scheduled payment of
principal prior to December 31, 2004;
(iv) such Debt does not require mandatory prepayments
or redemptions at any such time as similar payments are not required
hereunder;
(v) such Debt is unsecured senior or subordinated
Debt, and
(vi) the documents and other terms pursuant to which
such Debt is issued are reasonably satisfactory to the Lead Agents;
(f) without duplication of any other exception set forth in this
Section 10.1, any other Debt of the Borrower and its Restricted Subsidiaries,
including Subordinated Debt of the Borrower or any Restricted Subsidiary thereof
to an Unrestricted Subsidiary in an aggregate amount not to
<PAGE> 63
exceed on any date of determination seven and one-half percent (7.5%) of the
Total Debt of the Borrower and its Restricted Subsidiaries permitted on such
date under Section 9.1 so long as no Default or Event of Default exists on the
date any such Debt is created or arises as a result of any borrowing thereunder;
and
(g) Debt not otherwise permitted pursuant to Sections 10.1(a) through
10.1(e) and existing on the Closing Date and set forth on Schedule 6.1(t) and
refinancings thereof, but not the increase of the principal amount of, such
Debt; provided that the maturity date of such refinanced Debt is no earlier than
the original maturity date of such Debt;
provided, that none of the Debt permitted to be incurred by this Section shall
restrict, limit or otherwise encumber (by covenant or otherwise) the ability of
any Restricted Subsidiary of the Borrower to make any payment to the Borrower or
any of its Restricted Subsidiaries (in the form of dividends, intercompany
advances or otherwise) for the purpose of enabling the Borrower to pay the
Obligations.
SECTION 10.2. Limitations on Guaranty Obligations. Create, incur,
assume or suffer to exist any Guaranty Obligations except:
(a) Guaranty Obligations as of the Closing Date set forth on Schedule
6.1(t);
(b) Guaranty Obligations entered into by any Restricted Subsidiary in
favor of the holders of any Debt issued by the Borrower which Debt is permitted
hereunder; provided (i) such Guaranty Obligations are issued on terms and
pursuant to documentation reasonably satisfactory to the Lead Agents and (ii)
the Obligations of the Borrower under this Agreement are guaranteed on a pari
passu basis with such Debt;
(c) Guaranty Obligations entered into by any Restricted Subsidiary in
favor of the holders of any Debt issued by any other Restricted Subsidiary which
is permitted hereunder and Guaranty Obligations entered into by the Borrower in
favor of the holders of any Debt issued by a Restricted Subsidiary which Debt is
permitted hereunder;
(d) any Guaranty Obligations created under the Synthetic Lease
Documents, the Securitization Documents and the documents evidencing any other
Permitted Securitization;
(e) Guaranty Obligations entered into by the Borrower or any Restricted
Subsidiary in favor of the holders of any Debt issued by any Unrestricted
Subsidiary in aggregate principal amount at any one time not to exceed
$30,000,000 less the aggregate Net Investments then outstanding in Unrestricted
Subsidiaries pursuant to Section 10.4(a)(i) hereof; and
(f) without duplication of any other exception set forth in this
Section 10.2, Guaranty Obligations incurred in the ordinary course of business
in an aggregate amount not to exceed $50,000,000 outstanding at any time.
<PAGE> 64
SECTION 10.3. Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
shares of capital stock and other ownership interests), real or personal,
whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related, as determined by the Lead Agents,
thereto has not expired or which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $10,000,000) under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of such property or impair the
use thereof in the ordinary conduct of business;
(e) Liens evidencing the interest of the lessor under any lease not
constituting a Capital Lease in the property subject to such lease;
(f) Liens securing Debt permitted under Section 10.1(f);
(g) any Lien created in connection with any Permitted Securitization;
(h) Liens in favor of any Person securing an indefeasible right of use
permitted by Section 10.6(e) granted by LCI or any Restricted Subsidiary on a
portion of Network Facilities (including related rights of way and easements) to
such Person solely for the duration of such indefeasible right of use;
(i) Liens securing the interest of any owner of property which such
property is held by the Borrower or any Restricted Subsidiary pursuant to any
indefeasible right of use which is consistent with customary practices for the
long distance telecommunications industry; and
(j) Liens existing on the Closing Date and set forth on Schedule 10.3
hereof.
SECTION 10.4. Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture,
evidence of Debt or other obligation or security, substantially all or a
<PAGE> 65
material portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person; or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person; or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) (i) Net Investments in Unrestricted Subsidiaries not to exceed at
any date of determination $30,000,000 less the aggregate outstanding amount of
Debt thereof guaranteed by the Borrower or any Restricted Subsidiary pursuant to
Section 10.2(e), (ii) investments in Restricted Subsidiaries, the Intercompany
Notes, other intercompany Debt permitted pursuant to Section 10.1(d) and the
other existing loans, advances and investments described on Schedule 10.4 and
(iii) investments contemplated by any Permitted Securitization;
(b) investments in (the following, collectively, "Cash Equivalents")
(i) marketable direct obligations issued or unconditionally guaranteed by the
United States of America or any agency thereof maturing within 180 days from the
date of acquisition thereof, (ii) commercial paper maturing no more than 180
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's or Moody's, (iii) certificates of
deposit maturing no more than 180 days from the date of creation thereof issued
by commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally recognized
rating agency; provided, that the aggregate amount so invested in certificates
of deposit issued by any one such commercial bank shall not exceed $10,000,000
in the aggregate, (iv) time deposits maturing no more than 30 days from the date
of creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which
are insured by the FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder or (v) money market mutual funds which invest primarily in
the foregoing items or which have a rating of "A" or better by a nationally
recognized rating agency;
(c) investments by the Borrower or any Restricted Subsidiary in the
form of acquisitions of all or substantially all of the business or a line of
business (whether by merger, the acquisition of assets or at least sixty percent
(60%) of capital stock or other ownership interests or any combination thereof)
of any other Person if each such acquisition meets all of the following
applicable requirements:
(i) the Person to be acquired shall be a provider of
telecommunications service (including, without limitation, long
distance, local exchange, cellular and paging communications services);
provided, that subject to the other conditions of this clause (c) an
aggregate amount of $60,000,000 during the term of this Agreement may
be invested by the Borrower or any Restricted Subsidiary to acquire any
Person engaged in a business or a line of business reasonably related
to telecommunications service;
(ii) evidence of approval of the acquisition by the
acquiree's board of directors or equivalent governing body shall have
been delivered to the Lead Agents;
<PAGE> 66
(iii) if the Borrower is a party to such acquisition
and the Borrower shall not be the surviving Person, the surviving
Person shall have assumed the Obligations pursuant to documentation
reasonably satisfactory to the Lead Agents;
(iv) with regard to any acquisition, or series of
related acquisitions, by the Borrower or any Restricted Subsidiary
involving total consideration of less than $100,000,000, the Borrower
shall deliver a certificate to the Lead Agents, in form and substance
reasonably satisfactory thereto, confirming, as of the closing date of
such proposed acquisition:
(A) that all of the representations
and warranties set forth in Article VI are true and correct
immediately prior to and after giving effect to the proposed
acquisition; except for any representation and warranty made
as of an earlier date which representation and warranty shall
remain true and correct as of such date; and
(B) that no Default or Event of
Default has occurred and is continuing or would result
therefrom; provided that such certificate shall not be due
until the date upon which the next Officer's Compliance
Certificate must be delivered unless the aggregate total
consideration involved in any single acquisition or
acquisitions (including, on a pro forma basis, the proposed
acquisition) exceeds $20,000,000 in any fiscal quarter, in
which case, such certificate shall be due on the closing date
of such proposed acquisition; and
(v) with regard to any acquisition, or series of
related acquisitions, by the Borrower or any Restricted Subsidiary
involving total consideration in excess of $100,000,000, the following
requirements shall have been satisfied by the Borrower:
(A) at least thirty (30) days (or
such shorter period as agreed to in advance by the Lead
Agents) prior to the closing date of such proposed
acquisition, the Borrower shall have delivered to the Lead
Agents a written description of (I) the acquiree, including a
description of its operations, or, if applicable, the assets
to be acquired, in form and substance reasonably satisfactory
to the Lead Agents and (II) a copy of the purchase agreement
related to such proposed acquisition; and
(B) on the closing date of such
proposed acquisition, the Borrower shall deliver to the Lead
Agents a certificate, in form and substance reasonably
satisfactory thereto, (I) confirming that all representations
and warranties set forth in Article VI are true and correct
immediately prior to and after giving effect to the proposed
acquisition; except for any representation and warranty made
as of an earlier date which representation and warrant remains
true and correct as of such date, (II) confirming that no
Default or Event of Default has occurred and is continuing or
would result therefrom, (III) setting forth calculations
evidencing (after giving effect to the proposed acquisition on
a pro forma basis) compliance by the Borrower and its
Restricted Subsidiaries with the financial covenants set forth
in Article IX and Section 10.1 and (IV) confirming that such
proposed acquisition satisfies the applicable requirements of
this Section 10.4(c).
<PAGE> 67
(d) other loans, advances and investments not described above
(including, without limitation, investments in partnerships, joint ventures and
in any other Person less than sixty percent (60%) of the capital stock or other
ownership interests therein are owned directly or indirectly by the Borrower or
a Wholly-Owned Restricted Subsidiary thereof) not to exceed in the aggregate
during any period of four (4) consecutive fiscal quarters five percent (5%) of
Total Revenue of the Borrower and its Restricted Subsidiaries during such four
(4) consecutive fiscal quarters;
(e) loans or advances to employees, sales representatives, customers or
suppliers consistent with past practice of LCI or the relevant Restricted
Subsidiary and not to exceed a principal amount of $3,000,000 outstanding at any
time; and
(f) without duplication of any other exception set forth in this
Section 10.4, other loans, advances and investments (including, without
limitation, investments in partnerships and joint ventures) during the term of
this Agreement in an aggregate amount of $10,000,000.
SECTION 10.5. Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)
except:
(a) any Restricted Subsidiary of the Borrower may be liquidated,
wound-up or dissolved (provided that, the net assets (or proceeds thereof) of
such Restricted Subsidiary shall, in connection with any such liquidation,
wind-up or dissolution, be conveyed to another Restricted Subsidiary or to the
Borrower) proportionate to the proportionate direct or indirect ownership of the
Borrower in such Restricted Subsidiary;
(b) any Restricted Subsidiary of the Borrower may merge with any other
Restricted Subsidiary of the Borrower;
(c) any Restricted Subsidiary may merge with any other Person in
connection with an acquisition permitted by Section 10.4(c); and
(d) the Borrower may merge with any other Person as long as (i) no
Default or Event of Default then exists or would be created thereby and (ii) if
the Borrower is not the surviving Person of any such merger, the surviving
Person shall have assumed the Obligations pursuant to documentation reasonably
satisfactory to the Lead Agents.
SECTION 10.6. Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets, including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction (any such action for
purposes of this Section 10.6, a "sale" of assets), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
<PAGE> 68
(b) the sale of obsolete assets no longer used or usable in the
business of the Borrower or such Restricted Subsidiary;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise,
collection or billing thereof, including without limitation to local exchange
carriers;
(d) any asset sale in connection with any Permitted Securitization;
(e) any asset sale constituting the grant of an indefeasible right of
use on a portion of the Network Facilities in favor of a telecommunications
provider consistent with customary practices for the long distance
telecommunications industry; and
(f) any asset sale not otherwise permitted under this Section 10.6;
provided, that on the date of consummation of any such sale, the Operating Cash
Flow of the Borrower and its Restricted Subsidiaries attributable to all such
assets sold pursuant to this Section 10.6(f) (including, on a pro forma basis,
the assets subject to the proposed sale) during the period of four (4)
consecutive fiscal quarters ending on, or most recently ended prior to, such
date would not exceed twenty-five percent (25%) of Operating Cash Flow of the
Borrower and its Restricted Subsidiaries for such period.
SECTION 10.7. Limitations on Dividends and Distributions. Declare or
pay any dividends upon any of its capital stock or other ownership interests;
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock or other ownership interests, or make any
distribution of cash, property or assets among the holders of shares of its
capital stock or other ownership interests; or make any material change in its
capital structure that could reasonably be expected to have a Material Adverse
Effect; provided that: (a) the Borrower may pay dividends solely in shares of
its own capital stock or other ownership interests (including dividends
consisting of rights to purchase such capital stock or other ownership
interests), (b) any Restricted Subsidiary may pay dividends or make
distributions to the Borrower or any Wholly-Owned Restricted Subsidiary of the
Borrower and (c) as long as no Default or Event of Default has occurred and is
continuing or would be created thereby, the Borrower may pay cash dividends (i)
on shares of its capital stock or other ownership interests and (ii) the
Borrower or any Restricted Subsidiary may redeem shares of its capital stock or
other ownership interests.
SECTION 10.8. Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock or
other ownership interests that, by its terms or by the terms of any security
into which it is convertible or exchangeable, is, or upon the happening of an
event or passage of time would be (a) convertible or exchangeable into Debt or
(b) required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, except for (i)
the issuance of Approved Preferred Stock and (ii) the conversion or exchange of
any such Approved Preferred Stock for Subordinated Debt in accordance with the
terms of such Approved Preferred Stock if prior to any such conversion or
exchange the Lead Agents have received evidence satisfactory thereto that no
Default or Event of Default is then occurring or would result from any such
conversion or exchange.
<PAGE> 69
SECTION 10.9. Transactions with Affiliates. Except as set forth on
Schedule 10.9 or with respect to any Permitted Securitization, directly or
indirectly: (a) other than agreements and benefits extended to employees in the
ordinary course of business, make any loan or advance to, or purchase or assume
any note or other obligation to or from, any of its officers, directors,
shareholders or other Affiliates, or to or from any member of the immediate
family of any of its officers, directors, shareholders or other Affiliates, or
subcontract any operations to any of its Affiliates, or (b) enter into, or be a
party to, any transaction with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are fully disclosed to and approved in writing by the Required Lenders and are
no less favorable to it than would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.10. Certain Accounting Changes. Change its Fiscal Year end,
or make any material change in its accounting treatment and reporting practices
except as required by GAAP.
SECTION 10.11. Amendments; Payments and Prepayments of Subordinated
Debt. Except for the conversion of any Intercompany Note into common stock,
amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Debt if as a result of such amendment or
modification such Subordinated Debt fails to satisfy any condition set forth in
Section 10.1(e) hereof; or cancel or forgive, make any voluntary or optional
payment or prepayment on, or redeem or acquire for value (including without
limitation by way of depositing with any trustee with respect thereto money or
securities before due for the purpose of paying when due) any Subordinated Debt;
or amend or modify any of the dividend, exchange, conversion, redemption or
payment terms and provisions of the Approved Preferred Stock without the prior
written consent of the Lead Agents.
SECTION 10.12. Compliance with ERISA. (a) Permit the occurrence of any
Termination Event which would result in a liability to the Borrower or any ERISA
Affiliate in excess of $5,000,000; (b) permit the present value of all benefit
liabilities under all Pension Plans (determined under the actuarial assumptions
used for Code and ERISA funding purposes) to exceed the current value of the
assets of such Pension Plans allocable to such benefit liabilities by more than
$10,000,000; (c) permit any accumulated funding deficiency in excess of
$10,000,000 (as defined in Section 302 of ERISA and Section 412 of the Code)
with respect to any Pension Plan, whether or not waived; (d) fail to make any
contribution or payment to any Multiemployer Plan which the Borrower or any
ERISA Affiliate may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto which results in or is likely
to result in a liability in excess of $10,000,000; (e) engage, or permit the
Borrower or any ERISA Affiliate to engage, in any prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code for which a civil penalty
pursuant to Section 502(i) of ERISA or a tax pursuant to Section 4975 of the
Code in excess of $10,000,000 is imposed; (f) permit the establishment of any
Employee Benefit Plan providing post-retirement welfare benefits or establish or
amend any Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the obligation of
the Borrower or any ERISA Affiliate to a Multiemployer Plan which liability or
increase, individually or together with all similar liabilities and increases,
is material to the Borrower or any ERISA Affiliate; or (g) fail, or permit the
Borrower or any ERISA Affiliate to fail, to establish, maintain and operate each
Employee Benefit Plan in compliance in all material
<PAGE> 70
respects with the provisions of ERISA, the Code and all other applicable laws
and the regulations and interpretations thereof.
SECTION 10.13. Restrictive Agreements. Enter into any Debt or related
loan documentation which contains any covenants materially more restrictive than
the provisions of Articles VIII, IX and X hereof, or which restricts, limits or
otherwise encumbers the Borrower's or any Restricted Subsidiaries' ability to
incur Liens on or with respect to any of its assets or properties other than the
assets or properties securing such Debt; provided that this Section 10.13 will
not be deemed to be violated by Section 1006 of the indenture governing the
Senior Notes or any equivalent provision in any other Debt or related
documentation which provision prohibits the creation of a Lien securing
additional Debt unless such other Debt is equally and ratably secured with such
additional Debt.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for five (5)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrower or any of its Restricted Subsidiaries under this
Agreement, any Loan Document or any amendment hereto or thereto, shall at any
time prove to have been incorrect or misleading in any material respect when
made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 7.4(e) or Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any of its Restricted Subsidiaries shall default in the performance
or observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a
<PAGE> 71
period of forty-five (45) days after written notice thereof has been given to
the Borrower or any of its Restricted Subsidiaries by the Documentation Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement and such amount is not paid within ten (10)
Business Days of the due date thereof.
(g) Debt Cross-Default. The Borrower or any of its Restricted
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes,
any Reimbursement Obligation, the SPC Notes or any notes issued in connection
with any Permitted Securitization) the aggregate outstanding amount of which is
in excess of $25,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created; or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes, the Reimbursement Obligation, the SPC Notes or
any notes issued in connection with any Permitted Securitization) the aggregate
outstanding amount of which is in excess of $25,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Other Cross-Defaults. The Borrower or any of its Restricted
Subsidiaries shall default in the payment when due, or in the performance or
observance, of any obligation or condition of any Material Contract the breach
of which could reasonably be expected to have a Material Adverse Effect unless,
but only as long as, the existence of any such default is being contested by the
Borrower or such Restricted Subsidiary in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the books of
the Borrower or such Restricted Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
other than Warburg, Pincus Capital Company, L.P. or its Affiliates, shall obtain
ownership or control in one or more series of transactions of more than fifty
percent (50%) of the common stock or fifty percent (50%) of the voting power of
the Borrower entitled to vote in the election of members of the board of
directors of the Borrower or there shall have occurred under any indenture or
other instrument evidencing any Debt in excess of $10,000,000 or under the
Certificate of Designation any "change in control" (as defined in such indenture
or other evidence of Debt or such Certificate) obligating the Borrower to
repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Restricted
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts;
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws; (iv) apply for or consent to, or
<PAGE> 72
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself
or of a substantial part of its property, domestic or foreign; (v) admit in
writing its inability to pay its debts as they become due; (vi) make a general
assignment for the benefit of creditors; or (vii) take any corporate action for
the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower or any Restricted Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Borrower or any Restricted Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue undismissed or unstayed for a period
of sixty (60) consecutive calendar days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any material provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and binding on
the Borrower, or the Borrower, shall so state in writing.
(m) Termination Event. The occurrence of any of the following events:
(i) the Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto; (ii) an accumulated funding deficiency in excess of
$10,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan; (iii) a Termination Event; or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$10,000,000.
(n) Judgment. A judgment or order for the payment of money which
exceeds applicable insurance coverage by $15,000,000 in amount shall be entered
against the Borrower or any of its Restricted Subsidiaries by any court and such
judgment or order shall continue undischarged or unstayed for a period of thirty
(30) days.
(o) Attachment. A warrant or writ of attachment or execution or similar
process shall be issued against any property of the Borrower or any of its
Restricted Subsidiaries which exceeds $15,000,000 in value and such warrant or
process shall continue undischarged or unstayed for a period of thirty (30)
days.
(p) Loss of Approval. Any FCC License or PUC Authorization of the
Borrower or any Restricted Subsidiary thereof shall expire, terminate, be
canceled or otherwise lost or any application therefor be rejected, which event
shall or could reasonably be expected to have a Material Adverse Effect.
<PAGE> 73
(q) 364-Day Credit Agreement. An Event of Default shall have occurred
and be continuing under the 364-Day Credit Agreement.
SECTION 11.2. Remedies. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Documentation Agent may, or upon
the request of the Required Lenders, the Documentation Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the Lead
Agents under this Agreement or any of the other Loan Documents (including,
without limitation, all L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents required
thereunder) and all other Obligations, to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Credit Facility and any right of the Borrower
to request borrowings or Letters of Credit thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 11.1(j) or (k), the
Credit Facility shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower.
(c) Judgment Currency. If for the purpose of obtaining judgment in any
court in any country or realizing upon any Obligation it becomes necessary to
convert into any other currency (a "Realization Currency") any amount payable
under any Loan Document, then such conversion shall be made at the Rate of
Exchange (as defined below) prevailing one Business Day before the day on which
the judgment is given, as applicable. For purposes of this Section 11.2(c),
"Rate of Exchange" means the rate at which the Person in whose favor judgment is
given is able on the relevant date of conversion to purchase the relevant amount
payable under the applicable Loan Document with the Realization Currency. In the
event that there is a change in the Rate of Exchange prevailing between the
Business Day before the day on which the judgment is given, as applicable, and
the actual date of payment of the amount due, the Borrower or applicable
Restricted Subsidiary shall pay such additional and/or less amounts as the case
may be (if any) as may be necessary to ensure that the amount thus paid on such
date is the amount in the Realization Currency which, when computed at the Rate
of Exchange prevailing on the date of payment, is the
<PAGE> 74
amount then due and payable under the applicable Loan Document before conversion
into the Realization Currency was made. Any amount due from the Borrower or
applicable Restricted Subsidiary under this Section 11.2(c) shall be due and
payable as a separate Debt and shall not be affected by judgment being obtained
for any other sums due under or in respect of such Loan Document.
(d) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Lead Agents and the Lenders set
forth in this Agreement is not intended to be exhaustive and the exercise by the
Lead Agents and the Lenders of any right or remedy shall not preclude the
exercise of any other rights or remedies, all of which shall be cumulative, and
shall be in addition to any other right or remedy given hereunder or under the
Loan Documents or that may now or hereafter exist in law or in equity or by suit
or otherwise. No delay or failure to take action on the part of any Lead Agent
or Lender in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude other or further exercise thereof or the exercise of any
other right, power or privilege or shall be construed to be a waiver of any
Event of Default. No course of dealing between the Borrower, the Lead Agents and
the Lenders or their respective agents or employees shall be effective to
change, modify or discharge any provision of this Agreement or any of the other
Loan Documents or to constitute a waiver of any Event of Default.
SECTION 11.4. Consents. The Borrower acknowledges that certain
transactions contemplated by this Agreement and the other Loan Documents and
certain actions which may be taken by the Lead Agents or the Lenders in the
exercise of their respective rights under this Agreement and the other Loan
Documents may require the consent of the FCC or a PUC. If counsel to any Lead
Agent reasonably determines that the consent of the FCC or a PUC is required in
connection with the execution, delivery and performance of any of the aforesaid
documents or any documents delivered to the Lead Agents or the Lenders in
connection therewith or as a result of any action which may be taken pursuant
thereto, then the Borrower, at its sole cost and expense, agrees to use its best
efforts to secure such consent and to cooperate with the Lead Agents and the
Lenders in any action commenced by any Lead Agent or Lender to secure such
consent.
SECTION 11.5. Securitization Documents. Notwithstanding any of the
foregoing to the contrary, neither (a) the occurrence of any termination event
under any Permitted Securitization nor (b) a default under the SPC Notes or any
notes issued in connection with any Permitted Securitization shall constitute
(x) a breach of Section 6.1(m) for purposes of Section 11.1(c), (y) a breach of
Section 8.9 for purposes of Section 11.1(e) or (z) a Default under Sections
11.1(g) or 11.1(h).
<PAGE> 75
ARTICLE XII
THE LEAD AGENTS; SYNDICATION AGENT AND CO-AGENTS
SECTION 12.1. Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Documentation Agent of such Lender and
NationsBank as Administrative Agent of such Lender under this Agreement and the
other Loan Documents and each such Lender irrevocably authorizes First Union as
Documentation Agent, and NationsBank as Administrative Agent, respectively, for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to each such Lead Agent by the terms of
this Agreement and such other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, none of the Lead
Agents shall have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against such Lead Agent. To the extent any provision of this
Agreement permits action by any Lead Agent, such Lead Agent shall, subject to
the provisions of Section 13.11 hereof and of this Article XII, take such action
if directed in writing to do so by the Required Lenders.
SECTION 12.2. Delegation of Duties. Each of the Lead Agents may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Lead Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by such Lead Agent with reasonable care.
SECTION 12.3. Exculpatory Provisions. Neither any Lead Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Loan Documents (except for its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any of its Restricted Subsidiaries or any officer thereof contained in this
Agreement or the other Loan Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by such Lead Agent
under or in connection with, this Agreement or the other Loan Documents or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents or for any failure of the Borrower
or any of its Restricted Subsidiaries to perform its obligations hereunder or
thereunder. No Lead Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Restricted
Subsidiaries.
SECTION 12.4. Reliance by Lead Agents. Each of the Lead Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement,
<PAGE> 76
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Borrower), independent accountants and other experts selected by any Lead
Agent. Each of the Lead Agents may deem and treat the payee of any Note as the
owner thereof for all purposes unless such Note shall have been transferred in
accordance with Section 13.10 hereof. Each of the Lead Agents shall be fully
justified in failing or refusing to take any action under this Agreement and the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders (or, when expressly required hereby or by the relevant
other Loan Document, all the Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful misconduct.
Each of the Lead Agents shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders (or, when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
SECTION 12.5. Notice of Default. None of the Lead Agents shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that any Lead
Agent receives such a notice, it shall promptly give notice thereof to the
Documentation Agent who shall promptly give notice thereof to the Lenders. The
Documentation Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders; provided
that unless and until the Documentation Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION 12.6. Non-Reliance on Such Lead Agents and Other Lenders. Each
Lender expressly acknowledges that none of the Lead Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by any Lead Agent hereinafter taken, including any review of the
affairs of the Borrower or any of its Restricted Subsidiaries, shall be deemed
to constitute any representation or warranty by such Lead Agent to any Lender.
Each Lender represents to the Lead Agents that it has, independently and without
reliance upon the Lead Agents or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Restricted Subsidiaries
and made its own decision to make its Loans and issue or participate in Letter
of Credit hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon any Lead Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and its Restricted Subsidiaries. Except for
notices, reports and
<PAGE> 77
other documents expressly required to be furnished to the Lenders by any Lead
Agent hereunder or by the other Loan Documents, no Lead Agent shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its Restricted
Subsidiaries which may come into the possession of such Lead Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact, Restricted
Subsidiaries or Affiliates.
SECTION 12.7. Indemnification. The Lenders agree to indemnify the
Documentation Agent and the Administrative Agent in their capacities as such and
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
amounts of their Commitment Percentages in effect on the date indemnification is
sought, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against any such Lead Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Lead Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Lead Agent's bad faith, gross
negligence or willful misconduct. The agreements in this Section 12.7 shall
survive the payment of the Notes, any Reimbursement Obligation and all other
amounts payable hereunder and the termination of this Agreement.
SECTION 12.8. Each of the Lead Agents in Its Individual Capacity. Each
Lead Agent and its respective Subsidiaries and Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower as though such Lead Agent were not an Lead Agent hereunder. With
respect to any Loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued by it or participated in by it, each Lead
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Lead Agent, and the terms "Lender" and "Lenders" shall include the Documentation
Agent and the Administrative Agent in their individual capacity.
SECTION 12.9. Resignation of Lead Agents; Successor Lead Agents.
Subject to the appointment and acceptance of a successor as provided below, the
Documentation Agent or Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Documentation Agent
or Administrative Agent, as the case may be, which successor shall have minimum
capital and surplus of at least $500,000,000. If no successor Documentation
Agent or Administrative Agent, as the case may be, shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Lead Agent's giving of notice of resignation, then
the retiring Lead Agent may, on behalf of the Lenders, appoint a successor
Documentation Agent or Administrative Agent, as the case may be, which successor
shall have minimum capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Documentation Agent or Administrative Agent
hereunder by a successor Documentation Agent or Administrative Agent, as the
case may be, such successor Lead Agent
<PAGE> 78
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Lead Agent, and the retiring Lead Agent shall be
discharged from its duties and obligations hereunder. After any retiring Lead
Agent's resignation or removal hereunder as Documentation Agent or
Administrative Agent, as the case may be, the provisions of this Section 12.9
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Documentation Agent or
Administrative Agent, as the case may be.
SECTION 12.10. Lead Agents. The Documentation Agent and Administrative
Agent hereby agree that with respect to any amendment, modification or waiver of
this Agreement and the other Loan Documents, the Documentation Agent shall be
responsible for the preparation, documentation and execution thereof. In
addition, with respect to any action or decision requiring consent or approval
of any Lenders, the Documentation Agent shall be responsible for obtaining such
consent or approval.
SECTION 12.11. Syndication Agent and Co-Agents. Each Syndication Agent,
in its capacity as Syndication Agent, and each Co-Agent, in its capacity as
Co-Agent, shall have no rights, duties, responsibilities or liabilities under
this Agreement or any other Loan Document.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to any Lead Agent
as understood by such Lead Agent will be deemed to be the controlling and proper
notice in the event of a discrepancy with or failure to receive a confirming
written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Borrower: LCI International, Inc.
8180 Greensboro Drive
McLean, Virginia 22102
Attention: John J. Dillon
Telephone No.: (703) 848-4490
Telecopy No.: (703) 918-4460
<PAGE> 79
with copies to: LCI International Management
Services, Inc.
4650 Lakehurst Court
Dublin, Ohio 43016
Attention: James D. Heflinger, Esq.
Telephone No.: (614) 798-6273
Telecopy No.: (614) 798-6498
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: William N. Dye, Esq.
Telephone No.: (212) 821-8000
Telecopy No.: (212) 821-8111
If to First Union First Union National Bank
as Documentation One First Union Center, DC-5
Agent or Lender: 301 S. College Street
Charlotte, North Carolina 28288-0735
Attention: Lloyd R. Sams
Telephone No.: (704) 374-4151
Telecopy No.: (704) 374-4092
If to NationsBank NationsBank of Texas, N.A.
as Administrative 901 Main Street, 64th Floor
Agent, Issuing Dallas, Texas 75202
Lender or Attention: Keith M. Wilson
Lender: Telephone No.: (214) 508-0921
Telecopy No.: (214) 508-9390
If to any Lenders: At the Addresses set forth
in Schedule 1 attached hereto
or any amendment or supplement
thereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 13.2. Expenses. The Borrower will pay all reasonable
out-of-pocket expenses of the Lead Agents in connection with: (a) the
preparation, execution and delivery of this Agreement and each of the other Loan
Documents, whenever the same shall be executed and delivered, including all
syndication and due diligence expenses, appraiser's fees, search fees, title
insurance
<PAGE> 80
premiums, recording fees, taxes and reasonable fees and disbursements of counsel
for the Lead Agents; (b) the preparation, execution and delivery of any waiver,
amendment or consent by the Lead Agents or the Lenders relating to this
Agreement or any of the other Loan Documents including reasonable fees and
disbursements of counsel for the Lead Agents, search fees, appraiser's fees,
recording fees and taxes imposed in connection therewith; and (c) administering
and enforcing their respective rights under this Agreement, including consulting
with one or more Persons, including appraisers, accountants, engineers and
attorneys, concerning or related to the nature, scope or value of any right or
remedy of any Lead Agent or any of the Lenders hereunder or under any of the
other Loan Documents, including any review of factual matters in connection
therewith, which expenses shall include the reasonable fees and disbursements of
such Persons.
SECTION 13.3. Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 13.10 are hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured, excluding government securities required by Applicable Law to be
held as security for worker's compensation and similar claims) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the account of the Borrower against and on
account of the Obligations irrespective of whether or not (a) the Lenders shall
have made any demand under this Agreement or any of the other Loan Documents or
(b) the Documentation Agent shall have declared any or all of the Obligations to
be due and payable as permitted by Section 11.2 and although such Obligations
shall be contingent or unmatured.
SECTION 13.4. Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5. Consent to Jurisdiction. To the fullest extent permitted
by applicable law, the Borrower hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina, in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any Lead Agent or Lender in connection with this
Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 13.1.
Nothing in this Section 13.5 shall affect the right of any Lead Agent or Lender
to serve legal process in any other manner permitted by Applicable Law or affect
the right of any Lead Agent or Lender to bring any action or proceeding against
the Borrower or its properties in the courts of any other jurisdictions.
<PAGE> 81
SECTION 13.6. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH LEAD AGENT, LENDER AND THE BORROWER HEREBY IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 13.7. Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent or the Documentation Agent for
the ratable benefit of the Lenders (or the other Lead Agent) or the
Administrative Agent or the Documentation Agent receives any payment which
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
repaid, the Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or proceeds
had not been received by any Lead Agent.
SECTION 13.8. Injunctive Relief. The Borrower recognizes that, in the
event the Borrower fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to the Lenders. Therefore, the Borrower agrees that the
Lenders, at the Lenders' option, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
SECTION 13.9. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Restricted Subsidiary thereof to determine compliance with any
covenant contained herein, shall, except as otherwise expressly contemplated
hereby or unless there is an express written direction by the Documentation
Agent to the contrary agreed to by the Borrower, be performed in accordance with
GAAP. In the event that changes in GAAP shall be mandated by the Financial
Accounting Standards Board, or any similar accounting body of comparable
standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and the
Lenders shall have amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants and other terms and conditions of this
Agreement.
SECTION 13.10. Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lead Agents and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
<PAGE> 82
(b) Assignment by Lenders. Each Lender may, with the consent of the
Lead Agents and (so long as no Default or Event of Default has occurred and is
continuing) the Borrower, which consents shall not be unreasonably withheld,
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation, all
or a portion of the Extensions of Credit at the time owing to it and the Notes
held by it); provided, that:
(i) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement and its rights and obligations under
the 364-Day Credit Agreement, if such agreement is still in effect;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the aggregate amount of the Commitment
under this Agreement and the Commitment under the 364-Day Credit
Agreement, if such agreement is still in effect (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent), so assigned shall not be less
than $10,000,000 in the aggregate;
(iii) no such assignment of Swingline Loans or the
Swingline Commitment shall be permitted;
(iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of
Exhibit F attached hereto (an "Assignment and Acceptance"), together
with any Note or Notes subject to such assignment;
(v) such assignment shall not, without the consent of
the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission or apply to or qualify the
Loans or the Notes under the blue sky laws of any state;
(vi) the representation contained in Section 13.21
hereof shall be true with respect to any such proposed assignee;
(vii) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,500 upon the execution by
such Lender of the Assignment and Acceptance; provided that, the
aggregate assignment fee for an assignment hereunder and the
contemporaneous assignment under the 364-Day Credit Agreement shall not
exceed $3,500; and
(viii) the Borrower shall have five (5) Business Days
after receipt thereby of any Assignment and Acceptance to consent to
the corresponding assignment by executing such agreement.
<PAGE> 83
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Borrower or its Restricted Subsidiaries or the performance or
observance by the Borrower and its Restricted Subsidiaries of any of
their obligations under this Agreement or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 6.1(p) and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon any Lead Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Lead Agent to
take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to
such Lead Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the
<PAGE> 84
Lenders and the amount of the Extensions of Credit with respect to each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Lead Agents
and the Lenders may treat each person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and its Extensions of Credit and the Notes held by it); provided
that:
(i) each such participation (including any participation under
the 364-Day Agreement, if in effect) shall be in an aggregate amount of
not less than $10,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by
it for all purposes of this Agreement;
<PAGE> 85
(v) the Borrower, the Lead Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan or Reimbursement Obligation, extend the term or increase
the amount of the Commitment of such participant, reduce the amount of
any fees to which such participant is entitled, extend any scheduled
payment date for principal; and
(vii) any such participation shall not, without the consent of
the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent, the Documentation Agent and the Lenders shall hold all non-public
information obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided that, the
Administrative Agent and Documentation Agent may disclose information relating
to this Agreement to Gold Sheets and other similar bank trade publications, such
information to consist of deal terms and other information customarily found in
such publications. Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this Section
13.10, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, that prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant shall
execute a confidentiality agreement with the Borrower or such Lender (which in
the case of an agreement with only such Lender, the Borrower shall be recognized
as a third party beneficiary thereof) substantially in the form executed by each
Lender prior to the Closing Date in connection with its receipt of the
information memorandum with respect to the Agreement.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11. Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Documentation Agent with
the consent of the Required Lenders) and delivered to the Documentation Agent
and, in the case of an amendment, signed by the Borrower; provided, that no
amendment, waiver or consent shall (i) increase the amount or extend the time of
the obligation of the Lenders to make Loans or issue or participate in Letters
of Credit (other than pursuant to Section 2.9), (ii) extend the originally
scheduled time or times of payment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest on any Loan or
Reimbursement Obligation, (iii) reduce the rate of interest (other than the
application of default
<PAGE> 86
interest pursuant to Section 4.1(d)) or fees payable on any Loan or
Reimbursement Obligation to any Lender or Lead Agent, (iv) permit any
subordination of the principal or interest on any Loan or Reimbursement
Obligation or (v) amend the provisions of this Section 13.11 or the definition
of Required Lenders, without the prior written consent of each Lender. In
addition, no amendment, waiver or consent to the provisions of Article XII shall
be made without the written consent of the affected Lead Agents, Syndication
Agents or Co-Agents. Notwithstanding the foregoing, no Lender shall be permitted
to object to any amendment, waiver or withhold any consent hereunder if such
Lender has agreed to any similar amendment, waiver or granted any similar
consent under the 364-Day Credit Agreement.
SECTION 13.12. Performance of Borrower's Duties. The Borrower's
obligations under this Agreement and each of the Loan Documents shall be
performed by the Borrower at its sole cost and expense.
SECTION 13.13. Indemnification. The Borrower agrees to reimburse each
Lead Agent and the Lenders for all reasonable costs and expenses, including all
counsel, appraisal, or other expert or consultant fees and disbursements
incurred, and to indemnify and hold each Lead Agent and the Lenders harmless
from and against all losses suffered by such Lead Agent and the Lenders in
connection with (a) the exercise by the Lead Agents or the Lenders of any right
or remedy granted to them under this Agreement or any of the other Loan
Documents, (b) any claim, and the prosecution or defense thereof, arising out of
or in any way connected with this Agreement or any of the other Loan Documents,
and (c) the collection or enforcement of the Obligations or any of them;
provided, that the Borrower shall not be obligated to reimburse any Lead Agent
or any Lender for costs and expenses, or indemnify any Lead Agent or any Lender
for any loss, resulting from the gross negligence or willful misconduct of such
Lead Agent or Lender.
SECTION 13.14. All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, each Lead Agent and any Persons
designated by such Lead Agent or Lenders pursuant to any provisions of this
Agreement or any of the other Loan Documents shall be deemed coupled with an
interest and shall be irrevocable so long as any of the Obligations remain
unpaid or unsatisfied or this Agreement has not been terminated.
SECTION 13.15. Survival of Indemnities. Notwithstanding any termination
of this Agreement or the assignment by any Lender of its Commitment, the
indemnities to which the Lead Agents and any Lender and their respective
parents, Subsidiaries, Affiliates, officers, directors, employees and agents are
entitled under the provisions of this Article XIII and any other provision of
this Agreement and the Loan Documents shall continue in full force and effect
and shall protect such Persons against events arising after such assignment or
termination as well as before.
SECTION 13.16. Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 13.17. Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without
<PAGE> 87
invalidating the remainder of such provision or the remaining provisions hereof
or thereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 13.18. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 13.19. Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
SECTION 13.20. Adjustments. If any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of its Extensions of Credit, or
interest thereon, or if any Lender shall at any time receive any Collateral in
respect to its Extensions of Credit (whether voluntarily or involuntarily, by
set-off or otherwise) in a greater proportion than any such payment to and
Collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such Collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
Collateral or proceeds ratably with each of the Lenders; provided, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Extensions of Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
SECTION 13.21. Representation of Lenders. Each Lender hereby represents
that it will make each Loan hereunder as a commercial loan for its own account
in the ordinary course of its business; provided, that subject to Section 13.10
hereof, the disposition of the Notes or other evidence of the Obligations held
by any Lender shall at all times be within its exclusive control.
SECTION 13.22. Inconsistencies with Other Documents; Independent Effect
of Covenants. (a) In the event there is a conflict or inconsistency between this
Agreement, the Notes or the other Loan Documents, the terms of this Agreement
shall control.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX or X hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX or X.
[Signature Pages Follow]
<PAGE> 88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
[CORPORATE SEAL] LCI INTERNATIONAL, INC.
By: /s/ John J. Dillon
-------------------------------------
Name: John J. Dillon
---------------------------------
Title:Vice President - Finance &
Treasurer
--------------------------------
FIRST UNION NATIONAL BANK,
as Documentation Agent and Lender
By: /s/ Jim Redman
-------------------------------------
Name: Jim Redman
---------------------------------
Title: Senior Vice President
--------------------------------
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and Lender
By: /s/ Keith M. Wilson
-------------------------------------
Name: Keith M. Wilson
---------------------------------
Title: Vice President
--------------------------------
[ADDITIONAL LENDERS]
<PAGE> 89
EXHIBIT A-1
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
<PAGE> 90
THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
$__________ September 5, 1997
FOR VALUE RECEIVED, the undersigned, LCI INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
_____________________ (the "Bank"), at the place and times provided in the Third
Amended and Restated Credit Agreement referenced hereinafter, the principal sum
of ______________________ ($ ) or, if less, the principal amount of all
Loans made by the Bank from time to time pursuant to that certain Third Amended
and Restated Credit Agreement, dated as of even date herewith (together with all
amendments and other modifications, if any, from time to time hereafter made
thereto, the "Credit Agreement") by and among the Borrower, the various
financial institutions (including the Bank) as are, or may from time to time
become, parties thereto (collectively, the "Lenders"), First Union National
Bank, as Documentation Agent, NationsBank of Texas, N.A., as Administrative
Agent and The Bank of New York, as Syndication Agent. Capitalized terms used
herein and not defined herein shall have the meanings given thereto in the
Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding
is subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal of and interest on this Note shall be
payable in Dollars to the account designated by the Administrative Agent (and as
to which the Administrative Agent has notified the Borrower) in immediately
available funds.
This Note is a Revolving Credit Note referred to in, is entitled to the
benefits of, and evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Obligations evidenced by this Note and on which such
Obligations may be declared to be immediately due and payable.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
[This Note is an amendment and restatement of, and not a prepayment of,
the Amended and Restated Revolving Credit Note payable by the Borrower to the
order of the Bank pursuant to the Prior Credit Agreement.](1)
________
(1) Insert in Notes for Prior Lenders.
<PAGE> 91
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
<PAGE> 92
EXHIBIT A-2
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF THIRD AMENDED AND RESTATED SWINGLINE NOTE
<PAGE> 93
THIRD AMENDED AND RESTATED SWINGLINE NOTE
$25,000,000 September 5, 1997
FOR VALUE RECEIVED, the undersigned, LCI INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. (the "Bank"), at the place and times provided in the
Third Amended and Restated Credit Agreement referenced hereinafter, the
principal sum of Twenty-five Million Dollars ($25,000,000), or, if less, the
aggregate unpaid principal amount of all Swingline Loans made by the Bank from
time to time pursuant to that certain Third Amended and Restated Credit
Agreement dated as of even date herewith (together with all amendments and other
modifications, if any, from time to time hereafter made thereto, the "Credit
Agreement"), by and among the Borrower, the various financial institutions
(including the Bank) as are, or may from time to time become, party thereto (the
"Lenders"), First Union National Bank, as Documentation Agent, NationsBank of
Texas, N.A., as Administrative Agent and The Bank of New York, as Syndication
Agent. Capitalized terms used herein and not defined herein shall have the
meanings given thereto in the Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding
is subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All principal of and interest on this Note shall be payable in
Dollars to the account designated by the Administrative Agent (and as to which
the Administrative Agent has notified the Borrower) in immediately available
funds.
This Note is a Swingline Note referred to in, is entitled to the
benefits of, and evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a description of the security for this Note and for
a statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of the Obligations
evidenced by this Note and on which such Obligations may be declared to be
immediately due and payable.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
This Note is an amendment and restatement of, and not a prepayment of,
the Swingline Note payable by the Borrower to the order of the Bank pursuant to
the Prior Credit Agreement.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
[Signature Page Follows]
<PAGE> 94
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
LCI INTERNATIONAL, INC.,
[CORPORATE SEAL]
<PAGE> 95
EXHIBIT A-3
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent
FORM OF COMPETITIVE BID NOTE
<PAGE> 96
COMPETITIVE BID NOTE
$500,000,000 September 5, 1997
FOR VALUE RECEIVED, the undersigned, LCI INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________________ (the "Bank"), at the place and times and in the
manner provided in the Third Amended and Restated Credit Agreement referenced
hereinafter, the principal sum of Five Hundred Million Dollars ($500,000,000),
or, if less, the aggregate unpaid principal amount of all Competitive Bid Loans
disbursed by the Bank from the time pursuant to that certain Third Amended and
Restated Credit Agreement, dated as of even date herewith, (together with all
amendments and other modifications, if any, from time to time hereafter made
thereto, the "Credit Agreement"), by and among the Borrower, the various
financial institutions (including the Bank) as are, or from time to time become,
parties thereto (collectively, the "Lenders"), First Union National Bank, as
Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and The
Bank of New York, as Syndication Agent. Capitalized terms used herein and not
defined herein shall have the meanings given thereto in the Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding
is subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal of and interest on this Note shall be
payable in Dollars to the account designated by the Administrative Agent (and as
to which the Administrative Agent has notified the Borrower) in immediately
available funds.
This Note is a Competitive Bid Note referred to in, is entitled to the
benefits of, and evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a statement of terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Obligations evidenced by this Note and on which such
Obligations may be declared to be immediately due and payable.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
THIS COMPETITIVE BID NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
<PAGE> 97
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
<PAGE> 98
EXHIBIT B-1
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent
FORM OF NOTICE OF BORROWING
<PAGE> 99
NOTICE OF BORROWING
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: _______________
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you, in your
capacity as Administrative Agent, under Section 2.3 of the Third Amended and
Restated Credit Agreement dated as of September 5, 1997 by and among LCI
International, Inc., a Delaware corporation (the "Borrower"), the financial
institutions which are, or may from time to time become, party thereto
(collectively, the "Lenders"), First Union National Bank, as Documentation
Agent, NationsBank of Texas, N.A., as Administrative Agent and The Bank of New
York, as Syndication Agent (as amended or modified from time to time, the
"Credit Agreement").
1. The Borrower hereby requests that the Lenders make a [Revolving
Credit] [Swingline] Loan. (Delete as applicable)
2. The Borrower hereby requests that the Loan be made in the principal
amount of $________________. (Complete in accordance with Section 2.3 of the
Credit Agreement.)
3. The Borrower hereby requests that the Loan be made on the following
Business Day: _______________. (Complete in accordance with Section 2.3 of the
Credit Agreement.)
4. The Borrower hereby requests that the Revolving Credit Loan bear
interest at the following interest rate, plus the Applicable Margin: (Check one)
Base Rate, or
LIBOR Rate.
5. If the Loan requested is a LIBOR Rate Loan, the Borrower hereby
requests the following Interest Period applicable thereto: ______________.
(Complete in accordance with Section 4.1(b) of the Credit Agreement.)
6. The principal amount of all Extensions of Credit outstanding as of
the date hereof (including the requested Loan) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
7. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
<PAGE> 100
8. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
9. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
10. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Document are true and correct in all material
respects as of the date hereof (unless such representations and warranties are
expressly limited to speak only as of an earlier date, in which case such
representations and warranties shall remain true and correct as of such earlier
date), both before and after giving effect to the Loan requested herein.
11. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers.
12. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 101
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Borrowing this ____ day of __________, ____.
LCI INTERNATIONAL, INC.
<PAGE> 102
EXHIBIT B-2
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF ACCOUNT DESIGNATION
<PAGE> 103
NOTICE OF ACCOUNT DESIGNATION
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: _____________________
_____________ __, ____
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you, in your
capacity as Administrative Agent, under Section 2.3(b) of the Third Amended and
Restated Credit Agreement dated as of September 5, 1997 by and among LCI
International, Inc., a Delaware corporation (the "Borrower"), the financial
institutions which are, or may from time to time become, party thereto
(collectively, the "Lenders"), First Union National Bank, as Documentation
Agent, NationsBank of Texas, N.A., as Administrative Agent and The Bank of New
York, as Syndication Agent (as amended or modified from time to time, the
"Credit Agreement").
The Administration Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
[Signature Page Follows]
<PAGE> 104
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of _______, ____.
LCI INTERNATIONAL, INC.
<PAGE> 105
EXHIBIT B-3
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF PREPAYMENT
<PAGE> 106
NOTICE OF PREPAYMENT
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
________ __, ____
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you, in your
capacity as Administrative Agent, under Section 2.5(c) of the Third Amended and
Restated Credit Agreement dated as of September 5, 1997 by and among LCI
International, Inc., a Delaware corporation (the "Borrower"), the financial
institutions which are, or may from time to time become, party thereto
(collectively, the "Lenders"), First Union National Bank, as Documentation
Agent, NationsBank of Texas, N.A., as Administrative Agent and The Bank of New
York, as Syndication Agent (as amended or modified from time to time, the
"Credit Agreement").
1. The Borrower hereby provides notice to the Agent that the Borrower
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans] and/or
[Swingline Rate Loans]: ___________________. (Complete with an amount in
accordance with Section 2.5 of the Credit Agreement.)
2. The Borrower shall repay the above referenced Loans on the following
Business Day: _______________. (Complete with a Business Day in accordance with
Section 2.5 of the Credit Agreement.)
3. The Borrower shall repay the above referenced Loans in the following
amount: ________________. (Complete with a Business Day in accordance with
Section 2.5 of the Credit Agreement.)
4. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 107
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of _______, 19__.
LCI INTERNATIONAL, INC.
<PAGE> 108
EXHIBIT C-1
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMPETITIVE BID REQUEST
<PAGE> 109
COMPETITIVE BID REQUEST
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: _______________
________ __, ____
Ladies and Gentlemen:
This Competitive Bid Request is delivered to you, in your capacity as
Administrative Agent, under Section 2.4(a) of the Third Amended and Restated
Credit Agreement dated as of September 5, 1997 by and among LCI INTERNATIONAL,
INC. (the "Borrower"), the financial institutions which are, or may from time to
time become, party thereto (collectively, the "Lenders"), First Union National
Bank, as Documentation Agent, NationsBank of Texas, N.A., as Administrative
Agent and The Bank of New York, as Syndication Agent (as amended or modified
from time to time, the "Credit Agreement").
1. The Borrower hereby requests a Competitive Bid Loan under the Credit
Agreement, and in connection therewith sets forth below the terms on which such
Competitive Bid Loan is requested to be made: (Complete in accordance with
Section 2.4(b) and 4.1(b) of the Credit Agreement.)
(a) Date of Competitive Bid Loan
(b) Principal Amount of
Competitive Bid Loan
(c) Interest Periods and the last
day thereof
2. The principal amount of all Extensions of Credit outstanding as of
the date hereof (including the requested Loan) will not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
3. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
4. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
<PAGE> 110
5. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
6. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the Loan
requested herein (unless such representations and warranties are expressly
limited to speak only as of an earlier date, in which case such representations
and warranties remain true and correct as of such earlier date).
7. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers .
8. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 111
IN WITNESS WHEREOF, the undersigned has executed this Competitive Bid
Request this ____ day of _______, 19__.
Very truly yours,
LCI INTERNATIONAL, INC.
<PAGE> 112
EXHIBIT C-2
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF INVITATION TO BID
<PAGE> 113
INVITATION TO BID
[Name of Lender]
[Address]
[Date]
Attention: _____________
Dear Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Credit Agreement
dated as of September 5, 1997 by and among LCI International, Inc., a Delaware
corporation (the "Borrower"), the financial institutions which are, or may from
time to time become, party thereto (collectively, the "Lenders"), First Union
National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement"). All undefined
capitalized terms used herein have the meanings assigned thereto in the Credit
Agreement.
The Borrower made a Competitive Bid Request on ______________, _____,
pursuant to Section 2.4(a) of the Credit Agreement, and in connection therewith
you are invited to submit a Competitive Bid by [Date]/[Time]. (The Competitive
Bid must be received by the Administrative Agent no earlier than 10:30 a.m.,
Charlotte time, on the proposed borrowing date.) Your Competitive Bid must
comply with Section 2.4 of the Credit Agreement and the terms set forth below on
which such Competitive Bid Loan is requested to be made.
(a) Date of Competitive Bid Loan
(a) Principal amount of
Competitive Bid Loan
(c) Interest Periods and the last
day thereof
Very truly yours,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent
<PAGE> 114
EXHIBIT C-3
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York
as Syndication Agent.
FORM OF COMPETITIVE BID
<PAGE> 115
COMPETITIVE BID
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
________ __, ____
Ladies and Gentlemen:
The undersigned, [Name of Lender] refers to the Third Amended and
Restated Credit Agreement dated as of September 5, 1997 by and among LCI
International, Inc., a Delaware corporation (the "Borrower"), the financial
institutions which are, or may from time to time become, party thereto
(collectively, the "Lenders"), First Union National Bank, as Documentation
Agent, NationsBank of Texas, N.A., as Administrative Agent and The Bank of New
York, as Syndication Agent (as amended or modified from time to time, the
"Credit Agreement"). All undefined capitalized terms used herein have the
meanings assigned thereto such terms in the Credit Agreement.
1. The undersigned hereby makes a Competitive Bid pursuant to Section
2.4(b) of the Credit Agreement, in response to the Competitive Bid Request made
by the Borrower on ____________, ____, and in connection therewith sets forth
below the terms on which such Competitive Bid is made: (Complete in accordance
with Section 4.1(b) of the Credit Agreement.)
(a) Date of Competitive Bid
(b) Principal Amount
(c) Interest Periods and last
day thereof
2. The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.4(d) of
the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
<PAGE> 116
EXHIBIT C-4
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
<PAGE> 117
COMPETITIVE BID ACCEPT/REJECT LETTER
________ __, ____
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
Ladies and Gentlemen:
The undersigned, LCI INTERNATIONAL, INC. (the "Borrower"), refers to
the Third Amended and Restated Credit Agreement dated as of September 5, 1997 by
and among the Borrower, the financial institutions which are, or may from time
to time become, party thereto (collectively, the "Lenders"), First Union
National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or otherwise modified from time to time the "Credit Agreement").
1. In accordance with Section 2.4(b) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
____________, _____, and in accordance with Section 2.4(c) of the Credit
Agreement, we hereby accept the following:
(a) Date of Competitive Bid Loan
(b) Principal Amount
(c) Interest Period
(d) Lender
2. We hereby reject the following bids:
(a) Date of Competitive Bid Loan
(b) Principal Amount
(c) Interest Period
(d) Lender
3. The principal amount of all Extensions of Credit outstanding as of
the date hereof (including the accepted Loan, if any) does not exceed the
maximum amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
<PAGE> 118
4. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
7. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the Loan
requested herein (unless such representations and warranties are expressly
limited to speak only as of an earlier date, in which case such representations
and warranties remain true and correct as of such earlier date).
8. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers.
9. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 119
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of ______________, ____.
LCI INTERNATIONAL, INC.
<PAGE> 120
EXHIBIT D
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF CONVERSION/CONTINUATION
<PAGE> 121
NOTICE OF CONVERSION/CONTINUATION
NationsBank of Texas, N.A., as Administrative Agent
901 South Main Street
Dallas, Texas 75202
Attention: _____________
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation is delivered to you,
in your capacity as Administrative Agent, under Section 4.2 of the Third Amended
and Restated Credit Agreement dated as of September 5, 1997 among LCI
International, Inc., a Delaware Corporation (the "Borrower"), the financial
institutions which are, or may from time to time become, party thereto
(collectively, the "Lenders"), First Union National Bank, as Documentation
Agent, NationsBank of Texas, N.A., as Administrative Agent and The Bank of New
York, as Syndication Agent (as amended or otherwise modified from time to time
the "Credit Agreement").
1. This Notice of Conversion/Continuation is submitted with respect to
a Revolving Credit Loan for the purpose of: (Check one and complete applicable
information.)
Converting a Base Rate Loan into a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The principal amount of such Loan to be converted is
$_______________. (Complete in accordance with
Section 4.2 of the Credit Agreement.)
(c) The requested effective date of the conversion of
such Loan is _______________. (Complete in accordance
with Section 4.2 of the Credit Agreement.)
(d) The requested LIBOR Interest Period applicable to the
converted Loan is _______________. (Complete in
accordance with Section 4.1 of the Credit Agreement.)
Converting a LIBOR Rate Loan into a Base Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The last day of the current LIBOR Interest Period for
such Loan is _______________.
<PAGE> 122
(c) The principal amount of such Loan to be converted is
$_______________. (Complete in accordance with
Section 4.2 of the Credit Agreement.)
(d) The requested effective date of the conversion of
such Loan is _______________. (Complete in accordance
with Section 4.2 of the Credit Agreement.)
Continuing a LIBOR Rate Loan as a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The last day of the current LIBOR Interest Period for
such Loan is _______________.
(c) The principal amount of such Loan to be continued is
$_______________. (Complete in accordance with
Section 4.2 of the Credit Agreement.)
(d) The requested effective date of the continuation of
such Loan is _______________. (Complete in accordance
with Section 4.2 of the Credit Agreement.)
(e) The requested LIBOR Interest Period applicable to the
continued Loan is _______________. (Complete in
accordance with Section 4.1 of the Credit Agreement.)
2. The principal amount of all Extensions of Credit outstanding as of
the date hereof does not exceed the maximum amount permitted to be outstanding
pursuant to the terms of the Credit Agreement.
3. The obligations of the Borrower set forth in the Credit Agreement
and the Loan Documents are valid, binding and enforceable obligations of the
Borrower as of the date hereof, both before and after giving effect to the
conversion or continuation of the Loan requested herein.
4. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied as of the date hereof and will remain satisfied to the date of such
Loan.
5. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Loan requested herein.
6. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the
conversion or continuation of the Loan requested herein (unless such
representations and warranties are expressly limited to speak only as of an
earlier
<PAGE> 123
date, in which case such representations and warranties remain true and correct
as of such earlier date).
7. The execution of this Notice of Conversion/Continuation does not
violate the material terms and conditions of any Material Contract or Contingent
Obligation of the Borrower.
8. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 124
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/Continuation this ____ day of __________, ____.
LCI INTERNATIONAL, INC.
Confirmed LIBOR Rate for ___ month LIBOR Interest Period: ____%[Base]
____%[Spread]
____%[Total]
Authorized Signature:
<PAGE> 125
EXHIBIT E
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
<PAGE> 126
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of LCI International, Inc., a Delaware
corporation (the "Borrower"), hereby certifies to NATIONSBANK OF TEXAS, N.A., in
its capacity as Administrative Agent for the Lenders referred to below (the
"Administrative Agent"), and to each of the Lenders and other Agents as follows:
1. This Certificate is delivered pursuant to Section 7.2 of the Third
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
September 5, 1997 by and among the Borrower, the financial institutions which
are, or may from time to time become, party thereto (collectively, the
"Lenders"), First Union National Bank, as Documentation Agent, NationsBank of
Texas, N.A., as Administrative Agent and The Bank of New York, as Syndication
Agent (as amended or otherwise modified from time to time). Capitalized terms
used herein and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
2. I have reviewed the financial statements of the Borrower and its
Subsidiaries dated as of _______________ and for the _______________ period then
ended and such statements fairly present the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of their
operations and cash flows for the periods indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and the
related Loan Documents and have made, or caused to be made under my supervision,
a review in reasonable detail of the transactions and the condition of the
Borrower and its Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not
disclosed the existence during or at the end of such accounting period of any
condition or event that constitutes a Default or an Event of Default under the
Credit Agreement, nor do I have any knowledge of the existence of any such
condition or event as at the date of this Certificate [except, [if such
condition or event existed or exists, describe the nature and period of
existence thereof and what action the Borrower and its Subsidiaries have taken,
are taking and propose to take with respect thereto]].
4. The Borrower and its Subsidiaries are in compliance with the
covenants contained in Article IX of the Credit Agreement as shown on the
attached Schedule 1 and in compliance with the other covenants and restrictions
contained in Articles VII, VIII and X of the Credit Agreement.
5. As set forth in the attached Schedule 1 and in accordance with
Section 4.1(c) of the Credit Agreement, the Applicable Margin for Base Rate
Loans will be ____ and for LIBOR Rate Loans will be _____ effective three (3)
Business Days after the date of receipt hereof by the Administrative Agent.
[Signature Page Follows]
<PAGE> 127
WITNESS the following signature as of the ____ day of __________, 19__.
__________________________[SEAL]
Name:__________________________
Title:_________________________
<PAGE> 128
Schedule 1
to
Officer's Certificate
<PAGE> 129
EXHIBIT F
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 130
ASSIGNMENT AND ACCEPTANCE
Dated _________
Reference is made to the Third Amended and Restated Credit Agreement
dated as of September 5, 1997 by and among LCI International, Inc., a Delaware
corporation (the "Borrower"), the financial institutions which are, or may from
time to time become, party thereto (collectively, the "Lenders"), First Union
National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement"). Capitalized terms which
are defined in the Credit Agreement and which are used herein and not defined
shall have the meanings given thereto in the Credit Agreement.
____________________ (the "Assignor") and _____________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a ____% interest in and to all of the Assignor's
interests, rights and obligations under the Credit Agreement and the other Loan
Documents [, other than with respect to Competitive Bid Loans,] and the Assignor
thereby retains ____% of its interest therein [, other than with respect to
Competitive Bid Loans]. This Assignment and Acceptance is entered pursuant to,
and authorized by, Section 13.10 of the Credit Agreement.
2. The Assignor (a) represents that, as of the date hereof, (i) its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) under the Credit Agreement, (ii) the outstanding
balance of its Revolving Credit Loans (unreduced by any assignments thereof
which have not yet become effective) under the Credit Agreement, (iii) the
outstanding balance of its Commitment Percentage of the L/C Obligations
(unreduced by any assignments thereof which have not yet become effective), and
[(iv) the outstanding balance of its Competitive Bid Loans under the Credit
Agreement] (unreduced by any assignments thereof which have not yet become
effective) are each set forth in Section 2 of Schedule I hereto; (b) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (c) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or its Subsidiaries or
the performance or observance by the Borrower or its Subsidiaries of any of
their obligations under the Credit Agreement or any other instrument or document
furnished or executed pursuant thereto; (d) attaches the Revolving Credit Note
delivered to it under the Credit Agreement and requests that the Borrower
exchange such Note for new Revolving Credit Notes payable to each of the
Assignor and the Assignee as follows:
<PAGE> 131
<TABLE>
<CAPTION>
Revolving Credit
Note Payable to Principal Amount of
the Order of: Revolving Credit Note
------------- ---------------------
<S> <C>
_____________________ $ ____________________
_____________________ $ ____________________
</TABLE>
[(e) attaches the Competitive Bid Note delivered to it under the Credit
Agreement (if such Assignor is assigning 100% of its interests, rights and
obligations under the Credit Agreement and other Loan Documents) and it requests
that the Borrower deliver a Competitive Bid Note payable to the Assignee in the
face amount of $___________.]
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1(p) or Section 7.1
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to such Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (f) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (g) agrees that it
will keep confidential all the information with respect to the Borrower
furnished to it by the Borrower or the Assignor (other than information required
or requested to be disclosed by it pursuant to regulatory requirements or legal
process; information requested by and disclosed to its auditors, accountants and
attorneys; provided that the Assignee shall use its best efforts to have such
Persons enter into a confidentiality agreement with respect to such information;
and information generally available to the public or otherwise available to the
Assignee on a nonconfidential basis).
4. The effective date for this Assignment and Acceptance shall be set
forth in Section 1 of Schedule I hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for consent by the Borrower and the Agent and acceptance
and recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the
<PAGE> 132
rights and obligations of a Lender under each such agreement, and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT
UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[Signature Pages Follow]
<PAGE> 133
ASSIGNOR
Commitment Percentage ____
ASSIGNEE
Commitment Percentage ____
<PAGE> 134
Acknowledged and Consented to:
LCI INTERNATIONAL, INC.
By:__________________________
Name:_____________________
Title:____________________
Consented to and Accepted:
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent under the Credit Agreement
By:__________________________
Name:_____________________
Title:____________________
FIRST UNION NATIONAL BANK,
as Documentation Agent under the Credit Agreement
By:__________________________
Name:_____________________
Title:____________________
<PAGE> 135
Schedule I
to
Assignment and Acceptance
1. Effective Date _________,____
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage of Assignor _____%
(b) Outstanding balance of Assignor's
Revolving Credit Loans $____
(c) Outstanding balance of Assignor's
Commitment Percentage of the
L/C Obligations $____
[(d) Outstanding balance of Assignor's
Competitive Bid Loans $____]
3. Assigned Interest
(from Section 1) _____%
4. Assignee's Extensions of Credit after
Effective Date
(a) Outstanding Balance of Assignee's
Revolving Credit Loans after Effective
Date (line 2(b) times line 3) $_____
(b) Outstanding Balance of Assignee's
Commitment Percentage of L/C
Obligations (line 2(c) times line 3) $_____
[(c) Outstanding Balance of Assignee's
Competitive Bid Loans after Effective
Date (line 2(d) times line 3) $_____]
5. Retained Interest of Assignor after
Effective Date $_____
(a) Retained Interest (from Section 1) ______%
(b) Outstanding balance of Assignor's
Revolving Credit Loans
<PAGE> 136
(line 2(b) times line 5(a)) $_____
(c) Outstanding balance of Assignor's
Commitment Percentage of L/C
Obligations (line 2(c) times lines 5(a)) $_____
[(d) Outstanding Balance of Assignor's
Competitive Bid Loans
(line 2(d) times line 5(a)) $_____]
6. Payment Amounts $_____
(a) Payable by Assignee to Assignor $_____
(b) Payable by Assignor to Assignee $_____
7. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
________________________________
________________________________
________________________________
Routing No.:____________________
Account No.:____________________
Attn:___________________________
Reference:______________________
(b) If payable to Assignee, to the account
of Assignee to:
________________________________
________________________________
________________________________
Routing No.:____________________
Account No.:____________________
Attn:___________________________
Reference:______________________
<PAGE> 137
EXHIBIT G-1
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NEW LENDER SUPPLEMENT
<PAGE> 138
NEW LENDER SUPPLEMENT
THIS NEW LENDER SUPPLEMENT dated as of the __ day of _____________,
199_ (this "New Lender Supplement"), to the Third Amended and Restated Credit
Agreement referred to below is entered into by and among LCI INTERNATIONAL,
INC., a corporation organized under the laws of Delaware (the "Borrower"),
NATIONSBANK OF TEXAS, N.A., as Administrative Agent (the "Administrative
Agent"), FIRST UNION NATIONAL BANK, as Documentation Agent (the "Documentation
Agent"; and together with the Administrative Agent, the "Lead Agents") and
____________________________ (the "New Lender").
Statement of Purpose
The Borrower is party to a Third Amended and Restated Credit Agreement
dated as of September 5, 1997 (as supplemented hereby and as further amended,
supplemented or otherwise modified, the "Credit Agreement"), among the Borrower,
the Lenders party thereto, the Lead Agents and the Bank of New York, as
Syndication Agent.
Pursuant to Section 2.9 of the Credit Agreement, the Borrower is
entitled to increase the total amount of the Aggregate Commitments thereunder by
accepting the offer of any Person (other than a Lender) constituting an Eligible
Assignee to become a new Lender thereunder. Pursuant to such Section the New
Lender, Borrower and Lead Agents hereby agree that the New Lender shall be a
Lender under the Credit Agreement and in connection therewith execute this New
Lender Supplement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Joinder of New Lender.
(a) Joinder. Pursuant to Section 2.9 of the Credit Agreement, the New
Lender hereby agrees that it is a Lender under the Credit Agreement as if a
signatory thereto on the Closing Date, and the New Lender shall comply with and
be subject to and have the benefit of all of the terms, conditions, covenants,
agreements and obligations set forth therein. The New Lender hereby agrees that
each reference to a "Lender" or the "Lenders" in the Credit Agreement shall
include the New Lender. The New Lender acknowledges that it has received a copy
of the Credit Agreement and that it has read and understands the terms thereof.
(b) Commitment Adjustment. If any Loans (other than Competitive Bid
Loans) are outstanding on the date hereof, the Administrative Agent shall make
such transfers of funds as are necessary in order that the outstanding balance
of such loans reflects the Commitment Percentages of the Lenders after giving
effect to the joinder of the New Lender pursuant to this New Lender Supplement
and any increase in the Aggregate Commitments pursuant hereto.
(c) Updated Schedule. Attached hereto is an updated Schedule 1 to the
Credit Agreement revised to include the joinder of The New Lender as a Lender
and its Commitment thereunder and the corresponding increase in the total amount
of the Aggregate Commitments.
<PAGE> 139
(d) Letters of Credit. If any Letters of Credit are outstanding on the
date hereof, the Administrative Agent shall make appropriate arrangements so
that, after giving effect to the joinder of the New Lender contemplated hereby,
each Lender's L/C Obligations are equal to such Lender's Commitment Percentage
of the L/C Obligations of all the Lenders. In its capacity as an L/C Participant
under the Credit Agreement, the New Lender hereby purchases a participation in
all Letters of Credit in accordance with Section 3.4 of the Credit Agreement.
2. Representations and Warranties.
(a) The Borrower hereby confirms that each representation and warranty
made by it under the Loan Documents is true and correct in all material respects
as of the date hereof and that no Default or Event of Default has occurred or is
continuing under the Credit Agreement.
(b) Representations and Warranties of the New Lender. The New Lender
hereby represents and warrants that it is an Eligible Assignee.
3. General Provisions.
(a) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or (ii) to prejudice any right or rights which the Agents
or Lenders may now have or may have in the future under or in connection with
the Credit Agreement or the Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Costs and Expenses. The Borrower hereby agrees to pay or reimburse
the Lead Agents for all reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of this Agreement including, without limitation, the reasonable fees and
disbursements of counsel.
(c) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(d) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
<PAGE> 140
IN WITNESS WHEREOF the undersigned have duly executed this Increasing
Lender Supplement as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
NATIONSBANK, N.A., as Administrative
Agent
FIRST UNION NATIONAL BANK, as
Documentation Agent
[NEW LENDER]
[CORPORATE SEAL]
<PAGE> 141
EXHIBIT G-2
to
Third Amended and Restated Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMMITMENT INCREASE SUPPLEMENT
<PAGE> 142
COMMITMENT INCREASE SUPPLEMENT
THIS Commitment Increase Supplement, dated as of the __ day of
________________, 199_ (this "Commitment Increase Supplement"), to the Third
Amended and Restated Credit Agreement referred to below is entered into by and
among LCI INTERNATIONAL, INC., a corporation organized under the laws of
Delaware (the "Borrower"), NATIONSBANK OF TEXAS, N.A., as Administrative Agent
(the "Administrative Agent"), FIRST UNION NATIONAL BANK, as Documentation Agent
(the "Documentation Agent"; and together with the Administrative Agent, the
"Lead Agents") and ____________________________ (the "Increasing Lender").
Statement of Purpose
The Borrower is party to a Third Amended and Restated Credit Agreement
dated as of September 5, 1997 (as supplemented hereby and as further amended,
supplemented or otherwise modified, the "Credit Agreement"), among the Borrower,
the Increasing Lender, the other Lenders party thereto, the Lead Agents and the
Bank of New York, as Syndication Agent.
Pursuant to Section 2.9 of the Credit Agreement, the Borrower is
entitled to increase the total amount of the Aggregate Commitments thereunder by
accepting the offer of a Lender to increase its Commitment thereunder. Pursuant
to such Section the Increasing Lender, the Borrower and the Lead Agents hereby
agree that the Commitment of the Increasing Lender under the Credit Agreement
shall be increased as set forth herein and in connection therewith execute this
Commitment Increase Supplement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Commitment Increase.
(a) Commitment Increase. Pursuant to Section 2.9 of the Credit
Agreement, the Increasing Lender hereby agrees that its Commitment under the
Credit Agreement shall be increased to $________________.
(b) Commitment Adjustment. If any Loans (other than Competitive Bid
Loans) are outstanding on the date hereof, the Administrative Agent shall make
such transfer of funds as are necessary in order that the outstanding balance of
such Loans reflects the Commitment Percentages of the Lenders after giving
effect to the increase in the Commitment of the Increasing Lender and the
corresponding increase in the Aggregate Commitments pursuant hereto.
(c) Updated Schedule. Attached hereto is an updated Schedule 1 to the
Credit Agreement revised to include the increase in the Increasing Lender's
Commitment thereunder and the corresponding increase in the total amount of the
Aggregate Commitments.
(d) Letters of Credit. If any Letters of Credit are outstanding on the
date hereof, the Administrative Agent shall make appropriate arrangements so
that, after giving effect to the
<PAGE> 143
increase in the Commitment of the Increasing Lender's Commitment contemplated
hereby, each Lender's L/C Obligations are equal to such Lender's Commitment
Percentage of the L/C Obligations of all the Lenders.
2. Representations and Warranties of the Borrower. The Borrower hereby
confirms that each representation and warranty made by it under the Loan
Documents is true and correct in all material respects as of the date hereof and
that no Default or Event of Default has occurred or is continuing under the
Credit Agreement.
3. General Provisions.
(a) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or (ii) to prejudice any right or rights which the Agents
or Lenders may now have or may have in the future under or in connection with
the Credit Agreement or the Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Costs and Expenses. The Borrower hereby agrees to pay or reimburse
the Lead Agents for all reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of this Agreement including, without limitation, the reasonable fees and
disbursements of counsel.
(c) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(d) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
<PAGE> 144
IN WITNESS WHEREOF the undersigned have duly executed this Commitment
Increase Supplement as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
NATIONSBANK, N.A., as Administrative Agent
FIRST UNION NATIONAL BANK, as
Documentation Agent
[INCREASING LENDER]
<PAGE> 145
SCHEDULE 1
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Commitment
Lender and Address Commitment Percentage
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
First Union National Bank $40,000,000.00 8.0000000000%
One First Union Center
301 S. College Street, TW-19
Charlotte, NC 28288-0735
Attn: Mr. Lloyd R. Sams
Ph: (704) 374-4151
Fax: (704) 374-4092
- ----------------------------------------------------------------------------------------------------------------------------------
NationsBank of Texas, N.A. $39,999,999.97 7.9999999994%
901 Main Street, 64th Floor
Dallas, TX 75202
Attn: Mr. Brian D. Corum
Attn: Mr. Anthony M. Cacheria
Ph: (214) 508-0921
Fax: (214) 508-9390
- ----------------------------------------------------------------------------------------------------------------------------------
The Bank of New York $40,000,000.00 8.0000000000%
One Wall Street, 16th Floor
New York, NY 10286
Attn: Brian Weddington
Ph: (212) 635-8473
Fax: (212) 635-8595
- ----------------------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $26,666,666.67 5.3333333333%
One Liberty Plaza, 26th Floor
New York, NY 10006
Attn: Mr. Jim Trimble
Ph: (212) 225-5011
Fax: (212) 225-5090
- ----------------------------------------------------------------------------------------------------------------------------------
Creditanstalt Corporate Finance, Inc. $14,000,000.00 2.8000000000%
2 Ravinia Drive, Suite 1680
Atlanta, GA 30346
Attn: Mr. Carl Drake
Ph: (404) 390-1858
Fax: (404) 390-1851
- ----------------------------------------------------------------------------------------------------------------------------------
CoreStates Bank, N.A. $26,666,666.67 5.3333333333%
FC-1-8-11-28
1339 Chestnut Street
Philadelphia, PA 19101
Attn: Ms. Lynae Sowersby Young
Ph: (215) 786-4316
Fax: (215) 786-7721
</TABLE>
<PAGE> 146
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Fleet National Bank $14,000,000.00 2.8000000000%
MA OF DO3D
One Federal Street
Boston, MA 02111
Attn: Christopher A. Swindell
Ph: (617) 346-5579
Fax: (617) 346-4346
- ----------------------------------------------------------------------------------------------------------------------------------
The First National Bank of Chicago $26,666,666.67 5.3333333333%
Mail Suite 0374
1 First National Plaza
Chicago, IL 60670
Attn: Ms. Lynne Sanders
Ph: (312) 732-5125
Fax: (312) 732-5587
- ----------------------------------------------------------------------------------------------------------------------------------
Toronto Dominion (New York), Inc. $26,666,666.67 5.3333333333%
909 Fannin Street
Suite 1700
Houston, TX 77010
Attn: Jimmy Simien
Ph: (713) 653-8239
Fax: (713) 951-9921
- ----------------------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, Limited, $10,000,000.00 2.0000000000%
New York Branch
227 Park Avenue
New York, NY 10172
Attn: Anatoly Nakum
Ph: (212) 224-4117
Fax: (212) 224-5188
- ----------------------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association $26,666,666.67 5.3333333333%
1600 Market Street, 21st Floor
Philadelphia, PA 19103
Attn: Mr. Daniel Hopkins
Ph: (215) 585-7468
Fax: (215) 585-6680
- ----------------------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N. V. $14,000,000.00 2.8000000000%
135 South LaSalle Street
Suite 2805
Chicago, IL 60603
Attn: Credit Administration
Ph: (312) 904-8835
Fax: (312) 904-8840
copy to:
One PPG Place, Suite 2950
Pittsburgh, PA 15222-5400
Attn: Mr. Gregory Amoroso
Ph: (412) 566-0983
Fax: (412) 566-2266
</TABLE>
<PAGE> 147
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bank of Hawaii $14,000,000.00 2.8000000000%
1839 S. Alma School Road
Suite 150
Mesa, AZ 85210
Attn: Ms. Beth MacLean
Ph: (602) 752-8019
Fax: (602) 752-8007
- ----------------------------------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $14,000,000.00 2.8000000000%
One World Trade Center
48th Floor
New York, NY 10048
Attn: Ms. Yasmin Campbell
Ph: (212) 432-8800
Fax: (212) 919-1879
- ----------------------------------------------------------------------------------------------------------------------------------
Comercia Bank $10,000,000.00 2.0000000000%
U.S. Banking East
500 Woodward Avenue, 9th Floor
Detroit, MI 48275-3280
Attn: Tamara J. Gurne
Ph: (313) 222-7806
Fax: (313) 222-3330
- ----------------------------------------------------------------------------------------------------------------------------------
CIBC, Inc. $26,666,666.67 5.3333333333%
425 Lexington Avenue, 8th Floor
New York, NY 10017
Attn: Bob Stewart/Susan Hanna
Ph: (212) 856-3839
Fax: (212) 856-3763
- ----------------------------------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi $14,000,000.00 2.8000000000%
Trust Company
U. S. Corporate Banking
Media, Communications and
Entertainment Dept.
1251 Avenue of the Americas
New York,NY 10020
Attn: Glenn B. Eckert
Ph: (212) 782-4559
Fax: (212) 782-4935
- ----------------------------------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited $10,000,000.00 2.0000000000%
1251 Avenue of the Americas
New York, NY 10020-1104
Attn: William Kennedy,
Vice President
Ph: (212) 282-3516
Fax: (212) 282-4250
- ----------------------------------------------------------------------------------------------------------------------------------
Royal Bank of Canada $26,666,666.67 5.3333333333%
Financial Square, 23rd Floor
New York, NY 10005-3531
Attn: John Page
Ph: (212) 428-6551
Fax: (212) 428-6460
</TABLE>
<PAGE> 148
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Signet Bank $10,000,000.00 2.0000000000%
7799 Leesburg Pike, Suite 500N
Falls Church, VA 22043
Attn: Mr. Vincent P. Griffin
Ph: (703) 714-5015
Fax: (703) 506-9712
- ----------------------------------------------------------------------------------------------------------------------------------
First National Bank of Maryland $14,000,000.00 2.8000000000%
601 13th Street, NW
Suite 1000N
Washington, DC 20005
Attn: Lauren Johnston
Ph: (202) 661-7227
Fax: (202) 661-7238
- ----------------------------------------------------------------------------------------------------------------------------------
Caisse Nationale de Credit Agricole $20,666,666.67 4.1333333333%
520 Madison Avenue
New York, NY 10022
Attn: Michael A. Cantone
Ph: (212) 418-7071
Fax: (212) 418-2228
- ----------------------------------------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited $14,000,000.00 2.8000000000%
133 Peachtree Street
Georgia-Pacific Center,
Suite 4950
Atlanta, GA 30303
Attn: William M. Plough
Ph: (404) 586-6883
Fax: (404) 589-1629
- ----------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. $20,666,666.67 4.1333333333%
100 North Main Street
Winston-Salem, NC 27101
Attn: Abigail M. Matia
Ph: (910) 732-3138
Fax: (910) 732-6935
==================================================================================================================================
</TABLE>
<PAGE> 149
SCHEDULE 6.1(a)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATIONS
TO DO BUSINESS AS A FOREIGN CORPORATION
OF BORROWER AND ITS SUBSIDIARIES
LCI INTERNATIONAL, INC. (Incorporated: Delaware)
Virginia
LCI INTERNATIONAL MANAGEMENT SERVICES, INC. (Incorporated: Delaware)
California
District of Columbia
Georgia
Illinois
Indiana
Kentucky
Michigan
New Jersey
North Carolina
Ohio
Pennsylvania
Virginia
Wisconsin
LCI INTERNATIONAL TELECOM CORP. (Incorporated: Delaware)
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
1
<PAGE> 150
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New Hampshire
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
1056974 ONTARIO INC. (Incorporated: Ontario, Canada)
None.
LCI INTERNATIONAL SC, INC. (Incorporated: Delaware)
South Carolina
2
<PAGE> 151
LCI INTERNATIONAL OF VIRGINIA, INC. (Incorporated: Virginia)
None.
LCI SPC I, INC. (Incorporated: Delaware)
Virginia.
LCI TELECOM UK, LTD. (Pending Incorporation in the United Kingdom)
None.
3
<PAGE> 152
Page 1 of 3
SCHEDULE 6.1(b)
<TABLE>
<CAPTION>
SHARES ISSUED
SHARES AND
SUBSIDIARY CLASS PAR VALUE AUTHORIZED OUTSTANDING
- ---------- ----- --------- ---------- -----------
<S> <C> <C> <C> <C>
LCI International, Inc. ("LCII") Common $0.01 100,000,000 78,432,516
Preferred $0.01 15,000,000 -----------
LCI International Management
Services, Inc. ("LCIM")
Common $0.01 1,000 100
Preferred $0.01 1,000 Series A-100
Series B-100
Series C-100
Series D-100
1056974 Ontario Inc. Common N/A Unlimited 12,045,000
LCI International Telecom
Corp. ("LCIT") Common $0.00 1,000 117.54
</TABLE>
4
<PAGE> 153
Page 2 of 3
SCHEDULE 6.1(b) (CONTINUED)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
LCI International SC, Inc. Common $0.01 1,000 10
LCI International of
Virginia, Inc. Common $0.01 100 10
LCI SPC I, Inc. Common $0.01 100 10
*LCI Telecom UK, Ltd. Common $0.00 1,000 2
</TABLE>
*Incorporation pending in United Kingdom.
5
<PAGE> 154
Page 3 of 3
SCHEDULE 6.1(b) (CONTINUED)
OTHER STOCKHOLDER AGREEMENTS:
1. 1992 Stock Option Plan
2. 1993 Nonqualified Stock Option Plan for Directors
3. 1993 Stock Option Plan
4. 1993 Stock Purchase Plan, as amended and restated
5. 1994/1995 Stock Option Plan
6. 1995/1996 Stock Option Plan
7. 1997/1998 Stock Option Plan
8. Rights Agreement dated January 22, 1997 - Fifth Third Bank
9.* Warrants to purchase an aggregate of 5,158,556 shares of Common Stock
of Borrower at an exercise price of $2.83 per share. These warrants
were allocated proportionately among holders of certain convertible
notes based on their ownership percentage of such notes as of 3/31/93.
*All shares and prices reflect a split of 2-to-1 effective September 29, 1995.
6
<PAGE> 155
SCHEDULE 6.1(i)
ERISA PLANS
EMPLOYEE BENEFIT PLANS:
1. Health Care, Dental and Vision Benefits are self-funded with Aetna
Health Plans as Plan Administrator
2. Group Life and Dependent Life - Aetna Health Plans
3. Accidental Death and Dismemberment Insurance - Commercial Life
Insurance Company
4. Short Term Disability Insurance -self-funded with Aetna Health Plans
providing utilization management services.
5. Long-Term Disability Insurance - Aetna Health Plans
6. Tuition Assistance
7. Executive Perquisite Plan
8. Supplemental Executive Retirement Plan (SERP)
9. 401(k) Plan - CIGNA
10. Flexible Spending Accounts for Dependent Care and Medical Expenses -
Atena Health Plans
7
<PAGE> 156
SCHEDULE 6.1(l)
INTELLECTUAL PROPERTY MATTERS
AT&T has indicated to the Company that it believes the Company may be
infringing on certain AT&T patents and has offered to license such patents, and
others, to the Company. The Company does not believe that it is infringing on
any AT&T patents. However, AT&T has numerous patents, some of which may pertain
to the provision of services similar to those currently provided or to be
provided by the Company or to equipment similar to that used or to be used by
the Company.
8
<PAGE> 157
SCHEDULE 6.1(m)
MATERIAL CONTRACTS
1. Alcatel Network Systems, Inc. - Design, Engineer, Supply and Systems
Integration Agreement dated May 29, 1997.
2. American Communications Network, Inc. - Representative Agreement dated
May 1, 1996.
3. IXC Carrier, Inc. - Construction and IRU Agreement, Joint Use Agreement
and Tax Understanding (fiber build Chicago to Los Angeles) dated
February 4, 1997.
4. MCI Network Services Agreement dated December 22, 1994.
5. Northern Telecom Inc. - Basic Supply Agreement for Telecommunications
Products dated January 1, 1996.
6. Tellabs Operations, Inc. - Letter Agreement (supplier of Cross Connect
systems renewal agreement) dated January 21, 1997.
7. Fifth Third Bank - Rights Agreement dated January 22, 1997.
8. First Trust National Association - Indenture dated June 23, 1997.
9. PNC Bank, N.A. - $25 Million Line of Credit to LCI International, Inc.
(LCII) - dated September 12, 1996 - Amount utilized as of 9/3/97 -
$2,900,000.
10. The Bank of New York - $25 Million Line of Credit to LCII - dated
December 31, 1996 - Amount utilized as of 9/3/97 - $4,700,000.
11. The Dai-Ichi Kango Bank, Ltd. - $25 Million Line of Credit to LCII -
dated August 25, 1997 - Amount utilized as of 9/3/97 - None.
9
<PAGE> 158
SCHEDULE 6.1(n)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
NONE
10
<PAGE> 159
SCHEDULE 6.1(q)
MATERIAL ADVERSE CHANGE DISCLOSURE
NONE
11
<PAGE> 160
SCHEDULE 6.1(t)
DEBT AND GUARANTY OBLIGATIONS
I. LCI INTERNATIONAL MANAGEMENT SERVICES, INC.:
1. Duke Associates No.70 Limited Partnership - Net Lease dated August 14,
1989, as amended - $13,352,239.00.
2. Duke Realty Limited Partnership - Office Lease dated December 9, 1996
(Parkwood Place, Dublin, OH.)
3. See also Inter-Co. Debt in Schedule 10.4.
II. LCI INTERNATIONAL, INC.
4. Unconditional Guaranty Agreement dated as of November 15, 1996 made by
LCI International, Inc. as Guarantor in favor of Nationsbank of Texas,
N.A., as Agent, with a ratable benefit of the Tranche A Lenders.
5. 7.25% Senior Notes due June 15, 2007.
6. Support Agreement dated August 29, 1996 - LCI SPC I, Inc.
7. See also Inter-Co. Debt in Schedule 10.4
12
<PAGE> 161
SCHEDULE 6.1(u)
LITIGATION
NONE
13
<PAGE> 162
SCHEDULE 6.1(v)
REGULATORY MATTERS
A. FCC LICENSES:
(a) LCI INTERNATIONAL TELECOM CORP. (LCIT)
<TABLE>
<CAPTION>
Expiration
Service File No. Date Date
------- -------- ---- ----
<S> <C> <C> <C>
International
Section 214
Authorization
I-T-C-86-154 9/25/86 None
I-T-C-90-028 4/12/93 None
I-T-C-92-184 7/27/92 None
I-T-C-93-001 2/10/93 None
I-T-C-93-336 11/13/93 None
I-T-C-94-380 7/1/94 None
I-T-C-94-527 1/3/95 None
I-T-C-95-343 5/31/95* None
I-T-C-95-590 2/28/96 None
I-T-C-96-512 10/29/96 None
* Pursuant to the 1995 merger of LCI
Telecom South, Inc, (LTS) and LCIT,
this authority was assigned by LTS
to LCIT on May 31, 1995. (See FCC
File No. I-T-C-95-343 (TC), released
May 31, 1995). LTS was granted its
authority in FCC File No.
I-T-C-94-064, released 12/3/93.
Domestic
Section 214
Authorization W-P-C-5389 5/25/84 None
</TABLE>
14
<PAGE> 163
B. STATE PUC AUTHORIZATIONS:
(a) LCI International Telecom Corp.*
LCI International Telecom Corp. (LCIT) has been granted statewide
authority to offer MTS, WATS and Private Line, AOS, intralata authority
and local service authority in the following states except as otherwise
indicated:
Alabama
Arizona (Grandfathered status; permanent authority pending)
(Local Service application pending)
Arkansas (Local Service application pending)
California
Colorado
Connecticut (No AOS)
Delaware (Local Service application pending)
Florida
Georgia
Hawaii (Local Service application pending)
Idaho (Local Service application pending)
Illinois
Indiana
Iowa
Kansas (Local Service application pending)
Kentucky
Louisiana
Maine (Local Service application pending)
Maryland
Massachusetts (Local Service application pending)
Michigan
Minnesota
Mississippi (No private line permitted)
Missouri (Local Service application pending)
Montana (Local Service application pending)
Nebraska (Local Service application pending)
Nevada
New Hampshire (Local Service application pending)
New Jersey (Local Service application pending)
New Mexico (Local Service application pending)
New York
North Carolina
North Dakota (Local Service application pending)
Ohio
15
<PAGE> 164
Oklahoma (Prior to 9/95, this state was unregulated. Pursuant
to regulation instituted 9/95, LCIT filed for a permanent CPCN 9/95.
LCIT will retain temporary authority pending approval of its
application for perm. CPCN. (Local Service application pending)
Oregon (Local Service application pending)
Pennsylvania
Rhode Island
South Carolina
South Dakota (Local Service application pending)
Tennessee
Texas
Utah (Local Service application pending)
Vermont (Local Service application pending)
Virginia (See LCI International of Virginia, Inc. below)
Washington (AOS pending)
West Virginia (Local Service application pending)
Wisconsin
Wyoming (Local Service application pending)
(b) LCI International of Virginia, Inc.*
LCI International of Virginia, Inc. (LCIVA) has been granted statewide
authority to offer MTS, WATS and Private Line, AOS, intralata authority
and local service authority in the following states except as otherwise
indicated:
Virginia
*NOTE: Except as noted above, the state PUC authorizations do not have
expiration dates.
16
<PAGE> 165
SCHEDULE 8.5
EXCLUDED TAXES
I. LCI INTERNATIONAL TELECOM CORP.
Unpaid tax assessments on prior years:
<TABLE>
<CAPTION>
Est. of
Tax Period Liability
- --- ------ ---------
<S> <C> <C>
State of Ohio Property Tax 1992 $1,358,348
State of Ohio Property Tax 1993 $1,071,901
State of Ohio Property Tax 1995 $ 350,000
Illinois Telecommunications Excise Tax 1994 - 1996 $ 170,000
----------
$2,950,249
</TABLE>
17
<PAGE> 166
SCHEDULE 10.3
EXISTING LIENS
1.* Society National Bank, as Collateral Trustee, Financing Statement dated
March 3, 1993 filed with Recorder, Franklin County, Ohio - LCI
International Telecom Corp. (LCIT) as Debtor.
2.** A Judgement Entry may have been recorded in Franklin County, Ohio in
the matter of Thomas J. Byrnes and Richard C. Otto v. LCI
Communications Corporation, and LiTel Telecommunications Corporation.
*There is no underlying obligation on behalf of LCIT in connection with this
financing statement and the Company is taking steps to have this filing removed
from the records.
**The verdict was reversed on appeal and the Company has no further payment
obligations in this matter.
18
<PAGE> 167
SCHEDULE 10.4
LOANS, ADVANCES, AND INVESTMENTS
10.4(a) Investments in Subsidiaries as of 6/30/97:
<TABLE>
<CAPTION>
($ millions)
<S> <C> <C>
(i) LCI Notes
LCI International Telecom Corp. (LCIT)
to Mgt. Svcs. $7.15
LCIT to Mgt. Svcs. 18.53
LCIT to Mgt. Svcs. 9.63
Management Services to LCI 6/17/93 64.26
8/25/93 7.98
8/25/93 21.40
9/7/93 7.14
-----
$136.09
=======
</TABLE>
(ii) LCI SPC I, Inc. to LCIT - Subordinated Intercompany
Revolving Note dated August 29, 1996 - $3.61 million as of 6/30/97.
Investments in STN:*
<TABLE>
<CAPTION>
<S> <C> <C>
Debentures purchased under Purchase
Agreement dated 10/15/93, as amended 22.294 CDN$
Loan Agreement dated 6/1/94, as amended 12.15 CDN$
Promissory Note dated 12/21/94 1.8 CDN$
Promissory Note dated 12/21/94 6.9515 CDN$
Indemnification Agreement dated as
of January 6, 1995 16.1065 CDN$
</TABLE>
*Investment has been written off and Company does not anticipate
receiving any payment.
Investments in Trescom:
<TABLE>
<CAPTION>
<S> <C>
172,313 shares of Common Stock $1,250,001
Traded on NASDAQ and calculated
at $7.25/share
</TABLE>
19
<PAGE> 168
SCHEDULE 10.9
TRANSACTIONS WITH AFFILIATES
1) See Inter-Co. Debt on Schedule 10.4.
2) Investments in STN - See Schedule 10.4.
3) Employment Agreement dated April 19, 1993 between H. Brian Thompson and
LCI International Management Services, Inc. ("LCIM"), as amended, March
20, 1995.
4) Employment Agreement dated April 19, 1993 between Thomas J. Wynne and
LCIM, as amended, March 20, 1995.
5) Employment Agreement dated April 19, 1993 between Marshall W. Hanno and
LCIM, as amended, March 20, 1995.
6) Split Dollar Agreement dated November 1, 1996 between H. Brian Thompson
and LCIM.
7) Tax Sharing Agreement dated 12/27/89.
8) Master License and Services Agreement dated March 1, 1993.
9) Warrants as set forth in Item 7, Schedule 6.1(b). Warburg, Pincus
Capital Co., L.P. ("Warburg") has the right to convert warrants into
5,158,556 shares of Common Stock.
10) Split Dollar Agreement dated November 1, 1996 between Joseph A.
Lawrence and LCIM.
11) Collateral Assignment and Split Dollar for Key Employees - Flexible
Premium Life Insurance Agreement dated May 1, 1997 - Thomas J. Wynne
and LCIM.
12) Employment Agreement effective October 18, 1993 between Joseph A.
Lawrence and LCIM.
13) Employment Agreement dated December 22, 1994 between John Taylor and
LCIM.
14) Employment Agreement dated October 1, 1995 between Lawrence J. Bouman
and LCIM.
15) Employment Agreement dated March 18, 1996 between Roy N. Gamse and
LCIM.
16) Employment Agreement dated January 3, 1997 between Anne K. Bingaman and
LCIM.
20
<PAGE> 169
17) Registration Rights Agreement dated March 31, 1993 - LCI International,
Inc. ("LCII") and various signatories including Warburg.
18) Support Agreement dated August 29, 1996 between LCII and LCI SPC I,
Inc.
19) Management Services and Sublease Agreement dated August 29, 1996
between LCI International Telecom Corp., LCII, LCIM, and LCI SPC I,
Inc.
21
<PAGE> 1
Exhibit 4(c)(xvi)
364 DAY CREDIT AGREEMENT
dated as of September 5, 1997
by and among
LCI INTERNATIONAL, INC.,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Documentation Agent,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent,
and
THE BANK OF NEW YORK,
as Syndication Agent.
<PAGE> 2
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Notice of Account Designation
Exhibit B-3 - Notice of Prepayment
Exhibit C-1 - Form of Competitive Bid Request
Exhibit C-2 - Form of Invitation to Bid
Exhibit C-3 - Form of Competitive Bid
Exhibit C-4 - Form of Competitive Bid Accept/Reject Letter
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G-1 - Form of New Lender Supplement
Exhibit G-2 - Form of Commitment Increase Supplement
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification to
Do Business as Foreign Corporation of Borrower and
its Subsidiaries
Schedule 6.1(b) - Subsidiaries of Borrower and Capitalization of
Borrower and Subsidiaries
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Intellectual Property Matters
Schedule 6.1(m) - Material Contracts
Schedule 6.1(n) - Labor and Collective Bargaining Agreements
Schedule 6.1(q) - Material Adverse Change Disclosure
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 6.1(v) - Regulatory Matters
Schedule 8.5 - Excluded Taxes
Schedule 10.3 - Existing Liens
Schedule 10.4 - Loans, Advances and Investments
Schedule 10.9 - Transactions with Affiliates
<PAGE> 3
THIS CREDIT AGREEMENT, dated as of the 5th day of September, 1997, by
and among LCI INTERNATIONAL, INC., a corporation organized under the laws of
Delaware, as Borrower, the Lenders who are or may become a party to this
Agreement, FIRST UNION NATIONAL BANK, as Documentation Agent, NATIONSBANK OF
TEXAS, N.A., as Administrative Agent and THE BANK OF NEW YORK, as Syndication
Agent.
STATEMENT OF PURPOSE
The Borrower has requested and the Lenders have agreed to provide a
three hundred sixty-four (364) day (subject to extension pursuant to the terms
hereof) revolving credit facility in an aggregate principal amount not to exceed
Two Hundred Fifty Million Dollars ($250,000,000) (subject to increase pursuant
to the terms hereof), all on the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Administrative Agent" means NationsBank in its capacity as
administrative agent hereunder, and any successor thereto appointed pursuant to
Section 11.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
12.1.
"Affiliate" means, with respect to any Person and its Subsidiaries, any
other Person (other than a Subsidiary thereof) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person or any of its Subsidiaries. The term
"control" means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or increased at any time or
from time to time pursuant to the terms hereof. As of the Closing Date, the
Aggregate Commitment shall be Two Hundred Fifty Million Dollars ($250,000,000).
"Agreement" means this Credit Agreement, as amended or modified from
time to time.
<PAGE> 4
"Annualized Operating Cash Flow" means, with respect to the Borrower
and its Restricted Subsidiaries at any date of determination, Operating Cash
Flow for the period of two (2) consecutive fiscal quarters ending on, or most
recently ended prior to, such date times two (2).
"Applicable Law" means all applicable provisions of constitutions,
treaties, statutes, laws, rules, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
3.1(c).
"Approved Preferred Stock" means any preferred stock issued by the
Borrower or any Restricted Subsidiary, provided that (a) such preferred stock
(and any security into which such preferred stock is convertible) shall not
contain restrictive covenants or other terms more restrictive than those
contained in the Loan Documents, (b) such preferred stock shall not provide for
any mandatory prepayments or redemptions at any time where similar payments are
not required under the Loan Documents and (c) documents evidencing such
preferred stock (and other security) must be reasonably satisfactory to the Lead
Agents, unless the Lead Agents agree otherwise in a written approval executed
before the issuance of such stock.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 12.10.
"Bank Investors" shall have the meaning assigned thereto in the
Securitization Documents.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate as determined by the Administrative Agent plus 1/2 of 1%;
each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate determined
with reference to the Base Rate as provided in Section 3.1(a) hereof.
"Borrower" means LCI in its capacity as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Dallas, Texas and New York City are open for the conduct of their
commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Rate Loan, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in U.S. Dollar deposits in
the London interbank market.
"Capital Lease" means, with respect to the Borrower and its Restricted
Subsidiaries, any lease of any property that would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on a Consolidated
balance sheet of the Borrower and its Restricted Subsidiaries.
<PAGE> 5
"Cash Equivalents" shall have the meaning assigned thereto in Section
9.4(b).
"Change in Control" shall have the meaning assigned thereto in Section
10.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 4.2 shall be satisfied in a
manner satisfactory to the Lead Agents.
"Co-Agent" means any Lender designated as such on the signature pages
hereto.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Revolving Credit Loans hereunder in an aggregate principal or face amount
at any time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1 hereto (or as set forth on any amendment thereto),
as the same may be reduced or increased at any time or from time to time
pursuant to the terms hereof.
"Commitment Percentage" means, with respect to any Lender, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan pursuant to Section 2.3.
"Competitive Bid Interest Period" shall have the meaning assigned
thereto in Section 3.1(b)(ii).
"Competitive Bid Loan" means any Loan bearing interest at the
Competitive Bid Rate determined in accordance with Section 2.3.
"Competitive Bid Notes" means the separate Competitive Bid Notes made
by the Borrower payable to the order of each of the Lenders, substantially in
the form of Exhibit A-2 hereto, and any amendments and supplements thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 2.3, the fixed percentage rate per annum (expressed
in the form of a decimal to no more than four decimal places) specified by the
Lender making such Competitive Bid.
"Competitive Bid Request" shall have the meaning assigned thereto in
Section 2.3(a).
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its Restricted Subsidiaries,
such statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
<PAGE> 6
"Consolidated Net Worth" means, with respect to the Borrower and its
Restricted Subsidiaries at any date of determination thereof, the amount of
equity of the holders of all and any capital stock and other ownership interests
of such Persons which would appear on the Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of such date (excluding any amount
set forth therein for currency translation adjustments), determined in
accordance with GAAP.
"CP Issuer" means Enterprise Funding Corporation, a Delaware
corporation, and its permitted successors and assigns.
"Credit Facility" means the credit facility established pursuant to
Article II.
"Current Assets" means, with respect to the Borrower and its Restricted
Subsidiaries at a particular date, all amounts which would, in conformity with
GAAP, be included under current assets on a Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at such date.
"Current Liabilities" means, with respect to the Borrower and its
Restricted Subsidiaries at a particular date, all amounts which would, in
conformity with GAAP, be included under current liabilities on a Consolidated
balance sheet of the Borrower and its Restricted Subsidiaries as at such date,
but in any event including the amount of (a) all Debt of any such Person payable
on demand or, at the option of the Person to whom such Debt is owed, not more
than twelve months after such date, (b) any payments in respect of any Debt of
any such Person (whether installment, serial maturity or sinking fund payments
or otherwise) required to be made not more than twelve months after such date,
and (c) all reserves in respect of liabilities or Debt payable on demand or, at
the option of the Person to whom such Debt is owed, not more than twelve months
after such date, the validity of which is contested at such date.
"Debt" means, with respect to the Borrower and its Restricted
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including but not limited to obligations
evidenced by bonds, debentures, notes or other similar instruments of the
Borrower or any Restricted Subsidiary, (b) all obligations to pay the deferred
purchase price of property or services of the Borrower or any Restricted
Subsidiary, except (i) trade payables arising in the ordinary course of business
not more than ninety (90) days past due and (ii) documented disputes with
vendors arising from the provision or use of telecommunications services which
disputes are in the process of resolution and for which adequate reserves have
been established in accordance with GAAP, (c) all obligations as lessee under
Capital Leases, (d) all Debt of any other Person secured by a Lien on any asset
of the Borrower or any Restricted Subsidiary up to the lesser of the amount of
such Debt or the fair market value of such property as determined in the
reasonable discretion of the Lead Agents, (e) all Guaranty Obligations of the
Borrower or any Restricted Subsidiary, (f) all obligations, contingent or
otherwise, of the Borrower or any Restricted Subsidiary relative to the face
amount of letters of credit, whether or not drawn and banker's acceptances
issued for the account of the Borrower or any Restricted Subsidiary, and (g) all
payment obligations incurred by any such Person under any Hedging Agreement.
<PAGE> 7
"Default" means any of the events specified in Section 10.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having total assets in excess of
$500,000,000, (b) a finance company, insurance company or other financial
institution which in the ordinary course of business extends credit of the type
extended hereunder and that has total assets in excess of $1,000,000,000, (c)
already a Lender (or Affiliate thereof) hereunder (whether as an original party
to this Agreement or as the assignee of another Lender), (d) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (e) any other
Person that has been approved in writing as an Eligible Assignee by the Borrower
and the Documentation Agent (such approval not to be unreasonably withheld).
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or former
ERISA Affiliate.
"Environmental Laws" means any and all applicable federal, foreign,
state and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Existing Securitization" means the transactions contemplated by and
entered into pursuant to the Securitization Documents.
"Event of Default" means any of the events specified in Section 10.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
<PAGE> 8
"FCC License" means any long distance telecommunications or other
license, permit, consent, certificate of compliance, franchise, approval, waiver
or authorization granted or issued by the FCC, including, without limitation,
any of the foregoing authorizing or permitting the acquisition, construction or
operation of Network Facilities or any other long distance telecommunications
system.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published at 11:00 a.m. (Charlotte time) for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"First Union" means First Union National Bank, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its
Subsidiaries ending on December 31.
"Five-Year Credit Agreement" means the Third Amended and Restated
Credit Agreement of even date herewith by and among the Borrower, the Lenders
and the Lead Agents, and the Syndication Agent, as amended or supplemented from
time to time.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including without limitation all FCC Licenses and PUC
Authorizations.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing, including
without limitation the FCC and any PUC.
"Guaranty Obligation" means, with respect to the Borrower and its
Restricted Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or
indirectly guaranteed any Debt of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
condition or
<PAGE> 9
otherwise) or (b) entered into for the purpose of assuring in any other manner
the obligee of such Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided, that the term
Guaranty Obligation shall not include endorsements for collection or deposit in
the ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are deemed
to constitute a nuisance, a trespass or pose a health or safety hazard to
persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure, and any confirming letter
executed pursuant to such hedging agreement, all as amended or modified.
"Intercompany Notes" means any Debt for borrowed money owing by the
Borrower to any Wholly-Owned Subsidiary, which Debt shall be evidenced by a
promissory note subordinated to the Obligations in form and substance
satisfactory to the Required Lenders.
"Interest Expense" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, total interest expense of the Borrower
and its Restricted Subsidiaries (including without limitation, interest expense
attributable to Capital Leases) determined in accordance with GAAP and net costs
under any Hedging Agreement and currency agreement to the extent that such costs
are included within interest expense under GAAP plus, to the extent not included
therein, total interest expense, whether shown as interest expense, other
expense, discount or as loss and expense on the sale of receivables, in any such
case incurred pursuant to any Permitted Securitization, plus, solely with
respect to the determination of Interest Expense for the purpose of calculating
the Leverage Ratio hereunder, the aggregate amount of Basic Rent (as defined in
the Office Property Lease) paid or payable by LCI during such period under the
Office Property Lease.
"LCI" means LCI International, Inc., a Delaware corporation, and its
successors.
"LCI Trust I" means the grantor trust created pursuant to the Trust
Agreement.
"Lead Agents" means the collective reference to the Documentation Agent
and the Administrative Agent.
<PAGE> 10
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 12.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Leverage Ratio" means, at any date of determination, the ratio of the
following calculated without duplication in accordance with GAAP: (a) the sum of
(i) Total Debt of the Borrower and its Restricted Subsidiaries at such date less
(ii) cash and Cash Equivalents which are immediately available to the Borrower
for the payment of Obligations hereunder to (b) Annualized Operating Cash Flow
of the Borrower and its Restricted Subsidiaries at such date (including in the
determination thereof on a pro forma basis for the relevant period Operating
Cash Flow for any Person acquired in accordance with Section 9.4(c) and any
Person in which an investment was consummated in accordance with Section 9.4(d)
in each case during such Period, and excluding on a pro forma basis for the
relevant period Operating Cash Flow attributable to any property, business or
other assets sold (and not replaced) during such period in accordance with
Section 9.6(f)).
"LIBOR" means the rate of interest determined by the Administrative
Agent to be the arithmetic average (rounded upward, if necessary, to the nearest
one hundredth of one percent (1/100%)) of the rate per annum at which deposits
in Dollars are offered by first class banks in the London interbank market to
the London offices of the Administrative Agent (or the Administrative Agent's
London branch) at approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of the applicable LIBOR Interest Period for a period equal
to such Interest Period and in an amount substantially equal to the amount of
the applicable Loan.
"LIBOR Interest Period" shall have the meaning assigned thereto in
Section 3.1(b)(i).
"LIBOR Rate" means (a) LIBOR divided by (b) one (1) less the Reserve
Percentage.
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 3.1(a) hereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan" means any Revolving Credit Loan made to the Borrower pursuant to
Section 2.1(a) or any Competitive Bid Loan made to the Borrower pursuant to
Section 2.1(b) and all such Loans collectively as the context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Hedging Agreement hedging interest rate risk under this Agreement and executed
with a Lender or an Affiliate thereof, and each other document, instrument and
agreement executed and delivered by the Borrower, its
<PAGE> 11
Restricted Subsidiaries or their counsel in connection with this Agreement or
otherwise referred to herein or contemplated hereby, all as may be amended or
modified from time to time.
"Material Adverse Effect" means, with respect to the Borrower or any of
its Restricted Subsidiaries, a material adverse effect on the properties,
business, prospects, operations or condition (financial or otherwise) of such
Persons taken as a whole or the ability of any such Person to perform its
obligations under the Loan Documents or Material Contracts, in each case to
which it is a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of the Borrower or any of its Restricted Subsidiaries involving
monetary liability of or to any such Person in an amount in excess of
$15,000,000 per annum, or (b) any other contract or agreement, written or oral,
of the Borrower or any of its Restricted Subsidiaries the failure to comply with
which could reasonably be expected to have a Material Adverse Effect; provided
that Material Contract shall not include any contract or agreement terminable by
the Borrower or any of its Restricted Subsidiaries in accordance with its terms
upon notice of thirty (30) days or less without liability for further payment
other than a nominal penalty.
"Moody's" means Moody's Investors Service, Inc., and its successors and
assigns.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six years.
"NationsBank" means NationsBank of Texas, N.A., a national banking
association.
"Net Cash Proceeds" means the gross cash proceeds received by the
Borrower or any of its Restricted Subsidiaries from any offering of capital
stock or other ownership interests (excluding the issuance to qualified
employees or directors of capital stock pursuant to the stock option plan or
stock purchase plan, as applicable, of the Borrower as then in effect) or Debt
securities less all legal, underwriting and other fees and expenses incurred in
connection therewith.
"Net Income" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, the Consolidated net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period determined in
accordance with GAAP; provided, that there shall be excluded from net income (or
loss) (a) the income (or loss) of any Person accrued prior to the date such
Person becomes a Restricted Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries or that
Person's assets are acquired by the Borrower or any of its Restricted
Subsidiaries, (b) if the ability of the Borrower to receive, recover or
repatriate cash or receive the economic benefits (other than any increase in
value of the Borrower's stock or ownership interest in a Restricted Subsidiary
thereof) from any of its Restricted Subsidiaries is materially limited or
restricted for a material period of time at any date of determination by
operation of the terms of the charter of such Restricted Subsidiary or any
agreement, instrument, or Applicable Law, the portion of the income of each such
Restricted Subsidiary so restricted, (c) the net income of any Person not a
Wholly-Owned Restricted Subsidiary of the Borrower, and the net income of any
Person that is accounted for by the equity
<PAGE> 12
method of accounting, except in each case to the extent of the amount received
by the Borrower in a cash distribution and (d) the effect of any currency
translation adjustments.
"Net Investment" means the total amount of the Borrower's investment in
a Subsidiary whether in the form of debt, equity or otherwise less any returns
on or repayments of such investment received by the Borrower during the term of
this Agreement in cash or Cash Equivalents, or the fair market value of any
other return or repayment as reasonably determined by the Borrower and approved
by the Lead Agents in their reasonable discretion.
"Network Agreement" means any document or agreement entered into by the
Borrower or any of its Restricted Subsidiaries regarding the use, operation,
maintenance or otherwise concerning any of the Network Facilities.
"Network Facilities" means the network of digital facilities and
capacity owned or leased by the Borrower or any of its Restricted Subsidiaries.
"Notes" means the Revolving Credit Notes or the Competitive Bid Notes,
or any combination thereof, and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assignation
thereto in Section 2.2(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 3.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.4(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by the Borrower to any Lender, any
Affiliate of any Lender or any of the Lead Agents under any Hedging Agreement
hedging interest rate risk under this Agreement and (c) all other fees and
commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower to the Lenders or to any of the Lead Agents, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, and whether or not for the payment of money under or
in respect of this Agreement, any Note or any of the other Loan Documents.
"Office Property" means the certain real property located in Ballston,
Virginia acquired pursuant to the Synthetic Lease Documents, including the
approximately 306,000 square foot office building, approximately 660-car
underground parking garage, and related improvements and facilities constructed
thereon pursuant to the Synthetic Lease Documents.
<PAGE> 13
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Operating Cash Flow" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, the following, each calculated for such
period without duplication in accordance with GAAP: (a) Net Income, plus (b) to
the extent deducted in determining Net Income (i) income and franchise taxes
paid or payable by the Borrower and its Restricted Subsidiaries, (ii) Interest
Expense paid or payable by the Borrower and its Restricted Subsidiaries and
(iii) amortization and depreciation and other similar non-cash charges less (c)
the sum of (i) interest income, (ii) non-cash income and (iii) any items of gain
(or plus any non-cash items of loss) which were included in determining Net
Income and were not realized in the ordinary course of business.
"Other Taxes" shall have the meaning assigned thereto in Section
3.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any of their current
or former ERISA Affiliates.
"Permitted Securitization" means the Existing Securitization and any
other sale, conveyance or other transfer of accounts receivable of LCI or any
Subsidiary pursuant to an accounts receivable securitization financing
transaction; provided that (a) on any date of determination the aggregate amount
outstanding pursuant to all accounts receivable financing transactions does not
exceed the greater of (i) $200,000,000 or (ii) fifteen percent (15%) of Total
Revenues of the Borrower and its Restricted Subsidiaries for the four (4)
consecutive fiscal quarter period ending on or most recently prior to such date
of determination and (b) such accounts receivable securitization financing
transaction is pursuant to material terms and conditions satisfactory to, and
evidenced by documents approved by, the Lead Agents.
"Person" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, limited liability company,
Governmental Authority or any other form of entity or group.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate at its principal office in Dallas, Texas. Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate announced
publicly by the Administrative Agent as its Prime Rate is an index or base rate
and shall not necessarily be its lowest rate charged to its customers or other
banks.
"Projections" shall have the meaning set forth in Section 6.1(c).
<PAGE> 14
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any Network Facility or long distance telecommunications systems or
over Persons who own, construct or operate a Network Facility or long distance
telecommunications systems, in each case by reason of the nature or type of the
business subject to regulation and not pursuant to laws and regulations of
general applicability to Persons conducting business in said state.
"PUC Authorizations" means all applications, filings, reports,
documents, recordings and registrations with, and all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from any PUC.
"Receivables Subsidiary" means SPC and any other special purpose
Subsidiary of LCI formed to consummate a Permitted Securitization.
"Register" shall have the meaning assigned thereto in Section 12.10(d).
"Replacement Lender" shall have the meaning assigned thereto in Section
3.7(d).
"Required Lenders" means, at any date, the holders of at least
fifty-one percent (51%) of the aggregate unpaid principal amount of the
Revolving Credit Notes, or if no amounts are outstanding under the Revolving
Credit Notes, any combination of Lenders whose Commitment Percentages aggregate
at least fifty-one percent (51%).
"Reserve Percentage" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable LIBOR Interest Period or Competitive Bid
Interest Period as of the first day of such LIBOR Interest Period or Competitive
Bid Interest Period, but subject to any changes in such reserve requirement
becoming effective during the LIBOR Interest Period or Competitive Bid Interest
Period. For purposes of calculating the Reserve Percentage, the reserve
requirement shall be as set forth in Regulation D without benefit of credit for
prorations, exemptions or offsets under Regulation D, and further without regard
to whether or not any Lender elects to actually fund any Loan or portion thereof
with Eurocurrency liabilities. Each calculation by the Administrative Agent of
the LIBOR Rate shall be conclusive and binding for all purposes, absent manifest
error.
"Restricted Subsidiary" means a Subsidiary of the Borrower which is not
an Unrestricted Subsidiary.
"Revolving Credit Loans" means the revolving credit loans made by the
Lenders to the Borrower pursuant to Section 2.1(a).
"Revolving Credit Notes" means the separate Revolving Credit Notes made
by the Borrower payable to the order of each of the Lenders, substantially in
the form of Exhibit A-1 hereto, evidencing the Revolving Credit Loans, and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
<PAGE> 15
"Securitization Documents" means the collective reference to the
following documents:
(a) transfer and administration agreement dated as of August 29, 1996
(the "Transfer and Administration Agreement"), among the SPC, as
Transferor, LCI International Telecom Corp., as the initial collection
agent, the CP Issuer, NationsBank, N.A., as agent for the CP Issuer and
Bank Investors and as a Bank Investor, and those other financial
institutions from time to time parties thereto as Bank Investors;
(b) Receivables Purchase Agreement dated as of August 29, 1996 (the
"Receivables Purchase Agreement"), by and among the Transferors and the
SPC;
(c) revolving subordinated promissory notes executed by the SPC in
favor of each of the Transferors (the "SPC Notes");
(d) lock-box agreements executed by the lock-box bank party thereto,
the SPC, and the applicable Transferor with respect to the lock-boxes
and/or lock-box accounts maintained by such Transferor at such lock-box
bank;
(e) support agreement dated as of August 29, 1996 (the "Support
Agreement") entered into by LCI in favor of the SPC and its permitted
successors and assignees with respect to the obligations of the
Transferors under the Securitization Documents; and
(f) each other agreement or document executed in connection with or in
furtherance of the above-referenced Securitization Documents, and any
amendment or modification of any documents referred to in this
definition to which, if such amendment or modification could reasonably
be expected to be adverse to the interests of the Lenders, the Lead
Agents have consented in writing.
"Senior Notes" means the collective reference to the Borrower's 7.25%
senior notes due June 15, 2007 issued pursuant to the prospectus supplement
dated as of June 23, 1997 to the prospectus dated as of March 10, 1997.
"Senior Unsecured Debt Rating" means the rating, as determined by
either Moody's or Standard & Poor's, of the Borrower's senior unsecured
non-credit enhanced long term Debt.
"Solvent" means, as to the Borrower and its Restricted Subsidiaries on
a particular date, that any such Person (a) has capital sufficient to carry on
its business and transactions and all business and transactions in which it is
about to engage and is able to pay its debts as they mature, (b) owns property
having a value, both at fair valuation and at present fair saleable value,
greater than the amount required to pay its probable liabilities (including
contingencies), and (c) does not believe that it will incur debts or liabilities
beyond its ability to pay such debts or liabilities as they mature.
<PAGE> 16
"SPC" means that certain special purpose Subsidiary of LCI formed in
connection with the Existing Securitization, and its permitted successors and
assigns.
"Standard & Poor's" means Standard & Poor's Ratings Group, a Division
of McGraw-Hill Corporation, and its successors and assigns.
"Subordinated Debt" means the collective reference to (a) the
Intercompany Notes and (b) any other Debt of the Borrower or any Subsidiary
subordinated in right and time of payment to the Obligations on terms
satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of the Borrower.
"Syndication Agent" means any Lender designated as such on the
signature pages hereto.
"Synthetic Lease Documents" means the collective reference to the
following documents:
(a) unconditional guaranty agreement (the "LCI Guaranty") dated as of
November 15, 1996 executed by LCI in favor of NationsBank, as agent for
the lenders under the Real Estate Facility, as amended or supplemented
from time to time;
(b) lease agreement (the "Office Property Lease") dated as of November
15, 1996 executed by LCI Trust I, as lessor, and LCI, as Lessee, with
respect to the Office Property, as amended or supplemented from time to
time;
(c) credit agreement (the "Real Estate Facility") dated as of November
15, 1996 among First Security Bank, National Association, as the owner
trustee under LCI Trust I, as Borrower, the lenders who are or may
become party thereto, and NationsBank, as agent for the lenders
thereunder, as amended or supplemented from time to time;
(d) trust agreement (the "Trust Agreement") dated as of November 15,
1996, between NationsBank, the other holders who are or may become
party thereto and First Security Bank, National Association, as the
owner trustee thereunder, as amended or supplemented from time to time;
and
(e) each other agreement or document executed in connection with or in
furtherance of the above-referenced Synthetic Lease Documents, and any
amendment or modification of any documents referred to in this
definition to which,
<PAGE> 17
if such amendment or modification could reasonably be expected to be
adverse to the interests of the Lenders, the Lead Agent have consented
in writing.
"Taxes" shall have the meaning assigned thereto in Section 3.10(a).
"Term-Out Amount" shall have the meaning assigned thereto in Section
2.10.
"Term-Out Maturity Date" shall have the meaning assigned thereto in
Section 2.10.
"Term-Out Effective Date" shall have the meaning assigned thereto in
Section 2.10.
"Termination Date" means the earliest of the dates referred to in
Section 2.7.
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA; or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA; or (c) the termination of a
Pension Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA; or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC; or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan; or (f) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan; or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA; or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Commitments" means the sum of (i) the Aggregate Commitment
hereunder and (ii) the Aggregate Commitment under the Five-Year Credit
Agreement.
"Total Debt" means, with respect to the Borrower and its Restricted
Subsidiaries at any date of determination and without duplication, all Debt of
the Borrower and its Restricted Subsidiaries.
"Total Revenue" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, gross revenue for the Borrower and its Restricted
Subsidiaries on a Consolidated basis for such period determined in accordance
with GAAP.
"Transferors" means the collective reference to those Subsidiaries of
LCI which, pursuant to the Existing Securitization, transfer certain accounts
receivable, payments in respect thereof and other related assets to SPC, in
accordance with the terms and conditions of the Securitization Documents.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina.
<PAGE> 18
"United States" means the United States of America.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
designated as an Unrestricted Subsidiary by the Borrower in writing to the Lead
Agents; provided, however, that at no time will the aggregate Net Investment in
all Unrestricted Subsidiaries exceed $30,000,000.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2. General. All terms of an accounting nature not
specifically defined herein shall have the meaning assigned thereto by GAAP.
Unless otherwise specified, a reference in this Agreement to a particular
section, subsection, Schedule or Exhibit is a reference to that section,
subsection, Schedule or Exhibit of this Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter. Any
reference herein to "Charlotte time" shall refer to the applicable time of day
in Charlotte, North Carolina.
SECTION 1.3. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents.
(b) Accounting Terms. All accounting terms not specifically defined
herein shall have the meaning given thereto by GAAP, and all accounting terms
which are defined by reference to the Borrower and its Subsidiaries shall, when
used herein with respect to any other Person, be calculated in accordance with
such definition with respect to such other Person.
(c) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Revolving Credit and Competitive Bid Loans.
(a) Revolving Credit Loans. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Revolving Credit Loans to the
Borrower from time to time from the Closing Date through the earlier of the
Term-Out Effective Date and the Termination Date as requested by the Borrower in
accordance with the terms of Section 2.2; provided, that (i) the aggregate
principal amount of all outstanding Revolving Credit Loans (after giving effect
to any
<PAGE> 19
amount requested) shall not exceed the Aggregate Commitment less the amount of
outstanding Competitive Bid Loans and (ii) the principal amount of outstanding
Revolving Credit Loans from any Lender to the Borrower shall not at any time
exceed such Lender's Commitment. Each Revolving Credit Loan by a Lender shall be
in a principal amount equal to such Lender's Commitment Percentage of the
aggregate principal amount of Revolving Credit Loans requested on such occasion.
Subject to the terms and conditions hereof, the Borrower may borrow, repay and
reborrow Revolving Credit Loans hereunder until the Termination Date.
(b) Competitive Bid Loans. Subject to the terms and conditions of this
Agreement, the Borrower may, prior to the earlier of the Term-Out Effective Date
and the Termination Date and pursuant to the procedures set forth in Section
2.3, request the Lenders to make offers to make Competitive Bid Loans; provided,
that the aggregate principal amount of all outstanding Competitive Bid Loans
(after giving effect to any amount requested and the use of proceeds thereof)
shall not exceed the Aggregate Commitment less the amount of all outstanding
Revolving Credit Loans. The Lenders may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in Section 2.3.
SECTION 2.2. Procedure for Advances of Revolving Credit Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as Exhibit
B-1 (a "Notice of Borrowing") not later than 12:00 noon (Charlotte time) (i) on
the same Business Day as each Base Rate Loan and (ii) at least three Business
Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the
date of such borrowing, which shall be a Business Day, (B) the amount of such
borrowing, which shall be with respect to LIBOR Rate Loans in an aggregate
principal amount of $10,000,000 or a whole multiple of $5,000,000 in excess
thereof and with respect to Base Rate Loans in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof, (C) whether the
Loans are to be LIBOR Rate Loans or Base Rate Loans, and (D) in the case of a
LIBOR Rate Loan, the duration of the LIBOR Interest Period applicable thereto.
Any notices received after 11:00 a.m. (Charlotte time) for Base Rate Loans or
LIBOR Rate Loans shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing with Respect to a Revolving Credit Loan.
(b) Disbursement of Revolving Credit Loans. Not later than 1:00 p.m.
(Charlotte time) on the proposed borrowing date, each Lender will make available
to the Administrative Agent, for the account of the Borrower, at the office of
the Administrative Agent in funds immediately available to the Administrative
Agent, such Lender's Commitment Percentage of the Revolving Credit Loans to be
made on such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.2 in immediately available funds by crediting such
proceeds to the deposit account or accounts of the Borrower specified in the
most recent Notice of Account Designation substantially in the form of Exhibit
B-2 hereto (a "Notice of Account Designation") delivered by the Borrower or as
may be agreed upon by the Borrower and the Administrative Agent from time to
time. Subject to Section 3.6 hereof, the Administrative Agent shall not be
obligated to disburse the proceeds of any Revolving Credit Loan requested
pursuant to this Section 2.2 until each Lender shall have made available to the
Administrative Agent its Commitment Percentage of such Revolving Credit Loan.
<PAGE> 20
SECTION 2.3. Procedure for Advances of Competitive Bid Loans.
(a) Competitive Bid Request. In order to request Competitive Bids, the
Borrower shall deliver to the Administrative Agent a duly completed Competitive
Bid Request in the form of Exhibit C-1 hereto (a "Competitive Bid Request") to
be received by the Administrative Agent not later than 11:00 a.m. (Charlotte
time) two Business Days before each proposed Competitive Bid Loan; provided
that, the Borrower may not submit more than five (5) Competitive Bid Requests
during any period of ten (10) consecutive Business Days. A Competitive Bid
Request that does not conform substantially to the form of Exhibit C-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by telephone promptly
confirmed by telecopy. Such request shall in each case refer to this Agreement
and specify (i) the date of such borrowing (which shall be a Business Day), (ii)
the aggregate principal amount of such borrowing which shall be in a minimum
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (iii) the Competitive Bid Interest Period with respect thereto.
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit C-2 hereto) the Lenders to bid, on the terms and conditions of
this Agreement, to make Competitive Bid Loans pursuant to the Competitive Bid
Request.
(b) Competitive Bids.
(i) Each Lender may, in its sole discretion, make Competitive
Bids to the Borrower in response to a Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent via telecopier, in
the form of Exhibit C-3 hereto not later than 10:30 a.m., Charlotte time, on the
day of a proposed Competitive Bid Loan, and any Competitive Bid received by the
Administrative Agent after such time can be rejected by the Administrative
Agent. Competitive Bids that do not conform substantially to the form of Exhibit
C-3 or otherwise include additional conditions to funding shall be rejected by
the Administrative Agent and the Administrative Agent shall notify the Lender
making such nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (A) the principal
amount of the Competitive Bid Loan or Loans that the Lender is willing to make
to the Borrower, which shall be in a minimum principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and may equal the entire
principal amount of the Competitive Bid Loan requested by the Borrower, (B) the
Competitive Bid Rate or Rates at which the Lender is prepared to make the
Competitive Bid Loan or Loans and (C) the Competitive Bid Interest Period with
respect thereto. A Competitive Bid submitted by a Lender pursuant to this
paragraph (b) shall be irrevocable.
(ii) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Borrower at least one quarter of an hour earlier than the latest time at
which the other Lenders are required to submit their bids to the Administrative
Agent pursuant to clause (i) above.
(iii) No later than 11:00 a.m., Charlotte time, on the day
Competitive Bids are received from the Lenders, the Administrative Agent shall
notify the Borrower by telecopier of all the Competitive Bids made, the
Competitive Bid Rates and the principal amount of each
<PAGE> 21
Competitive Bid Loan in respect of which a Competitive Bid was made and the
identity of the Lender that made each bid. The Administrative Agent shall send a
copy of all Competitive Bids to the Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.3.
(c) Acceptance/Rejection.
(i) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (c), accept or reject any
Competitive Bid referred to in paragraph (b) above. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopier in the form of
Exhibit C-4 hereto (a "Competitive Bid Accept/Reject Letter"), whether and to
what extent it has decided to accept or reject any or all of the bids referred
to in paragraph (b) above not later than 12:00 noon, Charlotte time, on the day
of each proposed Competitive Bid Loan; provided, that (A) the failure by the
Borrower to give such notice shall be deemed to be a rejection of all the bids
referred to in paragraph (b) above, (B) the acceptance of bids by the Borrower
shall be made on the basis of ascending order (from lowest to highest) of bids
made at a particular Competitive Bid Rate for a particular Competitive Bid
Interest Period and the Borrower shall not accept a bid made at a particular
Competitive Bid Rate for a particular Competitive Bid Interest Period if the
Borrower has rejected a bid made at a lower Competitive Bid Rate for the same
Competitive Bid Interest Period; provided, however, that this clause (B) will
not require the Borrower to accept the portion of a Lender's bid, if any, which
exceeds such Lender's Commitment, (C) if Competitive Bids are made by two or
more Lenders for the same Competitive Bid Rate and the same Competitive Bid
Interest Period, the principal amount accepted shall be allocated among such
Lenders by the Borrower (after consultation with the Administrative Agent) in
integral multiples of not less than $1,000,000, (D) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request and (E) except pursuant to clause (D)
above, no bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. A notice given by the Borrower
pursuant to this paragraph (c) shall be irrevocable.
(ii) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Bid Loan in respect of which its bid
has been accepted.
(d) Disbursement of Competitive Bid Loans. Not later than 2:00 p.m.
(Charlotte time) on the proposed borrowing date, each Lender whose Competitive
Bid was accepted will make available to the Administrative Agent, for the
account of the Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, such Lender's Competitive Bid
Loan to be made on such borrowing date. After receipt thereof from the
applicable Lenders, the Administrative Agent shall disburse not later than 3:30
p.m. (Charlotte time) the proceeds of each borrowing accepted pursuant to
Section 2.3(c) in immediately available funds by crediting such proceeds to the
deposit account or accounts specified in the most recent Notice of Account
Designation delivered by the Borrower or as may be agreed upon by the Borrower
and the
<PAGE> 22
Administrative Agent from time to time. The Administrative Agent shall not be
obligated to disburse the proceeds of any Competitive Bid Loan accepted pursuant
to Section 2.3(c) until the applicable Lender shall have made available to the
Administrative Agent its Competitive Bid Loan.
(e) Administrative Agent's Fee. For each Competitive Bid Request
received by the Administrative Agent hereunder, the Borrower shall pay to the
Administrative Agent the fee set forth in the separate letter executed by the
Borrower dated as of August 25, 1997.
SECTION 2.4. Repayment of Loans.
(a) Repayment on Termination Date. The Borrower shall repay the
outstanding principal amount of (i) all Revolving Credit Loans in full, together
with all accrued but unpaid interest thereon, on the Termination Date, if not
sooner repaid, and (ii) each Competitive Bid Loan on the expiration of the
Competitive Bid Interest Period applicable thereto together, in each such case,
with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time the outstanding
principal amount of all Loans exceeds the Aggregate Commitment, the Borrower
shall repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, the Loans in an amount
equal to such excess with such excess applied first to the principal amount of
outstanding Revolving Credit Loans, and then to the principal amount of
outstanding Competitive Bid Loans, in the inverse order of maturity of such
Competitive Bid Loans. Each such repayment shall be accompanied by any amount
required to be paid pursuant to Section 3.8 hereof.
(c) Optional Repayments. Subject to Section 2.4(d), the Borrower may at
any time and from time to time repay the Loans, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the Administrative Agent
with respect to LIBOR Rate Loans and Competitive Bid Loans and same Business Day
notice with respect to Base Rate Loans in the form attached hereto as Exhibit
B-3 (a "Notice of Prepayment"), specifying the date and amount of repayment and
whether the repayment is of LIBOR Rate Loans, Competitive Bid Loans, Base Rate
Loans, or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date set forth in such notice.
Partial repayments shall be in an aggregate amount of $10,000,000 or a whole
multiple of $5,000,000 in excess thereof with respect to LIBOR Rate Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to
Competitive Bid Loans, and $1,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to Base Rate Loans.
(d) Limitation on Repayment of Certain Loans. The Borrower may not
repay any LIBOR Rate Loan or any Competitive Bid Loan on any day other than on
the last day of the LIBOR Interest Period or Competitive Bid Interest Period,
respectively, applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 3.8 hereof.
<PAGE> 23
SECTION 2.5. Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such Lender's
Commitment or, if less, the aggregate unpaid principal amount of all Revolving
Credit Loans made and to be made by such Lender to the Borrower hereunder, plus
interest and all other fees, charges and other amounts due thereon. Each
Revolving Credit Note shall be dated the date hereof and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 3.1(a).
(b) Competitive Bid Notes. Each Lender's Competitive Bid Loans and the
obligation of the Borrower to repay such Competitive Bid Loans shall be
evidenced by a Competitive Bid Note executed by the Borrower payable to the
order of such Lender representing the Borrower's obligation to pay such Lender's
Competitive Bid Loans in a principal amount up to the Aggregate Commitment or,
if less, the aggregate unpaid principal amount of all Competitive Bid Loans made
by such Lender to the Borrower hereunder, plus interest on such principal
amounts and all other fees, charges and other amounts due thereon. Each
Competitive Bid Note shall be dated the Closing Date and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 3.1(a).
SECTION 2.6. Permanent Reduction of the Aggregate Commitment.
(a) The Borrower shall have the right at any time and from time to
time, upon at least three (3) Business Days prior written notice to the
Administrative Agent, to permanently reduce, in whole at any time or in part
from time to time, without premium or penalty, the Aggregate Commitment in an
aggregate principal amount not less than $10,000,000 or any whole multiple of
$5,000,000 in excess thereof.
(b) Each permanent reduction permitted pursuant to this Section 2.6
shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Loans after such reduction to the Aggregate Commitment as
so reduced and by payment of accrued interest on the amount of such repaid
principal. Any reduction of the Aggregate Commitment to zero shall be
accompanied by payment of all outstanding Obligations and termination of the
Commitments and Credit Facility. If the reduction of the Aggregate Commitment
requires the repayment of any LIBOR Rate Loan or Competitive Bid Loan, such
reduction may be made only on the last day of the then current LIBOR Interest
Period or Competitive Bid Interest Period, respectively, applicable thereto
unless such repayment is accompanied by any amount required to be paid pursuant
to Section 3.8 hereof.
SECTION 2.7. Termination Date. The Credit Facility shall terminate on
the earliest of (a) the date that is 364 days after the Closing Date, (b) the
Term-Out Maturity Date, (c) the date of termination by the Borrower pursuant to
Section 2.6(a) and (d) the date of termination by the Documentation Agent on
behalf of the Lenders pursuant to Section 10.2(a) (the "Termination Date");
provided, that not earlier than the ninetieth (90th) day and not later than the
forty-fifth (45th) day prior to each of the first two (2) anniversaries of the
Closing Date (an "Extension Date"), the
<PAGE> 24
Borrower may, by written notice (an "Extension Request") given to the
Administrative Agent, request that the date set forth in clause (a) above be
extended in each such instance to a date that is the earlier to occur of (i) the
date which is 364 days after such Termination Date then in effect and (ii) the
third anniversary of the Closing Date. The Administrative Agent shall promptly
advise each Lender of its receipt of any Extension Request and furnish each
Lender with a copy thereof. Each Lender may, in its sole discretion, consent to
the Extension Request by giving written notice thereof to the Administrative
Agent not later than the Business Day (the "Extension Confirmation Date")
immediately preceding the date which is thirty (30) days after receipt by the
Administrative Agent of the Extension Request. No Lender shall be under any
obligation or commitment to extend such date and no such obligation or
commitment on the part of any Lender shall be inferred from the provisions of
this Section 2.7. Failure on the part of any Lender to respond to an Extension
Request by the applicable Extension Confirmation Date shall be deemed to be a
denial of such request by such Lender. The requested extension shall not be
granted unless (i) Lenders holding Commitments aggregating at least 66 2/3% of
the Aggregate Commitment as of the date the Extension Request is given shall
have consented in writing to such extension and (ii) the Borrower shall have
obtained all such necessary regulatory approvals as determined by the Lead
Agents prior to the applicable Extension Date. If Lenders holding Commitments
aggregating less than 100% but equal to or greater than 66 2/3% of such
Aggregate Commitment so consent to such an extension, and the Borrower obtains
all necessary regulatory approvals, the Borrower may elect by written notice to
the Administrative Agent and Lenders to (i) continue this Agreement for such
additional period with an Aggregate Commitment equal to the then effective
Aggregate Commitment less the total Commitments of Lenders who have not
consented to such an extension (collectively, the "Non-Consenting Lenders") or
(ii) require any such Non-Consenting Lender to transfer and assign without
recourse (in accordance with the provisions of Section 12.10) its Commitment and
other interests, rights and obligations under this Agreement to an Eligible
Assignee, which assignee shall assume such obligations; provided that (A) such
Eligible Assignee consents to such assignment, (B) no such assignment shall
conflict with any Applicable Law, (C) such assignment shall be at the expense of
the Borrower and (D) the purchase price to be paid to such Non-Consenting Lender
shall be an amount equal to the outstanding principal amount of Loans of such
Non-Consenting Lender plus all interest accrued and unpaid thereon and all fees
and other amounts owing to such Non-Consenting Lender hereunder. Promptly
following the applicable Extension Confirmation Date and in any event within
five (5) Business Days thereafter, the Administrative Agent shall provide notice
to the Borrower in writing as to whether the requested extension has been
granted and, if applicable, the list of Non-Consenting Lenders (an "Extension
Confirmation Notice"). If granted, such extension shall become effective with
respect to each Lender consenting thereto pursuant to the terms hereof upon the
date of issuance of such Extension Confirmation Notice. The Administrative Agent
shall promptly thereafter provide a copy of such Extension Confirmation Notice
to each Lender.
SECTION 2.8. Increase in Commitments. The Borrower shall have the
right, so long as no Default or Event of Default shall have occurred and be
continuing, without the consent of any Lender (except as described in clause (i)
below) but with the consent of each Lead Agent (which consents shall not be
unreasonably withheld), at any time prior to the fifth anniversary of the
Closing Date, to increase the total amount of the Aggregate Commitments
hereunder by (a) accepting the offer or offers of any Person or Persons (not
then a Lender) constituting an Eligible Assignee to become a new Lender hereto
with a Commitment or Commitments up to the amount
<PAGE> 25
(or aggregate amount) of any such increase and/or (b) accepting the offer of any
existing Lender or Lenders to increase its (or their) Commitment (or
Commitments) up to the amount of any such increase; provided, however, that (i)
in no event shall any Lender's Commitment be increased without the consent of
such Lender, (ii) if any Loans (other than Competitive Bid Loans) are
outstanding hereunder on the date that any such increase is to become effective,
the Administrative Agent shall make such transfers of funds as are necessary in
order that the outstanding balance of such Loans reflect the Commitment
Percentages of the Lenders after giving effect to any increase pursuant to this
Section 2.8, (iii) in no event shall the Aggregate Commitment hereunder be
increased unless the Aggregate Commitment under the Five-Year Credit Agreement
is increased by a proportionate amount pursuant to the terms thereof and (iv) in
no event shall any such increase result in the amount of the Total Commitments
exceeding $1,000,000,000. Any increase to the Aggregate Commitment pursuant to
clause (a) of the first sentence of this Section 2.8 shall become effective upon
the execution of a New Lender Supplement in the form of Exhibit G-1 hereto by
the Borrower, Lead Agents and relevant new Lender or Lenders and any increase to
the Aggregate Commitment pursuant to clause (b) of the first sentence of this
Section 2.8 shall become effective upon the execution of a Commitment Increase
Supplement in the form of Exhibit G-2 hereto, executed by the Borrower, the Lead
Agents and the increasing Lender or Lenders. The Administrative Agent shall
forward copies of any such supplement to the Lenders promptly upon receipt
thereof.
SECTION 2.9. Use of Proceeds. The Borrower shall use the proceeds of
the Loans (a) to finance the acquisition of capital assets, (b) in connection
with acquisitions and investments permitted by Section 9.4, (c) for working
capital and general corporate requirements of the Borrower and its Subsidiaries,
including the payment of certain fees and expenses incurred in connection with
the transactions contemplated hereby.
SECTION 2.10. Term-Out of Loans. Not earlier than the ninetieth (90th)
day and not later than the fifteenth (15th) day prior to the Termination Date,
so long as each of the conditions set forth in Section 4.3 hereof has been
satisfied as of such date, the Borrower may elect (the date of such election,
the "Term-Out Effective Date") to term out the aggregate principal balance of
Loans then outstanding (the "Term-Out Amount") over a period beginning on such
Term-Out Effective Date and ending on a date no later than the Termination Date
under the Five-Year Credit Agreement in effect at the time of such election (the
"Term-Out Maturity Date"). If not earlier repaid, all outstanding unpaid
principal of, and interest on, the Loans and any other outstanding obligations
shall be due on the Term-Out Maturity Date.
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1. Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
3.1, at the election of the Borrower, the aggregate principal balance of any
Revolving Credit Loan shall bear interest at (A) the Base Rate plus the
Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin.
<PAGE> 26
Competitive Bid Loans shall bear interest at a Competitive Bid Rate. The
Borrower shall select the rate of interest and the LIBOR Interest Period, if
any, applicable to any Loan at the time a Notice of Borrowing is given pursuant
to Section 2.2 or at the time a Notice of Conversion/Continuation is given
pursuant to Section 3.2. The Competitive Bid Interest Period, if any, shall be
determined in accordance with Section 2.3. Each Loan or portion thereof bearing
interest based on the Base Rate shall be a "Base Rate Loan", and each Loan or
portion thereof bearing interest based on the LIBOR Rate shall be a "LIBOR Rate
Loan". Any Loan or any portion thereof as to which the Borrower has not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods.
(i) In connection with each LIBOR Rate Loan, the Borrower, by
giving notice at the times described in Sections 2.2 and 3.2, shall elect an
interest period (each, a "LIBOR Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one, two, three, or six months or if
the Administrative Agent notifies the Borrower that each Lender has agreed
thereto, twelve months; provided that:
(A) each LIBOR Interest Period shall
commence on the date of advance of or conversion to any LIBOR Rate Loan and,
in the case of immediately successive LIBOR Interest Periods, each successive
LIBOR Interest Period shall commence on the date on which the next preceding
LIBOR Interest Period expires;
(B) if any LIBOR Interest Period would
otherwise expire on a day that is not a Business Day, such LIBOR Interest
Period shall expire on the next succeeding Business Day; provided, that if any
LIBOR Interest Period would otherwise expire on a day that is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such LIBOR Interest Period shall expire on the next preceding Business
Day;
(C) any LIBOR Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such LIBOR
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such LIBOR Interest Period; and
(D) no LIBOR Interest Period shall extend beyond
the Termination Date;
(ii) In connection with each Competitive Bid Loan, the
Borrower, by giving notice at the times described in Section 2.3, shall request
an interest period (each a "Competitive Bid Interest Period") to be applicable
to such Loan, which Competitive Bid Interest Period shall be a period of such
duration as mutually agreed upon by the applicable Competitive Bid Loan Lender
and the Borrower pursuant to Section 2.3(c); provided that:
(A) the Competitive Bid Interest Period shall
not be less than seven (7) days nor more than one hundred eighty (180) days;
<PAGE> 27
(B) if any Competitive Bid Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day; and
(C) no Competitive Bid Interest Period shall
expire on a date later than the first Business Day prior to the Termination
Date.
(iii) There shall be no more than eight (8) LIBOR Interest
Periods and Competitive Bid Interest Periods (collectively) in effect at any
time.
(c) Applicable Margin. The Applicable Margin provided for in Section
3.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered on the
Closing Date pursuant to Section 4.2(d)(iv) and (ii) for each fiscal quarter
thereafter be determined by reference to the better (as determined by the
Borrower) of (A) the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate or (B) the Senior Unsecured Debt Rating announced by Standard &
Poor's or Moody's as follows:
<TABLE>
<CAPTION>
Leverage Ratio Senior
as of Fiscal Unsecured Applicable Margin Per Annum
Quarter End Debt Ratings Base Rate + LIBOR Rate +
------------------------------------- ------------ ----------- ------------
<S> <C> <C> <C>
greater than or equal to 3.25 to 1.00 BB or Ba2 -0- 0.750%
greater than or equal to 2.50 to 1.00
less than 3.25 to 1.00 BB+ or Ba1 -0- 0.500%
greater than or equal to 1.75 to 1.00
less than 2.50 to 1.00 BBB- or Baa3 -0- 0.425%
greater than or equal to 1.00 to 1.00
less than 1.75 to 1.00 BBB or Baa2 -0- 0.375%
less than 1.00 to 1.00 BBB+ or Baa1
or higher -0- 0.300%
</TABLE>
; provided that, at all times when the Senior Unsecured Debt Rating is
unavailable, the Leverage Ratio shall control. In the event that the Borrower's
Senior Unsecured Debt Ratings, as determined by Moody's and Standard & Poor's,
differ by up to two levels, the lower Applicable Margin will apply. In the event
that the Borrower's Senior Unsecured Debt Ratings, as determined by Moody's and
Standard & Poor's, differ by more than two levels, the Applicable Margin for the
level immediately below the highest debt rating shall apply (if for example, the
debt ratings were BBB+ and Ba1, then the Applicable Margin for BBB/Baa2 shall
apply (0.375%)).
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent (i) three (3) Business Days following receipt by the
Administrative Agent of quarterly or annual financial
<PAGE> 28
statements for the Borrower and its Restricted Subsidiaries and the accompanying
Officer's Compliance Certificate for the Borrower setting forth the Leverage
Ratio of the Borrower and its Restricted Subsidiaries or (ii) three (3) Business
Days after the Administrative Agent has received written notice from the
Borrower of a change in the Senior Unsecured Debt Rating, as applicable. In the
event the Borrower fails to deliver such financial statements and certificate
within the time required by Section 6.2 hereof, the Applicable Margin until the
delivery of such financial statements and certificate shall be the Applicable
Margin set forth above applicable to the Borrower's Senior Unsecured Debt
Rating; provided that if such rating is not available, the Applicable Margin
shall be the highest Applicable Margin set forth above.
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrower shall no longer have the option to request
LIBOR Rate Loans or Competitive Bid Loans, (ii) all outstanding LIBOR Rate Loans
shall bear interest at a rate per annum two percent (2%) in excess of the then
applicable LIBOR Rate plus the Applicable Margin until the end of the applicable
LIBOR Interest Period and thereafter at a rate equal to two percent (2%) in
excess of the then applicable Base Rate plus the Applicable Margin, (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the then applicable Base Rate plus the Applicable
Margin, and (iv) all outstanding Competitive Bid Loans shall bear interest at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
to such Competitive Loans until the end of the applicable Competitive Bid
Interest Period and thereafter at a rate equal to two percent (2%) in excess of
the rate then applicable to Base Rate Loans. Interest shall continue to accrue
on the Notes after the filing by or against the Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
and on the Termination Date. Interest on each LIBOR Rate Loan and Competitive
Bid Loan shall be payable on the last day of each LIBOR Interest Period and
Competitive Bid Interest Period, respectively, applicable thereto, and on the
Termination Date, and if such LIBOR Interest Period or Competitive Bid Interest
Period extends over three (3) months, at the end of each three month interval
during such LIBOR Interest Period or Competitive Bid Interest Period,
respectively. All interest rates, fees and commissions provided hereunder shall
be computed on the basis of a 360-day year and assessed for the actual number of
days elapsed, except that interest with respect to each Base Rate Loan and the
commitment fee referenced in Section 3.3 shall be computed on the basis of a
365-day year.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the Borrower any interest received by Lenders
in excess of the maximum lawful rate or shall apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrower not pay or
contract to pay, and that no
<PAGE> 29
Agent or any Lender receive or contract to receive, directly or indirectly in
any manner whatsoever, interest in excess of that which may be paid by the
Borrower under Applicable Law.
SECTION 3.2. Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time all or
any portion of its outstanding Base Rate Loans in a principal amount equal to
$10,000,000 or any whole multiple of $5,000,000 in excess thereof into one or
more LIBOR Rate Loans, and (b) upon the expiration of any Interest Period,
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
into Base Rate Loans or to continue such LIBOR Rate Loans as LIBOR Rate Loans.
Whenever the Borrower desires to convert or continue Loans as provided above,
the Borrower shall give the Administrative Agent irrevocable prior written
notice in the form attached as Exhibit D (a "Notice of Conversion/Continuation")
not later than 12:00 noon (Charlotte time) three (3) Business Days before the
day on which a proposed conversion or continuation of such Loan is to be
effective specifying (i) the Loans to be converted or continued, and, in the
case of a LIBOR Rate Loan to be converted or continued, the last day of the
Interest Period therefor, (ii) the effective date of such conversion or
continuation (which shall be a Business Day), (iii) the principal amount of such
Loans to be converted or continued, and (iv) the Interest Period to be
applicable to such converted or continued LIBOR Rate Loan. The Administrative
Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 3.3. Commitment Fee. Commencing on the Closing Date, the
Borrower shall pay to the Administrative Agent for the account of the Lenders,
for each fiscal quarter a non-refundable commitment fee in an amount equal to
the product of (i) the Applicable Commitment Fee Rate as determined by reference
to the better (as determined by the Borrower) of (A) the Leverage Ratio as of
the end of the fiscal quarter immediately preceding the delivery of the
applicable Officer's Compliance Certificate or (B) the Senior Unsecured Debt
Rating announced by Standard & Poor's or Moody's, as applicable according to the
chart set forth in this Section 3.3 and (ii) the unused portion of the Aggregate
Commitment as follows:
<TABLE>
<CAPTION>
Leverage Ratio Senior
as of Fiscal Unsecured
Quarter End Debt Ratings Applicable Commitment Fee
---------------------------------- ------------ -------------------------
<S> <C> <C>
greater than or equal to 3.25 to 1.00 BB or Ba2 0.200%
greater than or equal to 2.50 to 1.00
less than 3.25 to 1.00 BB+ or Ba1 0.125%
greater than or equal to 1.75 to 1.00
less than 2.50 to 1.00 BBB- or Baa3 0.100%
greater than or equal to 1.00 to 1.00
less than 1.75 to 1.00 BBB or Baa2 0.090%
less than 1.00 to 1.00 BBB+ or Baa1
or higher 0.070%
</TABLE>
<PAGE> 30
; provided that, (i) at all times when the Senior Unsecured Debt Rating is
unavailable, the Leverage Ratio shall control and (ii) solely for the purposes
of determining the Applicable Commitment Fee, outstandings under the Competitive
Bid Loans shall not be considered usage of the Aggregate Commitment. In the
event that the Borrower's Senior Unsecured Debt Ratings, as determined by
Moody's and Standard & Poor's, differ by up to two levels the lower Applicable
Commitment Fee Rate will apply. In the event that the Borrower's Senior
Unsecured Debt Ratings, as determined by Moody's and Standard & Poor's, differ
by more than two levels, the Applicable Commitment Fee Rate for the level
immediately below the highest debt rating shall apply (if for example, the debt
ratings were BBB+ and Ba1, then the Applicable Commitment Fee Rate for BBB/Baa2
shall apply (0.090%)). Adjustments, if any, to the Applicable Commitment Fee
Rate shall occur contemporaneously as adjustments, if any, to the Applicable
Margin.
The commitment fee shall be payable in arrears on the last Business Day of each
calendar quarter during the term of this Agreement and on the date the Credit
Facility has been terminated in full. The commitment fee to the Lenders shall be
distributed by the Administrative Agent to the Lenders pro rata in accordance
with such Lenders' respective Commitment Percentages.
SECTION 3.4. Manner of Payment. Each payment by the Borrower on account
of the principal of or interest on the Loans or of any fee or other amounts
payable to the Lenders under this Agreement or any Note shall be made not later
than 2:00 p.m. (Charlotte time) on the date specified for payment under this
Agreement to the Administrative Agent for the account of the Lenders pro rata in
accordance with their respective Commitment Percentages at the Administrative
Agent's Office, in Dollars, in immediately available funds and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after 2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such
date for the purposes of Section 10.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Upon receipt by
the Administrative Agent of each such payment the Administrative Agent shall
credit each Lender's account with its pro rata share of such payment in
accordance with such Lender's Commitment Percentage and shall wire advice of the
amount of such credit to each Lender. Each payment to the Administrative Agent
of Agents' fees shall be made in like manner, but for the account of the
applicable Agent. All amounts payable by the Borrower on account of any
Competitive Bid Loan shall be for the account of the applicable Lender of such
Loan, and all amounts payable to any Lender under Sections 3.7 3.8, 3.9, 3.10
and 12.13 shall be payable to the Administrative Agent for the account of such
Lender. Subject to Section 3.1(b)(i)(B), if any payment under this Agreement or
any Note shall be specified to be made upon a day which is not a Business Day,
it shall be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing any interest if
payable along with such payment.
SECTION 3.5. Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 10.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all expenses then due
<PAGE> 31
and payable by the Borrower hereunder, then to all indemnity obligations then
due and payable by the Borrower hereunder, then to all Agents' fees then due and
payable, then to all commitment and other fees and commissions then due and
payable, then to accrued and unpaid interest on the Revolving Credit Notes and
any termination payments due in respect of a Hedging Agreement hedging interest
rate risk under this Agreement with any Lender or any Affiliate thereof (pro
rata in accordance with all such amounts due), then to the principal amount of
the Revolving Credit Notes, then to accrued and unpaid interest on the
Competitive Bid Notes (in inverse order of maturity) and then to the principal
amount outstanding under any Competitive Bid Notes (in inverse order of
maturity) in that order.
SECTION 3.6. Nature of Obligations of Lenders Regarding Loans;
Assumption by Administrative Agent. The obligations of the Lenders under this
Agreement to make the Loans are several and are not joint or joint and several.
Unless the Administrative Agent shall have received notice from a Lender prior
to a proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.2(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount of such Lender's Commitment Percentage of such borrowing, times
(b) the daily average Federal Funds Rate during such period as determined by the
Administrative Agent, times (c) a fraction the numerator of which is the number
of days that elapse from and including such borrowing date to the date on which
such Lender's Commitment Percentage of such borrowing shall have become
immediately available to the Administrative Agent and the denominator of which
is 360. A certificate of the Administrative Agent with respect to any amounts
owing under this Section shall be conclusive, absent manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such borrowing
date, the Administrative Agent shall be entitled to recover such amount made
available by the Administrative Agent with interest thereon at the rate per
annum applicable to Base Rate Loans hereunder, on demand, from the Borrower. The
failure of any Lender to make its Commitment Percentage of any Loan available
shall not relieve it or any other Lender of its obligation, if any, hereunder to
make its Commitment Percentage of such Loan available on such borrowing date,
but no Lender shall be responsible for the failure of any other Lender to make
its Commitment Percentage of such Loan available on the borrowing date.
SECTION 3.7. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any LIBOR Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being offered to the
Administrative Agent or such Lender for such LIBOR Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist (which
<PAGE> 32
notification shall be given within thirty (30) days after the Administrative
Agent obtains actual knowledge that such circumstances no longer exist), the
obligation of the Lenders to make LIBOR Rate Loans, and the right of the
Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan, shall
be suspended, and the Borrower shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loan,
together with accrued interest thereon, on the last day of the then current
LIBOR Interest Period applicable to such LIBOR Rate Loan or convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as
of the last day of such LIBOR Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until Administrative Agent notifies the Borrower that
such circumstances no longer exist (which notification shall be given within
thirty (30) days after the Administrative Agent obtains actual knowledge that
such circumstances no longer exist), (i) the obligations of the Lenders to make
LIBOR Rate Loans and the right of the Borrower to convert any Loan or continue
any Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
LIBOR Interest Period applicable thereto as a LIBOR Rate Loan, the applicable
LIBOR Rate Loan shall immediately be converted to a Base Rate Loan for the
remainder of such LIBOR Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
LIBOR Rate Loan or any Note; and the result of any of the foregoing is to
increase the costs to any of the Lenders of maintaining any LIBOR Rate Loan to
reduce the yield or amount of any sum received or receivable by any of the
Lenders under this Agreement or under the Notes in respect of a LIBOR Rate Loan,
then such Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Borrower of such fact and demand
compensation therefor and, within fifteen (15) days after such notice by
Administrative Agent, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or Lenders for such increased
cost or reduction; provided, that each
<PAGE> 33
affected Lender will designate a different Lending Office if such designation
will avoid the need for, or materially reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender. The Administrative Agent will promptly notify the Borrower of any event
of which it has knowledge which will entitle such Lender to compensation
pursuant to this Section 3.7(c); provided, that the Administrative Agent shall
incur no liability whatsoever to the Lenders or the Borrower in the event it
fails to do so. A certificate of the Administrative Agent setting forth the
basis for determining such additional amount or amounts necessary to compensate
such Lender or Lenders shall be conclusively presumed to be correct save for
manifest error.
(d) Replacement Lenders. At any time within sixty (60) days after any
payment by the Borrower of any amount pursuant to Section 3.7 that the Borrower
reasonably deems to be material, the Borrower, by writing addressed to the Lead
Agents and each Lender that requested the payment of such amount, may nominate
or propose an Eligible Assignee that is willing to become the assignee of the
Commitment and other obligations of such Lender (a "Replacement Lender")
pursuant to Section 12.10(b), and within fifteen (15) Business Days after
receipt of such proposal from the Borrower, each such Lender shall execute and
deliver to the Administrative Agent an Assignment and Acceptance of its entire
Commitment in favor of the proposed Replacement Lender in accordance with
Section 12.10(b) unless, prior to the expiration of such period, either Lead
Agent shall have notified the Borrower and such Lender that the proposed
Replacement Lender is not reasonably acceptable to such Lead Agent; provided,
that in no event will (i) any Lender be required to enter into an Assignment and
Acceptance at a price less than par plus accrued interest and prorated fees and
other costs due hereunder to the effective date thereof, (ii) either a Lead
Agent or Lenders be obligated to assist the Borrower in identifying any Eligible
Assignees that are willing to become such a Replacement Lender or (iii) any such
assignment be required if consummation conflicts with any Applicable Law. The
assignment fee payable to the Administrative Agent in connection with any such
assignment pursuant to Section 12.10(b) shall be for the account of the
Borrower.
SECTION 3.8. Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain the Loans (a) as a consequence of any failure by the Borrower
to make any payment when due of any amount due hereunder in connection with a
LIBOR Rate Loan or a Competitive Bid Loan, (b) due to any failure of the
Borrower to borrow on a date specified therefor in a Notice of Borrowing, Notice
of Continuation/Conversion or Competitive Bid Request or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan or a Competitive Bid Loan on a
date other than the last day of the LIBOR Interest Period or Competitive Bid
Interest Period, as applicable therefor. Each Lender's calculations of any such
loss shall be furnished to the Borrower and shall be conclusively presumed to be
correct save for manifest error.
SECTION 3.9. Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any
<PAGE> 34
corporation controlling such Lender as a consequence of, or with reference to
the Commitments and other commitments of this type, below the rate which the
Lender or such other corporation could have achieved but for such introduction,
change or compliance, then within five (5) Business Days after written demand by
any such Lender, the Borrower shall pay to such Lender from time to time as
specified by such Lender additional amounts sufficient to compensate such Lender
or other corporation for such reduction. A certificate as to such amounts
submitted to the Borrower and the Administrative Agent by such Lender, shall, in
the absence of manifest error, be presumed to be correct and binding for all
purposes.
SECTION 3.10. Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholding, and all liabilities with respect thereto excluding, (i)
in the case of each Lender and each Agent, income, franchise, capital and branch
profit taxes imposed by the jurisdiction under the laws of which such Lender or
Agent (as the case may be) is organized or is or should be qualified to do
business or any political subdivision thereof and (ii) in the case of each
Lender, income, franchise, capital and branch profit taxes imposed by (x) the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof and (y) a jurisdiction or a political subdivision thereof as a result of
a Lender changing its designated Lending Office to a lending office located in
such jurisdiction (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or any Agent, (A)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.10) such Lender or Agent (as the case may be) receives an
amount equal to the amount such party would have received had no such deductions
been made, (B) the Borrower shall make such deductions, (C) the Borrower shall
pay the full amount deducted to the relevant taxing authority or other authority
in accordance with Applicable Law, and (D) the Borrower shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 3.10(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes (other than excise and
property taxes to which any Agent or Lender would have been subject in the
absence of this Agreement and the provision for security in connection with the
execution of this Agreement), levies of the United States or any state or
political subdivision thereof or any applicable foreign jurisdiction which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the Loans, the other Loan
Documents, or the perfection of any rights or security interest in respect
thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and each Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 3.10) paid by such Lender or
<PAGE> 35
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Such indemnification shall be
made within thirty (30) days from the date such Lender or Agent (as the case may
be) makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 12.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance or on
the day that a Lender sells a participation to another bank or banks in
accordance with Section 12.10 (f) hereof, as applicable, (i) two United States
Internal Revenue Service Forms 4224 or Forms 1001, as applicable (or successor
forms) properly completed and certifying in each case that such Lender is
entitled to a complete exemption from withholding or deduction for or on account
of any United States federal income taxes, and (ii) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding taxes. Each such Lender
further agrees to deliver to the Borrower, with a copy to the Administrative
Agent, a Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Borrower,
certifying in the case of a Form 1001 or 4224 that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes (unless in any such case a change in
Applicable Law, including without limitation any change in procedure or
pronouncement of any Governmental Authority) has occurred prior to the date on
which any such delivery would otherwise be required which renders such forms
inapplicable or the exemption to which such forms relate unavailable and such
Lender notifies the Borrower and the Administrative Agent in writing that it is
not entitled to receive payments without deduction or withholding of United
States federal income taxes specifying the reasons why that is the case) and, in
the case of a Form W-8 or W-9, establishing an exemption from United States
backup withholding tax. Any Lender that fails to provide such certificates or
forms (claiming exemption from the applicable tax) that it is required to
provide under this Section 3.10(e) shall not be entitled to the benefits of
Section 3.10(a) hereof, and, to the extent required by law, Borrower shall
deduct taxes from payments made to such Lender.
(f) Replacement Lender. At any time within sixty (60) days after the
payment by the Borrower of any amount pursuant to Section 3.10(c) that the
Borrower reasonably deems material, the Borrower may seek to effect the
assignment by such Lender of such Lender's Commitment and other obligations
hereunder pursuant to Section 12.10(b) in accordance with and subject to the
terms of Section 3.7(d).
<PAGE> 36
(g) Survival. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.10 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1. Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, 100 North Tryon Street, Suite 4200,
Charlotte, North Carolina 28202 at 10:00 a.m. on September 5, 1997 or on such
other date as the parties hereto shall mutually agree.
SECTION 4.2. Conditions to Closing and Initial Loans. The obligation of
the Lenders to close this Agreement and make the initial Loans, if any, is
subject to the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in form and
substance satisfactory to the Documentation Agent and each Lender: (i) this
Agreement, (ii) the Five-Year Credit Agreement and each Loan Document referred
to therein and (iii) the Notes shall have been duly authorized, executed and
delivered to the Documentation Agent by the parties thereto, shall be in full
force and effect and no default shall exist thereunder, and the Borrower shall
have delivered original counterparts thereof to the Documentation Agent.
(b) Closing Certificates; etc.
(i) Certificate of the Borrower. The Documentation Agent shall
have received a certificate from the Chief Financial Officer or Treasurer of the
Borrower, in form and substance satisfactory to the Documentation Agent, to the
effect that all representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents are true, correct and complete; that
neither the Borrower nor any of its Restricted Subsidiaries is in violation of
any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that the
Borrower or applicable Restricted Subsidiary has satisfied each of the closing
conditions to be satisfied thereby.
(ii) Certificate of Secretaries. The Documentation Agent shall
have received a certificate of the secretary, assistant secretary or other
approved officer of the Borrower certifying that attached thereto is a true and
complete copy of the articles of incorporation of the Borrower and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of the Borrower as in effect
on the date of such certification; that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of the Borrower,
authorizing the execution, delivery and performance of the Loan Documents; and
as to the incumbency and genuineness of the signature of each officer of the
Borrower executing Loan Documents.
<PAGE> 37
(iii) Certificates of Good Standing. The Documentation Agent shall
have received long-form certificates as of a recent date of the good standing of
the Borrower and each Restricted Subsidiary under the laws of their respective
jurisdictions of organization and such other jurisdictions, in each such case as
requested by the Documentation Agent and a certificate of the relevant taxing
authorities of such jurisdictions requested by the Documentation Agent
certifying that the Borrower and such Restricted Subsidiary have filed required
tax returns and owe no delinquent taxes.
(iv) Opinions of Counsel. The Documentation Agent shall have
received favorable opinions of counsel to the Borrower and its Restricted
Subsidiaries addressed to the Agents and Lenders with respect to the Borrower
and its Restricted Subsidiaries, the Loan Documents and such other matters,
including without limitation FCC and PUC matters, as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received copies
of the United States Internal Revenue Service forms required by Section 3.10(e)
hereof.
(c) Consents; No Adverse Change.
(i) Governmental and Third Party Approvals. All necessary
approvals, authorizations and consents, if any be required, of any Person and of
all Governmental Authorities and courts having jurisdiction with respect to the
transactions contemplated by this Agreement and the other Loan Documents shall
have been obtained.
(ii) Permits and Licenses. All permits and licenses, including
permits and licenses required under Applicable Laws, necessary to the conduct of
business by the Borrower and its Restricted Subsidiaries shall have been
obtained, except where the failure to obtain such permits and licenses by the
Borrower or its Restricted Subsidiaries could not reasonably be expected to have
a Material Adverse Effect.
(iii) Additional Consents. The Borrower shall have obtained such
consents, amendments, or other modifications to the Synthetic Lease Documents
and the Securitization Documents in each case as are necessary in the reasonable
judgment of the Lead Agents to permit the execution, delivery and performance of
this Agreement and the other Loan Documents.
(iv) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Lead Agents' discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(v) No Material Adverse Change. There shall not have occurred any
material adverse change in the business, condition (financial or otherwise),
operations, prospects or
<PAGE> 38
properties of the Borrower and its Restricted Subsidiaries taken as a whole, or
any event, condition or state of facts that will or could be reasonably expected
to have a Material Adverse Effect.
(vi) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Documentation Agent shall have
received the most recent audited Consolidated financial statements of the
Borrower and its Restricted Subsidiaries, all in form and substance satisfactory
to the Documentation Agent.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Documentation Agent a certificate, in form and substance
satisfactory thereto, and certified as accurate in all material respects by the
Chief Financial Officer or Treasurer of the Borrower, that (A) the Borrower's
payables are current and not past due (except for those being contested in good
faith by the Borrower), (B) the Borrower's liquidity position (including credit
balances, other Current Assets and Current Liabilities) as of the date thereof
is not materially different from the financial information previously furnished
to the Lead Agents and (C) the financial projections previously delivered to the
Lead Agents represent the good faith opinion of the Borrower and senior
management thereof as to the projected results contained therein.
(iii) Payment at Closing; Fee Letters. There shall have been
paid by the Borrower to the Lead Agents and the Lenders the fees set forth or
referenced in the separate letter agreement dated as of August 1, 1997, executed
by the Borrower and any other accrued and unpaid fees or commissions due
hereunder (including, without limitation, legal fees and expenses), and to any
other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents. The Administrative Agent shall also have received a
duly executed copy of the letter agreement referred to in Section 2.3(e) hereof
providing for the payment of a fee to the Administrative Agent for each
Competitive Bid Request submitted by the Borrower hereunder.
(iv) Applicable Margin Certificate. The Borrower shall have
delivered to the Lead Agents a certificate executed by the Chief Financial
Officer or Treasurer of the Borrower setting forth the calculation of the
Applicable Margin pursuant to Section 3.1(c).
(e) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received written instructions from the Borrower in accordance with Section
2.2(a) to the Administrative Agent directing the payment of any proceeds of
Loans made under this Agreement that are to be paid on the Closing Date.
Further, the Borrower shall have delivered a Notice of Account Designation in
accordance with Section 2.2(b) specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be deposited.
<PAGE> 39
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance to
the Lenders. The Lenders shall have received copies of all other instruments and
other evidence as the Lender may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. The Borrower shall
have delivered to the Documentation Agent such other documents, certificates and
opinions as the Agents and Lenders reasonably request, including without
limitation, copies of each document evidencing or governing the Subordinated
Debt, certified by a secretary or assistant secretary of the Borrower as a true
and correct copy thereof.
SECTION 4.3. Conditions to All Loans. The obligations of the Lenders to
make any Loan is subject to the satisfaction of the following conditions
precedent on the relevant borrowing date:
(a) Continuation of Representations and Warranties. The representations
and warranties made by the Borrower contained in Article V shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date; except for any representation and warranty made as
of an earlier date which representation and warranty shall remain true and
correct as of such date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on the borrowing date with respect to such
Loan or after giving effect to the Loans to be made on such date.
(c) Additional Documents. The Documentation Agent shall have received
each additional document, endorsement, instrument, legal opinion or item of
information reasonably requested by it, including, without limitation, a copy of
any debt instrument, security agreement or other Material Contract to which the
Borrower may be a party.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 5.1. Representations and Warranties. To induce the Agents to
enter into this Agreement and the Lenders to make the Loans, the Borrower hereby
represents and warrants to the Agents and Lenders that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where the failure to be so
<PAGE> 40
qualified and authorized will not have a Material Adverse Effect. As of the
Closing Date, the jurisdictions in which the Borrower and its Restricted
Subsidiaries are organized and qualified to do business are described on
Schedule 5.1(a).
(b) Ownership. Each Restricted Subsidiary of the Borrower, as of the
Closing Date, is listed on Schedule 5.1(b). The capitalization of the Borrower
and its Restricted Subsidiaries, as of the Closing Date, consists of the number
of shares, authorized, issued and outstanding, of such classes and series, with
or without par value, described on Schedule 5.1(b). All outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
The shareholders of the Restricted Subsidiaries of the Borrower and the number
of shares owned by each, as of the Closing Date, are described on Schedule
5.1(b). There are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature
whatsoever, as of the Closing Date, which are convertible into, exchangeable for
or otherwise provide for or permit the issuance of capital stock or other
ownership interests of the Borrower or its Restricted Subsidiaries, except as
described on Schedule 5.1(b).
(c) Authorization of Agreement, Notes, Loan Documents and Borrowing.
The Borrower has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance
of this Agreement, the Notes and each of the other Loan Documents to which it is
a party in accordance with their respective terms. This Agreement, the Notes and
each of the other Loan Documents have been duly executed and delivered by the
duly authorized officers of the Borrower and, on and after such dates, each such
document constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Borrower of the Loan
Documents, in accordance with their respective terms, the borrowings hereunder
and the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice as of the Closing Date or otherwise, (i) require any
Governmental Approval or violate any Applicable Law relating to the Borrower or
any of its Restricted Subsidiaries; (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of the Borrower or any of its Restricted Subsidiaries
or any material indenture, agreement or other instrument to which such Person is
a party or by which any of its properties may be bound or any Governmental
Approval relating to such Person; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Loan
Documents.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower
and its Restricted Subsidiaries (i) has all material Governmental Approvals
required by any Applicable Law for it to conduct its business, each of which is
in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding; and (ii) is in compliance with each
Governmental
<PAGE> 41
Approval applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective properties, except where the failure to
so comply will not have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Restricted
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except where the failure
to so file or pay will not have a Material Adverse Effect. No Governmental
Authority has asserted any Lien or other claim against the Borrower or
Restricted Subsidiary thereof with respect to material unpaid taxes which has
not been discharged or resolved or is not being contested in good faith. The
charges, accruals and reserves on the books of the Borrower and any of its
Restricted Subsidiaries in respect of federal, state, local and other taxes for
all Fiscal Years and portions thereof since the organization of the Borrower and
any of its Restricted Subsidiaries are in the judgment of the Borrower adequate,
and the Borrower does not anticipate any additional material taxes or
assessments for any of such years.
(g) Copyright Matters. The Borrower and its Restricted Subsidiaries
have recorded or deposited with and paid to the United States Copyright Offices,
and the Register of Copyrights all notices, statements of account, royalty fees
and other documents and instruments required under the United States Copyright
Act, except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect, and neither the Borrower nor any Restricted
Subsidiary thereof is liable to any Person for copyright infringement under the
United States Copyright Act as a result of its business operations which
liability could reasonably be expected to have a Material Adverse Effect.
(h) Environmental Matters. (i) The properties of the Borrower and its
Restricted Subsidiaries do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of, or (B) could give rise to
liability under, applicable Environmental Laws, except for any violation or
liability that will not have a Material Adverse Effect;
(ii) Such properties and all operations conducted in connection
therewith are in material compliance, and have in the last eight years been in
material compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
materially interfere with the continued operation of such properties or
materially impair the fair saleable value thereof;
(iii) Neither the Borrower nor any Restricted Subsidiary thereof
has received any notice of material violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters
or compliance with Environmental Laws with regard to any of their properties or
the operations conducted in connection therewith, nor does the Borrower or any
Restricted Subsidiary thereof have knowledge or reason to believe that any such
notice will be received or is being threatened;
<PAGE> 42
(iv) Hazardous Materials have not been transported or disposed of
from the properties of the Borrower and its Restricted Subsidiaries in violation
of, or in a manner or to a location which could give rise to material liability
under, Environmental Laws, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of such properties in
material violation of, or in a manner that could give rise to material liability
under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Restricted Subsidiary thereof is
or will be named as a party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to such properties or such operations; and
(vi) There has been no release, or to the best of the Borrower's
knowledge, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give rise to
material liability under Environmental Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 5.1(i). If requested by
the Documentation Agent, the Borrower shall provide the Documentation Agent
accurate and complete copies of all contracts, agreements and documents
described on Schedule 5.1(i);
(ii) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except where failure to comply would not result in a material liability to the
Borrower and except for any required amendments for which the remedial amendment
period as defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined by the Internal Revenue Service to be so qualified,
and each trust related to such plan has been determined to be exempt under
Section 501(a) of the Code. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or
penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate
failed to make any contributions or to pay any amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with
<PAGE> 43
respect to any Pension Plan, except where the occurrence of any such event will
not have a Material Adverse Effect;
(iv) To the extent it could have a Material Adverse Effect, neither
the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or Section 4975 of the Code;
(B) incurred any liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and unpaid;
(C) failed to make a required contribution or payment to a Multiemployer Plan;
or (D) failed to make a required installment or other required payment under
Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to
occur which in either case could reasonably be expected to have a Material
Adverse Effect; and
(vi) No material proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined in
Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or
any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Restricted Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each such term is defined or used in Regulations G and U of the Board
of Governors of the Federal Reserve System). No part of the proceeds of any of
the Loans will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Restricted
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Borrower nor any Restricted
Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Public Utility Holding Company Act of 1935
or the Interstate Commerce Act, each as amended, or any other Applicable Law
which materially limits its ability to incur or consummate the transactions
contemplated hereby.
(l) Franchises, Licenses, Patents and Trademarks. Except as set forth
on Schedule 5.1(l) as of the Closing Date, each of the Borrower and its
Restricted Subsidiaries owns or possesses rights to use all franchises,
licenses, patents, patent rights or licenses, patent applications, trademarks,
trademark rights, trade names, trade name rights, copyrights and rights with
respect to the foregoing which are required to conduct its business as now and
presently planned to be conducted without conflict with the rights of others,
except where the failure to so own or possess will not have a Material Adverse
Effect. No event has occurred which permits, or after notice or lapse of time or
both would permit, the revocation or termination of any such rights.
(m) Material Contracts. Schedule 5.1(m) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Restricted
Subsidiaries in effect as of the Closing Date not listed on any other Schedule
hereto; each such Material Contract is, and after giving effect to the
<PAGE> 44
consummation of the transactions contemplated by the Loan Documents will be, in
full force and effect in accordance with the terms thereof. The Borrower and its
Restricted Subsidiaries have delivered to the Documentation Agent a true and
complete copy of each Material Contract required to be listed on Schedule 5.1(m)
in a form satisfactory to the Documentation Agent (subject to existing
confidentiality agreements which the Borrower or applicable Restricted
Subsidiary has executed with respect to any such Material Contract).
(n) Employee Relations. Each of the Borrower and its Restricted
Subsidiaries has a stable work force in place and is not as of the Closing Date,
except as set forth on Schedule 5.1(n), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of its
employees. The Borrower knows of no pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its employees or
those of its Restricted Subsidiaries.
(o) Burdensome Provisions. Neither the Borrower nor any Restricted
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law which is so unusual or burdensome as in the
foreseeable future could be reasonably expected to have a Material Adverse
Effect. The Borrower and its Restricted Subsidiaries do not presently anticipate
that future expenditures needed to meet the provisions of any statutes, orders,
rules or regulations of a Governmental Authority will be so burdensome as to
have a Material Adverse Effect.
(p) Financial Statements. The (i) Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of December 31, 1996 and the related
statements of income and retained earnings and cash flows for the Fiscal Year
then ended and (ii) unaudited Consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of June 30, 1997 and related unaudited interim
statements of revenue and retained earnings, copies of which have been furnished
to the Documentation Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position of the Borrower and its
Restricted Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended, subject, with respect
to the financial statements referred to in clause (ii), normal year-end
adjustments. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP. The Borrower and its
Restricted Subsidiaries have no material Debt, obligation or other unusual
forward or long-term commitment which is not fairly reflected in the foregoing
financial statements or in the notes thereto.
(q) No Material Adverse Change. Since December 31, 1996, there has been
no material adverse change in the properties, business, operations, prospects,
or condition (financial or otherwise) of the Borrower and its Restricted
Subsidiaries, including, but not limited to, any material adverse change
resulting from any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God, or of the public enemy or other casualty (whether or not
covered by insurance).
(r) Titles to Properties. Each of the Borrower and its Restricted
Subsidiaries has such title to the real property owned by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of its
personal property and assets, including, but not limited to, those
<PAGE> 45
reflected on the balance sheets of the Borrower and its Restricted Subsidiaries
delivered pursuant to Section 5.1(p), except those which have been disposed of
by the Borrower or its Restricted Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Restricted Subsidiary thereof is subject to any Lien, except Liens permitted
pursuant to Section 9.3. No financing statement under the Uniform Commercial
Code of any state which names the Borrower or any Restricted Subsidiary thereof
or any of their respective trade names or divisions as debtor and which has not
been terminated, has been filed in any state or other jurisdiction and neither
the Borrower nor any Restricted Subsidiary thereof has signed any such financing
statement or any security agreement authorizing any secured party thereunder to
file any such financing statement, except to perfect those Liens permitted by
Section 9.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 5.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Restricted Subsidiaries in excess of $10,000,000 as of the Closing Date. The
Borrower and its Restricted Subsidiaries have performed and are in compliance
with all of the terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Borrower or its Restricted
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. As of the Closing Date, except as set forth on Schedule
5.1(u), there are no actions, suits or proceedings pending nor, to the knowledge
of the Borrower, threatened against or in any other way relating adversely to or
affecting the Borrower or any Restricted Subsidiary thereof or any of their
respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority, which will or could reasonably be
expected to have a Material Adverse Effect. There are no outstanding or unpaid
final judgments (excluding any judgment which is stayed pending appeal) against
the Borrower or any Restricted Subsidiary thereof.
(v) FCC and PUC Regulatory Matters.
(i) Each Network Agreement has been duly executed and delivered by the
respective parties thereto, is in full force and effect and none of the parties
thereto is in default of any of the provisions thereof in any material respect,
except where any such failure not to be in full force and effect or any such
default could not reasonably be expected to have a Material Adverse Effect.
(ii) Schedule 5.1(v) hereto sets forth, as of the Closing Date, a true and
complete list of the following information for each FCC License or PUC
Authorization issued to the Borrower or any its Restricted Subsidiaries: (A) for
all FCC Licenses, the name of the licensee, the type of service and the
expiration dates; and (B) for each PUC Authorization, the geographic area
covered by such PUC Authorization, the services that may be provided thereunder
and the expiration date, if any.
<PAGE> 46
(iii) The FCC Licenses and PUC Authorizations specified on Schedule 5.1(v)
hereto are valid and in full force and effect without conditions except (A) for
such conditions as are generally applicable to holders of such FCC Licenses and
PUC Authorizations and (B) where the failure of any such FCC License or PUC
Authorization to be in full force and effect could not reasonably be expected to
have a Material Adverse Effect. No event has occurred and is continuing which
could reasonably be expected to (A) result in the imposition of a material
forfeiture or the revocation, termination or adverse modification of any such
FCC License or PUC Authorization or (B) materially and adversely affect any
rights of the Borrower or any of its Restricted Subsidiaries thereunder. The
Borrower has no reason to believe and has no knowledge that FCC Licenses and PUC
Authorizations will not be renewed in the ordinary course.
(iv) All of the material properties, equipment and systems owned, leased or
managed by the Borrower and its Restricted Subsidiaries are, and (to the best
knowledge of the Borrower) all such property, equipment and systems to be
acquired or added in connection with any contemplated system expansion or
construction will be, in good repair, working order and condition and are and
will be in compliance with all terms and conditions of the FCC Licenses and PUC
Authorizations and all standards or rules imposed by any Governmental Authority
or as imposed under any agreements with telephone companies and customers,
except where failure to so comply will not have a Material Adverse Effect.
(w) Fees and Charges. The Borrower and each of its Restricted
Subsidiaries have paid all franchise, license or other fees and charges which
have become due pursuant to any Governmental Approval in respect of its business
and has made appropriate provision as is required by GAAP for any such fees and
charges which have accrued, except where failure to so pay or make appropriate
provision will not have a Material Adverse Effect.
(x) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Restricted Subsidiary thereof under
any Material Contract or judgment, decree or order to which the Borrower or its
Restricted Subsidiaries is a party or by which the Borrower or its Restricted
Subsidiaries or any of their respective properties may be bound or which would
require the Borrower or its Restricted Subsidiaries to make any payment
thereunder prior to the scheduled maturity date therefor, to the extent any of
the foregoing could reasonably be expected to have a Material Adverse Effect.
(y) Senior Debt. All of the Obligations of the Borrower and its
Subsidiaries under the Loan Documents constitute "Senior Indebtedness" as such
term is used (and defined) in the Intercompany Notes and the Lead Agents and the
Lenders are entitled to the benefits of the subordination provisions of the
documents evidencing the Subordinated Debt. The Borrower acknowledges that the
Lead Agents and Lenders are entering into this Agreement and the Lenders are
making Loans in reliance upon such subordination provisions.
(z) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Restricted Subsidiary thereof and furnished to the Lenders were, at the time
the same were so furnished, complete and correct in
<PAGE> 47
all material respects to the extent necessary to give the recipient a true and
accurate knowledge of the subject matter. No document furnished or written
statement made to the Lead Agents or the Lenders by the Borrower or any
Restricted Subsidiary thereof in connection with the negotiation, preparation or
execution of this Agreement or any of the Loan Documents contains or will
contain any untrue statement of a fact material to the creditworthiness of the
Borrower or its Restricted Subsidiaries or omits or will omit to state a
material fact necessary in order to make the statements contained therein not
misleading. The Borrower is not aware of any facts which it has not disclosed in
writing to the Lead Agents having a Material Adverse Effect, or insofar as the
Borrower can now foresee, could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full, unless consent has been obtained in the manner set forth in
Section 12.11 hereof, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office (with copies for each
Lender, which copies shall be promptly forwarded by the Administrative Agent to
the Lenders) at its address set forth in Section 12.1 hereof, or such other
office as may be designated by such Agents from time to time:
SECTION 6.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of the first three (3) fiscal
quarters of each Fiscal Year, an unaudited Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter
and unaudited Consolidated statements of income, retained earnings and cash
flows for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and the
corresponding figures in the Projections for the portion of the Fiscal Year then
ended and prepared by the Borrower in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the chief financial officer of the
Borrower to present fairly in all material respects the financial condition of
the Borrower and its Restricted Subsidiaries as of their respective dates and
the results of operations
<PAGE> 48
of the Borrower and its Restricted Subsidiaries for the respective periods then
ended, subject to normal year end adjustments; and
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of
the close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Lead Agents in
accordance with GAAP and, if applicable, containing disclosure of the effect on
the financial position or results of operation of any change in the application
of accounting principles and practices during the year, and accompanied by a
report thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by the Borrower or any of its Restricted
Subsidiaries or with respect to accounting principles followed by the Borrower
or any of its Restricted Subsidiaries not in accordance with GAAP.
(c) Annual Financial Projections. As soon as practicable and in any
event within sixty (60) days after the end of each Fiscal Year, a business plan
of the Borrower and its Restricted Subsidiaries for the ensuing four fiscal
quarters, such plan to be prepared in accordance with GAAP and to include, on a
quarterly basis, the following: a quarterly operating and capital budget, a
projected income statement, statement of cash flows and balance sheet (such
business plan and projections, the "Projections"), accompanied by a certificate
from the chief financial officer or treasurer of the Borrower to the effect
that, to the best of such officer's knowledge, the Projections are good faith
estimates of the financial condition and operations of the Borrower and its
Restricted Subsidiaries for such four quarter period.
SECTION 6.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1(a) or (b) and at such other
times as the Lead Agents shall reasonably request, a certificate of the chief
executive officer, chief financial officer or treasurer of the Borrower in the
form of Exhibit E attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officers have reviewed such financial statements
and such statements fairly present the financial condition of the Borrower as of
the dates indicated and the results of their operations and cash flows for the
periods indicated;
(b) stating that to such officers' knowledge, based on a reasonable
examination sufficient to enable him to make an informed statement, no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default and its nature, when it occurred, whether it is continuing
and the steps being taken by the Borrower with respect to such Default or Event
of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not the
Borrower and its Restricted Subsidiaries were in compliance with the financial
covenants set forth in Article VIII hereof as at the end of each respective
period, and the calculation of the Applicable Margin pursuant to Section 3.1(c)
as at the end of each respective period.
<PAGE> 49
SECTION 6.3. Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto;
(b) As soon as practicable, copies of all financial statements and
reports that the Borrower shall send to its shareholders and copies of all
registration statements and all regular or periodic reports which the Borrower
shall file with the Securities and Exchange Commission or any successor
commission;
(c) If requested by the Lead Agents, statements in conformity with the
requirements of Federal Reserve Form G-1 or U-1 referred to in Regulations G and
U, respectively, of the Board of Governors of the Federal Reserve System;
(d) As soon as available and in any event within forty-five (45) days
after the end of each Fiscal Year of the Borrower, an updated Schedule 5.1(v)
accompanied by a report identifying any FCC License or material PUC
Authorization lost, surrendered or canceled during such period, and within ten
(10) Business Days after the receipt by the Borrower or any of its Restricted
Subsidiaries of notice that any FCC License or material PUC Authorization has
been lost or canceled, copies of any such notice accompanied by a report
describing the measures undertaken by the Borrower or any of its Restricted
Subsidiaries to prevent such loss or cancellation (and the anticipated impact,
if any, that such loss or cancellation will have upon the business of the
Borrower and its Restricted Subsidiaries); and
(e) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Restricted Subsidiaries as
the Agents or any Lender may reasonably request.
SECTION 6.4. Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of the Borrower obtains (or
reasonably should have obtained) knowledge thereof) telephonic and written
notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Restricted
Subsidiary thereof or any of their respective properties, assets or businesses,
which proceedings, investigations or actions involve potential liability to the
Borrower or any Restricted Subsidiary thereof equal to or in excess of
$15,000,000 or otherwise could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any material violation received by the Borrower or
any Restricted Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws;
<PAGE> 50
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against the Borrower or any Restricted
Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $15,000,000
that may be assessed against or threatened against the Borrower or any
Restricted Subsidiary thereof;
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Subordinated Debt or other Material
Contract to which the Borrower or any of its Restricted Subsidiaries is a party
or by which the Borrower or any Restricted Subsidiary thereof or any of their
respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by any
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by any Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) any Borrower obtaining knowledge or
reason to know that any Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA;
(g) the enactment or promulgation after the date hereof of any federal,
state or local statute, regulation or ordinance or judicial or administrative
decision or order (or, to the extent the Borrower has knowledge thereof, any
such proposed statute, regulation, ordinance, decision or order, whether by the
introduction of legislation or the commencement of rulemaking or similar
proceedings or otherwise) affecting or relating to the operation of the Network
Facilities by the Borrower or any of its Restricted Subsidiaries (including,
without limitation, any statutes, decisions or orders affecting long distance
telecommunication resellers generally and not directed against the Borrower or
any of its Restricted Subsidiaries specifically) which have been issued or
adopted (or which have been proposed) and which will or could reasonably be
expected to have a Material Adverse Effect;
(h) any change in the Senior Unsecured Debt Rating;
(i) any event which makes any of the representations set forth in
Section 5.1 inaccurate in any material respect; and
(j) any proposed amendment, change or modification to, or waiver of any
material provision of, or any termination of, any Material Contract which could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.5. Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to any Lead Agent or any Lender (other than financial forecasts) whether
pursuant to this Article VI or any other provision of this Agreement, shall be,
at the time the same is so furnished, complete and correct in all material
<PAGE> 51
respects to the extent necessary to give such Lead Agent or Lender complete,
true and accurate knowledge of the subject matter based on the Borrower's
knowledge thereof.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 12.11, the Borrower will, and
will cause each of its Restricted Subsidiaries to:
SECTION 7.1. Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.5, preserve and maintain its separate corporate
existence and all rights, franchises, licenses and privileges necessary to the
conduct of its business; and qualify and remain qualified as a foreign
corporation and authorized to do business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect.
SECTION 7.2. Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition all buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 7.3. Insurance. Maintain insurance with responsible insurance
companies against such risks and in such amounts as are customarily maintained
by similar businesses and as may be required by Applicable Law and on the
Closing Date and from time to time thereafter deliver to the Documentation Agent
upon its request a detailed list of the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the
dates of the expiration thereof and the properties and risks covered thereby.
SECTION 7.4. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 7.5. Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents, including
without limitation the Obligations, and pay or perform (a) except as disclosed
on Schedule 7.5, all taxes, assessments and other governmental charges that may
be levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Restricted Subsidiary may contest
any item described in clauses (a) and (b) hereof in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
<PAGE> 52
SECTION 7.6. Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable or
necessary to the conduct of its business.
SECTION 7.7. Environmental Laws. In addition to and without limiting
the generality of Section 7.6, (a) comply in all material respects with, and
ensure such compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply in all material respects
with all lawful orders and directives of any Governmental Authority regarding
Environmental Laws; and (c) defend, indemnify and hold harmless the Lead Agents
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the Borrower or
such Restricted Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor.
SECTION 7.8. Compliance with ERISA. In addition to and without limiting
the generality of Section 7.6, make timely payment of contributions required to
meet the minimum funding standards set forth in ERISA with respect to any
Employee Benefit Plan; not take any action or fail to take action the result of
which could be a material liability to the PBGC or to a Multiemployer Plan; not
participate in any prohibited transaction that could result in any material
civil penalty under ERISA or material tax under the Code; furnish to the
Documentation Agent upon the Documentation Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Documentation Agent; and operate each Employee Benefit Plan in such a manner
that will not incur any material tax liability under Section 4980B of the Code
or any material liability to any qualified beneficiary as defined in Section
4980B of the Code.
SECTION 7.9. Compliance With Agreements. Comply in all material
respects with each term, condition and provision of all material leases,
agreements and other instruments entered into in the conduct of its business
including, without limitation, any Material Contract; provided, that the
Borrower or such Restricted Subsidiary may contest any such lease, agreement or
other instrument in good faith so long as adequate reserves are maintained in
accordance with GAAP.
SECTION 7.10. Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and the resale of local exchange, cellular and paging communications services,
and to the extent permitted by Section 9.4(c), in lines of business reasonably
related thereto.
<PAGE> 53
SECTION 7.11. Visits and Inspections. Permit representatives of any of
the Lead Agents or Lenders, from time to time, as often as may be reasonably
requested, but only during normal business hours (except upon, and during the
continuance of an Event of Default), to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent accountants; and
discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 7.12. Year 2000 Compatibility. The Borrower shall take all
actions reasonably necessary to assure that Borrower's computer based systems
are able to operate and effectively process data which includes dates on and
after January 1, 2000. At the request of the Lead Agents, the Borrower shall
provide reasonable assurances satisfactory to the Lead Agents of the Borrower's
Year 2000 compatibility.
SECTION 7.13. Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as any Lead Agent or
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure each Lead Agent and the
Lenders their respective rights under this Agreement, the Notes and the other
Loan Documents.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 12.11 hereof, the Borrower will not:
SECTION 8.1. Maximum Leverage Ratio. Permit the Leverage Ratio to
exceed 4.00 to 1.00 at any time.
SECTION 8.2. Minimum Net Worth. Permit Consolidated Net Worth at any
time to be less than (i) 75% of the audited Consolidated Net Worth as of
December 31, 1996, plus (ii) 50% of the positive Consolidated Net Income after
the fiscal quarter ended December 31, 1996, plus (iii) 75% of the Net Cash
Proceeds of any issuance of equity after the date hereof. For purposes of
determining compliance with this Section 8.2, the Borrower shall be permitted to
add one-time cash and/or non-cash charges relating to acquisitions permitted
pursuant to Section 9.4(c) in an amount not to exceed $50,000,000 in the
aggregate during the term hereof to Consolidated Net Income to the extent such
charges are deducted from Consolidated Net Income.
ARTICLE IX
NEGATIVE COVENANTS
<PAGE> 54
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 12.11 hereof, the Borrower will not
and will not permit any of its Restricted Subsidiaries to:
SECTION 9.1. Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) Guaranty Obligations permitted by Section 9.2 and the Obligations;
(b) the Obligations hereunder and the Obligations referred to in the
Five-Year Credit Agreement;
(c) Debt incurred in connection with a Hedging Agreement in form and
substance and with a counterparty reasonably satisfactory to the Lead Agents;
(d) the SPC Notes, any other notes issued in connection with any
Permitted Securitization, the Intercompany Notes and Debt owing by a Restricted
Subsidiary to the Borrower or any other Restricted Subsidiary;
(e) additional Debt of the Borrower arising under or in connection with
public or privately placed notes, debentures, bonds, or debt securities or
related indentures or other agreements (including without limitation in
connection with the conversion or exchange of Approved Preferred Stock pursuant
to clause (ii) of Section 9.8) so long as:
(i) no Default or Event of Default exists on the date any
such Debt is created or arises as a result of any borrowing thereunder;
(ii) the provisions of the documents evidencing such Debt are
not materially more restrictive (as reasonably determined by the Lead
Agents) than the covenants in the Loan Documents, including, without
limitation, any "change in control" provision;
(iii) such Debt provides for no scheduled payment of
principal prior to December 31, 2004;
(iv) such Debt does not require mandatory prepayments or
redemptions at any such time as similar payments are not required
hereunder;
(v) such Debt is unsecured senior or subordinated Debt, and
(vi) the documents and other terms pursuant to which such
Debt is issued are reasonably satisfactory to the Lead Agents;
(f) without duplication of any other exception set forth in this
Section 9.1, any other Debt of the Borrower and its Restricted Subsidiaries,
including Subordinated Debt of the Borrower or any Restricted Subsidiary thereof
to an Unrestricted Subsidiary in an aggregate amount not to
<PAGE> 55
exceed on any date of determination seven and one-half percent (7.5%) of the
Total Debt of the Borrower and its Restricted Subsidiaries permitted on such
date under Section 8.1 so long as no Default or Event of Default exists on the
date any such Debt is created or arises as a result of any borrowing thereunder;
and
(g) Debt not otherwise permitted pursuant to Sections 10.1(a) through
10.1(e) and existing on the Closing Date and set forth on Schedule 5.1(t) and
refinancings thereof, but not the increase of the principal amount of, such
Debt; provided that the maturity date of such refinanced Debt is no earlier than
the original maturity date of such Debt;
provided, that none of the Debt permitted to be incurred by this Section shall
restrict, limit or otherwise encumber (by covenant or otherwise) the ability of
any Restricted Subsidiary of the Borrower to make any payment to the Borrower or
any of its Restricted Subsidiaries (in the form of dividends, intercompany
advances or otherwise) for the purpose of enabling the Borrower to pay the
Obligations.
SECTION 9.2. Limitations on Guaranty Obligations. Create, incur, assume
or suffer to exist any Guaranty Obligations except:
(a) Guaranty Obligations as of the Closing Date set forth on Schedule
5.1(t);
(b) Guaranty Obligations entered into by any Restricted Subsidiary in
favor of the holders of any Debt issued by the Borrower which Debt is permitted
hereunder; provided (i) such Guaranty Obligations are issued on terms and
pursuant to documentation reasonably satisfactory to the Lead Agents and (ii)
the Obligations of the Borrower under this Agreement are guaranteed on a pari
passu basis with such Debt;
(c) Guaranty Obligations entered into by any Restricted Subsidiary in
favor of the holders of any Debt issued by any other Restricted Subsidiary which
is permitted hereunder and Guaranty Obligations entered into by the Borrower in
favor of the holders of any Debt issued by a Restricted Subsidiary which Debt is
permitted hereunder;
(d) any Guaranty Obligations created under the Synthetic Lease
Documents, the Securitization Documents and the documents evidencing any other
Permitted Securitization;
(e) Guaranty Obligations entered into by the Borrower or any Restricted
Subsidiary in favor of the holders of any Debt issued by any Unrestricted
Subsidiary in aggregate principal amount at any one time not to exceed
$30,000,000 less the aggregate Net Investments then outstanding in Unrestricted
Subsidiaries pursuant to Section 9.4(a)(i) hereof; and
(f) without duplication of any other exception set forth in this
Section 9.2, Guaranty Obligations incurred in the ordinary course of business in
an aggregate amount not to exceed $50,000,000 outstanding at any time.
<PAGE> 56
SECTION 9.3. Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
shares of capital stock and other ownership interests), real or personal,
whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related, as determined by the Lead Agents,
thereto has not expired or which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $10,000,000) under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of such property or impair the
use thereof in the ordinary conduct of business;
(e) Liens evidencing the interest of the lessor under any lease not
constituting a Capital Lease in the property subject to such lease;
(f) Liens securing Debt permitted under Section 9.1(f);
(g) any Lien created in connection with any Permitted Securitization;
(h) Liens in favor of any Person securing an indefeasible right of use
permitted by Section 9.6(e) granted by LCI or any Restricted Subsidiary on a
portion of Network Facilities (including related rights of way and easements) to
such Person solely for the duration of such indefeasible right of use;
(i) Liens evidencing the interest of any owner of property which such
property is held by the Borrower or any Restricted Subsidiary pursuant to any
indefeasible right of use which is consistent with customary practices for the
long distance telecommunications industry; and
(j) Liens existing on the Closing Date and set forth on Schedule 9.3
hereof.
SECTION 9.4. Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture,
evidence of Debt or other obligation or security, substantially all or a
<PAGE> 57
material portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person; or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person; or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) (i) Net Investments in Unrestricted Subsidiaries not to exceed at
any date of determination $30,000,000 less the aggregate outstanding amount of
Debt thereof guaranteed by the Borrower or any Restricted Subsidiary pursuant to
Section 9.2(e), (ii) investments in Restricted Subsidiaries, the Intercompany
Notes, other intercompany Debt permitted pursuant to Section 9.1(d) and the
other existing loans, advances and investments described on Schedule 9.4 and
(iii) investments contemplated by any Permitted Securitization;
(b) investments in (the following, collectively, "Cash Equivalents")
(i) marketable direct obligations issued or unconditionally guaranteed by the
United States of America or any agency thereof maturing within 180 days from the
date of acquisition thereof, (ii) commercial paper maturing no more than 180
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's or Moody's, (iii) certificates of
deposit maturing no more than 180 days from the date of creation thereof issued
by commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally recognized
rating agency; provided, that the aggregate amount so invested in certificates
of deposit issued by any one such commercial bank shall not exceed $10,000,000
in the aggregate, (iv) time deposits maturing no more than 30 days from the date
of creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which
are insured by the FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder or (v) money market mutual funds which invest primarily in
the foregoing items or which have a rating of "A" or better by a nationally
recognized rating agency;
(c) investments by the Borrower or any Restricted Subsidiary in the
form of acquisitions of all or substantially all of the business or a line of
business (whether by merger, the acquisition of assets or at least sixty percent
(60%) of capital stock or other ownership interests or any combination thereof)
of any other Person if each such acquisition meets all of the following
applicable requirements:
(i) the Person to be acquired shall be a provider of
telecommunications service (including, without limitation, long
distance, local exchange, cellular and paging communications services);
provided, that subject to the other conditions of this clause (c) an
aggregate amount of $60,000,000 during the term of this Agreement may
be invested by the Borrower or any Restricted Subsidiary to acquire any
Person engaged in a business or a line of business reasonably related
to telecommunications service;
(ii) evidence of approval of the acquisition by the acquiree's
board of directors or equivalent governing body shall have been
delivered to the Lead Agents;
<PAGE> 58
(iii) if the Borrower is a party to such acquisition and the
Borrower shall not be the surviving Person, the surviving Person shall
have assumed the Obligations pursuant to documentation reasonably
satisfactory to the Lead Agents;
(iv) with regard to any acquisition, or series of related
acquisitions, by the Borrower or any Restricted Subsidiary involving
total consideration of less than $100,000,000, the Borrower shall
deliver a certificate to the Lead Agents, in form and substance
reasonably satisfactory thereto, confirming, as of the closing date of
such proposed acquisition:
(A) that all of the representations and warranties
set forth in Article V are true and correct immediately prior
to and after giving effect to the proposed acquisition; except
for any representations and warranty made as of an earlier
date which representation and warranty shall remain true and
correct as of such date; and
(B) that no Default or Event of Default has occurred
and is continuing or would result therefrom; provided that
such certificate shall not be due until the date upon which
the next Officer's Compliance Certificate must be delivered
unless the aggregate total consideration involved in any
single acquisition or acquisitions (including, on a pro forma
basis, the proposed acquisition) exceeds $20,000,000 in any
fiscal quarter, in which case, such certificate shall be due
on the closing date of such proposed acquisition; and
(v) with regard to any acquisition, or series of related
acquisitions, by the Borrower or any Restricted Subsidiary involving
total consideration in excess of $100,000,000, the following
requirements shall have been satisfied by the Borrower:
(A) at least thirty (30) (or such shorter period as
agreed to in advance by the Lead Agents) days prior to the
closing date of such proposed acquisition, the Borrower shall
have delivered to the Lead Agents a written description of (I)
the acquiree, including a description of its operations, or,
if applicable, the assets to be acquired, in form and
substance reasonably satisfactory to the Lead Agents and (II)
a copy of the purchase agreement related to such proposed
acquisition; and
(B) on the closing date of such proposed acquisition,
the Borrower shall deliver to the Lead Agents a certificate,
in form and substance reasonably satisfactory thereto, (I)
confirming that all representations and warranties set forth
in Article V are true and correct immediately prior to and
after giving effect to the proposed acquisition; except for
any representations and warranty made as of an earlier date
which representation and warranty shall remain true and
correct as of such date, (II) confirming that no Default or
Event of Default has occurred and is continuing or would
result therefrom and (III) setting forth calculations
evidencing (after giving effect to the proposed acquisition on
a pro forma basis) compliance by the Borrower and its
Restricted Subsidiaries with the financial covenants set forth
in Article VIII and Section 9.1 and (IV) confirming that such
proposed acquisition satisfies the applicable requirements of
this Section 9.4(c).
<PAGE> 59
(d) other loans, advances and investments not described above
(including, without limitation, investments in partnerships, joint ventures and
in any other Person less than sixty percent (60%) of the capital stock or other
ownership interests therein are owned directly or indirectly by the Borrower or
a Wholly-Owned Restricted Subsidiary thereof) not to exceed in the aggregate
during any period of four (4) consecutive fiscal quarters five percent (5%) of
Total Revenue of the Borrower and its Restricted Subsidiaries during such four
(4) consecutive fiscal quarters;
(e) loans or advances to employees, sales representatives, customers or
suppliers consistent with past practice of LCI or the relevant Restricted
Subsidiary and not to exceed a principal amount of $3,000,000 outstanding at any
time; and
(f) without duplication of any other exception set forth in this
Section 9.4, other loans, advances and investments (including, without
limitation, investments in partnerships and joint ventures) during the term of
this Agreement in an aggregate amount of $10,000,000.
SECTION 9.5. Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Restricted Subsidiary of the Borrower may be liquidated,
wound-up or dissolved (provided that, the net assets (or proceeds thereof) of
such Restricted Subsidiary shall, in connection with any such liquidation,
wind-up or dissolution, be conveyed to another Restricted Subsidiary or to the
Borrower) proportionate to the proportionate direct or indirect ownership of the
Borrower in such Restricted Subsidiary;
(b) any Restricted Subsidiary of the Borrower may merge with any other
Restricted Subsidiary of the Borrower;
(c) any Restricted Subsidiary may merge with any other Person in
connection with an acquisition permitted by Section 9.4(c); and
(d) the Borrower may merge with any other Person as long as (i) no
Default or Event of Default then exists or would be created thereby and (ii) if
the Borrower is not the surviving Person of any such merger, the surviving
Person shall have assumed the Obligations pursuant to documentation reasonably
satisfactory to the Lead Agents.
SECTION 9.6. Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets, including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction (any such action for
purposes of this Section 9.6, a "sale" of assets), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
<PAGE> 60
(b) the sale of obsolete assets no longer used or usable in the
business of the Borrower or such Restricted Subsidiary;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise,
collection or billing thereof, including without limitation to local exchange
carriers;
(d) any asset sale in connection with any Permitted Securitization;
(e) any asset sale constituting the grant of an indefeasible right of
use on a portion of the Network Facilities in favor of telecommunications
provider consistent with customary practices for the long distance
telecommunications industry; and
(f) any asset sale not otherwise permitted under this Section 9.6;
provided, that on the date of consummation of any such sale, the Operating Cash
Flow of the Borrower and its Restricted Subsidiaries attributable to all such
assets sold pursuant to this Section 9.6(f) (including, on a pro forma basis,
the assets subject to the proposed sale) during the period of four (4)
consecutive fiscal quarters ending on, or most recently ended prior to, such
date would not exceed twenty-five percent (25%) of Operating Cash Flow of the
Borrower and its Restricted Subsidiaries for such period.
SECTION 9.7. Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its capital stock or other ownership interests;
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock or other ownership interests, or make any
distribution of cash, property or assets among the holders of shares of its
capital stock or other ownership interests; or make any material change in its
capital structure that could reasonably be expected to have a Material Adverse
Effect; provided that: (a) the Borrower may pay dividends solely in shares of
its own capital stock or other ownership interests (including dividends
consisting of rights to purchase such capital stock or other ownership
interests), (b) any Restricted Subsidiary may pay dividends or make
distributions to the Borrower or any Wholly-Owned Restricted Subsidiary of the
Borrower and (c) as long as no Default or Event of Default has occurred and is
continuing or would be created thereby, the Borrower may pay cash dividends (i)
on shares of its capital stock or other ownership interests and (ii) the
Borrower or any Restricted Subsidiary may redeem shares of its capital stock or
other ownership interests.
SECTION 9.8. Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock or
other ownership interests that, by its terms or by the terms of any security
into which it is convertible or exchangeable, is, or upon the happening of an
event or passage of time would be (a) convertible or exchangeable into Debt or
(b) required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, except for (i)
the issuance of Approved Preferred Stock and (ii) the conversion or exchange of
any such Approved Preferred Stock for Subordinated Debt in accordance with the
terms of such Approved Preferred Stock if prior to any such conversion or
exchange the Lead Agents have received evidence satisfactory thereto that no
Default or Event of Default is then occurring or would result from any such
conversion or exchange.
<PAGE> 61
SECTION 9.9. Transactions with Affiliates. Except as set forth on
Schedule 9.9 or with respect to any Permitted Securitization, directly or
indirectly: (a) other than agreements and benefits extended to employees in the
ordinary course of business, make any loan or advance to, or purchase or assume
any note or other obligation to or from, any of its officers, directors,
shareholders or other Affiliates, or to or from any member of the immediate
family of any of its officers, directors, shareholders or other Affiliates, or
subcontract any operations to any of its Affiliates, or (b) enter into, or be a
party to, any transaction with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are fully disclosed to and approved in writing by the Required Lenders and are
no less favorable to it than would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 9.10. Certain Accounting Changes. Change its Fiscal Year end,
or make any material change in its accounting treatment and reporting practices
except as required by GAAP.
SECTION 9.11. Amendments; Payments and Prepayments of Subordinated
Debt. Except for the conversion of any Intercompany Note into common stock,
amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Debt if as a result of such amendment or
modification such Subordinated Debt fails to satisfy any condition set forth in
Section 9.1(e) hereof; or cancel or forgive, make any voluntary or optional
payment or prepayment on, or redeem or acquire for value (including without
limitation by way of depositing with any trustee with respect thereto money or
securities before due for the purpose of paying when due) any Subordinated Debt;
or amend or modify any of the dividend, exchange, conversion, redemption or
payment terms and provisions of the Approved Preferred Stock without the prior
written consent of the Lead Agents.
SECTION 9.12. Compliance with ERISA. (a) Permit the occurrence of any
Termination Event which would result in a liability to the Borrower or any ERISA
Affiliate in excess of $5,000,000; (b) permit the present value of all benefit
liabilities under all Pension Plans (determined under the actuarial assumptions
used for Code and ERISA funding purposes) to exceed the current value of the
assets of such Pension Plans allocable to such benefit liabilities by more than
$10,000,000; (c) permit any accumulated funding deficiency in excess of
$10,000,000 (as defined in Section 302 of ERISA and Section 412 of the Code)
with respect to any Pension Plan, whether or not waived; (d) fail to make any
contribution or payment to any Multiemployer Plan which the Borrower or any
ERISA Affiliate may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto which results in or is likely
to result in a liability in excess of $10,000,000; (e) engage, or permit the
Borrower or any ERISA Affiliate to engage, in any prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code for which a civil penalty
pursuant to Section 502(i) of ERISA or a tax pursuant to Section 4975 of the
Code in excess of $10,000,000 is imposed; (f) permit the establishment of any
Employee Benefit Plan providing post-retirement welfare benefits or establish or
amend any Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the obligation of
the Borrower or any ERISA Affiliate to a Multiemployer Plan which liability or
increase, individually or together with all similar liabilities and increases,
is material to the Borrower or any ERISA Affiliate; or (g) fail, or permit the
Borrower or any ERISA Affiliate to fail, to establish, maintain and operate each
Employee Benefit Plan in compliance in all material
<PAGE> 62
respects with the provisions of ERISA, the Code and all other applicable laws
and the regulations and interpretations thereof.
SECTION 9.13. Restrictive Agreements. Enter into any Debt or related
loan documentation which contains any covenants materially more restrictive than
the provisions of Articles VII, VIII and IX hereof, or which restricts, limits
or otherwise encumbers the Borrower's or any Restricted Subsidiaries' ability to
incur Liens on or with respect to any of its assets or properties other than the
assets or properties securing such Debt; provided that this Section 9.13 will
not be deemed to be violated by Section 1006 of the indenture governing the
Senior Notes or any equivalent provision in any other Debt or related
documentation which provision prohibits the creation of a Lien securing
additional Debt unless such other Debt is equally and ratably secured with such
additional Debt.
ARTICLE X
DEFAULT AND REMEDIES
SECTION 10.1. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. The Borrower shall
default in any payment of principal of any Loan or Note when and as due (whether
at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan or Note or the payment of any other Obligation, and such
default shall continue unremedied for five (5) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrower or any of its Restricted Subsidiaries under this
Agreement, any Loan Document or any amendment hereto or thereto, shall at any
time prove to have been incorrect or misleading in any material respect when
made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 6.4(e) or Articles VIII or IX of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any of its Restricted Subsidiaries shall default in the performance
or observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
10.1) or any other Loan Document and such default shall continue for a period of
forty-five (45) days after written notice thereof has been given to the Borrower
or any of its Restricted Subsidiaries by the Documentation Agent.
<PAGE> 63
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement and such amount is not paid within ten (10)
Business Days of the due date thereof.
(g) Debt Cross-Default. The Borrower or any of its Restricted
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes,
the SPC Notes or any notes issued in connection with any Permitted
Securitization) the aggregate outstanding amount of which is in excess of
$25,000,000 beyond the period of grace if any, provided in the instrument or
agreement under which such Debt was created; or (ii) default in the observance
or performance of any other agreement or condition relating to any Debt (other
than the Notes, the SPC Notes or any notes issued in connection with any
Permitted Securitization) the aggregate outstanding amount of which is in excess
of $25,000,000 or contained in any instrument or agreement evidencing, securing
or relating thereto or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Debt (or a trustee or agent on behalf of such
holder or holders) to cause, with the giving of notice if required, any such
Debt to become due prior to its stated maturity (any applicable grace period
having expired).
(h) Other Cross-Defaults. The Borrower or any of its Restricted
Subsidiaries shall default in the payment when due, or in the performance or
observance, of any obligation or condition of any Material Contract the breach
of which could reasonably be expected to have a Material Adverse Effect unless,
but only as long as, the existence of any such default is being contested by the
Borrower or such Restricted Subsidiary in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the books of
the Borrower or such Restricted Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
other than Warburg, Pincus Capital Company, L.P. or its Affiliates, shall obtain
ownership or control in one or more series of transactions of more than fifty
percent (50%) of the common stock or fifty percent (50%) of the voting power of
the Borrower entitled to vote in the election of members of the board of
directors of the Borrower or there shall have occurred under any indenture or
other instrument evidencing any Debt in excess of $10,000,000 or under the
Certificate of Designation any "change in control" (as defined in such indenture
or other evidence of Debt or such Certificate) obligating the Borrower to
repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Restricted
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts;
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws; (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability to pay
its debts as they become due; (vi) make
<PAGE> 64
a general assignment for the benefit of creditors; or (vii) take any corporate
action for the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower or any Restricted Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Borrower or any Restricted Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue undismissed or unstayed for a period
of sixty (60) consecutive calendar days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any material provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and binding on
the Borrower, or the Borrower, shall so state in writing.
(m) Termination Event. The occurrence of any of the following events:
(i) the Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto; (ii) an accumulated funding deficiency in excess of
$10,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan; (iii) a Termination Event; or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$10,000,000.
(n) Judgment. A judgment or order for the payment of money which
exceeds applicable insurance coverage by $15,000,000 in amount shall be entered
against the Borrower or any of its Restricted Subsidiaries by any court and such
judgment or order shall continue undischarged or unstayed for a period of thirty
(30) days.
(o) Attachment. A warrant or writ of attachment or execution or similar
process shall be issued against any property of the Borrower or any of its
Restricted Subsidiaries which exceeds $15,000,000 in value and such warrant or
process shall continue undischarged or unstayed for a period of thirty (30)
days.
(p) Loss of Approval. Any FCC License or PUC Authorization of the
Borrower or any Restricted Subsidiary thereof shall expire, terminate, be
canceled or otherwise lost or any application therefor be rejected, which event
shall or could reasonably be expected to have a Material Adverse Effect.
(q) Five-Year Credit Agreement. An Event of Default shall have occurred
and be continuing under the Five-Year Credit Agreement.
<PAGE> 65
SECTION 10.2. Remedies. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Documentation Agent may, or upon
the request of the Required Lenders, the Documentation Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans and the Notes at the time outstanding, and all other
amounts owed to the Lenders and to the Lead Agents under this Agreement or any
of the other Loan Documents and all other Obligations, to be forthwith due and
payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of the
Borrower to request borrowings; provided, that upon the occurrence of an Event
of Default specified in Section 10.1(j) or (k), the Credit Facility shall be
automatically terminated and all Obligations shall automatically become due and
payable.
(b) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 10.3. Rights and Remedies Cumulative; Non-Waiver; Etc. The
enumeration of the rights and remedies of the Lead Agents and the Lenders set
forth in this Agreement is not intended to be exhaustive and the exercise by the
Lead Agents and the Lenders of any right or remedy shall not preclude the
exercise of any other rights or remedies, all of which shall be cumulative, and
shall be in addition to any other right or remedy given hereunder or under the
Loan Documents or that may now or hereafter exist in law or in equity or by suit
or otherwise. No delay or failure to take action on the part of any Lead Agent
or Lender in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude other or further exercise thereof or the exercise of any
other right, power or privilege or shall be construed to be a waiver of any
Event of Default. No course of dealing between the Borrower, the Lead Agents and
the Lenders or their respective agents or employees shall be effective to
change, modify or discharge any provision of this Agreement or any of the other
Loan Documents or to constitute a waiver of any Event of Default.
SECTION 10.4. Consents. The Borrower acknowledges that certain
transactions contemplated by this Agreement and the other Loan Documents and
certain actions which may be taken by the Lead Agents or the Lenders in the
exercise of their respective rights under this Agreement and the other Loan
Documents may require the consent of the FCC or a PUC. If counsel to any Lead
Agent reasonably determines that the consent of the FCC or a PUC is required in
connection with the execution, delivery and performance of any of the aforesaid
documents or any documents delivered to the Lead Agents or the Lenders in
connection therewith or as a result of any action which may be taken pursuant
thereto, then the Borrower, at its sole cost and expense, agrees to use its best
efforts to secure such consent and to cooperate with the Lead Agents and the
Lenders in any action commenced by any Lead Agent or Lender to secure such
consent.
SECTION 10.5. Securitization Documents. Notwithstanding any of the
foregoing to the contrary, neither (a) the occurrence of any termination event
under any Permitted Securitization nor
<PAGE> 66
(b) a default under the SPC Notes or any notes issued in connection with any
Permitted Securitization shall constitute (x) a breach of Section 5.1(m) for
purposes of Section 10.1(c), (y) a breach of Section 7.9 for purposes of Section
10.1(e) or (z) a Default under Sections 10.1(g) or 10.1(h).
ARTICLE XI
THE LEAD AGENTS; SYNDICATION AGENT AND CO-AGENTS
SECTION 11.1. Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Documentation Agent of such Lender and
NationsBank as Administrative Agent of such Lender under this Agreement and the
other Loan Documents and each such Lender irrevocably authorizes First Union as
Documentation Agent, and NationsBank as Administrative Agent, respectively, for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to each such Lead Agent by the terms of
this Agreement and such other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, none of the Lead
Agents shall have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against such Lead Agent. To the extent any provision of this
Agreement permits action by any Lead Agent, such Lead Agent shall, subject to
the provisions of Section 12.11 hereof and of this Article XI, take such action
if directed in writing to do so by the Required Lenders.
SECTION 11.2. Delegation of Duties. Each of the Lead Agents may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Lead Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by such Lead Agent with reasonable care.
SECTION 11.3. Exculpatory Provisions. Neither any Lead Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Loan Documents (except for its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any of its Restricted Subsidiaries or any officer thereof contained in this
Agreement or the other Loan Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by such Lead Agent
under or in connection with, this Agreement or the other Loan Documents or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents or for any failure of the Borrower
or any of its Restricted Subsidiaries to perform its obligations hereunder or
thereunder. No Lead Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements
<PAGE> 67
contained in, or conditions of, this Agreement, or to inspect the properties,
books or records of the Borrower or any of its Restricted Subsidiaries.
SECTION 11.4. Reliance by Lead Agents. Each of the Lead Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by any Lead Agent.
Each of the Lead Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with Section 12.10 hereof. Each of the Lead Agents shall be fully
justified in failing or refusing to take any action under this Agreement and the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders (or, when expressly required hereby or by the relevant
other Loan Document, all the Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful misconduct.
Each of the Lead Agents shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders (or, when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
SECTION 11.5. Notice of Default. None of the Lead Agents shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that any Lead
Agent receives such a notice, it shall promptly give notice thereof to the
Documentation Agent who shall promptly give notice thereof to the Lenders. The
Documentation Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders; provided
that unless and until the Documentation Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION 11.6. Non-Reliance on Such Lead Agents and Other Lenders. Each
Lender expressly acknowledges that none of the Lead Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by any Lead Agent hereinafter taken, including any review of the
affairs of the Borrower or any of its Restricted Subsidiaries, shall be deemed
to constitute any representation or warranty by such Lead Agent to any Lender.
Each Lender represents to the Lead Agents that it has, independently and without
reliance upon the Lead Agents or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Restricted Subsidiaries
and made its own decision to make its Loans and enter into this Agreement. Each
Lender also represents that it will, independently and
<PAGE> 68
without reliance upon any Lead Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Restricted Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Lead Agent
hereunder or by the other Loan Documents, no Lead Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower or any of its Restricted Subsidiaries which may
come into the possession of such Lead Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact, Restricted Subsidiaries or
Affiliates.
SECTION 11.7. Indemnification. The Lenders agree to indemnify the
Documentation Agent and the Administrative Agent in their capacities as such and
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
amounts of their Commitment Percentages in effect on the date indemnification is
sought, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against any such Lead Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Lead Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from such Lead Agent's bad faith, gross negligence or willful misconduct. The
agreements in this Section 11.7 shall survive the payment of the Notes and all
other amounts payable hereunder and the termination of this Agreement.
SECTION 11.8. Each of the Lead Agents in Its Individual Capacity. Each
Lead Agent and its respective Subsidiaries and Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower as though such Lead Agent were not an Lead Agent hereunder. With
respect to any Loans made or renewed by it and any Note issued to it, each Lead
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Lead Agent, and the terms "Lender" and "Lenders" shall include the Documentation
Agent and the Administrative Agent in their individual capacity.
SECTION 11.9. Resignation of Lead Agents; Successor Lead Agents.
Subject to the appointment and acceptance of a successor as provided below, the
Documentation Agent or Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Documentation Agent
or Administrative Agent, as the case may be, which successor shall have minimum
capital and surplus of at least $500,000,000. If no successor Documentation
Agent or Administrative Agent, as the case may be, shall have been so appointed
by the Required Lenders
<PAGE> 69
and shall have accepted such appointment within thirty (30) days after the
retiring Lead Agent's giving of notice of resignation, then the retiring Lead
Agent may, on behalf of the Lenders, appoint a successor Documentation Agent or
Administrative Agent, as the case may be, which successor shall have minimum
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Documentation Agent or Administrative Agent hereunder by a
successor Documentation Agent or Administrative Agent, as the case may be, such
successor Lead Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Lead Agent, and the
retiring Lead Agent shall be discharged from its duties and obligations
hereunder. After any retiring Lead Agent's resignation or removal hereunder as
Documentation Agent or Administrative Agent, as the case may be, the provisions
of this Section 11.9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Documentation
Agent or Administrative Agent, as the case may be.
SECTION 11.10. Lead Agents. The Documentation Agent and Administrative
Agent hereby agree that with respect to any amendment, modification or waiver of
this Agreement and the other Loan Documents, the Documentation Agent shall be
responsible for the preparation, documentation and execution thereof. In
addition, with respect to any action or decision requiring consent or approval
of any Lenders, the Documentation Agent shall be responsible for obtaining such
consent or approval.
SECTION 11.11. Syndication Agent and Co-Agents. Each Syndication Agent,
in its capacity as Syndication Agent, and each Co-Agent, in its capacity as
Co-Agent, shall have no rights, duties, responsibilities or liabilities under
this Agreement or any other Loan Document.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to any Lead Agent
as understood by such Lead Agent will be deemed to be the controlling and proper
notice in the event of a discrepancy with or failure to receive a confirming
written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
<PAGE> 70
If to the Borrower: LCI International, Inc.
8180 Greensboro Drive
McLean, Virginia 22102
Attention: John J. Dillon
Telephone No.: (703) 848-4490
Telecopy No.: (703) 918-4460
with copies to: LCI International Management Services, Inc.
4650 Lakehurst Court
Dublin, Ohio 43016
Attention: James D. Heflinger, Esq.
Telephone No.: (614) 798-6273
Telecopy No.: (614) 798-6498
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: William N. Dye, Esq.
Telephone No.: (212) 821-8000
Telecopy No.: (212) 821-8111
If to First Union First Union National Bank
as Documentation One First Union Center, DC-5
Agent or Lender: 301 S. College Street
Charlotte, North Carolina 28288-0735
Attention: Lloyd R. Sams
Telephone No.: (704) 374-4151
Telecopy No.: (704) 374-4092
If to NationsBank NationsBank of Texas, N.A.
as Administrative 901 Main Street, 64th Floor
Agent or Lender: Dallas, Texas 75202
Attention: Keith M. Wilson
Telephone No.: (214) 508-0921
Telecopy No.: (214) 508-9390
If to any Lenders: At the Addresses set forth
in Schedule 1 attached hereto
or any amendment or supplement
thereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative
<PAGE> 71
Agent's Office referred to herein, to which payments due are to be made and at
which Loans will be disbursed.
SECTION 12.2. Expenses. The Borrower will pay all reasonable
out-of-pocket expenses of the Lead Agents in connection with: (a) the
preparation, execution and delivery of this Agreement and each of the other Loan
Documents, whenever the same shall be executed and delivered, including all
syndication and due diligence expenses, appraiser's fees, search fees, title
insurance premiums, recording fees, taxes and reasonable fees and disbursements
of counsel for the Lead Agents; (b) the preparation, execution and delivery of
any waiver, amendment or consent by the Lead Agents or the Lenders relating to
this Agreement or any of the other Loan Documents including reasonable fees and
disbursements of counsel for the Lead Agents, search fees, appraiser's fees,
recording fees and taxes imposed in connection therewith; and (c) administering
and enforcing their respective rights under this Agreement, including consulting
with one or more Persons, including appraisers, accountants, engineers and
attorneys, concerning or related to the nature, scope or value of any right or
remedy of any Lead Agent or any of the Lenders hereunder or under any of the
other Loan Documents, including any review of factual matters in connection
therewith, which expenses shall include the reasonable fees and disbursements of
such Persons.
SECTION 12.3. Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 12.10 are hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured, excluding government securities required by Applicable Law to be
held as security for worker's compensation and similar claims) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the account of the Borrower against and on
account of the Obligations irrespective of whether or not (a) the Lenders shall
have made any demand under this Agreement or any of the other Loan Documents or
(b) the Documentation Agent shall have declared any or all of the Obligations to
be due and payable as permitted by Section 10.2 and although such Obligations
shall be contingent or unmatured.
SECTION 12.4. Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 12.5. Consent to Jurisdiction. To the fullest extent permitted
by applicable law, the Borrower hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina, in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any Lead Agent or Lender in connection with
<PAGE> 72
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 12.1.
Nothing in this Section 12.5 shall affect the right of any Lead Agent or Lender
to serve legal process in any other manner permitted by Applicable Law or affect
the right of any Lead Agent or Lender to bring any action or proceeding against
the Borrower or its properties in the courts of any other jurisdictions.
SECTION 12.6. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH LEAD AGENT, LENDER AND THE BORROWER HEREBY IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 12.7. Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent or the Documentation Agent for
the ratable benefit of the Lenders (or the other Lead Agent) or the
Administrative Agent or the Documentation Agent receives any payment which
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
repaid, the Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or proceeds
had not been received by any Lead Agent.
SECTION 12.8. Injunctive Relief. The Borrower recognizes that, in the
event the Borrower fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to the Lenders. Therefore, the Borrower agrees that the
Lenders, at the Lenders' option, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
SECTION 12.9. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Restricted Subsidiary thereof to determine compliance with any
covenant contained herein, shall, except as otherwise expressly contemplated
hereby or unless there is an express written direction by the Documentation
Agent to the contrary agreed to by the Borrower, be performed in accordance with
GAAP. In the event that changes in GAAP shall be mandated by the Financial
Accounting Standards Board, or any similar accounting body of comparable
standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and the
Lenders shall have amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants and other terms and conditions of this
Agreement.
SECTION 12.10. Successors and Assigns; Participations.
<PAGE> 73
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lead Agents and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Lead Agents and (so long as no Default or Event of Default has occurred and is
continuing) the Borrower, which consents shall not be unreasonably withheld,
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation, all
or a portion of the Loans at the time owing to it and the Notes held by it);
provided, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Agreement and its rights and obligations under
the Five-Year Credit Agreement;
(ii) if less than all of the assigning Lender's Commitment is
to be assigned, the aggregate amount of the Commitment under this
Agreement and the Commitment under the Five-Year Credit Agreement
(determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) so
assigned shall not be less than $10,000,000 in the aggregate;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance in the form of Exhibit F
attached hereto (an "Assignment and Acceptance"), together with any
Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with
the Securities and Exchange Commission or apply to or qualify the Loans
or the Notes under the blue sky laws of any state;
(v) the representation contained in Section 12.21 hereof
shall be true with respect to any such proposed assignee;
(vi) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,500 upon the execution by such Lender of
the Assignment and Acceptance; provided that, the aggregate assignment
fee for an assignment hereunder and the contemporaneous assignment
under the Five-Year Credit Agreement shall not exceed $3,500; and
(vii) the Borrower shall have five (5) Business Days after
receipt thereby of any Assignment and Acceptance to consent to the
corresponding assignment by executing such agreement.
<PAGE> 74
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or its Restricted Subsidiaries or the
performance or observance by the Borrower and its Restricted
Subsidiaries of any of their obligations under this Agreement or any
other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 5.1(p) and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon any Lead Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Lead Agent to
take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to
such Lead Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the
<PAGE> 75
Lenders and the amount of the Loans with respect to each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Lead Agents and the Lenders may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and its Loans and the Notes held by it); provided that:
(i) each such participation (including any participation
under the Five-Year Agreement, if in effect) shall be in an aggregate
amount of not less than $10,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by
it for all purposes of this Agreement;
<PAGE> 76
(v) the Borrower, the Lead Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment
of such participant, reduce the amount of any fees to which such
participant is entitled, extend any scheduled payment date for
principal; and
(vii) any such participation shall not, without the consent
of the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent, the Documentation Agent and the Lenders shall hold all non-public
information obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided that, the
Administrative Agent and Documentation Agent may disclose information relating
to this Agreement to Gold Sheets and other similar bank trade publications, such
information to consist of deal terms and other information customarily found in
such publications. Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this Section
12.10, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, that prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant shall
execute a confidentiality agreement with the Borrower or such Lender (which in
the case of an agreement with only such Lender, the Borrower shall be recognized
as a third party beneficiary thereof) substantially in the form executed by each
Lender prior to the Closing Date in connection with its receipt of the
information memorandum with respect to the Agreement.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 12.11. Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Documentation Agent with
the consent of the Required Lenders) and delivered to the Documentation Agent
and, in the case of an amendment, signed by the Borrower; provided, that no
amendment, waiver or consent shall (i) increase the amount or extend the time of
the obligation of the Lenders to make Loans (other than pursuant to Section
2.8), (ii) extend the originally scheduled time or times of payment of the
principal of any Loan or the time or times of payment of interest on any Loan,
(iii) reduce the rate of interest (other than the application of default
interest pursuant to Section 3.1(d)) or fees payable on any Loan to any Lender
or Lead Agent, (iv) permit any subordination of the principal or interest on any
Loan or (v) amend the provisions of this Section
<PAGE> 77
12.11 or the definition of Required Lenders, without the prior written consent
of each Lender. In addition, no amendment, waiver or consent to the provisions
of Article XI shall be made without the written consent of the affected Lead
Agents, Syndication Agents or Co-Agents. Notwithstanding the foregoing, no
Lender shall be permitted to object to any amendment, waiver or withhold any
consent hereunder if such Lender has agreed to any similar amendment, waiver or
granted any similar consent under the Five-Year Credit Agreement.
SECTION 12.12. Performance of Borrower's Duties. The Borrower's
obligations under this Agreement and each of the Loan Documents shall be
performed by the Borrower at its sole cost and expense.
SECTION 12.13. Indemnification. The Borrower agrees to reimburse each
Lead Agent and the Lenders for all reasonable costs and expenses, including all
counsel, appraisal, or other expert or consultant fees and disbursements
incurred, and to indemnify and hold each Lead Agent and the Lenders harmless
from and against all losses suffered by such Lead Agent and the Lenders in
connection with (a) the exercise by the Lead Agents or the Lenders of any right
or remedy granted to them under this Agreement or any of the other Loan
Documents, (b) any claim, and the prosecution or defense thereof, arising out of
or in any way connected with this Agreement or any of the other Loan Documents,
and (c) the collection or enforcement of the Obligations or any of them;
provided, that the Borrower shall not be obligated to reimburse any Lead Agent
or any Lender for costs and expenses, or indemnify any Lead Agent or any Lender
for any loss, resulting from the gross negligence or willful misconduct of such
Lead Agent or Lender.
SECTION 12.14. All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, each Lead Agent and any Persons
designated by such Lead Agent or Lenders pursuant to any provisions of this
Agreement or any of the other Loan Documents shall be deemed coupled with an
interest and shall be irrevocable so long as any of the Obligations remain
unpaid or unsatisfied or this Agreement has not been terminated.
SECTION 12.15. Survival of Indemnities. Notwithstanding any termination
of this Agreement or the assignment by any Lender of its Commitment, the
indemnities to which the Lead Agents and any Lender and their respective
parents, Subsidiaries, Affiliates, officers, directors, employees and agents are
entitled under the provisions of this Article XII and any other provision of
this Agreement and the Loan Documents shall continue in full force and effect
and shall protect such Persons against events arising after such assignment or
termination as well as before.
SECTION 12.16. Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 12.17. Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
<PAGE> 78
SECTION 12.18. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 12.19. Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
SECTION 12.20. Adjustments. If any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or if any Lender shall at any time receive any Collateral in respect to
its Loans (whether voluntarily or involuntarily, by set-off or otherwise) in a
greater proportion than any such payment to and Collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders such
portion of each such other Lender's Loans, or shall provide such other Lenders
with the benefits of any such Collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such Collateral or proceeds ratably with each of the Lenders;
provided, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
SECTION 12.21. Representation of Lenders. Each Lender hereby represents
that it will make each Loan hereunder as a commercial loan for its own account
in the ordinary course of its business; provided, that subject to Section 12.10
hereof, the disposition of the Notes or other evidence of the Obligations held
by any Lender shall at all times be within its exclusive control.
SECTION 12.22. Inconsistencies with Other Documents; Independent Effect
of Covenants. (a) In the event there is a conflict or inconsistency between this
Agreement, the Notes or the other Loan Documents, the terms of this Agreement
shall control.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VII, VIII or IX hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VII, VIII or IX if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VII, VIII or IX.
[Signature Pages Follow]
<PAGE> 79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
[CORPORATE SEAL] LCI INTERNATIONAL, INC.
By: /s/ John J. Dillon
----------------------------------------
Name: John J. Dillon
----------------------------------------
Title:Vice President-Finance & Treasurer
----------------------------------------
FIRST UNION NATIONAL BANK,
as Documentation Agent and Lender
By: /s/ Jim Redman
---------------------------------------
Name: Jim Redman
---------------------------------------
Title: Senior Vice President
---------------------------------------
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and Lender
By: /s/ Keith M. Wilson
--------------------------------------
Name: Keith M. Wilson
--------------------------------------
Title: Vice President
--------------------------------------
[ADDITIONAL LENDERS]
<PAGE> 80
EXHIBIT A-1
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF REVOLVING CREDIT NOTE
<PAGE> 81
REVOLVING CREDIT NOTE
$______ September 5, 1997
FOR VALUE RECEIVED, the undersigned, LCI INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order
of_____________________ (the "Bank"), at the place and times provided in the
364-Day Credit Agreement referenced hereinafter, the principal sum
of______________________ ($_________ ) or, if less, the principal amount of all
Loans made by the Bank from time to time pursuant to that certain 364-Day Credit
Agreement, dated as of even date herewith (together with all amendments and
other modifications, if any, from time to time hereafter made thereto, the
"Credit Agreement") by and among the Borrower, the various financial
institutions (including the Bank) as are, or may from time to time become,
parties thereto (collectively, the "Lenders"), First Union National Bank, as
Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and The
Bank of New York, as Syndication Agent. Capitalized terms used herein and not
defined herein shall have the meanings given thereto in the Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding
is subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 3.1 of the Credit
Agreement. All payments of principal of and interest on this Note shall be
payable in Dollars to the account designated by the Administrative Agent (and as
to which the Administrative Agent has notified the Borrower) in immediately
available funds.
This Note is a Revolving Credit Note referred to in, is entitled to the
benefits of, and evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Obligations evidenced by this Note and on which such
Obligations may be declared to be immediately due and payable.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
[Signature Page Follows]
<PAGE> 82
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
<PAGE> 83
EXHIBIT A-2
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMPETITIVE BID NOTE
<PAGE> 84
COMPETITIVE BID NOTE
$250,000,000 September 5, 1997
FOR VALUE RECEIVED, the undersigned, LCI INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________________ (the "Bank"), at the place and times and in the
manner provided in the 364-Day Credit Agreement referenced hereinafter, the
principal sum of Two Hundred-Fifty Million Dollars ($250,000,000), or, if less,
the aggregate unpaid principal amount of all Competitive Bid Loans disbursed by
the Bank from the time pursuant to that certain 364-Day Credit Agreement, dated
as of even date herewith, (together with all amendments and other modifications,
if any, from time to time hereafter made thereto, the "Credit Agreement"), by
and among the Borrower, the various financial institutions (including the Bank)
as are, or from time to time become, parties thereto (collectively, the
"Lenders"), First Union National Bank, as Documentation Agent, NationsBank of
Texas, N.A., as Administrative Agent and The Bank of New York, as Syndication
Agent. Capitalized terms used herein and not defined herein shall have the
meanings given thereto in the Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding
is subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 3.1 of the Credit
Agreement. All payments of principal of and interest on this Note shall be
payable in Dollars to the account designated by the Administrative Agent (and as
to which the Administrative Agent has notified the Borrower) in immediately
available funds.
This Note is a Competitive Bid Note referred to in, is entitled to the
benefits of, and evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a statement of terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Obligations evidenced by this Note and on which such
Obligations may be declared to be immediately due and payable.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
THIS COMPETITIVE BID NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
<PAGE> 85
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
<PAGE> 86
EXHIBIT B-1
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent
FORM OF NOTICE OF BORROWING
<PAGE> 87
NOTICE OF BORROWING
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: _______________
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you, in your
capacity as Administrative Agent, under Section 2.2 of the 364-Day Credit
Agreement dated as of September 5, 1997 by and among LCI International, Inc., a
Delaware corporation (the "Borrower"), the financial institutions which are, or
may from time to time become, party thereto (collectively, the "Lenders"), First
Union National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement").
1. The Borrower hereby requests that the Lenders make a Revolving
Credit Loan.
2. The Borrower hereby requests that the Loan be made in the principal
amount of $________________. (Complete in accordance with Section 2.2 of the
Credit Agreement.)
3. The Borrower hereby requests that the Loan be made on the following
Business Day: _______________. (Complete in accordance with Section 2.2 of the
Credit Agreement.)
4. The Borrower hereby requests that the Revolving Credit Loan bear
interest at the following interest rate, plus the Applicable Margin: (Check one)
Base Rate, or
LIBOR Rate.
5. If the Loan requested is a LIBOR Rate Loan, the Borrower hereby
requests the following Interest Period applicable thereto: ______________.
(Complete in accordance with Section 3.1(b) of the Credit Agreement.)
6. The principal amount of all Loans outstanding as of the date hereof
(including the requested Loan) does not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.
7. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
<PAGE> 88
8. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
9. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
10. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Document are true and correct in all material
respects as of the date hereof (unless such representations and warranties are
expressly limited to speak only as of an earlier date, in which case such
representations and warranties shall remain true and correct as of such earlier
date), both before and after giving effect to the Loan requested herein.
11. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers.
12. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 89
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Borrowing this ____ day of __________, ____.
LCI INTERNATIONAL, INC.
<PAGE> 90
EXHIBIT B-2
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF ACCOUNT DESIGNATION
<PAGE> 91
NOTICE OF ACCOUNT DESIGNATION
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
________ __, ____
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you, in your
capacity as Administrative Agent, under Section 2.2(b) of the 364-Day Credit
Agreement dated as of September 5, 1997 by and among LCI International, Inc., a
Delaware corporation (the "Borrower"), the financial institutions which are, or
may from time to time become, party thereto (collectively, the "Lenders"), First
Union National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement").
The Administration Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
[Signature Page Follows]
<PAGE> 92
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of ___________, ____.
LCI INTERNATIONAL, INC.
<PAGE> 93
EXHIBIT B-3
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF PREPAYMENT
<PAGE> 94
NOTICE OF PREPAYMENT
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
________ __, ____
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you, in your
capacity as Administrative Agent, under Section 2.4(c) of the 364-Day Credit
Agreement dated as of September 5, 1997 by and among LCI International, Inc., a
Delaware corporation (the "Borrower"), the financial institutions which are, or
may from time to time become, party thereto (collectively, the "Lenders"), First
Union National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement").
1. The Borrower hereby provides notice to the Agent that the Borrower
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans] and/or:
___________________. (Complete with an amount in accordance with Section 2.4 of
the Credit Agreement.)
2. The Borrower shall repay the above referenced Loans on the
following Business Day: _______________. (Complete with a Business Day in
accordance with Section 2.4 of the Credit Agreement.)
3. The Borrower shall repay the above referenced Loans in the
following amount: ________________. (Complete with a Business Day in accordance
with Section 2.4 of the Credit Agreement.)
4. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 95
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of _______, 19__.
LCI INTERNATIONAL, INC.
<PAGE> 96
EXHIBIT C-1
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMPETITIVE BID REQUEST
<PAGE> 97
COMPETITIVE BID REQUEST
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: _______________
________ __, ____
Ladies and Gentlemen:
This Competitive Bid Request is delivered to you, in your capacity as
Administrative Agent, under Section 2.3(a) of the 364- Day Credit Agreement
dated as of September 5, 1997 by and among LCI INTERNATIONAL, INC. (the
"Borrower"), the financial institutions which are, or may from time to time
become, party thereto (collectively, the "Lenders"), First Union National Bank,
as Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and
The Bank of New York, as Syndication Agent (as amended or modified from time to
time, the "Credit Agreement").
1. The Borrower hereby requests a Competitive Bid Loan under the
Credit Agreement, and in connection therewith sets forth below the terms on
which such Competitive Bid Loan is requested to be made: (Complete in accordance
with Section 2.3(b) and 4.1(b) of the Credit Agreement.)
(a) Date of Competitive Bid Loan
(b) Principal Amount of Competitive Bid Loan
(c) Interest Periods and the last day thereof
2. The principal amount of all Loans outstanding as of the date hereof
(including the requested Loan) will not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.
3. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
4. All of the conditions applicable to the Loan requested herein as
set forth in the Credit Agreement have been satisfied as of the date hereof and
will remain satisfied to the date of such Loan.
<PAGE> 98
5. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
6. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the Loan
requested herein (unless such representations and warranties are expressly
limited to speak only as of an earlier date, in which case such representations
and warranties remain true and correct as of such earlier date).
7. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers.
8. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 99
IN WITNESS WHEREOF, the undersigned has executed this Competitive Bid
Request this ____ day of _______, 19__.
Very truly yours,
LCI INTERNATIONAL, INC.
<PAGE> 100
EXHIBIT C-2
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF INVITATION TO BID
<PAGE> 101
INVITATION TO BID
[Name of Lender]
[Address]
[Date]
Attention: _____________
Dear Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of September
5, 1997 by and among LCI International, Inc., a Delaware corporation (the
"Borrower"), the financial institutions which are, or may from time to time
become, party thereto (collectively, the "Lenders"), First Union National Bank,
as Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and
The Bank of New York, as Syndication Agent (as amended or modified from time to
time, the "Credit Agreement"). All undefined capitalized terms used herein have
the meanings assigned thereto in the Credit Agreement.
The Borrower made a Competitive Bid Request on ______________, _____,
pursuant to Section 2.3(a) of the Credit Agreement, and in connection therewith
you are invited to submit a Competitive Bid by [Date]/[Time]. (The Competitive
Bid must be received by the Administrative Agent no earlier than 10:30 a.m.,
Charlotte time, on the proposed borrowing date.) Your Competitive Bid must
comply with Section 2.3 of the Credit Agreement and the terms set forth below on
which such Competitive Bid Loan is requested to be made.
(a) Date of Competitive Bid Loan
(a) Principal amount of Competitive Bid Loan
(c) Interest Periods and the last day thereof
Very truly yours,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent
<PAGE> 102
EXHIBIT C-3
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York
as Syndication Agent.
FORM OF COMPETITIVE BID
<PAGE> 103
COMPETITIVE BID
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
________ __, ____
Ladies and Gentlemen:
The undersigned, [Name of Lender] refers to the 364-Day Credit
Agreement dated as of September 5, 1997 by and among LCI International, Inc., a
Delaware corporation (the "Borrower"), the financial institutions which are, or
may from time to time become, party thereto (collectively, the "Lenders"), First
Union National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or modified from time to time, the "Credit Agreement"). All undefined
capitalized terms used herein have the meanings assigned thereto such terms in
the Credit Agreement.
1. The undersigned hereby makes a Competitive Bid pursuant to Section
2.3(b) of the Credit Agreement, in response to the Competitive Bid Request made
by the Borrower on ____________, ____, and in connection therewith sets forth
below the terms on which such Competitive Bid is made: (Complete in accordance
with Section 3.1(b) of the Credit Agreement.)
(a) Date of Competitive Bid
(b) Principal Amount
(c) Interest Periods and last day thereof
2. The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.3(d) of
the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
<PAGE> 104
EXHIBIT C-4
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
<PAGE> 105
COMPETITIVE BID ACCEPT/REJECT LETTER
________ __, ____
NationsBank of Texas, N.A., as Administrative Agent
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: __________
Ladies and Gentlemen:
The undersigned, LCI INTERNATIONAL, INC. (the "Borrower"), refers to
the 364-Day Credit Agreement dated as of September 5, 1997 by and among the
Borrower, the financial institutions which are, or may from time to time become,
party thereto (collectively, the "Lenders"), First Union National Bank, as
Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and The
Bank of New York, as Syndication Agent (as amended or otherwise modified from
time to time the "Credit Agreement").
1. In accordance with Section 2.3(b) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
____________, _____, and in accordance with Section 2.3(c) of the Credit
Agreement, we hereby accept the following:
(a) Date of Competitive Bid Loan
(b) Principal Amount
(c) Interest Period
(d) Lender _____________
2. We hereby reject the following bids:
(a) Date of Competitive Bid Loan
(b) Principal Amount
(c) Interest Period
(d) Lender _____________
3. The principal amount of all Loans outstanding as of the date hereof
(including the accepted Loan, if any) does not exceed the maximum amount
permitted to be outstanding pursuant to the terms of the Credit Agreement.
<PAGE> 106
4. The obligations of the Borrower set forth in the Credit Agreement
and the other Loan Documents are valid, binding and enforceable obligations of
the Borrower as of the date hereof, both before and after giving effect to the
Loan requested herein.
5. All of the conditions applicable to the Loan requested herein as
set forth in the Credit Agreement have been satisfied as of the date hereof and
will remain satisfied to the date of such Loan.
6. No Default or Event of Default exists, and none will exist upon the
making of the Loan requested herein.
7. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the Loan
requested herein (unless such representations and warranties are expressly
limited to speak only as of an earlier date, in which case such representations
and warranties remain true and correct as of such earlier date).
8. The execution of this Notice of Borrowing does not violate the
material terms and conditions of any Material Contract or Contingent Obligation
of the Borrowers.
9. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 107
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of ______________, ____.
LCI INTERNATIONAL, INC.
<PAGE> 108
EXHIBIT D
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NOTICE OF CONVERSION/CONTINUATION
<PAGE> 109
NOTICE OF CONVERSION/CONTINUATION
NationsBank of Texas, N.A., as Administrative Agent
901 South Main Street
Dallas, Texas 75202
Attention: _____________
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation is delivered to you,
in your capacity as Administrative Agent, under Section 3.2 of the 364-Day
Credit Agreement dated as of September 5, 1997 among LCI International, Inc., a
Delaware Corporation (the "Borrower"), the financial institutions which are, or
may from time to time become, party thereto (collectively, the "Lenders"), First
Union National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or otherwise modified from time to time the "Credit Agreement").
1. This Notice of Conversion/Continuation is submitted with respect to
a Revolving Credit Loan for the purpose of: (Check one and complete applicable
information.)
Converting a Base Rate Loan into a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$_______________.
(b) The principal amount of such Loan to be converted is
$_______________. (Complete in accordance with Section 3.2 of
the Credit Agreement.)
(c) The requested effective date of the conversion of such Loan
is _______________. (Complete in accordance with Section 3.2
of the Credit Agreement.)
(d) The requested LIBOR Interest Period applicable to the
converted Loan is _______________. (Complete in accordance
with Section 3.1 of the Credit Agreement.)
Converting a LIBOR Rate Loan into a Base Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$_______________.
(b) The last day of the current LIBOR Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be converted is
$_______________. (Complete in accordance with Section 3.2 of
the Credit Agreement.)
<PAGE> 110
(d) The requested effective date of the conversion of such Loan
is _______________. (Complete in accordance with Section 3.2
of the Credit Agreement.)
Continuing a LIBOR Rate Loan as a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$_______________.
(b) The last day of the current LIBOR Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be continued is
$_______________. (Complete in accordance with Section 3.2 of
the Credit Agreement.)
(d) The requested effective date of the continuation of such Loan
is _______________. (Complete in accordance with Section 3.2
of the Credit Agreement.)
(e) The requested LIBOR Interest Period applicable to the
continued Loan is _______________. (Complete in accordance
with Section 3.1 of the Credit Agreement.)
2. The principal amount of all Loans outstanding as of the date hereof
does not exceed the maximum amount permitted to be outstanding pursuant to the
terms of the Credit Agreement.
3. The obligations of the Borrower set forth in the Credit Agreement
and the Loan Documents are valid, binding and enforceable obligations of the
Borrower as of the date hereof, both before and after giving effect to the
conversion or continuation of the Loan requested herein.
4. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied as of the date hereof and will remain satisfied to the date of such
Loan.
5. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Loan requested herein.
6. The representations and warranties of the Borrower under the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as of the date hereof, both before and after giving effect to the
conversion or continuation of the Loan requested herein (unless such
representations and warranties are expressly limited to speak only as of an
earlier date, in which case such representations and warranties remain true and
correct as of such earlier date).
<PAGE> 111
7. The execution of this Notice of Conversion/Continuation does not
violate the material terms and conditions of any Material Contract or Contingent
Obligation of the Borrower.
8. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
[Signature Page Follows]
<PAGE> 112
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/Continuation this ____ day of __________, ____.
LCI INTERNATIONAL, INC.
Confirmed LIBOR Rate for ___ month LIBOR Interest Period: ___%[Base]
___%[Spread]
___%[Total]
Authorized Signature: ______________________
<PAGE> 113
EXHIBIT E
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
<PAGE> 114
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of LCI International, Inc., a Delaware
corporation (the "Borrower"), hereby certifies to NATIONSBANK OF TEXAS, N.A., in
its capacity as Administrative Agent for the Lenders referred to below (the
"Administrative Agent"), and to each of the Lenders and other Agents as follows:
1. This Certificate is delivered pursuant to Section 6.2 of the
364-Day Credit Agreement (the "Credit Agreement") dated as of September 5, 1997
by and among the Borrower, the financial institutions which are, or may from
time to time become, party thereto (collectively, the "Lenders"), First Union
National Bank, as Documentation Agent, NationsBank of Texas, N.A., as
Administrative Agent and The Bank of New York, as Syndication Agent (as amended
or otherwise modified from time to time). Capitalized terms used herein and not
defined herein shall have the meanings assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Borrower and its
Subsidiaries dated as of _______________ and for the _______________ period then
ended and such statements fairly present the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of their
operations and cash flows for the periods indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and
the related Loan Documents and have made, or caused to be made under my
supervision, a review in reasonable detail of the transactions and the condition
of the Borrower and its Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not
disclosed the existence during or at the end of such accounting period of any
condition or event that constitutes a Default or an Event of Default under the
Credit Agreement, nor do I have any knowledge of the existence of any such
condition or event as at the date of this Certificate [except, [if such
condition or event existed or exists, describe the nature and period of
existence thereof and what action the Borrower and its Subsidiaries have taken,
are taking and propose to take with respect thereto]].
4. The Borrower and its Subsidiaries are in compliance with the
covenants contained in Article VIII of the Credit Agreement as shown on the
attached Schedule 1 and in compliance with the other covenants and restrictions
contained in Articles VI, VII and VIII of the Credit Agreement.
5. As set forth in the attached Schedule 1 and in accordance with
Section 3.1(c) of the Credit Agreement, the Applicable Margin for Base Rate
Loans will be ____ and for LIBOR Rate Loans will be _____ effective three (3)
Business Days after the date of receipt hereof by the Administrative Agent.
[Signature Page Follows]
<PAGE> 115
WITNESS the following signature as of the ____ day of __________, 19__.
__________________________[SEAL]
Name:__________________________
Title:_________________________
<PAGE> 116
Schedule 1
to
Officer's Certificate
<PAGE> 117
EXHIBIT F
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF ASSIGNMENT AND ACCEPTANCE
<PAGE> 118
ASSIGNMENT AND ACCEPTANCE
Dated _________
Reference is made to the 364-Day Credit Agreement dated as of September
5, 1997 by and among LCI International, Inc., a Delaware corporation (the
"Borrower"), the financial institutions which are, or may from time to time
become, party thereto (collectively, the "Lenders"), First Union National Bank,
as Documentation Agent, NationsBank of Texas, N.A., as Administrative Agent and
The Bank of New York, as Syndication Agent (as amended or modified from time to
time, the "Credit Agreement"). Capitalized terms which are defined in the Credit
Agreement and which are used herein and not defined shall have the meanings
given thereto in the Credit Agreement.
________________ (the "Assignor") and ________________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a ____% interest in and to all of the Assignor's
interests, rights and obligations under the Credit Agreement and the other Loan
Documents [, other than with respect to Competitive Bid Loans,] and the Assignor
thereby retains ____% of its interest therein [, other than with respect to
Competitive Bid Loans]. This Assignment and Acceptance is entered pursuant to,
and authorized by, Section 13.10 of the Credit Agreement.
2. The Assignor (a) represents that, as of the date hereof, (i) its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) under the Credit Agreement, (ii) the outstanding
balance of its Revolving Credit Loans (unreduced by any assignments thereof
which have not yet become effective) under the Credit Agreement, and [(iii) the
outstanding balance of its Competitive Bid Loans under the Credit Agreement]
(unreduced by any assignments thereof which have not yet become effective) are
each set forth in Section 2 of Schedule I hereto; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto, other than that the Assignor
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (c) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or its Subsidiaries or the performance or
observance by the Borrower or its Subsidiaries of any of their obligations under
the Credit Agreement or any other instrument or document furnished or executed
pursuant thereto; (d) attaches the Revolving Credit Note delivered to it under
the Credit Agreement and requests that the Borrower exchange such Note for new
Revolving Credit Notes payable to each of the Assignor and the Assignee as
follows:
<PAGE> 119
<TABLE>
<CAPTION>
Revolving Credit
Note Payable to Principal Amount of
the Order of: Revolving Credit Note
- ------------ ---------------------
<S> <C>
$
- ------------ ------------
$
- ------------ ------------
</TABLE>
[(e) attaches the Competitive Bid Note delivered to it under the Credit
Agreement (if such Assignor is assigning 100% of its interests, rights and
obligations under the Credit Agreement and other Loan Documents) and it requests
that the Borrower deliver a Competitive Bid Note payable to the Assignee in the
face amount of $_________.]
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.1(p) or Section 6.1
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to such Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (f) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (g) agrees that it
will keep confidential all the information with respect to the Borrower
furnished to it by the Borrower or the Assignor (other than information required
or requested to be disclosed by it pursuant to regulatory requirements or legal
process; information requested by and disclosed to its auditors, accountants and
attorneys; provided that the Assignee shall use its best efforts to have such
Persons enter into a confidentiality agreement with respect to such information;
and information generally available to the public or otherwise available to the
Assignee on a nonconfidential basis).
4. The effective date for this Assignment and Acceptance shall be set
forth in Section 1 of Schedule I hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for consent by the Borrower and the Agent and acceptance
and recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the
<PAGE> 120
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT
UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[Signature Pages Follow]
<PAGE> 121
ASSIGNOR
Commitment Percentage ____
ASSIGNEE
Commitment Percentage ____
<PAGE> 122
Acknowledged and Consented to:
LCI INTERNATIONAL, INC.
By:_____________________
Name:________________
Title:_______________
Consented to and Accepted:
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent under the Credit Agreement
By:_____________________
Name:________________
Title:_______________
FIRST UNION NATIONAL BANK,
as Documentation Agent under the Credit Agreement
By:_____________________
Name:________________
Title:_______________
<PAGE> 123
SCHEDULE I
TO
ASSIGNMENT AND ACCEPTANCE
1. Effective Date ___________, __
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage of Assignor ___%
(b) Outstanding balance of Assignor's
Revolving Credit Loans $_____
[(c) Outstanding balance of Assignor's
Competitive Bid Loans $_____]
3. Assigned Interest
(from Section 1) ___%
4. Assignee's Loans after
Effective Date
(a) Outstanding Balance of Assignee's
Revolving Credit Loans after Effective
Date (line 2(b) times line 3) $____
[(b) Outstanding Balance of Assignee's
Competitive Bid Loans after Effective
Date (line 2(c) times line 3) $_____]
5. Retained Interest of Assignor after
Effective Date $_____
(a) Retained Interest (from Section 1) ___%
(b) Outstanding balance of Assignor's
Revolving Credit Loans
(line 2(b) times line 5(a)) $_____
[(c) Outstanding Balance of Assignor's
Competitive Bid Loans
(line 2(c) times line 5(a)) $_____]
<PAGE> 124
6. Payment Amounts $_____
(a) Payable by Assignee to Assignor $_____
(b) Payable by Assignor to Assignee $_____
7. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
_________________________________________
_________________________________________
_________________________________________
Routing No.:_________________
Account No.:_________________
Attn:________________________
Reference:___________________
(b) If payable to Assignee, to the account
of Assignee to:
_________________________________________
_________________________________________
_________________________________________
Routing No.:_________________
Account No.:_________________
Attn:________________________
Reference:___________________
<PAGE> 125
EXHIBIT G-1
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF NEW LENDER SUPPLEMENT
<PAGE> 126
NEW LENDER SUPPLEMENT
THIS NEW LENDER SUPPLEMENT dated as of the day of , 199
(this "New Lender Supplement"), to the 364-Day Credit Agreement referred to
below is entered into by and among LCI INTERNATIONAL, INC., a corporation
organized under the laws of Delaware (the "Borrower"), NATIONSBANK OF TEXAS,
N.A., as Administrative Agent (the "Administrative Agent"), FIRST UNION NATIONAL
BANK, as Documentation Agent (the "Documentation Agent"; and together with the
Administrative Agent, the "Lead Agents") and ____________________________ (the
"New Lender").
Statement of Purpose
The Borrower is party to a 364-Day Credit Agreement dated as of
September 5, 1997 (as supplemented hereby and as further amended, supplemented
or otherwise modified, the "Credit Agreement"), among the Borrower, the Lenders
party thereto, the Lead Agents and the Bank of New York, as Syndication Agent.
Pursuant to Section 2.8 of the Credit Agreement, the Borrower is
entitled to increase the total amount of the Aggregate Commitments thereunder by
accepting the offer of any Person (other than a Lender) constituting an Eligible
Assignee to become a new Lender thereunder. Pursuant to such Section the New
Lender, Borrower and Lead Agents hereby agree that the New Lender shall be a
Lender under the Credit Agreement and in connection therewith execute this New
Lender Supplement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Joinder of New Lender.
(a) Joinder. Pursuant to Section 2.8 of the Credit Agreement, the New
Lender hereby agrees that it is a Lender under the Credit Agreement as if a
signatory thereto on the Closing Date, and the New Lender shall comply with and
be subject to and have the benefit of all of the terms, conditions, covenants,
agreements and obligations set forth therein. The New Lender hereby agrees that
each reference to a "Lender" or the "Lenders" in the Credit Agreement shall
include the New Lender. The New Lender acknowledges that it has received a copy
of the Credit Agreement and that it has read and understands the terms thereof.
(b) Commitment Adjustment. If any Loans (other than Competitive Bid
Loans) are outstanding on the date hereof, the Administrative Agent shall make
such transfers of funds as are necessary in order that the outstanding balance
of such loans reflects the Commitment Percentages of the Lenders after giving
effect to the joinder of the New Lender pursuant to this New Lender Supplement
and any increase in the Aggregate Commitments pursuant hereto.
(c) Updated Schedule. Attached hereto is an updated Schedule 1 to the
Credit Agreement revised to include the joinder of The New Lender as a Lender
and its Commitment thereunder and the corresponding increase in the total amount
of the Aggregate Commitments.
<PAGE> 127
2. Representations and Warranties.
(a) The Borrower hereby confirms that each representation and warranty
made by it under the Loan Documents is true and correct in all material respects
as of the date hereof and that no Default or Event of Default has occurred or is
continuing under the Credit Agreement.
(b) Representations and Warranties of the New Lender. The New Lender
hereby represents and warrants that it is an Eligible Assignee.
3. General Provisions.
(a) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or (ii) to prejudice any right or rights which the Agents
or Lenders may now have or may have in the future under or in connection with
the Credit Agreement or the Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Costs and Expenses. The Borrower hereby agrees to pay or reimburse
the Lead Agents for all reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of this Agreement including, without limitation, the reasonable fees and
disbursements of counsel.
(c) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(d) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
<PAGE> 128
IN WITNESS WHEREOF the undersigned have duly executed this Increasing
Lender Supplement as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
By:_________________________________
Name:_______________________________
Title:______________________________
NATIONSBANK, N.A., as
Administrative Agent
By:_________________________________
Name:_______________________________
Title:______________________________
FIRST UNION NATIONAL BANK, as
Documentation Agent
By:_________________________________
Name:_______________________________
Title:______________________________
[NEW LENDER]
[CORPORATE SEAL]
By:_________________________________
Name:_______________________________
Title:______________________________
<PAGE> 129
EXHIBIT G-2
to
364-Day Credit Agreement
dated as of September 5, 1997
by and among LCI International, Inc., as Borrower,
the Lenders referred to therein,
First Union National Bank,
as Documentation Agent,
NationsBank of Texas, N.A.,
as Administrative Agent
and
The Bank of New York,
as Syndication Agent.
FORM OF COMMITMENT INCREASE SUPPLEMENT
<PAGE> 130
COMMITMENT INCREASE SUPPLEMENT
THIS Commitment Increase Supplement, dated as of the day of ,
199 (this "Commitment Increase Supplement"), to the 364-Day Credit Agreement
referred to below is entered into by and among LCI INTERNATIONAL, INC., a
corporation organized under the laws of Delaware (the "Borrower"), NATIONSBANK
OF TEXAS, N.A., as Administrative Agent (the "Administrative Agent"), FIRST
UNION NATIONAL BANK, as Documentation Agent (the "Documentation Agent"; and
together with the Administrative Agent, the "Lead Agents") and
____________________________ (the "Increasing Lender").
Statement of Purpose
The Borrower is party to a 364-Day Credit Agreement dated as of
September 5, 1997 (as supplemented hereby and as further amended, supplemented
or otherwise modified, the "Credit Agreement"), among the Borrower, the
Increasing Lender, the other Lenders party thereto, the Lead Agents and the Bank
of New York, as Syndication Agent.
Pursuant to Section 2.8 of the Credit Agreement, the Borrower is
entitled to increase the total amount of the Aggregate Commitments thereunder by
accepting the offer of a Lender to increase its Commitment thereunder. Pursuant
to such Section the Increasing Lender, the Borrower and the Lead Agents hereby
agree that the Commitment of the Increasing Lender under the Credit Agreement
shall be increased as set forth herein and in connection therewith execute this
Commitment Increase Supplement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Commitment Increase.
(a) Commitment Increase. Pursuant to Section 2.8 of the Credit
Agreement, the Increasing Lender hereby agrees that its Commitment under the
Credit Agreement shall be increased to $___________.
(b) Commitment Adjustment. If any Loans (other than Competitive Bid
Loans) are outstanding on the date hereof, the Administrative Agent shall make
such transfer of funds as are necessary in order that the outstanding balance of
such Loans reflects the Commitment Percentages of the Lenders after giving
effect to the increase in the Commitment of the Increasing Lender and the
corresponding increase in the Aggregate Commitments pursuant hereto.
(c) Updated Schedule. Attached hereto is an updated Schedule 1 to the
Credit Agreement revised to include the increase in the Increasing Lender's
Commitment thereunder and the corresponding increase in the total amount of the
Aggregate Commitments.
2. Representations and Warranties of the Borrower. The Borrower hereby
confirms that each representation and warranty made by it under the Loan
Documents is true and correct
<PAGE> 131
in all material respects as of the date hereof and that no Default or Event of
Default has occurred or is continuing under the Credit Agreement.
3. General Provisions.
(a) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or (ii) to prejudice any right or rights which the Agents
or Lenders may now have or may have in the future under or in connection with
the Credit Agreement or the Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Costs and Expenses. The Borrower hereby agrees to pay or reimburse
the Lead Agents for all reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of this Agreement including, without limitation, the reasonable fees and
disbursements of counsel.
(c) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(d) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
<PAGE> 132
IN WITNESS WHEREOF the undersigned have duly executed this Commitment
Increase Supplement as of the date first above written.
LCI INTERNATIONAL, INC.
[CORPORATE SEAL]
NATIONSBANK, N.A., as Administrative
Agent
FIRST UNION NATIONAL BANK, as
Documentation Agent
[INCREASING LENDER]
<PAGE> 133
SCHEDULE 1
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Commitment
Lender and Address Commitment Percentage
- ----------------------------------------------------------------------------------------
<S> <C> <C>
First Union National Bank $20,000,000.00 8.0000000000%
One First Union Center
301 S. College Street, TW-19
Charlotte, NC 28288-0735
Attn: Mr. Lloyd R. Sams
Ph: (704) 374-4151
Fax: (704) 374-4092
- ----------------------------------------------------------------------------------------
NationsBank of Texas, N.A. $20,000,000.03 8.0000000012%
901 Main Street, 64th Floor
Dallas, TX 75202
Attn: Mr. Brian D. Corum
Attn: Mr. Anthony M. Cacheria
Ph: (214) 508-0921
Fax: (214) 508-9390
- ----------------------------------------------------------------------------------------
The Bank of New York $20,000,000.00 8.0000000000%
One Wall Street, 16th Floor
New York, NY 10286
Attn: Brian Weddington
Ph: (212) 635-8473
Fax: (212) 635-8595
- ----------------------------------------------------------------------------------------
The Bank of Nova Scotia $13,333,333.33 5.3333333333%
One Liberty Plaza, 26th Floor
New York, NY 10006
Attn: Mr. Jim Trimble
Ph: (212) 225-5011
Fax: (212) 225-5090
- ----------------------------------------------------------------------------------------
Creditanstalt Corporate Finance, Inc. $7,000,000.00 2.8000000000%
2 Ravinia Drive, Suite 1680
Atlanta, GA 30346
Attn: Mr. Carl Drake
Ph: (404) 390-1858
Fax: (404) 390-1851
- ----------------------------------------------------------------------------------------
CoreStates Bank, N.A. $13,333,333.33 5.3333333333%
FC-1-8-11-28
1339 Chestnut Street
Philadelphia, PA 19101
Attn: Ms. Lynae Sowersby Young
Ph: (215) 786-4316
Fax: (215) 786-7721
</TABLE>
<PAGE> 134
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------
Fleet National Bank $7,000,000.00 2.8000000000%
MA OF DO3D
One Federal Street
Boston, MA 02111
Attn: Christopher A. Swindell
Ph: (617) 346-5579
Fax: (617) 346-4346
- ----------------------------------------------------------------------------------------
The First National Bank of Chicago $13,333,333.33 5.3333333333%
Mail Suite 0374
1 First National Plaza
Chicago, IL 60670
Attn: Ms. Lynne Sanders
Ph: (312) 732-5125
Fax: (312) 732-5587
- ----------------------------------------------------------------------------------------
Toronto Dominion (New York), Inc. $13,333,333.33 5.3333333333%
909 Fannin Street
Suite 1700
Houston, TX 77010
Attn: Jimmy Simien
Ph: (713) 653-8239
Fax: (713) 951-9921
- ----------------------------------------------------------------------------------------
The Sumitomo Bank, Limited, $5,000,000.00 2.0000000000%
New York Branch
227 Park Avenue
New York, NY 10172
Attn: Anatoly Nakum
Ph: (212) 224-4117
Fax: (212) 224-5188
- ----------------------------------------------------------------------------------------
PNC Bank, National Association $13,333,333.33 5.3333333333%
1600 Market Street, 21st Floor
Philadelphia, PA 19103
Attn: Mr. Daniel Hopkins
Ph: (215) 585-7468
Fax: (215) 585-6680
- ----------------------------------------------------------------------------------------
ABN AMRO Bank N. V. $7,000,000.00 2.8000000000%
135 South LaSalle Street
Suite 2805
Chicago, IL 60603
Attn: Credit Administration
Ph: (312) 904-8835
Fax: (312) 904-8840
copy to:
One PPG Place, Suite 2950
Pittsburgh, PA 15222-5400
Attn: Mr. Gregory Amoroso
Ph: (412) 566-0983
Fax: (412) 566-2266
</TABLE>
<PAGE> 135
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------
Bank of Hawaii $7,000,000.00 2.8000000000%
1839 S. Alma School Road
Suite 150
Mesa, AZ 85210
Attn: Ms. Beth MacLean
Ph: (602) 752-8019
Fax: (602) 752-8007
- ----------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $7,000,000.00 2.8000000000%
One World Trade Center
48th Floor
New York, NY 10048
Attn: Ms. Yasmin Campbell
Ph: (212) 432-8800
Fax: (212) 919-1879
- ----------------------------------------------------------------------------------------
Comercia Bank $5,000,000.00 2.0000000000%
U.S. Banking East
500 Woodward Avenue, 9th Floor
Detroit, MI 48275-3280
Attn: Tamara J. Gurne
Ph: (313) 222-7806
Fax: (313) 222-3330
- ----------------------------------------------------------------------------------------
CIBC, Inc. $13,333,333.33 5.3333333333%
425 Lexington Avenue, 8th Floor
New York, NY 10017
Attn: Bob Stewart/Susan Hanna
Ph: (212) 856-3839
Fax: (212) 856-3763
- ----------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi $7,000,000.00 2.8000000000%
Trust Company
U. S. Corporate Banking
Media, Communications and
Entertainment Dept.
1251 Avenue of the Americas
New York,NY 10020
Attn: Glenn B. Eckert
Ph: (212) 782-4559
Fax: (212) 782-4935
- ----------------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited $5,000,000.00 2.8000000000%
1251 Avenue of the Americas
New York, NY 10020-1104
Attn: William Kennedy,
Vice President
Ph: (212) 282-3516
Fax: (212) 282-4250
- ----------------------------------------------------------------------------------------
Royal Bank of Canada $13,333,333.33 5.3333333333%
Financial Square, 23rd Floor
New York, NY 10005-3531
Attn: John Page
Ph: (212) 428-6551
Fax: (212) 428-6460
</TABLE>
<PAGE> 136
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------
Signet Bank $5,000,000.00 2.0000000000%
7799 Leesburg Pike, Suite 500N
Falls Church, VA 22043
Attn: Mr. Vincent P. Griffin
Ph: (703) 714-5015
Fax: (703) 506-9712
- ----------------------------------------------------------------------------------------
First National Bank of Maryland $7,000,000.00 2.8000000000%
601 13th Street, NW
Suite 1000N
Washington, DC 20005
Attn: Lauren Johnston
Ph: (202) 661-7227
Fax: (202) 661-7238
- ----------------------------------------------------------------------------------------
Caisse Nationale de Credit Agricole $10,333,333.33 4.1333333333%
520 Madison Avenue
New York, NY 10022
Attn: Michael A. Cantone
Ph: (212) 418-7071
Fax: (212) 418-2228
- ----------------------------------------------------------------------------------------
The Sanwa Bank, Limited $7,000,000.00 2.8000000000%
133 Peachtree Street
Georgia-Pacific Center,
Suite 4950
Atlanta, GA 30303
Attn: William M. Plough
Ph: (404) 586-6883
Fax: (404) 589-1629
- ----------------------------------------------------------------------------------------
Wachovia Bank, N.A. $10,333,333.33 4.1333333333%
100 North Main Street
Winston-Salem, NC 27101
Attn: Abigail M. Matia
Ph: (910) 732-3138
Fax: (910) 732-6935
</TABLE>
<PAGE> 137
SCHEDULE 5.1(a)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATIONS
TO DO BUSINESS AS A FOREIGN CORPORATION
OF BORROWER AND ITS SUBSIDIARIES
LCI INTERNATIONAL, INC. (Incorporated: Delaware)
Virginia
LCI INTERNATIONAL MANAGEMENT SERVICES, INC. (Incorporated: Delaware)
California
District of Columbia
Georgia
Illinois
Indiana
Kentucky
Michigan
New Jersey
North Carolina
Ohio
Pennsylvania
Virginia
Wisconsin
LCI INTERNATIONAL TELECOM CORP. (Incorporated: Delaware)
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
<PAGE> 138
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New Hampshire
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
1056974 ONTARIO INC. (Incorporated: Ontario, Canada)
None.
LCI INTERNATIONAL SC, INC. (Incorporated: Delaware)
South Carolina
<PAGE> 139
LCI INTERNATIONAL OF VIRGINIA, INC. (Incorporated: Virginia)
None.
LCI SPC I, INC. (Incorporated: Delaware)
Virginia.
LCI TELECOM UK, LTD. (Pending Incorporation in the United Kingdom)
None.
<PAGE> 140
Page 1 of 3
SCHEDULE 5.1(b)
<TABLE>
<CAPTION>
SHARES
SHARES ISSUED AND
SUBSIDIARY CLASS PAR VALUE AUTHORIZED OUTSTANDING
- ---------- ----- --------- ---------- -----------
<S> <C> <C> <C> <C>
LCI International, Inc. Common $0.01 100,000,000 78,432,516
("LCII")
Preferred $0.01 15,000,000 ------
LCI International
Management Services, Inc.
("LCIM") Common $0.01 1,000 100
Preferred $0.01 1,000 Series A-100
Series B-100
Series C-100
Series D-100
1056974 Ontario Inc. Common N/A Unlimited 12,045,000
LCI International Telecom
Corp. ("LCIT") Common $0.00 1,000 117.54
</TABLE>
<PAGE> 141
Page 2 of 3
SCHEDULE 5.1(b) (Continued)
<TABLE>
<S> <C> <C> <C> <C>
LCI International SC, Inc. Common $0.01 1,000 10
LCI International of
Virginia, Inc. Common $0.01 100 10
LCI SPC I, Inc. Common $0.01 100 10
*LCI Telecom UK, Ltd. Common $0.00 1,000 2
</TABLE>
*Incorporation pending in United Kingdom.
<PAGE> 142
Page 3 of 3
SCHEDULE 5.1(b) (CONTINUED)
OTHER STOCKHOLDER AGREEMENTS:
1. 1992 Stock Option Plan
2. 1993 Nonqualified Stock Option Plan for Directors
3. 1993 Stock Option Plan
4. 1993 Stock Purchase Plan, as amended and restated
5. 1994/1995 Stock Option Plan
6. 1995/1996 Stock Option Plan
7. 1997/1998 Stock Option Plan
8. Rights Agreement dated January 22, 1997 - Fifth Third Bank
9.* Warrants to purchase an aggregate of 5,158,556 shares of Common Stock
of Borrower at an exercise price of $2.83 per share. These warrants
were allocated proportionately among holders of certain convertible
notes based on their ownership percentage of such notes as of 3/31/93.
*All shares and prices reflect a split of 2-to-1 effective September 29, 1995.
<PAGE> 143
SCHEDULE 5.1(i)
ERISA PLANS
EMPLOYEE BENEFIT PLANS:
1. Health Care, Dental and Vision Benefits are self-funded with Aetna
Health Plans as Plan Administrator
2. Group Life and Dependent Life - Aetna Health Plans
3. Accidental Death and Dismemberment Insurance - Commercial Life
Insurance Company
4. Short Term Disability Insurance -self-funded with Aetna Health Plans
providing utilization management services.
5. Long-Term Disability Insurance - Aetna Health Plans
6. Tuition Assistance
7. Executive Perquisite Plan
8. Supplemental Executive Retirement Plan (SERP)
9. 401(k) Plan - CIGNA
10. Flexible Spending Accounts for Dependent Care and Medical Expenses -
Atena Health Plans
<PAGE> 144
SCHEDULE 5.1(l)
INTELLECTUAL PROPERTY MATTERS
AT&T has indicated to the Company that it believes the Company may be
infringing on certain AT&T patents and has offered to license such patents, and
others, to the Company. The Company does not believe that it is infringing on
any AT&T patents. However, AT&T has numerous patents, some of which may pertain
to the provision of services similar to those currently provided or to be
provided by the Company or to equipment similar to that used or to be used by
the Company.
<PAGE> 145
SCHEDULE 5.1(m)
MATERIAL CONTRACTS
1. Alcatel Network Systems, Inc. - Design, Engineer, Supply and Systems
Integration Agreement dated May 29, 1997.
2. American Communications Network, Inc. - Representative Agreement dated
May 1, 1996.
3. IXC Carrier, Inc. - Construction and IRU Agreement, Joint Use Agreement
and Tax Understanding (fiber build Chicago to Los Angeles) dated
February 4, 1997.
4. MCI Network Services Agreement dated December 22, 1994.
5. Northern Telecom Inc. - Basic Supply Agreement for Telecommunications
Products dated January 1, 1996.
6. Tellabs Operations, Inc. - Letter Agreement (supplier of Cross Connect
systems renewal agreement) dated January 21, 1997.
7. Fifth Third Bank - Rights Agreement dated January 22, 1997.
8. First Trust National Association - Indenture dated June 23, 1997.
9. PNC Bank, N.A. - $25 Million Line of Credit to LCI International, Inc.
(LCII) - dated September 12, 1996 - Amount utilized as of 9/3/97 -
$2,900,000.
10. The Bank of New York - $25 Million Line of Credit to LCII - dated
December 31, 1996 - Amount utilized as of 9/3/97 - $4,700,000.
11. The Dai-Ichi Kango Bank, Ltd. - $25 Million Line of Credit to LCII -
dated August 25, 1997 - Amount utilized as of 9/3/97 - None.
<PAGE> 146
SCHEDULE 5.1(n)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
NONE
<PAGE> 147
SCHEDULE 5.1(q)
MATERIAL ADVERSE CHANGE DISCLOSURE
NONE
<PAGE> 148
SCHEDULE 5.1(t)
DEBT AND GUARANTY OBLIGATIONS
I. LCI INTERNATIONAL MANAGEMENT SERVICES, INC.:
1. Duke Associates No.70 Limited Partnership - Net Lease dated August 14,
1989, as amended - $13,352,239.00.
2. Duke Realty Limited Partnership - Office Lease dated December 9, 1996
(Parkwood Place, Dublin, OH.)
3. See also Inter-Co. Debt in Schedule 9.4.
II. LCI INTERNATIONAL, INC.
4. Unconditional Guaranty Agreement dated as of November 15, 1996 made by
LCI International, Inc. as Guarantor in favor of Nationsbank of Texas,
N.A., as Agent, with a ratable benefit of the Tranche A Lenders.
5. 7.25% Senior Notes due June 15, 2007.
6. Support Agreement dated August 29, 1996 - LCI SPC I, Inc.
7. See also Inter-Co. Debt in Schedule 9.4
<PAGE> 149
SCHEDULE 5.1(u)
LITIGATION
NONE
<PAGE> 150
SCHEDULE 5.1(v)
REGULATORY MATTERS
A. FCC LICENSES:
(a) LCI INTERNATIONAL TELECOM CORP. (LCIT)
<TABLE>
<CAPTION>
Expiration
Service File No. Date Date
------- -------- ---- ----
<S> <C> <C> <C>
International
Section 214
Authorization
I-T-C-86-154 9/25/86 None
I-T-C-90-028 4/12/93 None
I-T-C-92-184 7/27/92 None
I-T-C-93-001 2/10/93 None
I-T-C-93-336 11/13/93 None
I-T-C-94-380 7/1/94 None
I-T-C-94-527 1/3/95 None
I-T-C-95-343 5/31/95* None
I-T-C-95-590 2/28/96 None
I-T-C-96-512 10/29/96 None
* Pursuant to the 1995 merger of LCI Telecom
South, Inc, (LTS) and LCIT, this authority was
assigned by LTS to LCIT on May 31, 1995. (See
FCC File No. I-T-C-95-343 (TC), released May
31, 1995). LTS was granted its authority in FCC
File No. I-T-C-94-064, released 12/3/93.
Domestic
Section 214
Authorization W-P-C-5389 5/25/84 None
</TABLE>
<PAGE> 151
B. STATE PUC AUTHORIZATIONS:
(a) LCI International Telecom Corp.*
LCI International Telecom Corp. (LCIT) has been granted statewide
authority to offer MTS, WATS and Private Line, AOS, intralata authority
and local service authority in the following states except as otherwise
indicated:
Alabama
Arizona (Grandfathered status; permanent authority pending)
(Local Service application pending)
Arkansas (Local Service application pending)
California
Colorado
Connecticut (No AOS)
Delaware (Local Service application pending)
Florida
Georgia
Hawaii (Local Service application pending)
Idaho (Local Service application pending)
Illinois
Indiana
Iowa
Kansas (Local Service application pending)
Kentucky
Louisiana
Maine (Local Service application pending)
Maryland
Massachusetts (Local Service application pending)
Michigan
Minnesota
Mississippi (No private line permitted)
Missouri (Local Service application pending)
Montana (Local Service application pending)
Nebraska (Local Service application pending)
Nevada
New Hampshire (Local Service application pending)
New Jersey (Local Service application pending)
New Mexico (Local Service application pending)
New York
North Carolina
North Dakota (Local Service application pending)
Ohio
<PAGE> 152
Oklahoma (Prior to 9/95, this state was unregulated. Pursuant to
regulation instituted 9/95, LCIT filed for a permanent
CPCN 9/95. LCIT will retain temporary authority pending
approval of its application for perm. CPCN. (Local
Service application pending)
Oregon (Local Service application pending)
Pennsylvania
Rhode Island
South Carolina
South Dakota (Local Service application pending)
Tennessee
Texas
Utah (Local Service application pending)
Vermont (Local Service application pending)
Virginia (See LCI International of Virginia, Inc. below)
Washington (AOS pending)
West Virginia (Local Service application pending)
Wisconsin
Wyoming (Local Service application pending)
(b) LCI International of Virginia, Inc.*
LCI International of Virginia, Inc. (LCIVA) has been granted statewide
authority to offer MTS, WATS and Private Line, AOS, intralata authority
and local service authority in the following states except as otherwise
indicated:
Virginia
*NOTE: Except as noted above, the state PUC authorizations do not have
expiration dates.
<PAGE> 153
SCHEDULE 7.5
EXCLUDED TAXES
I. LCI INTERNATIONAL TELECOM CORP.
Unpaid tax assessments on prior years:
<TABLE>
<CAPTION>
Est. of
Tax Period Liability
- --- ------ ---------
<S> <C> <C>
State of Ohio Property Tax 1992 $1,358,348
State of Ohio Property Tax 1993 $1,071,901
State of Ohio Property Tax 1995 $ 350,000
Illinois Telecommunications Excise Tax 1994 - 1996 $ 170,000
----------
$2,950,249
</TABLE>
<PAGE> 154
SCHEDULE 9.3
EXISTING LIENS
1.* Society National Bank, as Collateral Trustee, Financing Statement dated
March 3, 1993 filed with Recorder, Franklin County, Ohio - LCI
International Telecom Corp. (LCIT) as Debtor.
2.** A Judgement Entry may have been recorded in Franklin County, Ohio in
the matter of Thomas J. Byrnes and Richard C. Otto v. LCI
Communications Corporation, and LiTel Telecommunications Corporation.
*There is no underlying obligation on behalf of LCIT in connection with this
financing statement and the Company is taking steps to have this filing removed
from the records.
**The verdict was reversed on appeal and the Company has no further payment
obligations in this matter.
<PAGE> 155
SCHEDULE 9.4
LOANS, ADVANCES, AND INVESTMENTS
9.4(a) Investments in Subsidiaries as of 6/30/97:
<TABLE>
<CAPTION>
($ millions)
------------
(i) LCI Notes
---------
<S> <C> <C>
LCI International Telecom Corp. (LCIT)
to Mgt. Svcs. $ 7.15
LCIT to Mgt. Svcs. 18.53
LCIT to Mgt. Svcs. 9.63
Management Services to LCI 6/17/93 64.26
8/25/93 7.98
8/25/93 21.40
9/7/93 7.14
-------
$136.09
=======
</TABLE>
(ii) LCI SPC I, Inc. to LCIT - Subordinated Intercompany Revolving
Note dated August 29, 1996 - $3.61 million as of 6/30/97.
Investments in STN:*
<TABLE>
<S> <C> <C>
Debentures purchased under Purchase
Agreement dated 10/15/93, as amended 22.294 CDN$
Loan Agreement dated 6/1/94, as amended 12.15 CDN$
Promissory Note dated 12/21/94 1.8 CDN$
Promissory Note dated 12/21/94 6.9515 CDN$
Indemnification Agreement dated as
of January 6, 1995 16.1065 CDN$
</TABLE>
*Investment has been written off and Company does not anticipate
receiving any payment.
Investments in Trescom:
<TABLE>
<S> <C>
172,313 shares of Common Stock $1,250,001
Traded on NASDAQ and calculated
at $7.25/share
</TABLE>
<PAGE> 156
SCHEDULE 9.9
TRANSACTIONS WITH AFFILIATES
1) See Inter-Co. Debt on Schedule 9.4.
2) Investments in STN - See Schedule 9.4.
3) Employment Agreement dated April 19, 1993 between H. Brian Thompson and
LCI International Management Services, Inc. ("LCIM"), as amended, March
20, 1995.
4) Employment Agreement dated April 19, 1993 between Thomas J. Wynne and
LCIM, as amended, March 20, 1995.
5) Employment Agreement dated April 19, 1993 between Marshall W. Hanno and
LCIM, as amended, March 20, 1995.
6) Split Dollar Agreement dated November 1, 1996 between H. Brian Thompson
and LCIM.
7) Tax Sharing Agreement dated 12/27/89.
8) Master License and Services Agreement dated March 1, 1993.
9) Warrants as set forth in Item 7, Schedule 5.1(b). Warburg, Pincus
Capital Co., L.P. ("Warburg") has the right to convert warrants into
5,158,556 shares of Common Stock.
10) Split Dollar Agreement dated November 1, 1996 between Joseph A.
Lawrence and LCIM.
11) Collateral Assignment and Split Dollar for Key Employees - Flexible
Premium Life Insurance Agreement dated May 1, 1997 - Thomas J. Wynne
and LCIM.
12) Employment Agreement effective October 18, 1993 between Joseph A.
Lawrence and LCIM.
13) Employment Agreement dated December 22, 1994 between John Taylor and
LCIM.
14) Employment Agreement dated October 1, 1995 between Lawrence J. Bouman
and LCIM.
<PAGE> 157
15) Employment Agreement dated March 18, 1996 between Roy N. Gamse and
LCIM.
16) Employment Agreement dated January 3, 1997 between Anne K. Bingaman and
LCIM.
17) Registration Rights Agreement dated March 31, 1993 - LCI International,
Inc. ("LCII") and various signatories including Warburg.
18) Support Agreement dated August 29, 1996 between LCII and LCI SPC I,
Inc.
19) Management Services and Sublease Agreement dated August 29, 1996
between LCI International Telecom Corp., LCII, LCIM, and LCI SPC I,
Inc.
<PAGE> 1
Exhibit 11
Primary
<TABLE>
<CAPTION>
For the Three Months For the Nine Months
Ended September 30, Ended September 30,
----------------------------------- -----------------------------------
1997 1996 1997 1996
----------------------------------- -----------------------------------
<S> <C> <C> <C> <C>
INCOME ON COMMON STOCK
============================================
NET INCOME $ 22.6 $ 20.1 $ 64.5 $ 53.0
SHARES OUTSTANDING
============================================
Weighted Average Number of 78.5 74.6 78.1 69.9
Common Shares Outstanding
Common Shares Issuable Upon
the Assumed Exercise of Stock 14.4 14.3 12.6 14.3
Options and Stock Warrants
Common Shares Repurchased
Through Treasury Stock Method
Upon the Assumed Exercise of Stock
Options and Stock Warrants (6.6) (3.6) (5.1) (4.2)
Assumed Conversion of
Convertible Preferred Stock - 2.4 - 7.0
-----------------------------------------------------------------------
Weighted Average Number of
Common Shares Outstanding 86.3 87.7 85.6 87.0
=======================================================================
EARNINGS PER SHARE
============================================
NET INCOME PER COMMON SHARE $ 0.26 $ 0.23 $ 0.75 $ 0.61
=======================================================================
</TABLE>
<PAGE> 2
Exhibit 11
Fully Diluted
<TABLE>
<CAPTION>
For the Three Months For the Nine Months
Ended September 30, Ended September 30,
----------------------------------- -----------------------------------
1997 1996 1997 1996
----------------------------------- -----------------------------------
<S> <C> <C> <C> <C>
INCOME ON COMMON STOCK
===========================================
NET INCOME $ 22.6 $ 20.1 $ 64.5 $ 53.0
SHARES OUTSTANDING
===========================================
Weighted Average Number of 78.5 74.6 78.1 69.9
Common Shares Outstanding
Common Shares Issuable Upon
the Assumed Exercise of Stock 14.6 14.3 14.5 14.3
Options and Stock Warrants
Common Shares Repurchased
Through Treasury Stock Method
Upon the Assumed Exercise of Stock
Options and Stock Warrants (6.2) (3.6) (6.0) (3.7)
Assumed Conversion of
Convertible Preferred Stock - 2.4 - 7.0
-----------------------------------------------------------------------------
Weighted Average Number of
Common Shares Outstanding 86.9 87.7 86.6 87.5
=============================================================================
EARNINGS PER SHARE
===========================================
NET INCOME PER COMMON SHARE $ 0.26 $ 0.23 $ 0.74 $ 0.61
=============================================================================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-Q AS
OF SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1997
<PERIOD-START> JUL-01-1997 JAN-01-1997
<PERIOD-END> SEP-30-1997 SEP-30-1997
<CASH> 0 0
<SECURITIES> 0 0
<RECEIVABLES> 162,542<F1> 162,542
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 216,839 216,839
<PP&E> 781,819 781,819
<DEPRECIATION> 187,509 187,509
<TOTAL-ASSETS> 1,213,415 1,213,415
<CURRENT-LIABILITIES> 218,248 218,248
<BONDS> 350,000 350,000
0 0
0 0
<COMMON> 786 786
<OTHER-SE> 508,880 508,880
<TOTAL-LIABILITY-AND-EQUITY> 1,213,415 1,213,415
<SALES> 0 0
<TOTAL-REVENUES> 364,813 1,017,856
<CGS> 0 0
<TOTAL-COSTS> 213,476 596,549
<OTHER-EXPENSES> 105,791 292,246
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 8,538 22,226
<INCOME-PRETAX> 37,008 106,835
<INCOME-TAX> 14,433 42,364
<INCOME-CONTINUING> 22,575 64,471
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 22,575 64,471
<EPS-PRIMARY> 0.26 0.75
<EPS-DILUTED> 0.26 0.74
<FN>
<F1>Trade accounts receivable, less allowance for doubtful accounts.
</FN>
</TABLE>
