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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 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 0-11258
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WORLDCOM, INC.
(Exact name of registrant as specified in its charter)
------------------------------
Georgia 58-1521612
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
515 East Amite Street, Jackson, Mississippi 39201-2702
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (601) 360-8600
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
SERIES A 8% CUMULATIVE CONVERTIBLE PREFERRED STOCK, $.01 PAR VALUE
SERIES B CONVERTIBLE PREFERRED STOCK, $.01 PAR VALUE
DEPOSITARY SHARES (EACH REPRESENTING 1/100TH INTEREST IN A SHARE OF
SERIES A 8% CUMULATIVE CONVERTIBLE PREFERRED STOCK)
PREFERRED STOCK PURCHASE RIGHTS
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 [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 6, 1998 was:
Common Stock, $.01 par value:
$38,010,636,014
Series A 8% Cumulative Convertible Preferred Stock (represented by Depositary
Shares): $1,240,833,000 Series B
Convertible Preferred Stock: $45,975,835
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court.
Yes [X] No [ ]
There were 1,026,645,863 shares of the registrant's common stock outstanding as
of March 6, 1998.
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GLOSSARY
AT&T DIVESTITURE DECREE -- Entered on August 24, 1982, by the United States
District Court for the District of Columbia. The AT&T Divestiture Decree,
among other things, ordered AT&T to divest its wholly owned BOCs from its Long
Lines Division and manufacturing operations and generally prohibited BOCs from
providing long distance telephone service between LATAs.
ACCESS CHARGES -- Expenses incurred by an IXC and paid to LECs for accessing
the local networks of the LECs in order to originate and terminate long
distance calls and provide the customer connection for private line services.
BOC -- BELL SYSTEM OPERATING COMPANY -- A local exchange carrier owned by any
of the remaining five Regional Bell Operating Companies, which are holding
companies established following the AT&T Divestiture Decree to serve as parent
companies for the BOCs.
BACKBONE -- A centralized high-speed network that interconnects smaller,
independent networks.
BANDWIDTH -- The number of bits of information which can move through a
communications medium in a given amount of time.
CAP -- COMPETITIVE ACCESS PROVIDER -- A company that provides its customers
with an alternative to the LEC for local transport of private line and special
access telecommunications services.
CENTRAL OFFICES -- The switching centers or central switching facilities of the
LECs.
CO-CARRIER STATUS -- A regulatory scheme under which the incumbent LEC is
required to integrate new, competing providers of local exchange service, into
the systems of traffic exchange, inter-carrier compensation, and other
inter-carrier relationships that already exist among LECs in most
jurisdictions.
COLLOCATION -- The ability of a CAP to connect its network to the LEC's central
offices. Physical collocation occurs when a CAP places its network connection
equipment inside the LEC's central offices. Virtual collocation is an
alternative to physical collocation pursuant to which the LEC permits a CAP to
connect its network to the LEC's central offices on comparable terms, even
though the CAP's network connection equipment is not physically located inside
the central offices.
DS-3 -- A data communications circuit capable of transmitting data at 45
megabits per second (sometimes called a T-3).
DEDICATED -- Telecommunications lines dedicated or reserved for use by
particular customers.
DIGITAL -- A method of storing, processing and transmitting information through
the use of distinct electronic or optical pulses that represent the binary
digits 0 and 1. Digital transmission and switching technologies employ a
sequence of these pulses to represent information as opposed to the
continuously variable analog signal. The precise digital numbers minimize
distortion (such as graininess or snow in the case of video transmission, or
static or other background distortion in the case of audio transmission).
EQUAL ACCESS -- Connection provided by a LEC permitting a customer to be
automatically connected to the IXC of the customer's choice when the customer
dials "1".
FDDI -- FIBER DISTRIBUTED DATA INTERFACE -- Based on fiber optics, FDDI is a
100 megabit per second Local Area Network technology used to connect computers,
printers, and workstations at very high speeds. FDDI is also used as backbone
technology to interconnect other LANs.
IXC -- INTEREXCHANGE CARRIER -- A long distance carrier providing services
between local exchanges.
INBOUND "800" SERVICE -- A service that assesses long distance telephone
charges to the called party.
INTERCONNECTION DECISIONS -- Rulings by the FCC announced in September 1992
and August 1993, which require the BOCs and most other large LECs to provide
interconnection in LEC central offices to any CAP, long distance carrier or end
user seeking such interconnection for the provision of interstate special
access and switched access transport services.
INTERNET --A global collection of interconnected computer networks which use
TCP/IP, a common communications protocol.
LANS -- LOCAL AREA NETWORKS -- The interconnection of computers for the
purpose of sharing files, programs and various devices such as printers and
high-speed modems. LANs may include dedicated computers or file servers that
provide a centralized source of shared files and programs.
LATAS -- LOCAL ACCESS AND TRANSPORT AREAS -- The approximately 200 geographic
areas defined pursuant to the AT&T Divestiture Decree. The BOCs are generally
prohibited from providing long distance service between the LATA in which they
provide local exchange services, and any other LATA.
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LEC -- LOCAL EXCHANGE CARRIER -- A company providing local telephone services.
Each BOC is a LEC.
LINE COSTS -- Primarily includes the sum of access charges and transport
charges.
LOCAL EXCHANGE -- A geographic area generally determined by a PUC, in which
calls generally are transmitted without toll charges to the calling or called
party.
LOCAL NUMBER PORTABILITY -- The ability of an end user to change Local
Exchange Carriers while retaining the same telephone number.
NETWORK SWITCHING CENTER -- A location where installed switching equipment
routes long distance calls and records information with respect to calls such
as the length of the call and the telephone numbers of the calling and called
parties.
NETWORK SYSTEMS INTEGRATION -- Involves the creation of turnkey
telecommunications networks and systems including: (i) route and site
selection; (ii) rights of way and legal authorizations and/or acquisition;
(iii) design and engineering of the system, including technology and vendor
assessment and selection, determining fiber optic circuit capacity, and
establishing reliability/flexibility standards; and (iv) project and
construction management, including contract negotiations, purchasing and
logistics, installation as well as testing.
PUC -- PUBLIC UTILITY COMMISSION -- A state regulatory body empowered to
establish and enforce rules and regulations governing public utility companies
and others, such as the Company, within the state (sometimes referred to as
Public Service Commissions, or PSCs).
PUBLIC SWITCHED NETWORK -- That portion of a LEC's network available to all
users generally on a shared basis (i.e., not dedicated to a particular user).
Traffic along the public switched network is generally switched at the LEC's
central offices.
RBOC -- REGIONAL BELL OPERATING COMPANY -- Any of the remaining five regional
Bell holding companies which the AT&T Divestiture Decree established to serve
as parent companies for the BOCs.
RECIPROCAL COMPENSATION -- The same compensation of a new competitive local
exchange carrier for termination of a local call by the BOC on its network, as
the new competitor pays the BOC for termination of local calls on the BOC
network.
SETTLEMENT RATES -- The rates paid to foreign carriers by United States
international carriers to terminate outbound (from the United States) switched
traffic and by foreign carriers to United States international carriers to
terminate inbound (to the United States) switched traffic.
TCP/IP -- TRANSMISSION CONTROL PROTOCOL/INTERNET PROTOCOL -- A suite of network
protocols that allows computers with different architectures and operating
system software to communicate with other computers on the Internet.
T-1 -- A data communications circuit capable of transmitting data at 1.5
megabits per second.
TARIFF -- The schedule of rates and regulations set by communications common
carriers and filed with the appropriate federal and state regulatory agencies;
the published official list of charges, terms and conditions governing
provision of a specific communications service or facility, which functions in
lieu of a contract between the Subscriber or user and the supplier or carrier.
TOKEN RING -- A local area network technology used to interconnect personal
computers, file servers, printers, and other devices. Token Ring LANs
typically operate at either 4 megabits per second or 16 megabits per second.
TRANSPORT CHARGES -- Expenses paid to facilities-based carriers for
transmission between or within LATAs.
WORLD WIDE WEB OR WEB -- A collection of computer systems supporting a
communications protocol that permits multi-media presentation of information
over the Internet.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Cautionary Statement Regarding Forward-Looking Statements . . . . . . . . . . . . . . . . . . . . 1
PART I
Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Item 3. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Item 4. Submission of Matters to a Vote of Security Holders . . . . . . . . . . . . . . 16
PART II
Item 5. Market for Registrant's Common Equity and Related Shareholder Matters . . . . . 16
Item 6. Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Item 7A. Quantitative and Qualitative Disclosure about Market Risk . . . . . . . . . . . 28
Item 8. Financial Statements and Supplementary Data . . . . . . . . . . . . . . . . . . 29
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART III
Item 10. Directors and Executive Officers of the Registrant . . . . . . . . . . . . . . . 30
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Item 12. Security Ownership of Certain Beneficial Owners and Management . . . . . . . . . 35
Item 13. Certain Relationships and Related Transactions . . . . . . . . . . . . . . . . . 37
PART IV
Item 14. Exhibits, Financial Statement Schedule and Reports on Form 8-K . . . . . . . . . 42
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Index to Financial Statements and Financial Statement Schedule . . . . . . . . . . . . . . . . . F-1
Exhibit Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
</TABLE>
iii
<PAGE> 5
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The following statements are or may constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995 (the
"PSLRA"):
(i) certain statements, including possible or assumed future results of
operations of WorldCom, MCI, CompuServe, BFP, ANS (as defined herein) and the
combined companies contained in "Risk Factors" or Item 7. "Management's
Discussion and Analysis of Financial Conditions and Results of Operations",
Item 7A. "Quantitative and Qualitative Disclosure About Market Risk", Item 13.
"Certain Relationships and Related Transactions" or elsewhere herein, including
any forecasts, projections and descriptions of anticipated cost savings or
other synergies referred to therein, and certain statements incorporated by
reference from documents filed with the Securities and Exchange Commission (the
"SEC" or the "Commission") by WorldCom, including any statements contained
herein or therein regarding the development of possible or assumed future
results of operations of WorldCom's business, anticipated cost savings or other
synergies, the markets for WorldCom's services and products, anticipated
capital expenditures, regulatory developments, competition or the effects of
the MCI/WorldCom Merger, the CompuServe Merger, the AOL Transaction or the BFP
Merger (as defined herein);
(ii) any statements preceded by, followed by or that include the words
"believes," "expects," "anticipates," "intends" or similar expressions; and
(iii) other statements contained or incorporated by reference herein regarding
matters that are not historical facts.
Because such statements are subject to risks and uncertainties, actual results
may differ materially from those expressed or implied by such forward-looking
statements; factors that could cause actual results to differ materially
include, but are not limited to, those discussed under "Risk Factors."
Potential purchasers of WorldCom Common Stock are cautioned not to place undue
reliance on such statements, which speak only as of the date thereof.
The cautionary statements contained or referred to in this section should be
considered in connection with any subsequent written or oral forward-looking
statements that may be issued by WorldCom or persons acting on its behalf.
WorldCom does not undertake any obligation to release publicly any revisions to
such forward-looking statements to reflect events or circumstances after the
date hereof or to reflect the occurrence of unanticipated events.
PART I
ITEM 1. BUSINESS
GENERAL
WorldCom, Inc., a Georgia corporation ("WorldCom" or the "Company"), is one of
the largest telecommunications companies in the United States, serving local,
long distance and Internet customers domestically and internationally. The
Company provides telecommunications services to business, government,
telecommunications companies and consumer customers, through its networks of
fiber optic cables, digital microwave, and fixed and transportable satellite
earth stations.
WorldCom is one of the first major facilities-based telecommunications
companies with the capability to provide businesses with high quality local,
long distance, Internet, data and international communications services over
its global networks. With service to points throughout the nation and the
world, WorldCom provides telecommunications products and services including:
switched and dedicated long distance and local products, dedicated and dial-up
Internet access, resale cellular services, 800 services, calling cards,
domestic and international private lines, broadband data services, debit cards,
conference calling, advanced billing systems, enhanced fax and data
connections, high speed data communications, facilities management, local
access to long distance companies, local access to ATM- based backbone service,
web server hosting and integration services and interconnection via Network
Access Points ("NAPs") to Internet service providers ("ISPs").
WorldCom was organized in 1983. On September 15, 1993, a three-way merger
occurred whereby (i) Metromedia Communications Corporation, a Delaware
corporation ("MCC"), merged with and into Resurgens Communications Group, Inc.,
a Georgia corporation ("Resurgens"), and (ii) LDDS Communications, Inc., a
Tennessee corporation ("LDDS-TN"), merged with and into Resurgens (the "Prior
Mergers").
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At the time of the Prior Mergers, the name of Resurgens, the legal survivor,
was changed to LDDS Communications, Inc. and the separate corporate existences
of LDDS-TN and MCC terminated. For accounting purposes, however, LDDS-TN was
the survivor because the former shareholders of LDDS-TN acquired majority
ownership of the Company. Accordingly, unless otherwise indicated, all
historical information presented herein reflects the operations of LDDS-TN. At
the annual meeting of shareholders held May 25, 1995, shareholders of LDDS
Communications, Inc. voted to change the name of the Company to WorldCom, Inc.,
effective immediately. Information in this document has also been revised to
reflect the stock splits of the Company's common stock.
The Company serves as a holding company for its subsidiaries, the operations
of which are organized along the Company's business lines. References herein
to the Company include the Company and its subsidiaries, unless the context
otherwise requires.
BUSINESS COMBINATIONS
On January 31, 1998, WorldCom acquired CompuServe Corporation ("CompuServe"), a
Delaware corporation, pursuant to the merger (the "CompuServe Merger") of a
wholly owned subsidiary of WorldCom, with and into CompuServe. Upon
consummation of the CompuServe Merger, CompuServe became a wholly owned
subsidiary of WorldCom. The CompuServe Merger was effected pursuant to an
Agreement and Plan of Merger by and among H&R Block, Inc., H&R Block Group,
Inc., CompuServe, WorldCom and Walnut Acquisition Company, L.L.C. dated as of
September 7, 1997.
As a result of the CompuServe Merger, each share of CompuServe common stock was
converted into the right to receive 0.40625 shares of WorldCom common stock
(the "WorldCom Common Stock") or approximately 37.6 million WorldCom common
shares in the aggregate. Prior to the Compuserve Merger, CompuServe operated
primarily through two divisions: Interactive Services and Network Services.
Interactive Services offered worldwide online and Internet access services for
consumers, while Network Services provided worldwide network access, management
and applications, and Internet service to businesses. The CompuServe Merger is
being accounted for as a purchase; accordingly, operating results for
CompuServe will be included from the date of acquisition.
On January 31, 1998, WorldCom also acquired ANS Communications, Inc. ("ANS")
from America Online, Inc. ("AOL"), and has entered into five year contracts
with AOL under which WorldCom and its subsidiaries will provide network
services to AOL (collectively, the "AOL Transaction"). As part of the AOL
Transaction, AOL acquired CompuServe's Interactive Services division and
received a $175 million cash payment from WorldCom. WorldCom retained the
CompuServe Network Services ("CNS") division. ANS provides Internet access to
AOL and AOL's subscribers in the United States, Canada, the United Kingdom,
Sweden and Japan, and also designs, develops and operates high performance
wide-area networks for business, research, education and governmental
organizations.
On January 29, 1998, WorldCom acquired Brooks Fiber Properties, Inc., a
Delaware corporation ("BFP"), pursuant to the merger (the "BFP Merger") of a
wholly owned subsidiary of WorldCom, with and into BFP. Upon consummation of
the BFP Merger, BFP became a wholly owned subsidiary of WorldCom. The BFP
Merger was effected pursuant to an Amended and Restated Agreement and Plan of
Merger dated as of October 1, 1997 by and among WorldCom, BFP and BV
Acquisition, Inc. BFP is a leading facilities-based provider of competitive
local telecommunications services, commonly referred to as a competitive local
exchange carrier ("CLEC"), in selected cities within the United States. BFP
acquires and constructs its own state-of-the-art fiber optic networks and
facilities and leases network capacity from others to provide long distance
carriers ("IXCs"), ISPs, wireless carriers and business, government and
institutional end users with an alternative to the incumbent local exchange
carriers ("ILECs") for a broad array of high quality voice, data, video
transport and other telecommunications services.
As a result of the BFP Merger, each share of BFP common stock was converted
into the right to receive 1.85 shares of WorldCom Common Stock or approximately
72.6 million WorldCom common shares in the aggregate. The BFP Merger is being
accounted for under the pooling-of-interests method.
Upon effectiveness of the BFP Merger, the then outstanding and unexercised
options and warrants exercisable for shares of BFP common stock were converted
into options and warrants, respectively, exercisable for shares of WorldCom
Common Stock having the same terms and conditions as the BFP options and
warrants, except that the exercise price and the number of shares issuable upon
exercise were divided and multiplied, respectively, by 1.85.
Additional information regarding the CompuServe Merger, the AOL Transaction and
the BFP Merger is contained under the captions "The CompuServe Merger," "The
AOL Transaction" and "The BFP Merger" contained in WorldCom's Current Report on
Form 8-K/A-1 dated November 9, 1997 (filed January 27, 1998), which is
incorporated by reference herein.
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On December 31, 1996, WorldCom, through a wholly owned subsidiary, merged with
MFS Communications Company, Inc. ("MFS"). Through this purchase, the Company
acquired local network access facilities via digital fiber optic cable networks
installed in and around major United States cities, and in several major
European cities. The Company also acquired a network platform, which consists
of Company-owned transmission and switching facilities, and network capacity
leased from other carriers primarily in the United States and Western Europe.
As a result of the merger (the "MFS Merger"), each share of MFS common stock
was converted into the right to receive 2.1 shares of WorldCom Common Stock or
approximately 471.0 million WorldCom common shares in the aggregate. Each
share of MFS Series A 8% Cumulative Convertible Preferred Stock ("MFS Series A
Preferred Stock") was converted into the right to receive one share of Series A
8% Cumulative Convertible Preferred Stock of WorldCom ("WorldCom Series A
Preferred Stock") or 94,992 shares of WorldCom Series A Preferred Stock in the
aggregate. Each share of MFS Series B Convertible Preferred Stock was
converted into the right to receive one share of Series B Convertible Preferred
Stock of WorldCom ("WorldCom Series B Preferred Stock") or approximately 12.7
million shares of WorldCom Series B Preferred Stock in the aggregate. In
addition, each depositary share representing 1/100th of a share of MFS Series A
Preferred Stock was exchanged for a depositary share representing 1/100th of a
share of WorldCom Series A Preferred Stock.
On August 12, 1996, MFS acquired UUNET Technologies, Inc. ("UUNET") through a
merger of a subsidiary of MFS with and into UUNET. UUNET is a leading
worldwide provider of a comprehensive range of Internet access options,
applications, and consulting services to businesses, professionals and on-line
services providers.
On January 5, 1995, WorldCom completed the acquisition of the network services
operations of Williams Telecommunications Group, Inc. ("WilTel"), a subsidiary
of The Williams Companies, Inc., for approximately $2.5 billion in cash (the
"WilTel Acquisition"). Through this purchase, the Company acquired a
nationwide transmission network of approximately 11,000 miles of fiber optic
cable and digital microwave facilities.
On December 30, 1994, WorldCom, through a wholly owned subsidiary, merged with
IDB Communications Group, Inc. ("IDB"). Through this merger (the "IDB
Merger"), the Company acquired a domestic and international communications
network providing private line and public switched long distance
telecommunications services, facsimile and data connections, television and
radio transmission services, and mobile satellite communications capabilities.
As a result of the IDB Merger, each share of common stock of IDB was converted
into the right to receive 0.953758 shares of WorldCom Common Stock, resulting
in the issuance of approximately 71.8 million shares of WorldCom Common Stock.
In addition, WorldCom assumed, on a subordinated basis, jointly and severally
with IDB, the obligations of IDB to pay the principal of and interest on $195.5
million 5% convertible subordinated notes due 2003, issued by IDB. In 1996,
WorldCom exercised its option to redeem all of the outstanding IDB notes. A
majority of the holders of the IDB notes elected to convert their notes into
WorldCom Common Stock prior to the redemption, resulting in the issuance of
approximately 10.3 million shares of WorldCom Common Stock. The IDB Merger was
accounted for under the pooling-of-interests method.
In 1993, upon effectiveness of the Prior Mergers, each share of the outstanding
common stock of LDDS-TN was converted into the right to receive 3.838 shares of
WorldCom Common Stock. The outstanding shares of LDDS-TN Series B 6.5%
Cumulative Senior Perpetual Convertible Preferred Stock outstanding were
converted into 2.0 million shares of WorldCom Series 2 6.5% Cumulative Senior
Perpetual Convertible Preferred Stock (the "Series 2 Preferred Stock"). As a
result of the consummation of the Prior Mergers, Metromedia Company
("Metromedia"), the sole stockholder of MCC, received 5.5 million shares of
WorldCom Common Stock, 10.9 million shares of WorldCom Series 1 $2.25
Cumulative Senior Perpetual Convertible Preferred Stock (the "Series 1
Preferred Stock"), warrants to purchase approximately 10.0 million shares of
the WorldCom Common Stock at an average price of $4.18 per share, and $150.0
million in cash. The common stock of Resurgens was unchanged in the Prior
Mergers.
In August 1995, Metromedia converted its Series 1 Preferred Stock into WorldCom
Common Stock and exercised its warrants to acquire WorldCom Common Stock and
immediately sold its position of 61.7 million shares of WorldCom Common Stock
in a public offering. In connection with the preferred stock conversion,
WorldCom made a non-recurring payment of $15.0 million to Metromedia,
representing a discount to the minimum nominal dividends that would have been
payable on the Series 1 Preferred Stock prior to the September 15, 1996
optional call date of approximately $26.6 million (which amount included an
annual dividend requirement of $24.5 million plus accrued dividends to such
call date).
In 1996, the Company exercised its option to redeem its Series 2 Preferred
Stock. Prior to the redemption date, all of the remaining outstanding Series 2
Preferred Stock was converted into 5.3 million shares of WorldCom Common Stock.
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The following table sets forth certain data concerning the Company's
acquisitions, during the past five years, of companies with annual revenues
exceeding $100.0 million, other than the IDB Merger.
<TABLE>
<CAPTION>
Revenues for Fiscal Year
Preceding Acquisition
Name Acquisition Date (In thousands)
---- ---------------- --------------
<S> <C> <C>
MCC September 1993 $ 368,532
Resurgens September 1993 151,963
TRT Communications, Inc. September 1993 175,057
WilTel January 1995 921,813
MFS/UUNET December 1996 1,238,533
BFP January 1998 128,782
CNS January 1998 490,440
ANS January 1998 291,571
</TABLE>
In addition to the acquisitions reflected in the above table, WorldCom and its
predecessors have completed other acquisitions involving companies each with
annual revenues of less than $100.0 million.
THE MCI/WORLDCOM MERGER
On October 1, 1997, WorldCom announced its intention to commence an exchange
offer to acquire all of the outstanding shares of MCI Communications
Corporation ("MCI") common stock, par value $.10 per share ("MCI Common
Stock"), for $41.50 of WorldCom Common Stock, subject to adjustment in certain
circumstances as set forth in materials filed by WorldCom with the SEC. On
November 9, 1997, WorldCom entered into an Agreement and Plan of Merger (the
"MCI/WorldCom Merger Agreement") with MCI and a wholly owned acquisition
subsidiary of WorldCom ("MCI Merger Sub"), providing for the merger (the
"MCI/WorldCom Merger") of MCI with and into MCI Merger Sub, with MCI Merger Sub
surviving as a wholly owned subsidiary of WorldCom. As a result of the
MCI/WorldCom Merger, the separate corporate existence of MCI will cease, and
MCI Merger Sub (which will be renamed "MCI Communications Corporation") will
succeed to all the rights and be responsible for all the obligations of MCI in
accordance with the Delaware General Corporation Law. Subject to the terms and
conditions of the MCI/WorldCom Merger Agreement, each share of MCI Common Stock
outstanding immediately prior to the effective time of the MCI/WorldCom Merger
(the "MCI/WorldCom Effective Time") will be converted into the right to receive
that number of shares of WorldCom Common Stock equal to the MCI Exchange Ratio
(as defined below), and each share of MCI Class A common stock, par value $.10
per share ("MCI Class A Common Stock" and, together with the MCI Common Stock,
the "MCI Capital Stock"), outstanding immediately prior to the MCI/WorldCom
Effective Time will be converted into the right to receive $51.00 in cash,
without interest thereon. The "MCI Exchange Ratio" means the quotient (rounded
to the nearest 1/10,000) determined by dividing $51.00 by the average of the
high and low sales prices of WorldCom Common Stock (the "MCI/WorldCom Average
Price") as reported on The Nasdaq National Market on each of the 20 consecutive
trading days ending with the third trading day immediately preceding the
MCI/WorldCom Effective Time; provided, however, that the MCI Exchange Ratio
will not be less than 1.2439 or greater than 1.7586. Cash will be paid in lieu
of the issuance of any fractional share of WorldCom Common Stock in the
MCI/WorldCom Merger.
Based on the number of shares of MCI Common Stock outstanding as of January 20,
1998 and assumed MCI Exchange Ratios of 1.2439 and 1.7586, approximately
710,554,160 shares and 1,004,566,722 shares, respectively, of WorldCom Common
Stock would be issued in the MCI/WorldCom Merger. In addition, as of December
31, 1997, outstanding options to purchase shares of MCI Common Stock would be
converted in the MCI/WorldCom Merger to options to acquire an aggregate of
approximately 86,491,688 shares and 122,280,154 shares, respectively, of
WorldCom Common Stock, and the exercise price would be adjusted to reflect the
MCI Exchange Ratio, so that, on exercise, the holders would receive, in the
aggregate, the same number of shares of WorldCom Common Stock as they would
have received had they exercised prior to the MCI/WorldCom Merger, at the same
exercise price.
The MCI/WorldCom Merger was approved by the MCI stockholders and the WorldCom
shareholders at separate meetings held on March 11, 1998. The MCI/WorldCom
Merger is also subject to approvals from the Federal Communications Commission
("FCC"), the Department of Justice ("DOJ") and various state government bodies.
In addition, the MCI/WorldCom Merger is subject to approval by the Commission
of the European Communities (the "European Commission"). WorldCom anticipates
that the MCI/WorldCom Merger will close in mid-year 1998.
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Termination of the MCI/WorldCom Merger Agreement by MCI or WorldCom under
certain conditions will require MCI to pay WorldCom $750 million as a
termination fee and to reimburse WorldCom the $450 million alternative
transaction fee and certain related expenses paid by WorldCom to British
Telecommunications plc ("BT"). Further, termination of the MCI/WorldCom Merger
Agreement by MCI or WorldCom under certain conditions will require WorldCom to
pay MCI $1.635 billion as a termination fee.
Pursuant to an agreement (the "BT Agreement") among MCI, WorldCom and BT, the
prior merger agreement between BT and MCI (the "BT/MCI Merger Agreement") was
terminated, and WorldCom agreed to pay BT an alternative transaction fee of
$450 million and expenses of $15 million payable to BT in accordance with the
BT/MCI Merger Agreement. These fees were paid on November 12, 1997. WorldCom
also agreed to pay to BT an additional payment of $250 million in the event
that WorldCom is required to make the $1.635 billion payment to MCI in
accordance with the MCI/WorldCom Merger Agreement. In addition, pursuant to
the BT Agreement, BT voted (or caused to be voted) its shares of MCI Class A
Common Stock in favor of the MCI/WorldCom Merger Agreement and the approval of
the other transactions contemplated by the MCI/WorldCom Merger Agreement.
The foregoing description of the MCI/WorldCom Merger Agreement and the BT
Agreement and the transactions contemplated thereby does not purport to be
complete and is qualified in its entirety by reference to such agreements,
copies of which are incorporated herein by reference as exhibits to this Annual
Report on Form 10-K and incorporated herein by reference. Additional
information regarding such agreements and the transactions contemplated thereby
is also contained under the caption "The MCI/WorldCom Merger" contained in
WorldCom's Current Report on Form 8-K/A-1 dated November 9, 1997 (filed January
27, 1998), which is incorporated by reference herein.
COMPANY STRATEGY
The Company's strategy is to become a fully integrated communications company
that would be well positioned to take advantage of growth opportunities in
global telecommunications. Consistent with this strategy, the Company believes
that transactions such as the CompuServe Merger, the AOL Transaction, the BFP
Merger, and, if consummated, the MCI/WorldCom Merger, enhance the combined
entity's opportunities for future growth, create a stronger competitor in the
changing telecommunications industry, allow provision of end-to-end bundled
service over global networks, and provide the opportunity for significant cost
savings and operating efficiencies for the combined organization.
SERVICES
GENERAL. The Company is one of the largest telecommunications companies in the
United States, based on 1996 revenues, serving local, long distance and
Internet customers domestically and internationally. The products and services
provided by the Company include switched and dedicated long distance and local
products, dedicated and dial-up Internet access, resale cellular services, 800
services, calling cards, domestic and international private lines, broadband
data services, debit cards, conference calling, advanced billing systems,
enhanced fax and data connections, high speed data communications, facilities
management, local access to long distance companies, local access to ATM-based
backbone service, web server hosting and integration services and
interconnection via NAPs to ISPs. Based on FCC statistics as of December 31,
1996 (the most recent statistics available), WorldCom's share of total toll
service revenues for 1996 was 4.8%.
DOMESTIC LONG DISTANCE AND LOCAL SERVICE. The Company provides a single source
for integrated local and long distance telecommunications services and
facilities management services to business, government, other
telecommunications companies and consumer customers.
There are several ways in which the customer can access the Company's network
for domestic long distance services. In areas where equal access has been made
available, a customer who has selected the Company as its IXC can utilize the
Company's network for inter-LATA long distance calls through "one plus" dialing
of the desired call destination. Customers in areas without equal access or
customers in equal access areas who do not select the Company as their IXC can
utilize the Company's network for all their long distance calls through two
methods of "dial-up access." They can dial a local telephone number to access
the Company's computerized switching equipment and then enter a personal
authorization code and the area code and telephone number of the desired call
destination. Customers may also access the Company's network by dialing 10
plus the three digit Carrier Identification Code belonging to the Company and
the area code and telephone number of the desired call location. Regardless of
the method used, dial-up customers can access the Company's network for all of
their long distance calls, both intra-LATA and inter-LATA. High volume
customers can access the WorldCom network through the use of high-capacity
dedicated circuits.
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Customer billing is generated internally and through a facilities management
agreement under which Electronic Data Systems Corporation performs significant
data processing functions. See Note 7 of Notes to Consolidated Financial
Statements.
The market for local exchange services consists of a number of distinct service
components. These service components are defined by specific regulatory tariff
classifications including: (i) local network services, which generally include
basic dial tone charges and private line services; (ii) network access
services, which consist of access charges received by LECs from long distance
carriers for the local portion of long distance telephone calls; (iii) long
distance network services, which include the variable portion of charges
received by LECs for intra-LATA long distance calls; and (iv) additional value
added services such as caller identification, voice mail and call waiting.
Unlike the RBOCs and other large LECs which were organized geographically in
response to the regulatory environment that existed before the AT&T Divesture
Decree, the Company is organized around its customers to take advantage of
ongoing technological, competitive and regulatory changes.
INTERNATIONAL SERVICES. The Company offers international public switched
voice, private line and data services to other carriers and to commercial,
government and consumer customers. The Company has over 200 operating
agreements with foreign carriers to provide switched voice and/or private line
services, thereby making the Company a leading participant in the international
telecommunications market.
The Company offers public switched international telecommunications services
worldwide and provides direct services to approximately 60 foreign countries.
The Company sells public switched telecommunications services to corporate and
residential customers, and to domestic long distance carriers that lack
transmission facilities to locations served by the Company or need more
transmission capacity. Customers can access the Company's international
switching centers to make international telephone calls via dedicated
connections or via dial-up access.
The Company both delivers and receives international traffic pursuant to its
operating agreements. The terms of most switched voice operating agreements,
as well as established FCC policy, require that inbound switched voice traffic
from the foreign carrier to the United States be routed to United States
international carriers, like WorldCom, in proportion to the percentage of
United States outbound traffic routed by that United States international
carrier to the foreign carrier. The Company's revenues and costs of sales are
sensitive to changes in international settlement rates and international
traffic routing patterns.
The Company also provides permanent and temporary international private line
services to customers for a number of applications. These applications
generally involve establishing private, international point-to-point
communications links for customers with high traffic volumes or special needs,
such as greater security or route diversity. The Company has private line
operating agreements with approximately 160 foreign correspondents. The
Company provides international private line services for a range of financial,
airline, commercial and governmental communications networks.
WorldCom also provides switched voice, private line and/or value-added data
services over its own facilities and leased facilities in the United Kingdom,
Germany, France, the Netherlands, Sweden, Switzerland, Belgium, Italy, Ireland
and other European countries. The Company operates metropolitan digital fiber
optic networks in London, Paris, Frankfurt, Amsterdam, Stockholm and Brussels.
The Company is constructing a high capacity digital fiber optic network to
interconnect its metropolitan networks in Europe. In addition, WorldCom,
together with its joint venture partner Cable & Wireless, plc, placed into
service in the first quarter of 1998 a high capacity digital fiber optic
undersea cable between the United States and the United Kingdom. The Company
also offers certain international services over leased facilities in certain
Asian markets, including Japan, Hong Kong and Singapore. In addition, the
Company was granted authority in the first quarter of 1998 to own and operate
domestic and international facilities in Japan. Such operations are subject
to certain risks including licensing requirements, changes in foreign
government regulations and telecommunications standards, interconnection and
leased line charges, taxes, fluctuating exchange rates, various trade barriers,
and political and economic instability.
INTERNET. The Company provides a comprehensive range of Internet access and
value-added options, applications and consulting services tailored to meet the
needs of businesses and professionals. The Company's Internet operations are
organized into two functionally inter-related business groups - Internet
services and value-added Internet services. The Internet services group
focuses on Internet access (dial-up and dedicated, both retail and wholesale)
as well as fax-over-the-Internet (announced in 1997 and commercially introduced
in 1998). The value-added Internet services group offers value-added data
products and services, including transaction services (such as credit card
transaction processing), managed networking services and applications (such as
virtual private networks, Intranets and Extranets), secure remote Internet
access, web hosting and electronic commerce.
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OTHER SERVICES. The Company offers a broad range of related services which
enhance customer convenience, add value and provide additional revenue sources.
Advanced "800" service offers features for caller and customer convenience,
including a variety of call routing and call blocking options, customer
reconfiguration, termination overflow to switched or dedicated lines, Dialed
Number Identification Service (DNIS), real-time Automatic Number Identification
(ANI), and flexible after-hours call handling services. The Company's travel
cards offer worldwide calling services, caller-friendly voice mail with message
waiting signal, message storage and delivery, conference calling, personal
greetings, speed dialing, customer deactivation and reactivation of cards,
customer card, and private-label card options. The Company is also a market
leader for the prepaid calling card which allows a purchaser to pay in advance
for a specific number of long distance minutes. The Company's prepaid calling
card may be purchased through several major retailers in the United States and
continues to be a growing source of revenues for the Company.
The Company also designs, installs, and integrates "turnkey" transmission
facilities and communications networks primarily for international customers.
Services provided include fixed and transportable customer premise earth
stations, network management systems, system integration consulting and project
management.
The Company also provides development, design and engineering, project
management, construction and support of networks and systems to a range of
third-party customers. It is an industry leader in the creation of advanced
communication and transportation systems, through the integration of advanced
technologies for telecommunications, transportation and security applications.
TRANSMISSION FACILITIES
The Company's operating subsidiaries own domestic long distance, international
and multi-city local service fiber optic networks with access to additional
fiber optic networks through lease agreements with other carriers.
Deployed in business centers throughout the United States, Europe and the
United Kingdom, the Company's local networks are constructed using ring
topology. Transmission networks are based on either conventional asynchronous
multiplexing or SONET ("Synchronous Optical Network") equipment. European
networks are based on Synchronous Digital Hierarchy ("SDH") technology.
Network backbones are installed in conduits owned by the Company or leased from
third parties such as utilities, railroads, long distance carriers, state
highway authorities, local governments and transit authorities. Lease
arrangements are generally executed under multi-year terms with renewal options
and are non-exclusive.
Buildings are connected to the Company's local networks using fiber extensions
(known as "laterals") which are then connected to a local distribution loop and
ultimately to a high speed fiber backbone which originates and terminates at
one of the Company's central nodes. Transmission signals are generally sent
through the network simultaneously on both primary and secondary paths thereby
providing route diversity and disaster protection. Buildings served via a
Company- owned lateral have a discrete Company presence (referred to as a
"remote hub" or "building point-of-presence") located within the building.
Generally, Company-owned internal building wiring connects the remote hub to
the customer premises. Customer terminal equipment is connected to
Company-provided electronic equipment generally located in the remote hub where
ongoing customer transmission signals are digitized, combined and converted
into optical signals for transport to the central node. Signals are then
reconfigured and routed to their final destination.
To serve customers in buildings that are not located directly on the fiber
network, the Company utilizes leased T-1s or unbundled local loops obtained
from the LECs.
Internationally, the Company owns fiber optic facilities on most major
international undersea cable systems in the Pacific and Atlantic Ocean regions,
providing fiber optic cable connections between the United States and the
Pacific Rim and the United States and Europe. In the first quarter of 1998,
WorldCom, together with its joint venture partner Cable & Wireless, plc, placed
into service a high capacity digital fiber optic undersea cable between the
United States and the United Kingdom. WorldCom also owns fiber optic cable for
services to the Commonwealth of Independent States, Central America, South
America and the Caribbean. The Company also owns and operates 20 international
gateway satellite earth stations, which enable it to provide public switched
and private line voice and data communications to and from locations throughout
the world. The Company also provides international service by leasing
submarine cable capacity from international carriers.
The Company's ability to generate profits is largely dependent upon its ability
to optimize the different types of transmission facilities used to provide the
customer service. These facilities are complemented by a least cost routing
plan which is accomplished through digital switching technology and network
routing software. Calls can be routed over fixed cost transmission
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facilities or variable cost transmission facilities. Fixed cost facilities,
including the Company's owned networks, are typically most cost effective for
routes that carry high volumes of traffic. In addition, a variety of lease
agreements for fixed and variable cost (usage sensitive) services ensure
diversity in processing calls.
NETWORK SWITCHING
The Company owns or leases computerized network switching equipment that routes
its customers' long distance calls. The Company's digital switching equipment
is interconnected with digital transmission lines. The Company's switching
networks utilize SS7 common channel signaling, which increases efficiencies by
eliminating connect time delays and provides "look ahead" routing. In addition
to networking, the Company's switching equipment verifies customers' pre-
assigned authorization codes, records billing data and monitors system quality
and performance.
In addition to the switching centers, the Company has a number of other network
facility locations known as points of presence ("POPs"). These POPs allow the
Company to concentrate customers' traffic at locations where the Company has
not installed switching equipment. The traffic is carried to switching centers
from POPs over the Company's digital transmission network.
The Company's local switches are capable of providing both local and long
distance call functions while the gateway switches have the specific purpose of
transferring domestically originated calls to the rest of the world. It is the
intention of the Company to deploy a number of additional switches in 1998 both
in existing CAP service areas and in new markets not currently providing
facilities-based switched local service.
The Company's ATM network utilizes the Company's intracity fiber connections to
customers, Company-owned ATM switches and WorldCom's high capacity fiber optic
networks. ATM is a switching and transmission technology based on
encapsulation of information in short (53-byte) fixed-length packets or
"cells." ATM switching was specifically developed to allow switching and
transmission of mixed voice, data and video (sometimes referred to as
"multimedia" information). In addition, certain characteristics of ATM
switching allow switching information to be directly encoded in integrated
circuitry rather than in software.
WorldCom's frame relay network utilizes Company-owned and maintained frame
relay switches and WorldCom's high capacity fiber optic networks to provide
data networking services to commercial customers. Networking equipment at
customer sites connects to the WorldCom frame relay switches which in turn are
connected to each other via the extensive WorldCom fiber optic networks. Frame
relay utilizes variable length frames to transport customer data from one
customer location across WorldCom networks to another customer location.
Customers utilize the frame relay technology to support traditional business
applications such as connecting local networks and financial applications.
INTERNET NETWORK INFRASTRUCTURE
The Company's Internet infrastructure is based on its own OC-12c and DS-3
network which is ATM-based in metropolitan areas where OC-12c has been deployed
to support the OC-12c interfaces. This network infrastructure enables
customers to access the Internet through dedicated lines or by placing a local
telephone call (dial-up) through a modem to the nearest equipment location for
the Company. Once connected, the customer's traffic is routed through the
Company's networks to the desired Internet location, whether on the Company's
networks or elsewhere on the Internet. The Company will continue in 1998 to
migrate the network to support OC-12c in additional areas and to upgrade
additional portions of the network to ATM.
NETWORK STATISTICS
Global network statistics of the Company, including BFP, CNS and ANS, are as
follows:
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<TABLE>
<CAPTION>
As of December 31,
----------------------------
1997 1996
---------- ---------
<S> <C> <C>
Domestic long distance route miles 19,619 12,589
Local domestic and international fiber miles 547,529 327,465
Local domestic and international route miles 6,741 4,899
Local circuits in service (voice grade
equivalents) 10,702,851 6,387,549
Buildings connected 27,785 16,253
Active voice switches-local and long distance 138 93
Telco Collocations 345 199
</TABLE>
RATES AND CHARGES
LONG DISTANCE AND LOCAL SERVICE. The Company charges switched customers on the
basis of a fixed rate per line prescribed to the Company plus minutes or
partial minutes of usage at rates that vary with the distance, duration and
time of day of the call. For local service, customers are billed a fixed
charge plus usage. The rates charged are not affected by the particular
transmission facilities selected by the Company's switching centers for
transmission of the call. Additional discounts are available to customers who
generate higher volumes of monthly usage.
Domestic and international business services originating in the United States
are primarily billed in six-second increments; others are billed in partial
minutes rounded to the next minute. Switched voice services originating in
international markets are billed in increments subject to local market
conditions and interconnect agreements. Switched long distance and local
services are billed in arrears, with monthly billing statements itemizing date,
time, duration and charges; private line services are billed monthly in
advance, with the invoice indicating applicable rates by circuit.
The Company's rates are generally designed to be competitive with those charged
by other long distance and local carriers. The rates offered by the Company
may be adjusted in the future if other IXCs, LECs and CAPs continue to adjust
their rates. To date, continued improvement in the domestic and international
cost structures have allowed the Company to offer competitive rates while
maintaining acceptable margins.
INTERNET ACCESS AND SERVICES. The Company's Internet access options are sold
in the United States and in many foreign countries for domestic Internet
access. Prices vary, based on service type. Due to various factors, such as
available telecommunications technology, foreign government regulation, and
market demand, the service options offered outside of the United States vary as
to speed, price and suitability for various purposes.
MARKETING AND SALES
WorldCom markets its local, long distance and international calling and
Internet-based services primarily through a direct sales force targeted at
specific geographic markets. WorldCom's sales force of approximately 2,400
people also provides advanced sales specialization for the data and
international marketplaces, including domestic and international private line
services.
In each of its geographic markets, the Company employs full service support
teams that provide its customers with prompt and personal attention. With
offices nationwide, WorldCom's localized management, sales and customer support
are designed to engender a high degree of customer loyalty and service quality.
COMPETITION
Virtually every aspect of the telecommunications industry is extremely
competitive, and WorldCom expects that competition will intensify in the
future. WorldCom (including CNS, ANS and BFP) faces significant competition
from carriers and other companies with greater market share and financial
resources. WorldCom competes domestically with incumbent providers, which have
historically dominated local telecommunications, and with long distance
carriers, for the provision of long distance services. Sometimes the incumbent
provider offers both local and long distance services. The ILECs presently
have numerous advantages as a result of their historic monopoly control over
local exchanges. A continuing trend toward business combinations and alliances
in the telecommunications industry may create significant new competitors to
WorldCom. Many of WorldCom's existing and potential competitors have
financial, personnel and other resources significantly greater than those of
WorldCom. WorldCom also faces competition from competitors in every area of
their businesses, including competitive access providers operating fiber optic
networks, in some cases in conjunction with the local cable television
operator. Several competitors have announced the
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deployment of nationwide fiber networks using advanced state-of-the-art
technologies. AT&T Corp. ("AT&T") and Sprint Corporation ("Sprint") have
indicated their intention to offer local telecommunications services in major
United States markets using their own facilities, including in AT&T's case, the
announced acquisition of the facilities and business of Teleport Communications
Group, Inc., or by resale of the local exchange carriers' or other providers'
services. In addition, WorldCom competes with equipment vendors and installers
and telecommunications management companies with respect to certain portions of
their businesses.
Overseas, WorldCom competes with incumbent providers, some of which still have
special regulatory status and the exclusive rights to provide certain services,
and virtually all of which have historically dominated their local, domestic
long distance and international services business. These incumbent providers
have numerous advantages including existing facilities, customer loyalty, and
substantial financial resources. WorldCom also competes with other service
providers, many of which are affiliated with incumbent providers in other
countries. Typically, WorldCom must devote extensive resources to obtaining
regulatory approvals necessary to operate overseas, and then to obtaining
access to and interconnection with the incumbent's network on a
non-discriminatory basis.
WorldCom may also be subject to additional competition due to the development
of new technologies and increased availability of domestic and international
transmission capacity. For example, even though fiber optic networks, such as
that of WorldCom, are now widely used for long distance transmission, it is
possible that the desirability of such networks could be adversely affected by
changing technology. The telecommunications industry is in a period of rapid
technological evolution, marked by the introduction of new product and service
offerings and increasing satellite and fiber optic transmission capacity for
services similar to those provided by WorldCom. WorldCom cannot predict which
of many possible future product and service offerings will be important to
maintain its competitive position or what expenditures will be required to
develop and provide such products and services. For most of the Company's
communications services, the factor's critical to customer's choice of a
service provider are cost, ease of use, speed of installation, quality,
reputation and in some cases, geography and network size.
Under the Telecommunications Act of 1996 (the "Telecom Act") and ensuing
federal and state regulatory initiatives, barriers to local exchange
competition are being removed. The introduction of such competition, however,
also establishes, in part, the predicate for the BOCs to provide in-region
interexchange long distance services if the constitutionality of the Telecom
Act is upheld. The BOCs are currently allowed to offer certain "incidental"
long distance service in-region and to offer out-of-region long distance
services. Once the BOCs are allowed to offer in- region long distance
services, they could be in a position to offer single source local and long
distance service similar to that being offered by WorldCom. WorldCom expects
that the increased competition made possible by regulatory reform will result
in certain additional pricing and margin pressures in the domestic
telecommunications services business. Such of the additional pressures as may
result from BOC provision of in-region interexchange long distance services may
be accelerated if the ruling of the United States District Court for the
Northern District of Texas on the constitutionality of the Telecom Act's
restrictions is ultimately upheld on appeal.
WorldCom also competes in offering data communications services, including
Internet access and related services. This is also an extremely competitive
business and WorldCom expects that competition will intensify in the future.
WorldCom believes that the ability to compete successfully in this arena
depends on a number of factors, including: industry presence; the ability to
execute a rapid expansion strategy; the capacity, reliability and security of
its network infrastructure; ease of access to and navigation on the Internet;
the pricing policies of its competitors and suppliers; the timing of the
introduction of new products and services by the Company and its competitors;
the Company's ability to support industry standards; and industry and general
economic trends. The success of WorldCom will depend heavily upon its ability
to provide high quality data communication services, including Internet
connectivity and value-added Internet services at competitive prices.
Major telecommunications and data communications companies have expanded their
current services to compete fully in offering data communication services,
including Internet access and value-added services, and WorldCom expects
additional telecommunications and data communications companies to continue to
compete in this arena. WorldCom believes that new competitors, including large
computer hardware, software, media and other technology and communications
companies will also offer data communications services, resulting in even
greater competition for the combined company. Certain companies, including
AT&T, GTE Corporation ("GTE"), Intermedia Communications, Inc., Teleport
Communications Group Inc., Qwest Communications, LCI Communications, Inc. and
PSINet, Inc., have obtained or expanded their Internet access products and
services as a result of network deployment, acquisitions and strategic
investments. Such acquisitions may permit WorldCom's competitors to devote
greater resources to the development and marketing of new competitive products
and services and the marketing of existing competitive products and services.
WorldCom expects these acquisitions and strategic investments to increase, thus
creating significant new competitors to the Company. In addition, WorldCom
expects new companies, such as Level 3, to enter this arena and provide
additional competition for the Company's service offerings.
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As the Company continues to expand data communications operations outside of
the United States, the Company will be forced to compete with and buy services
from incumbent providers, some of which are government-owned and/or still have
special regulatory status and the exclusive rights to provide certain essential
services. The Company will also encounter competition from companies whose
operating styles are substantially different from those that it usually
encounters. For example, in Europe, WorldCom's subsidiaries compete directly
with: (1) telecommunications companies, such as BT, Deutsche Telekom AG and
others; (2) global telecommunications alliances such as Global One (Deutsche
Telekom AG, France Telecom and Sprint), Unisource/Uniworld (AT&T, Telia AB of
Sweden, PTT Telecom Netherlands, and Swisscom), and others; and (3) other
Internet access providers, such as Demon Internet Limited. Foreign
competitors may also possess a better understanding of their local areas and
may have better working relationships with, or control of, local
telecommunications companies. There can be no assurance that the Company can
obtain similar levels of local knowledge, and failure to obtain that knowledge
could place the Company at a serious competitive disadvantage.
REGULATION
GENERAL. WorldCom's operating subsidiaries are subject to varying degrees of
federal, state, local and international regulation. In the United States,
WorldCom's subsidiaries are most heavily regulated by the states, especially
for the provision of local exchange services. Each such subsidiary must be
separately certified in each state to offer local exchange and intrastate long
distance services. No state, however, subjects WorldCom to price cap or rate
of return regulation, nor is WorldCom currently required to obtain FCC
authorization for installation or operation of its network facilities used for
domestic services, other than licenses for specific terrestrial microwave and
satellite earth station facilities which utilize radio frequency spectrum. FCC
approval is required, however, for the installation and operation of its
international facilities and services. WorldCom is subject to varying degrees
of regulation in the foreign jurisdictions in which it conducts business
including authorization for the installation and operation of network
facilities. Although the trend in federal, state and international regulation
appears to favor increased competition, no assurance can be given that changes
in current or future regulations adopted by the FCC, state or foreign
regulators or legislative initiatives in the United States or abroad would not
have a material adverse effect on WorldCom.
On February 8, 1996, President Clinton signed the Telecom Act, which permits
the BOCs to provide domestic and international long distance service to
customers located outside of the BOCs' home regions; permits a petitioning BOC
to provide domestic and international long distance services to customers
within its operating area on a state by state basis upon a finding by the FCC
that a petitioning BOC has satisfied certain criteria for opening up its local
exchange network to competition and that its provision of long distance
services would further the public interest; and removes existing barriers to
entry into local service markets. Additionally, there were significant changes
in: the manner in which carrier-to-carrier arrangements are regulated at the
federal and state level; procedures to revise universal service standards; and
penalties for unauthorized switching of customers. The FCC has instituted and,
in most instances completed, proceedings addressing the implementation of this
legislation.
In implementing the Telecom Act, the FCC established nationwide rules designed
to encourage new entrants to participate in the local services markets through
interconnection with the ILECs, resale of ILEC's retail services and use of
individual and combinations of unbundled network elements. These rules set the
groundwork for the statutory criteria governing BOC entry into the long
distance market. Appeals of the FCC order adopting those rules were
consolidated before the United States Court of Appeals for the Eighth Circuit
(the "Eighth Circuit"). The Eighth Circuit found constitutional challenges to
certain practices implementing cost provisions of the Telecom Act that were
ordered by certain PUCs to be premature, but vacated significant portions of
the FCC's nationwide pricing rules and vacated an FCC rule requiring that
unbundled network elements be provided on a combined basis. In response to
requests by the Solicitor General, on behalf of the FCC, and certain other
parties, including WorldCom, the United States Supreme Court has agreed to
review the decision of the Eighth Circuit. Certain BOCs have also raised
constitutional challenges to provisions of the Telecom Act restricting BOC
provision of long distance services, manufacturing of telecommunications
equipment, electronic publishing and alarm monitoring services. On December
31, 1997, the United States District Court for the Northern District of Texas
(the "Texas District Court") ruled that these restrictions violate the Bill of
Attainder Clause of the U.S. Constitution. Currently, this decision only
applies to SBC Corporation ("SBC"), US WEST Communications Group ("US WEST"),
and Bell Atlantic Corporation ("Bell Atlantic"). At the request of various
parties, on February 11, 1998, the Texas District Court issued a stay of its
decision pending appeal. AT&T, MCI, the DOJ, the FCC and other parties have
appealed the decision to the United States Court of Appeals for the Fifth
Circuit. BellSouth Corporation ("BellSouth") raised the Bill of Attainder
issue in its appeal before the United States Court of Appeals for the Fifth
Circuit of the electronic publishing restrictions imposed under the Telecom
Act. A decision on that appeal is pending. WorldCom cannot predict either the
ultimate outcome of these or future challenges to the Telecom Act, any related
appeals of regulatory or court decisions, or the eventual effect on WorldCom's
business or the industry in general.
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The FCC has denied applications filed by Ameritech Corporation ("Ameritech"),
SBC and BellSouth seeking authority to provide interLATA long distance service
in Michigan, Oklahoma, Louisiana and South Carolina, respectively. SBC
appealed the FCC's denial of its application covering Oklahoma to the United
States Court of Appeals for the District of Columbia Circuit. The Court has
affirmed the FCC's denial of that application. In its denial of an Ameritech
application and a BellSouth application, the FCC provided detailed guidance to
applicants regarding the obligations of the applicants, the format of future
applications, the content of future applications, and the review standards that
it will apply in evaluating any future applications. The National Association
of Regulatory Utility Commissioners and several state regulatory commissions
have appealed jurisdictional aspects of that Ameritech application denial to
the Eighth Circuit. WorldCom cannot predict either the outcome of these
appeals, or the BOCs' willingness to abide by these FCC guidelines, or the
timing or outcome of future applications submitted to the FCC. Additionally,
several RBOCs have filed petitions requesting that the FCC forbear from
imposing the line of business restrictions upon their data service offerings
and data network deployment. Other BOCs have announced their intention to file
applications at the FCC for authority to provide interLATA services.
Additionally, the FCC and several PUCs are considering a proposal that would
allow BOCs electing to create separate wholesale network and retail
organizations to enter the long distance market on an accelerated basis.
WorldCom cannot predict the outcome of these proceedings or whether the outcome
will have a material impact upon its consolidated financial position or results
of operations.
On May 7, 1997, the FCC announced that it will issue a series of orders that
will reform Universal Service Subsidy allocations and adopted various reforms
to the existing rate structure for interstate access services provided by the
ILECs that are designed to reduce access charges, over time, to more
economically efficient levels and rate structures. It also affirmed that
information service providers (including, among others, ISPs) should not be
subject to existing access charges ("ISP Exemption"). Petitions for
reconsideration of, among other things, the access service and ISP Exemption
related actions were filed before the FCC and appeals taken to various United
States Courts of Appeals. On reconsideration, the FCC in significant part
affirmed the access charge and ISP Exemption actions and the court appeals have
been consolidated before the Eighth Circuit. Also, several state agencies have
started proceedings to address the reallocation of implicit subsidies contained
in the access rates and retail service rates to state universal service funds.
Access charges are a principal component of WorldCom's telecommunications
expense. Additionally, modification of the ISP Exemption could have an adverse
effect on the Company's Internet-related services business. WorldCom cannot
predict either the outcome of these appeals or whether or not the result(s)
will have a material impact upon its consolidated financial position or results
of operations.
The FCC issued on December 24, 1996 a Notice of Inquiry to seek comment on
whether it should consider various actions relating to interstate information
services and the Internet. The FCC recognized that these services and recent
technological advances may be constrained by current regulatory practices that
have their foundations in traditional circuit switched telecommunications
services and technologies. Based upon this and other proceedings, the FCC may
permit telecommunications companies, BOCs, or others to increase the scope or
reduce the cost of their Internet access services. WorldCom cannot predict the
effect that the Notice of Inquiry, the Telecom Act or any future legislation,
regulation or regulatory changes may have on its consolidated financial
position or results of operations.
INTERNATIONAL. In December 1996, the FCC adopted a new policy that makes it
easier for United States international carriers to obtain authority to route
international public switched voice traffic to and from the United States
outside of the traditional settlement rate and proportionate return regimes.
In February 1997, the United States entered into a World Trade Organization
Agreement (the "WTO Agreement") that should have the effect of liberalizing the
provision of switched voice telephone and other telecommunications services in
scores of foreign countries over the next several years. The WTO Agreement
became effective in February 1998. In order to comply with United States
commitments to the WTO Agreement, the FCC implemented new rules in February
1998 that liberalize existing policies regarding (i) the services that may be
provided by foreign affiliated United States international common carriers,
including carriers controlled or more than 25 percent owned by foreign carriers
that have market power in their home markets, and (ii) the provision of
international switched voice services outside of the traditional settlement
rate and proportionate return regimes. The new rules make it much easier for
foreign affiliated carriers to enter the United States market for the provision
of international services.
In August 1997, the FCC adopted mandatory settlement rate benchmarks. These
benchmarks are intended to reduce the rates that United States carriers pay
foreign carriers to terminate traffic in their home countries. The FCC will
also prohibit a United States carrier affiliated with a foreign carrier from
providing facilities-based service to the foreign carrier's home market until
and unless the foreign carrier has implemented a settlement rate within the
benchmark. The FCC also adopted new rules that will liberalize the provision
of switched services over private lines to World Trade Organization ("WTO")
member countries, by allowing such services on routes where 50% or more of
United States billed traffic is being terminated in the foreign country at or
below the applicable settlement rate benchmark or where the foreign country's
rules concerning provision of international switched services over private
lines are deemed equivalent to United States rules.
12
<PAGE> 17
Although the FCC's new policies and implementation of the WTO Agreement may
result in lower costs to WorldCom to terminate international traffic, there is
a risk that the revenues that WorldCom will receive from inbound international
traffic may decrease to an even greater degree. The implementation of the WTO
Agreement may also make it easier for foreign carriers with market power in
their home markets to offer United States and foreign customers end-to-end
services to the disadvantage of WorldCom, which may continue to face
substantial obstacles in obtaining from foreign governments and foreign
carriers the authority and facilities to provide such end-to-end services.
Further, many foreign carriers have challenged, in court and at the FCC, the
FCC's order adopting mandatory settlement rate benchmarks. If the FCC's
settlement rate benchmark order was to be overturned, it could accelerate the
full-fledged entry of foreign carriers into the United States, and make it more
advantageous for foreign carriers to route international traffic into the
United States at low, cost-based termination rates, while United States
carriers would continue to have little choice but to route international
traffic into most foreign countries at much higher, above cost, settlement
rates.
FOREIGN OWNERSHIP. The Communications Act of 1934, as amended (the
"Communications Act") prohibits any entity in which more than 20% of the
capital stock is owned of record or voted by noncitizens or a foreign
government or its representative from receiving or holding a common carrier
radio transmission license (including microwave). The Communications Act also
prohibits subsidiaries of any entity of which more than 25% of the capital
stock is owned of record or voted by noncitizens from receiving or holding
common carrier radio transmission licenses (including microwave), if the FCC
finds that the public interest would be served by the refusal or revocation of
the licenses under those circumstances. Under its new rules implementing the
WTO Agreement, the FCC presumes that foreign investment by entities from WTO
member countries is in the public interest. The FCC's rules make it much
easier for foreign entities to own significant interests in, or control, United
States common carrier radio transmission licensees. The Company's charter
restricts aggregate beneficial ownership of the WorldCom Common Stock by
certain foreign shareholders to 20% of the total outstanding stock, and
subjects excess shares to redemption.
RISK FACTORS
Prospective investors should carefully consider the following risk factors,
together with the other information contained in this Annual Report on Form
10-K, in evaluating the Company and its business before purchasing its
securities. In particular, prospective investors should note that this Annual
Report on Form 10-K contains forward- looking statements within the meaning of
the PSLRA and that actual results could differ materially from those
contemplated by such statements. See "Cautionary Statement Regarding
Forward-Looking Statements." The factors listed below represent certain
important factors the Company believes could cause such results to differ.
These factors are not intended to represent a complete list of the general or
specific risks that may affect the Company. It should be recognized that other
risks may be significant, presently or in the future, and the risks set forth
below may affect the Company to a greater extent than indicated.
Business and other risks described herein as applicable to WorldCom are
generally also applicable to MCI.
UNCERTAINTIES IN INTEGRATING THE ACQUIRED COMPANIES AND ACHIEVING COST SAVINGS.
WorldCom entered into the MCI/WorldCom Merger Agreement, the BFP Merger
Agreement, the CompuServe Merger Agreement and the AOL Agreement, in each case
with the expectation that the transactions will result in certain benefits,
including, without limitation, cost savings, operating efficiencies, revenue
enhancements and other synergies. Achieving the benefits of the MCI/WorldCom
Merger (which would be significantly larger than previous acquisitions
completed by WorldCom), the BFP Merger, the CompuServe Merger and the AOL
Transaction, will depend in part upon the integration of the businesses of
WorldCom together with BFP, CNS, ANS, and MCI in an efficient manner, and there
can be no assurance that this will occur. The consolidation of operations will
require substantial attention from management. The diversion of management
attention and any difficulties encountered in the transition and integration
processes could have a material adverse effect on the revenues, levels of
expenses and operating results of the combined companies. There can be no
assurance that the Company will realize any of the anticipated benefits of the
CompuServe Merger, the MCI/WorldCom Merger, the BFP Merger or the AOL
Transaction. For a discussion of other factors and assumptions related to the
synergy estimates, see "The MCI/WorldCom Merger--Effects of the MCI/WorldCom
Merger; Estimated Synergies," contained in WorldCom's Current Report on Form
8-K/A-1 dated November 9, 1997 (filed January 27, 1998), which is incorporated
herein by reference.
NECESSITY OF RECEIVING GOVERNMENTAL APPROVALS PRIOR TO THE MCI/WORLDCOM MERGER;
RISKS ASSOCIATED WITH FAILURE TO OBTAIN APPROVALS OF CERTAIN GOVERNMENTAL
AUTHORITIES. The consummation of the MCI/WorldCom Merger is conditioned upon
the expiration or termination of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and
confirmation from the European Commission by way of a decision under Council
Regulation 4064/89 that the MCI/WorldCom Merger does not create or strengthen a
dominant position as a result of which competition would be significantly
13
<PAGE> 18
impeded in the European common market. In addition, other filings with,
notifications to and authorizations and approvals of, various governmental
agencies, both domestic and foreign, with respect to the transactions
contemplated by the MCI/WorldCom Merger Agreement, relating primarily to the
FCC and state PUCs, must be made and received prior to consummation of the
MCI/WorldCom Merger. There can be no assurance that such authorizations,
approvals or decisions will be granted, or, if granted, will not contain
certain material conditions or restrictions, that an injunction will not be
issued by a court of competent jurisdiction enjoining the consummation of the
MCI/WorldCom Merger or that a challenge to the MCI/WorldCom Merger on the
grounds that it is not compatible with the European common market will not be
made, or if a challenge is made, what the result will be.
Consummation of the MCI/WorldCom Merger is subject to additional approvals from
certain governmental authorities. If such approvals have not been received at
such time as all other material conditions to the MCI/WorldCom Merger have been
satisfied or waived, MCI and WorldCom may nonetheless determine to consummate
the MCI/WorldCom Merger. Although MCI and WorldCom are seeking such approvals,
it is uncertain whether such approvals will be timely received from, among
others, every jurisdiction in which MCI and WorldCom are authorized to do
business. If MCI and WorldCom determine to consummate the MCI/WorldCom Merger
without having received all such approvals, no assurance can be given that any
resulting loss of business would not have a material adverse effect on the
businesses, prospects, financial condition or results of operations of WorldCom
and MCI on a combined basis. See "The MCI/WorldCom Merger -- Certain Regulatory
Filings and Approvals" contained in WorldCom's Current Report on Form 8-K/A-1
dated November 9, 1997 (filed January 27, 1998), which is incorporated herein
by reference.
DEBT SERVICE, INTEREST RATE FLUCTUATIONS, OTHER RESTRICTIVE COVENANTS, AND
CAPITAL SPENDING. In connection with the MCI/WorldCom Merger, WorldCom has
agreed to pay BT $51.00 in cash without interest for each share of MCI Class A
Common Stock it owns, or approximately $7 billion in the aggregate.
Additionally, WorldCom has paid BT fees of $465 million. WorldCom expects to
fund this commitment through a combination of bank and bond financing.
Increases in interest rates on WorldCom's debt would have an adverse effect
upon WorldCom's reported net income and cash flow. WorldCom believes that the
combined operations of WorldCom, CNS, ANS, BFP and, upon consummation of the
MCI/WorldCom Merger, MCI, would generate sufficient cash flow to service
WorldCom's debt and capital requirements; however, economic downturns,
increased interest rates and other adverse developments, including factors
beyond WorldCom's control, could impair its ability to service its
indebtedness. In addition, the cash flow required to service WorldCom's debt
may reduce its ability to fund internal growth, additional acquisitions and
capital improvements.
The development of the businesses of the combined company (including MCI, BFP,
CNS and ANS) and the installation and expansion of its domestic and
international networks will continue to require significant capital
expenditures. Failure to have access to sufficient funds for capital
expenditures on acceptable terms or the failure to achieve capital expenditure
synergies may require the combined company to delay or abandon some of its
plans, which could have a material adverse effect on the success of the
combined company.
ACQUISITION INTEGRATION. A major portion of the Company's growth in recent
years has resulted from acquisitions, which involve certain operational and
financial risks. Operational risks include the possibility that an acquisition
does not ultimately provide the benefits originally anticipated by WorldCom's
management, while WorldCom continues to incur operating expenses to provide the
services formerly provided by the acquired company. Financial risks involve
the incurrence of indebtedness as the result of the acquisition and the
consequent need to service that indebtedness. In addition, the issuance of
stock in connection with acquisitions dilutes the voting power and may dilute
the economic interests of existing shareholders. In carrying out its
acquisition strategy, the Company attempts to minimize the risk of unexpected
liabilities and contingencies associated with acquired businesses through
planning, investigation and negotiation, but there is no assurance that the
Company will be successful in doing so. In addition, there can be no assurance
that the Company will be successful in identifying attractive acquisition
candidates or completing additional acquisitions on favorable terms.
RISKS OF INTERNATIONAL BUSINESS. The Company derives substantial revenues by
providing international communications services to United States commercial and
carrier customers. Such operations are subject to certain risks such as
changes in United States or foreign government regulatory policies, disruption,
suspension or termination of operating agreements, and currency fluctuations.
In particular, the Company's revenues and costs of sales are sensitive to
changes in international settlement rates and international traffic routing
patterns. The rates that the Company can charge its customers for
international services may decrease in the future due to the entry of new
carriers with substantial resources, aggressiveness on the part of new or
existing carriers, the widespread resale of international private lines to
provide switched voice services, the provision of international services via
non-traditional means including the Internet, the consummation of mergers,
joint ventures and alliances among large international carriers that facilitate
targeted pricing and cost reductions, and the rapid growth of international
circuit capacity due to the deployment of new undersea fiber optic cables and
new high capacity satellite systems in the Atlantic, Pacific and Indian Ocean
Regions.
14
<PAGE> 19
RISKS OF OVERSEAS BUSINESS OPERATIONS. The Company derives substantial
revenues from providing services to customers in overseas locations,
particularly the United Kingdom and Germany. Such operations are subject to
certain risks such as changes in the legal and regulatory policies of the
foreign jurisdiction, local political and economic developments, currency
fluctuations, exchange controls, royalty and tax increases, retroactive tax
claims, expropriation, and import and export regulations and other laws and
policies of the United States affecting foreign trade, investment and taxation.
In addition, in the event of any dispute arising from foreign operations, the
Company may be subject to the exclusive jurisdiction of foreign courts and may
not be successful in subjecting foreign persons or entities to the jurisdiction
of the courts in the United States. WorldCom may also be hindered or prevented
from enforcing its rights with respect to foreign governments because of the
doctrine of sovereign immunity. There can be no assurance that the laws,
regulations or administrative practices of foreign countries relating to
WorldCom's ability to do business in that country will not change. Any such
change could have a material adverse effect on WorldCom's financial condition
and results of operations.
RAPID TECHNOLOGICAL CHANGE; DEPENDENCE UPON PRODUCT DEVELOPMENT. The
telecommunications industry is subject to rapid and significant changes in
technology. While WorldCom does not believe that, for the foreseeable future,
these changes will either materially or adversely affect the continued use of
fiber optic cable or materially hinder its ability to acquire necessary
technologies, the effect of technological changes, including changes relating
to emerging wireline and wireless transmission and switching technologies, on
the businesses of WorldCom cannot be predicted.
The market for data communications products and services of UUNET, CNS and ANS,
Internet access and related products, is characterized by rapidly changing
technology, evolving industry standards, emerging competition and frequent new
product and service introductions. There can be no assurance that the Company
will successfully identify new product and service opportunities and develop
and bring new products and services to market in a timely manner. The Company
is also at risk from fundamental changes in the way data communications,
including Internet access, services are marketed and delivered. The Company's
Internet service strategy assumes that the Transmission Control
Protocol/Internet Protocol ("TCP/IP"), utilizing fiber optic or copper-based
telecommunications infrastructures, will continue to be the primary protocol
and transport infrastructure for Internet-related services. Emerging transport
alternatives include wireless cable modems and satellite delivery of Internet
information; alternative open protocol and proprietary protocol standards have
been or are being developed. The Company's pursuit of necessary technological
advances may require substantial time and expense, and there can be no
assurance that the Company will succeed in adapting its data communications
services business to alternate access devices, conduits and protocols.
REGULATION RISKS. See "Regulation" above for information regarding certain
regulatory risks.
COMPETITION RISKS. See "Competition" above for information regarding certain
competition risks.
ANTI-TAKEOVER PROVISIONS. The Second Amended and Restated Articles of
Incorporation of WorldCom contain provisions (a) requiring a 70% vote for
approval of certain business combinations with certain 10% shareholders unless
approved by a majority of the continuing members of the Company's Board of
Directors or unless certain minimum price, procedural and other requirements
are met, (b) restricting aggregate beneficial ownership of the capital stock of
WorldCom by foreign shareholders to 20% of the total outstanding capital stock,
and subjecting excess shares to redemption, and (c) authorizing the WorldCom
Board of Directors to issue preferred stock in one or more classes without any
action on the part of shareholders. In addition, WorldCom has entered into a
Rights Agreement between WorldCom and The Bank of New York, as Rights Agent,
dated as of August 25, 1996, as amended (the "WorldCom Rights Agreement"),
which will cause substantial dilution to a person or group that attempts to
acquire WorldCom on terms not approved by the WorldCom Board of Directors.
Further, WorldCom's Bylaws (a) contain requirements regarding advance notice of
nomination of directors by shareholders and (b) restrict the calling of special
meetings by shareholders to those owning shares representing not less than 40%
of the votes to be cast. These provisions, including the WorldCom Rights
Agreement, may have an "anti- takeover" effect.
THE EFFECT OF STOCK PRICE FLUCTUATIONS. The relative stock price of WorldCom
Common Stock in the future may vary significantly from the price as of the date
hereof. These variances may be due to changes in the businesses, operations,
results and prospects of WorldCom, market assessments of the likelihood that
the MCI/WorldCom Merger will be consummated and the timing thereof, the effect
of any conditions or restrictions imposed on or proposed with respect to any of
the combined companies by regulatory agencies in connection with or following
consummation of the MCI/WorldCom Merger, general market and economic
conditions, and other factors. In addition, the stock market generally has
experienced significant price and volume fluctuations. These market
fluctuations could have a material adverse effect on the market price or
liquidity of WorldCom Common Stock.
15
<PAGE> 20
EMPLOYEES
As of March 6, 1998, the Company employed approximately 20,300 full-time
persons, including CNS, ANS and BFP. Substantially all of the Company's
employees are not represented by any labor union.
ITEM 2. PROPERTIES
The tangible assets of the Company include a substantial investment in
telecommunications equipment. The aggregate book value of the Company's
transmission equipment and communications equipment was $3.57 billion and $2.40
billion, respectively, at December 31, 1997. At least $3.3 billion is
currently anticipated for transmission and communications equipment,
construction and other capital expenditures in 1998 without regard to possible
future acquisitions, if any.
The Company's rights-of-way for its fiber optic cable and microwave
transmission network are typically held under leases, easements, municipal
franchises, licenses or governmental permits. All other major equipment and
physical facilities are owned in fee and are operated, constructed and
maintained pursuant to rights-of-way, easements, permits, licenses or consents
on or across properties owned by others.
The Company has sold to independent entities and leased back its Pacific
Northwest microwave system and its Kansas City to Los Angeles fiber optic
system over primary lease terms ranging from 15 to 20 years. The leases have
renewal options permitting the Company to extend the leases for terms expiring
during the years 2012 to 2019 and purchase options based upon the fair market
value at the time of purchase.
The Company leases space for sales office and/or administrative facilities,
collector node, collocation sites, general storage space, and equipment rooms
for switches and other peripheral equipment. Such leased properties do not
lend themselves to description by character or location. The Company's fiber
optic networks include aerial and underground cable and conduit which are
located on public streets and highways or on privately owned land. The Company
has permission to use these lands pursuant to governmental consent or lease,
permit, easement or other agreement.
The Company attempts to structure its leases of space for its network switching
centers and rights-of-way for its fiber optic networks with initial terms and
renewal options so that the risk of relocation is minimized. The Company
anticipates that prior to termination of any of the leases, it will be able to
renew such leases or make other suitable arrangements.
WorldCom believes that all of its facilities and equipment are in good
condition and are suitable for their intended purposes.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in other legal and regulatory proceedings generally
incidental to its business. In some instances, rulings by regulatory
authorities in some states may result in increased operating costs to the
Company. While the results of these various legal and regulatory matters
contain an element of uncertainty, the Company believes that the probable
outcome of these matters should not have a material adverse effect on the
Company's consolidated results of operations or financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
The shares of WorldCom Common Stock are quoted on The Nasdaq National Market
under the symbol "WCOM." The following table sets forth the high and low
intra-day sales prices per share of WorldCom Common Stock as reported on The
Nasdaq National Market based on published financial sources, for the periods
indicated.
16
<PAGE> 21
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1996
- ----
First Quarter $23.31 $16.25
Second Quarter 27.72 21.31
Third Quarter 28.88 18.38
Fourth Quarter 26.13 21.00
1997
- ----
First Quarter $27.88 $21.75
Second Quarter 32.97 21.25
Third Quarter 37.75 29.88
Fourth Quarter 39.88 28.50
</TABLE>
As of March 6, 1998, there were 1,026,645,863 shares of WorldCom Common Stock
issued and outstanding held by 15,461 shareholders of record.
The Company has never paid cash dividends on its Common Stock. The policy of
the Company's Board of Directors has been to retain earnings to provide funds
for the operation and expansion of its business.
PREFERRED STOCK
In connection with the MFS Merger, the Company issued 9,499,200 depositary
shares (the "Depositary Shares"), each representing 1/100th interest in a share
of WorldCom Series A Preferred Stock. There is no established public trading
market for the WorldCom Series A Preferred Stock. The Depositary Shares are
traded on The Nasdaq National Market under the trading symbol "WCOMP." As of
March 6, 1998, there were 9,499,200 Depositary Shares issued and outstanding
held by nine shareholders of record.
Each Depositary Share is mandatorily convertible into 4.2 shares of WorldCom
Common Stock on May 31, 1999 (the "Mandatory Conversion Date"). The Depositary
Shares are also convertible at the option of the holder at any time into
3.44274 shares of WorldCom Common Stock for each Depositary Share, plus payment
of unpaid dividends.
The WorldCom Series A Preferred Stock (and the related Depositary Shares) are
not redeemable by WorldCom prior to May 31, 1998 (the "Initial Redemption
Date"). On or after the Initial Redemption Date and prior to the Mandatory
Conversion Date, WorldCom may redeem the WorldCom Series A Preferred Stock (and
thereby the Depositary Shares), in whole or in part. Upon any such redemption,
the holder of record of shares of WorldCom Series A Preferred Stock will
receive shares of WorldCom Common Stock equal to the call price of the WorldCom
Series A Preferred Stock in effect on the date of redemption (the "Call Price")
divided by the Current Market Price (as defined in the WorldCom Articles of
Incorporation) of the WorldCom Common Stock. The Call Price of each WorldCom
Series A Preferred Share is (i) $3,417.00 ($34.170 per Depositary Share) on and
after the Initial Redemption Date through August 30, 1998, $3,400.25 ($34.003
per Depositary Share) on and after August 31, 1998 through November 29, 1998,
$3,383.50 ($33.835 per Depositary Share) on and after November 30, 1998 through
February 27, 1999, $3,366.75 ($33.668 per Depositary Share) on and after
February 28, 1999 through April 29, 1999, and $3,350.00 ($33.500 per Depositary
Share) on and after April 30, 1999 until the Mandatory Conversion Date, plus
(ii) all accrued and unpaid dividends thereon to the date fixed for redemption.
The Depositary Shares are entitled to receive dividends, when, as and if
declared by the Board of Directors, accruing at the rate of $2.68 per share per
annum, payable quarterly in arrears on each February 28, May 31, August 31 and
November 30. Dividends are payable in cash or in shares of WorldCom Common
Stock, at the election of the Company. The Company paid dividends during 1997
in cash, and expects to continue to pay cash dividends on the WorldCom Series A
Preferred Stock.
The Depositary Shares are entitled to vote on the basis of 0.10 of a vote for
each Depositary Share held (equivalent to 10 votes for each share of WorldCom
Series A Preferred Stock). The Series A Preferred Stock has a liquidation
preference equal to the greater of (i) the sum of (a) $3,350 per share and (b)
all accrued and unpaid dividends thereon to the date of liquidation and (ii)
the value of the shares of WorldCom Common Stock into which such Series A
Preferred Stock are convertible on the date of liquidation.
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<PAGE> 22
The WorldCom Series B Preferred Stock is convertible into shares of WorldCom
Common Stock at any time at a conversion rate of 0.0973912 shares of WorldCom
Common Stock for each share of WorldCom Series B Preferred Stock (an effective
initial conversion price of $10.268 per share of WorldCom Common Stock).
Dividends on the WorldCom Series B Preferred Stock accrue at the rate per share
of $0.0775 per annum and are payable in cash. Dividends will be paid only
when, as and if declared by the Board of Directors. The Company anticipates
that dividends on the WorldCom Series B Preferred Stock will not be declared
but will continue to accrue. Upon conversion, accrued but unpaid dividends are
payable in cash or shares of WorldCom Common Stock at the Company's election.
The WorldCom Series B Preferred Stock is also redeemable at the option of the
Company at any time after September 30, 2001 at a redemption price of $1.00 per
share, plus accrued and unpaid dividends. The redemption price will be payable
in cash or shares of the WorldCom Common Stock at the Company's election.
The WorldCom Series B Preferred Stock is entitled to one vote per share with
respect to all matters. The WorldCom Series B Preferred Stock has a
liquidation preference of $1.00 per share plus all accrued and unpaid dividends
thereon to the date of liquidation. As of March 6, 1998, there were 12,341,799
shares of WorldCom Series B Preferred Stock outstanding held by 946
shareholders of record. There is no established market for the WorldCom Series
B Preferred Stock.
ITEM 6. SELECTED FINANCIAL DATA
The following is a summary of selected financial data of the Company as of and
for the five years ended December 31, 1997. The historical financial data as
of December 31, 1997 and 1996 and for the years ended December 31, 1997, 1996
and 1995 have been derived from the historical financial statements of the
Company, which financial statements have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report included elsewhere
herein. This data should be read in conjunction with "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and the
Company's Consolidated Financial Statements and the notes thereto appearing
elsewhere in this document.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
(In thousands, except ratios and per share data)
<S> <C> <C> <C> <C> <C>
Operating Results:
Revenues $ 7,351,354 $ 4,485,130 $ 3,696,345 $ 2,245,663 $ 1,474,257
Operating income (loss) 1,098,606 (1,844,094) 675,144 66,528 238,833
Income (loss) before
extraordinary item 383,652 (2,188,944) 266,271 (124,013) 124,321
Extraordinary item -- (24,434) -- -- (7,949)
Net income (loss) 383,652 (2,213,378) 266,271 (124,013) 116,372
Preferred dividend
requirement 26,433 860 33,191 27,766 11,683
Earnings (loss) per common share:
Income (loss)
before extraordinary item --
Basic 0.40 (5.50) 0.67 (0.48) 0.42
Diluted 0.40 (5.50) 0.64 (0.48) 0.41
Net income (loss)--
Basic 0.40 (5.56) 0.67 (0.48) 0.39
Diluted 0.40 (5.56) 0.64 (0.48) 0.38
Weighted average shares --
Basic 898,889 397,890 346,666 315,610 265,972
Diluted 959,816 397,890 402,577 315,610 275,854
Financial position:
Total assets $ 22,389,553 $ 19,963,197 $ 6,656,629 $ 3,441,474 $ 3,236,718
Long-term debt 6,527,207 4,803,581 3,391,598 794,001 730,023
Shareholders' investment 13,509,865 12,959,976 2,187,681 1,827,410 1,911,800
</TABLE>
18
<PAGE> 23
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
(In thousands, except ratios and per share data)
<S> <C> <C> <C> <C> <C>
Ratio of earnings to combined
fixed charges and preferred
stock dividends 2.49:1 N/A 2.31:1 0.10:1 4.14:1
Deficiency of earnings to combined
fixed charges and preferred
stock dividends $ -- $ (2,067,851) $ -- $ (80,363) $ --
</TABLE>
NOTES TO SELECTED FINANCIAL DATA:
(1) Results for 1996 include a $2.14 billion charge for in-process
research and development related to the MFS Merger. The charge is
based upon a valuation analysis of the technologies of MFS' worldwide
information system, the Internet network expansion system of UUNET,
and certain other identified research and development projects
purchased in the MFS Merger. The expense includes $1.6 billion
associated with UUNET and $0.54 billion related to MFS.
Additionally, 1996 results include other after-tax charges of $121.0
million for employee severance, employee compensation charges,
alignment charges, and costs to exit unfavorable telecommunications
contracts and $343.5 million after-tax write-down of operating assets
within the Company's non-core businesses. On a pre-tax basis, these
charges totaled $600.1 million.
(2) In 1995, Metromedia converted its Series 1 Preferred Stock into
WorldCom Common Stock, exercised warrants to acquire WorldCom Common
Stock and immediately sold its position of 61.7 million shares of
WorldCom Common Stock in a public offering. In connection with the
preferred stock conversion, WorldCom made a non-recurring payment of
$15.0 million to Metromedia, representing a discount to the minimum
nominal dividends that would have been payable on the Series 1
Preferred Stock prior to the September 15, 1996 optional call date of
approximately $26.6 million (which amount included an annual dividend
requirement of $24.5 million plus accrued dividends to such call
date).
(3) As a result of the IDB Merger, the Company initiated plans to
reorganize and restructure its management and operational organization
and facilities to eliminate duplicate personnel, physical facilities
and service capacity, to abandon certain products and marketing
activities, and to take further advantage of the synergies available
to the combined entities. Also, during the fourth quarter of 1993,
plans were approved to reduce IDB's cost structure and to improve
productivity. Accordingly, in 1994 and 1993, the Company charged to
operations the estimated costs of such reorganization and
restructuring activities, including employee severance, physical
facility abandonment and duplicate service capacity. These costs
totaled $43.7 million in 1994 and $5.9 million in 1993.
Also, during 1994, the Company incurred direct merger costs of $15.0
million, related to the IDB Merger. These costs include professional
fees, proxy solicitation costs, travel and related expenses and
certain other direct costs attributable to the IDB Merger.
(4) In connection with certain debt refinancing, the Company recognized in
1996 and 1993 extraordinary items of approximately $4.2 million and
$7.9 million, respectively, net of taxes, consisting of unamortized
debt discount, unamortized issuance cost and prepayment fees.
Additionally, in 1996 the Company recorded an extraordinary item of
$20.2 million, net of taxes, related to a write-off of deferred
international costs. See Note 1 of Notes to Consolidated Financial
Statements and "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
19
<PAGE> 24
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
This Management's Discussion and Analysis of Financial Condition and Results of
Operations may be deemed to include forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended, that involve risk and
uncertainty, including financial, regulatory environment and trend projections.
Although the Company believes that its expectations are based on reasonable
assumptions, it can give no assurance that its expectations will be achieved.
The important factors that could cause actual results to differ materially from
those in the forward looking statements herein (the "Cautionary Statements")
include, without limitation, the Company's degree of financial leverage, risks
associated with debt service requirements and interest rate fluctuations, risks
associated with acquisitions and the integration thereof, risks of
international business, dependence on availability of transmission facilities,
regulation risks including the impact of the Telecom Act, contingent
liabilities, and the impact of competitive services and pricing, as well as
other risks referenced from time to time in the Company's filings with the SEC,
including the Company's Form 10-K for the year ended December 31, 1997. All
subsequent written and oral forward-looking statements attributable to the
Company or persons acting on its behalf are expressly qualified in their
entirety by the Cautionary Statements. The Company does not undertake any
obligation to release publicly any revisions to such forward-looking statements
to reflect events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events.
The following discussion and analysis relates to the financial condition and
results of operations of the Company for the three years ended December 31,
1997. This information should be read in conjunction with the "Selected
Financial Data" and the Company's Consolidated Financial Statements appearing
elsewhere in this document.
GENERAL
The Company is one of the largest long distance telecommunications companies in
the United States, serving local, long distance and Internet customers
domestically and internationally. The Company's operations have grown
significantly in each year of its operations as a result of internal growth,
the selective acquisition of smaller long distance companies with limited
geographic service areas and market shares, the consolidation of certain third
tier long distance carriers with larger market shares, and international
expansion.
On January 31, 1998, WorldCom, through a wholly owned subsidiary, merged with
CompuServe. Prior to the CompuServe Merger, CompuServe operated primarily
through two divisions: Interactive Services and Network Services. Interactive
Services offered worldwide online and Internet access services for consumers,
while Network Services provided worldwide network access, management and
applications, and Internet service to businesses. The CompuServe Merger is
being accounted for as a purchase; accordingly, operating results for
CompuServe will be included from the date of acquisition.
On January 31, 1998, WorldCom also acquired ANS from AOL, and has entered into
five year contracts with AOL under which WorldCom and its subsidiaries will
provide network services to AOL (collectively, the "AOL Transaction"). As part
of the AOL Transaction, AOL acquired CompuServe's Interactive Services Division
and received a $175 million cash payment from WorldCom. WorldCom retained the
CompuServe Network Services ("CNS") division. ANS provides Internet access to
AOL and AOL's subscribers in the United States, Canada, the United Kingdom,
Sweden and Japan, and also designs, develops and operates high performance
wide-area networks for business, research, education and governmental
organizations.
In connection with the CompuServe Merger and the AOL Transaction, a valuation
analysis was performed of CNS and ANS technologies including the companies'
virtual private data networks, application hosting products, security systems,
next generation network architectures, and certain other identified research
and development projects purchased in the CompuServe Merger and AOL
Transaction. The result of the valuation is the assignment of $429 million of
intangible assets to in-process research and development which will be expensed
in the first quarter of 1998.
On January 29, 1998, WorldCom through a wholly owned subsidiary, merged with
BFP. BFP is a leading facilities-based provider of competitive local
telecommunications services, commonly referred to as a competitive local
exchange carrier ("CLEC"), in selected cities within the United States. BFP
acquires and constructs its own state-of-the-art fiber optic networks and
facilities and leases network capacity from others to provide IXCs, ISPs,
wireless carriers and business, government and institutional end users with an
alternative to the ILECs for a broad array of high quality voice, data, video
transport and other telecommunications services.
20
<PAGE> 25
On November 9, 1997, WorldCom entered into an Agreement and Plan of Merger (the
"MCI/WorldCom Merger Agreement") with MCI Communications Corporation ("MCI")
and a wholly owned acquisition subsidiary of WorldCom ("MCI Merger Sub"),
providing for the merger (the "MCI/WorldCom Merger") of MCI with and into MCI
Merger Sub, with MCI Merger Sub surviving as a wholly owned subsidiary of
WorldCom. Subject to the terms and conditions of the MCI/WorldCom Merger
Agreement, each share of MCI Common Stock outstanding immediately prior to the
effective time of the MCI/WorldCom Merger (the "MCI/WorldCom Effective Time")
will be converted into the right to receive that number of shares of WorldCom
Common Stock equal to the MCI Exchange Ratio (as defined below), and each share
of MCI Class A common stock, par value $.10 per share ("MCI Class A Common
Stock" and, together with the MCI Common Stock, the "MCI Capital Stock"),
outstanding immediately prior to the MCI/WorldCom Effective Time will be
converted into the right to receive $51.00 in cash, without interest thereon.
The "MCI Exchange Ratio" means the quotient (rounded to the nearest 1/10,000)
determined by dividing $51.00 by the average of the high and low sales prices
of WorldCom Common Stock (the "MCI/WorldCom Average Price") as reported on The
Nasdaq National Market on each of the 20 consecutive trading days ending with
the third trading day immediately preceding the MCI/WorldCom Effective Time;
provided, however, that the MCI Exchange Ratio will not be less than 1.2439 or
greater than 1.7586. Cash will be paid in lieu of the issuance of any
fractional share of WorldCom Common Stock in the MCI/WorldCom Merger.
Based on the number of shares of MCI Common Stock outstanding as of January 20,
1998 and assumed MCI Exchange Ratios of 1.2439 and 1.7586, approximately
710,554,160 shares and 1,004,566,722 shares, respectively, of WorldCom Common
Stock would be issued in the MCI/WorldCom Merger. In addition, as of December
31, 1997, outstanding options to purchase shares of MCI Common Stock would be
converted in the MCI/WorldCom Merger to options to acquire an aggregate of
approximately 86,491,688 shares and 122,280,154 shares, respectively, of
WorldCom Common Stock, and the exercise price would be adjusted to reflect the
MCI Exchange Ratio, so that, on exercise, the holders would receive, in the
aggregate, the same number of shares of WorldCom Common Stock as they would
have received had they exercised prior to the MCI/WorldCom Merger, at the same
exercise price.
The MCI/WorldCom Merger was approved by the MCI stockholders and the WorldCom
shareholders at separate meetings held on March 11, 1998. The MCI/WorldCom
Merger is also subject to approvals from the FCC, the DOJ and various state
government bodies. In addition, the MCI/WorldCom Merger is subject to approval
by the European Commission. WorldCom anticipates that the MCI/WorldCom Merger
will close in mid-year 1998.
Termination of the MCI/WorldCom Merger Agreement by MCI or WorldCom under
certain conditions will require MCI to pay WorldCom $750 million as a
termination fee and to reimburse WorldCom the $450 million alternative
transaction fee and certain related expenses paid by WorldCom to BT. Further,
termination of the MCI/WorldCom Merger Agreement by MCI or WorldCom under
certain conditions, will require WorldCom to pay MCI $1.635 billion as a
termination fee.
Pursuant to an agreement (the "BT Agreement") among MCI, WorldCom and BT, the
prior merger agreement between BT and MCI (the "BT/MCI Merger Agreement") was
terminated, and WorldCom agreed to pay BT an alternative transaction fee of
$450 million and expenses of $15 million payable to BT in accordance with the
BT/MCI Merger Agreement. These fees were paid on November 12, 1997. WorldCom
also agreed to pay to BT an additional payment of $250 million in the event
that WorldCom is required to make the $1.635 billion payment to MCI in
accordance with the MCI/WorldCom Merger Agreement. In addition, pursuant to
the BT Agreement, BT voted (or caused to be voted) its shares of MCI Class A
Common Stock in favor of the MCI/WorldCom Merger Agreement and the approval of
the other transactions contemplated by the MCI/WorldCom Merger Agreement.
WorldCom is in the process of developing its plan to integrate the operations
of MCI which may include certain exit costs. As a result of this plan, a
charge, which may be material but which cannot now be quantified, is expected
to be recognized in the period in which such a restructuring occurs. WorldCom
has also undertaken a study to determine the allocation of the total purchase
price to the various assets to be acquired, including in-process research and
development, and the liabilities assumed. To the extent that a portion of the
purchase price is allocated to in-process research and development projects of
MCI, a charge, which may be material, would be recognized in the period in
which the MCI/WorldCom Merger occurs.
On December 31, 1996, WorldCom, through a wholly owned subsidiary, merged with
MFS. Through this purchase, the Company acquired local network access
facilities via digital fiber optic cable networks installed in and around major
United States cities, and in several major European cities. The Company also
acquired a network platform, which consists of Company-owned transmission and
switching facilities, and network capacity leased from other carriers primarily
in the United States and Western Europe.
21
<PAGE> 26
On August 12, 1996, MFS completed the UUNET Acquisition. UUNET is a leading
worldwide provider of a comprehensive range of Internet access options,
applications, and consulting services to businesses, professionals and online
services providers.
On January 5, 1995, the Company completed the WilTel Acquisition for
approximately $2.5 billion in cash. Through this purchase, the Company
acquired a nationwide common carrier network of approximately 11,000 miles of
fiber optic cable and digital microwave facilities.
The Company's strategy is to become a fully integrated communications company
that would be well positioned to take advantage of growth opportunities in
global telecommunications. Consistent with this strategy, the Company believes
that transactions such as the CompuServe Merger, the AOL Transaction, the BFP
Merger and, if consummated, the MCI/WorldCom Merger enhance the combined
entity's opportunities for future growth, create a stronger competitor in the
changing telecommunications industry, allow provision of end-to-end bundled
service over global networks, and provide the opportunity for significant cost
savings and operating efficiencies for the combined organization.
The Company's profitability is dependent upon, among other things, its ability
to achieve line costs that are less than its revenues. The principal
components of line costs are access charges and transport charges and the most
significant portion of the Company's line costs is access charges, which are
highly regulated. The FCC revised its rules regarding access charges in a
manner that will, over time, revamp the access rate element structure and, over
the near term, reduce the overall access revenues collected by the incumbent
local exchange carriers ("ILECs"). The FCC's rate element restructuring is
intended to align costs with the manner in which they are incurred by the
ILECs. As a result, the usage based system has been replaced with a system
composed of a combination of flat rate charges and usage based charges. The
FCC has also implemented subsidy systems for local telephone services and
services to schools, libraries, and hospitals. The subsidy systems will result
in additional charges being placed on all telecommunications providers, which
charges may be directly recovered from the end users. In addition, various
state regulatory agencies are considering adoption of subsidy systems that
could cause rate adjustments to the access services obtained by the Company and
to retail rates. The Company cannot predict what effect continued regulation
and increased competition between LECs and other IXCs will have on future
access charges or the Company's business. However, the Company believes that
it will be able to continue to reduce transport costs through effective
utilization of its network, favorable contracts with carriers and network
efficiencies made possible as a result of expansion of the Company's customer
base by acquisitions and internal growth.
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated the Company's
statement of operations as a percentage of its operating revenues.
<TABLE>
<CAPTION>
For the Year Ended December 31,
--------------------------------
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Revenues.................................................................. 100.0% 100.0% 100.0%
Line costs ............................................................... 51.6 54.8 54.9
Selling, general and administrative ...................................... 21.0 18.5 18.3
Depreciation and amortization ............................................ 12.5 6.7 8.5
Direct merger costs, restructuring and other charges ..................... -- 13.4 --
Charge for in-process research and development ........................... -- 47.7 --
------ ------ ------
Operating income (loss): ................................................. 14.9 (41.1) 18.3
Other income (expense):
Interest expense ..................................................... (4.3) (4.9) (6.7)
Miscellaneous ........................................................ 0.3 0.1 0.3
------ ------ ------
Income (loss) before income taxes and extraordinary item ................. 10.9 (45.9) 11.9
Provision for income taxes ............................................... 5.6 2.9 4.6
------ ------ ------
Net income (loss) before extraordinary item .............................. 5.3 (48.8) 7.3
Extraordinary item ....................................................... -- 0.6 --
------ ------ ------
Net income (loss) ........................................................ 5.3 (49.4) 7.3
Preferred dividend requirement ........................................... 0.4 -- 1.0
------ ------ ------
Net income (loss) applicable to common shareholders ...................... 4.9% (49.4)% 6.3%
====== ====== ======
</TABLE>
22
<PAGE> 27
YEAR ENDED DECEMBER 31, 1997 VS.
YEAR ENDED DECEMBER 31, 1996
Revenues for 1997 increased 64% to $7.35 billion on 37.60 billion revenue
minutes as compared to $4.49 billion on 24.51 billion revenue minutes for 1996.
The increase in total revenues and minutes is primarily attributable to the MFS
Merger and internal growth of the Company, as outlined in the next paragraph.
On a pro forma basis, as though the MFS Merger and the UUNET Acquisition
occurred at the beginning of 1996, revenues and traffic for 1997 increased 30%
and 35%, respectively, compared with pro forma revenues of $5.64 billion on
27.80 billion revenue minutes for 1996. The pro forma increase reflects the
internal growth of the Company in all core communications services. In spite
of the continuing impact of competitive pricing and access charge pass
throughs, the Company posted strong gains across all product lines due to
increased usage and greater demand for high speed data and Internet related
growth.
The following table highlights the source of WorldCom's internal growth by
major line of business. The pro forma and actual revenue increases for 1997
and 1996 reflect the following increases by category (dollars in millions):
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31,
----------------------------------
Actual Pro Forma
REVENUES 1997 1996 Change
-------- -------- --------
<S> <C> <C> <C>
Domestic switched $3,992.1 $3,323.3 20%
Domestic private line 1,575.1 1,167.0 35%
International 818.5 469.2 74%
Internet 566.0 253.2 124%
-------- --------
Core Revenues 6,951.7 5,212.7 33%
-------- --------
Other 399.7 422.5 (5%)
-------- --------
Total Revenues $7,351.4 $5,635.2 31%
-------- --------
</TABLE>
The following discusses the results of operations for the year ended December
31, 1997 as compared to pro forma results for the comparable prior year period.
Changes in actual results of operations are shown in the Consolidated
Statements of Operations and the foregoing tables and, as noted above,
primarily reflect the MFS Merger and the internal growth of the Company.
Domestic switched services revenue increased 20% for the year. This increase
was primarily due to strong volume gains in both the retail and wholesale
segments. WorldCom's narrowing gap between revenue and volume growth continues
to be driven by strong wholesale revenues, international settlement reduction
pass throughs, access charge pass throughs, and product mix.
Domestic switched revenues includes both long distance and increasingly local
switched revenues. While the Company continues to show significant percentage
gains in switched local, it is still a relatively small component of total
Company revenues. However, the Company expects that due to its local
initiatives, the BFP Merger and, if consummated, the MCI/WorldCom Merger,
revenue attributable to local switched services will grow rapidly in 1998 and
beyond.
Domestic private line increased by 35% for the year. The strong revenue growth
for private line and frame relay continues to be driven by tremendous
commercial end user demand for high speed data and by Internet related growth.
Domestic private line includes both long distance and local bandwidth sales.
As of December 31, 1997, and including BFP, the Company has 10.7 million voice
grade equivalents, and 27,785 connected buildings. Route miles of connected
fiber are in excess of 500,000. The BFP Merger and the combination of MCI into
WorldCom's operations are expected to enhance WorldCom's local presence.
International revenues -- those revenues originating outside of the U.S. --
were $819 million, for the year, up 74% compared with the corresponding pro
forma period for 1996. This strong performance is due to continuing strong
traffic growth in the United Kingdom and a growing presence in Continental
Europe for both switched services and, increasingly, high speed data services.
Significant effort was taken in 1997 to prepare for the opening of national
markets in European countries which should provide additional growth and
improved margins in 1998.
Internet revenues for the year more than doubled to $566 million. The
provisioning constraints experienced in mid-1997 were significantly overcome in
the latter part of the third quarter, and the strong demand for both dedicated
and dial- up access contributed to the resumption of strong sequential gains in
the fourth quarter.
23
<PAGE> 28
Other revenues for 1997 were $399.7 million. Other revenues include network
construction and system sales which each represent non-recurring contract
revenue streams that fluctuate from quarter to quarter. Operator services and
broadcast operations were sold in the third quarter 1997. The operator
services and broadcast operations provided revenues of $109.9 million in 1997
and $175.0 million in 1996.
Line costs as a percentage of revenues for 1997 was 51.6% as compared to 54.8%
reported for the same period of the prior year and 55.4% pro forma for 1996.
These decreases are attributable to changes in the product mix and synergies
and economies of scale resulting from network efficiencies achieved from the
assimilation of MFS into the Company's operations. Additionally, access charge
reductions beginning in July 1997 reduced total line cost expense by
approximately $60 million in 1997. While access charge reductions were
primarily passed through to the customer, line costs as a percentage of
revenues was positively affected by approximately one percentage point.
Selling, general and administrative expenses for 1997 increased to $1.54
billion or 21.0% of revenues as compared to $828.7 million or 18.5% of revenues
as reported for 1996. The increase in selling, general and administrative
expenses as a percentage of revenues on a reported basis results from the
Company's expanding operations, primarily through the MFS Merger. The decrease
in selling, general and administrative expenses as a percentage of revenues for
1997, as compared to 24.2% of revenues, respectively, for the same pro forma
period of 1996, results from the assimilation of MFS into the Company's
strategy of cost control.
Depreciation and amortization expense for 1997 increased to $920.7 million or
12.5% of revenues from $303.3 million or 6.7% of revenues for 1996. This
increase reflects increased amortization associated with the MFS Merger and
additional depreciation related to capital expenditures.
The effective income tax rate for 1997 was 52% of income before taxes. The
1997 rate of 52% is greater than the expected statutory rate of 35% primarily
due to the fact that amortization of the goodwill related to the MFS Merger is
not deductible for tax purposes. Excluding the nondeductible amortization of
goodwill, the Company's effective income tax rate would have been 39.9%.
For the year ended December 31, 1997, interest expense was $319.7 million or
4.3% of revenues, as compared to $221.8 million or 4.9% of revenues for the
year ended December 31, 1996. The increase in interest expense is attributable
to higher debt levels as the result of additional debt acquired with the MFS
Merger, higher capital expenditures and the 1997 fixed rate debt financings,
offset by lower interest rates in effect on the Company's variable rate
long-term debt. For the twelve months ended December 31, 1997 and 1996,
weighted average annual interest rates on the Company's total long-term debt
was 7.3% and 6.2%, respectively, while weighted average annual levels of
borrowing were $5.25 billion, and $3.49 billion, respectively.
For the year ended December 31, 1997, net income was $357.2 million, or $0.40
per share compared with $414.9 million, or $1.01 per share, before
non-recurring charges for the year ended December 31, 1996. The 1997 results
include approximately $425 million of pre-tax tax amortization related to the
purchase accounting treatment of various WorldCom acquisitions.
YEAR ENDED DECEMBER 31, 1996 VS.
YEAR ENDED DECEMBER 31, 1995:
Revenues for 1996 increased 21% to $4.49 billion on 24.51 billion revenue
minutes as compared to $3.70 billion on 19.57 billion revenue minutes for 1995.
The increase in total revenues and minutes is primarily attributable to
internal growth of the Company.
Internally, private line and frame relay revenues increased 28% over the prior
year while switched commercial and wholesale revenues increased 23% to $3.31
billion on a 26% increase in traffic.
Line costs as a percentage of revenues decreased to 54.8% of revenues as
compared to 54.9% for 1995. These changes are attributable to changes in the
product mix, and synergies and economies of scale resulting from network
efficiencies achieved from the assimilation of recent acquisitions into the
Company's operations.
Selling, general and administrative expenses for 1996 increased to $828.7
million or 18.5% of revenues as compared to $677.9 million or 18.3% of revenues
for 1995. The increase in selling, general and administrative expenses results
from the Company's expanding operations, primarily through stronger internal
growth, offset by changes in the product mix.
24
<PAGE> 29
Depreciation and amortization expense for 1996 decreased to $303.3 million or
6.7% of revenues from $312.7 million or 8.5% of revenues for 1995. This
decrease reflects the reduction in depreciation and amortization associated
with the second quarter 1996 write-down in the carrying value of certain assets
offset by additional depreciation related to capital expenditures. The
reduction in percentage is due to a relatively stable amount of amortization on
a higher revenue base.
In the second quarter of 1996, the Company incurred non-cash charges related to
a write-down in the carrying value of certain assets, including goodwill and
equipment. Because of events resulting from the passage of the Telecom Act,
and changes in circumstances impacting certain non-core operations, management
estimates of the Company's fair value of operating assets within its core and
non-core businesses resulted in a non-cash charge of $343.5 million after tax.
On a pre-tax basis, the write-down was $402.0 million and included $139.1
million for network facilities and $262.9 million for non-core businesses,
primarily operator services goodwill.
In the fourth quarter of 1996, the Company recorded other after-tax charges of
$121.0 million for employee severance, employee compensation charges, alignment
charges and costs to exit unfavorable telecommunications contracts. On a pre-
tax basis, this charge was $198.1 million and is reflected in operating loss
for the 1996 period.
The results for 1996 include a $2.14 billion, fourth quarter charge for
in-process research and development related to the MFS Merger. The charge is
based upon a valuation analysis of the technologies of MFS' worldwide
information system, the Internet network expansion system of UUNET, and certain
other identified research and development projects purchased in the merger.
The efforts to complete these projects will consist of internally-staffed
engineering costs and further development and construction of the network. As
of December 31, 1996, these costs were estimated to be approximately $1.0
billion and will be incurred over the next five years.
Interest expense in 1996 was $221.8 million or 4.9% of revenues, as compared to
$249.2 million or 6.7% of revenues in 1995. The decrease in interest expense
is attributable to lower interest rates in effect on the Company's long-term
debt.
The Company recorded a tax provision of $129.5 million on a pretax loss of $2.1
billion in 1996. Although the Company generated a consolidated pre-tax loss in
1996, permanent items aggregating approximately $2.4 billion resulted in the
recognition of taxable income. Included in the permanent items was the $2.14
billion charge for in-process research and development related to the MFS
Merger.
In the second quarter of 1996, the Company recorded extraordinary items
totaling $24.4 million, net of income tax benefit of $15.6 million. The items
included $4.2 million in connection with the Company's debt refinancing, and
$20.2 million related to a write-off of deferred international costs.
Previously, a portion of the outbound call fee due the foreign carrier was
deferred and accounted for as a cost attributable to the revenue associated
with the inbound call. Currently, the outbound call fee due the foreign
carrier is expensed as incurred.
For the year ended December 31, 1996, net income, before non-recurring charges,
increased 67% to $414.9 million compared with $248.1 million for the 1995
period. Diluted earnings per common share, before the non-recurring charges
increased 49% to $1.01 per share versus $0.68 per share for the comparable 1995
period.
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 1997, the Company's total debt was $6.54 billion, an
increase of $1.71 billion from December 31, 1996 as a result of the $465
million fee paid to BT in connection with the BT/MCI Merger Agreement and
increased capital expenditures primarily related to domestic and international
construction costs of $1.3 billion of the total 1997 capital spending of $2.64
billion.
On July 3, 1997, the Company replaced its $3.75 billion revolving credit
facility (the "Old Credit Facility") with $5.0 billion in new revolving credit
facilities which consist of a $3.75 billion Facility A Revolving Credit
Agreement (the "Facility A Loans") and a $1.25 billion Facility B Revolving
Credit and Term Loan Agreement (the "Facility B Loans," and together with the
Facility A Loans, the "New Credit Facilities"). The Facility A Loans have a
five-year term and may be extended for up to two successive one year terms
thereafter to the extent of the committed amounts from those lenders consenting
thereto, with a requirement that lenders holding at least two-thirds of the
committed amounts consent. The Facility B Loans have a 364 day term, which may
be extended for up to two successive 364 day terms thereafter to the extent of
the committed amounts from those lenders consenting thereto, with a requirement
that lenders holding at least two-thirds of the committed amounts consent.
Alternatively, effective as of the end of such 364 day term, the Company may
elect to convert the Facility B Loans from revolving loans to term loans with a
maturity date corresponding with the maturity date then in effect with respect
to the Facility A Loans. The New Credit
25
<PAGE> 30
Facilities bear interest payable in varying periods, depending on the interest
period, not to exceed six months, at rates selected by the Company under the
terms of the New Credit Facilities, including a Base Rate or the Eurodollar
Rate, plus applicable margin. The applicable margin for a Eurodollar Rate
borrowing varies from 0.3% to 0.75% based upon the better of certain debt
ratings or a specified financial test. At December 31, 1997 and 1996, the
weighted average interest rates under the Company's credit facilities were 6.1%
and 6.3%, respectively. The New Credit Facilities are unsecured but include a
negative pledge of the assets of the Company and its subsidiaries (subject to
certain exceptions). The New Credit Facilities require compliance with certain
financial and operating covenants which limit, among other things, the
incurrence of additional indebtedness by the Company, investments by the
Company, sales of assets and mergers and dissolutions, which covenants are
generally less restrictive than those contained in the Old Credit Facility and
which do not restrict distributions to shareholders, provided the Company is
not in default under the New Credit Facilities. The current commitment fee for
any unborrowed portion of the Facility A Loans and the Facility B Loans are
0.15% and 0.10%, respectively.
On February 27, 1997, in connection with the MFS Merger and pursuant to a
change of control provision, WorldCom offered to repurchase the MFS $924.0
million 8-7/8% Senior Discount Notes due 2006 and the MFS $788.3 million 9-3/8%
Senior Discount Notes due 2004 (collectively the "MFS Notes") at 101% of the
accreted value. Pursuant to the offer, approximately $14.3 million of the MFS
Notes were repurchased.
On April 1, 1997, the Company completed the public offering of $2.0 billion
principal amount of debt securities. The net proceeds of the offering ($1.98
billion) were used to pay down commercial bank debt. The public offering
included $600 million principal amount of 7.55% Senior Notes due 2004 (the
"Notes Due 2004"), $1.1 billion principal amount of 7.75% Senior Notes due 2007
(the "Notes Due 2007") and $300 million principal amount of 7.75% Senior Notes
due 2027 (the "Notes Due 2027" and collectively, with the Notes Due 2004 and the
Notes Due 2007, the "Notes"). The Notes bear interest payable semiannually on
April 1 and October 1 of each year, which payments commenced October 1, 1997,
and limit the incurrence of liens. Each holder of the Notes Due 2027 may
require the Company to repurchase all or a portion of the Notes Due 2027 owned
by such holder on April 1, 2009 at a purchase price equal to 100% of the
principal amount thereof.
The Notes Due 2004 and the Notes Due 2007 are redeemable, as a whole or in
part, at the option of the Company, at any time or from time to time. The
Notes Due 2027 will be redeemable, as a whole or in part, at the option of the
Company, at any time and from time to time beginning April 2, 2009. The
redemption prices for the three bond series equal the greater of (i) 100% of
the principal amount of the Notes to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments (as defined therein) discounted at
the Treasury Rate (as defined therein) plus 15 basis points for the Notes Due
2004 or plus 20 basis points for the Notes Due 2007 and the Notes Due 2027,
plus in the case of each of clause (i) and (ii) accrued interest to the date of
redemption.
In July 1997, WorldCom offered to exchange (the "Exchange Offers") (i) $871.60
principal amount of its 9-3/8% Senior Notes due January 15, 2004 for each
$1,000 principal amount at stated maturity, as of the date of their original
issuance, of outstanding 9-3/8% Senior Discount Notes due January 15, 2004 of
MFS, properly tendered, and (ii) $737.91 principal amount of its 8-7/8% Senior
Notes due January 15, 2006 for each $1,000 principal amount at stated maturity,
as of the date of their original issuance, of outstanding 8-7/8% Senior
Discount Notes due January 15, 2006 of MFS, properly tendered. In connection
with the Exchange Offers, the Company also solicited consents to certain
amendments to the respective indentures governing the MFS Notes (the "Consent
Solicitations").
In August of 1997, the Company accepted all MFS Notes validly tendered in its
on-going Exchange Offers and Consent Solicitations. The Company received
requisite consents from holders of notes of MFS to allow the Company to accept
tenders prior to the expiration of the Exchange Offers and Consent
Solicitations and thereby effect certain amendments to the respective
indentures governing the MFS Notes. As of August 22, 1997, the Company
exchanged approximately $680.1 million and $666.7 million of its 9-3/8% Senior
Notes due January 15, 2004 and its 8-7/8% Senior Notes due January 15, 2006,
respectively, for MFS Notes validly tendered as of the close of business on
August 19, 1997.
As of December 31, 1997, the Company had available liquidity of $1.94 billion
under its New Credit Facilities and from available cash and marketable
securities.
For 1997, the Company's cash flow from operations was $1.32 billion, increasing
over 65% from $798.1 million in the comparable period for 1996. The increase in
cash flow from operations was primarily attributable to internal growth and
synergies and economies of scale resulting from network efficiencies and
selling, general and administrative cost savings achieved from the assimilation
of MFS into the Company's operations.
26
<PAGE> 31
In 1997, the Company's existing receivables purchase agreement generated
additional proceeds of $41.8 million, bringing the total amount outstanding to
$416.8 million. The Company used these proceeds to reduce outstanding debt
under the Company's New Credit Facilities. As of December 31, 1997, the
purchaser owned an undivided interest in a $978.7 million pool of receivables
which includes the $416.8 million sold.
Cash used in investing activities for the twelve months ended December 31, 1997
totaled $3.28 billion. The sale of marketable securities provided $760.3
million of proceeds which were used to fund a portion of capital expenditures
of $2.64 billion and acquisition and related costs of $1.09 billion.
Acquisition and related costs primarily includes costs from the MFS Merger as
well as a $465 million fee paid to BT in accordance with the BT/MCI Merger
Agreement. Primary capital expenditures include purchases of switching,
transmission, communication and other equipment. At least $3.3 billion is
currently anticipated for transmission, communications equipment, construction
and other capital expenditures in 1998 without regard to pending or other
possible future acquisitions.
Included in cash flows from financing activities are payments of $26.4 million
for preferred dividend requirements. The Company has never paid cash dividends
on its Common Stock. The Depositary Shares are entitled to receive dividends,
when, as, and if they are declared by the Board of Directors, accruing at the
rate of $2.68 per share per annum, payable quarterly in arrears on each
February 28, May 31, August 31 and November 30. Dividends are payable in cash
or in shares of WorldCom Common Stock, at the election of the Company. The
Company paid the dividends for 1997 in cash and expects to continue to pay
dividends in cash on the Depositary Shares. Dividends on the WorldCom Series B
Preferred Stock accrue at the rate per share of $0.0775 per annum and are
payable in cash. Dividends will be paid only when, as and if declared by the
Board of Directors of the Company. The Company anticipates that dividends on
the WorldCom Series B Preferred Stock will not be declared but will continue to
accrue. Upon conversion, accrued but unpaid dividends are payable in cash or
shares of WorldCom Common Stock at the Company's election.
The Depositary Shares are redeemable by the Company any time after May 31, 1998
and prior to the mandatory conversion date of May 31, 1999 into shares of
WorldCom Common Stock based on a specified call price. The call price of each
WorldCom Series A Preferred Share on redemption ranges from $3,417.00 ($34.17
per Depositary Share) to $3,350.00 ($33.50 per Depositary Share). The Company
may elect to exercise its redemption option prior to the mandatory conversion
date of May 31, 1999. The Depositary Shares are currently convertible into
3.44274 shares of WorldCom Common Stock for each Depositary Share plus payment
of unpaid dividends.
In connection with the BFP Merger, the Company announced on February 27, 1998
that it had commenced an offer (the "Tender Offers") to purchase for cash each
of the following series of debt: the 10-7/8% Senior Discount Notes of BFP due
2006, the 11-7/8% Senior Discount Notes of BFP due 2006 and the 10% Senior
Notes of BFP due 2007 (collectively, the "BFP Notes"). WorldCom offered to pay
each registered holder of the BFP Notes, in the case of the 10-7/8% Senior
Discount Notes, 118.586% of their accreted value as of the date of the
purchase, in the case of the 11-7/8% Senior Discount Notes, 127.104% of their
accreted value as of the date of purchase, and in the case of the 10% Senior
Notes, 117.615% of their principal amount, plus accrued interest to the date of
purchase. The accreted value per $1,000 principal amount at stated maturity as
of the tender purchase date of March 27, 1998, was $733.42 for the 10-7/8%
Senior Discount Notes, and $660.57 for the 11-7/8% Senior Discount Notes. The
accrued interest of the 10% Senior Notes per $1,000 principal amount at stated
maturity to such date was $32.22. Concurrently with the Tender Offers,
WorldCom obtained consents to eliminate certain restrictive covenants and amend
certain other provisions of the respective indentures of the BFP Notes.
On March 27, 1998, the Company accepted all BFP Notes validly tendered. As of
the expiration of the offers at 11:59 p.m., New York City time, March 26, 1998,
WorldCom had received valid tenders and consents from holders of approximately
$424.9 million of principal amount at stated maturity of 10 7/8% Senior Discount
Notes due 2006 of BFP (or approximately 99.96% of total outstanding), from
holders of $400.0 million of principal amount at stated maturity of 11 7/8%
Senior Discount Notes due 2006 of BFP (or 100% of total outstanding), and from
holders of approximately $241.0 million of principal amount at stated maturity
of 10% Senior Notes due 2007 of BFP (or approximately 96.4% of total
outstanding).
The funds required to pay all amounts required under the Tender Offers were
obtained by WorldCom from available working capital and lines of credit. Such
lines of credit included a new $1.25 billion 364-day revolving credit facility
which became effective in February 1998. In connection with the Tender Offers
and related refinancings, WorldCom will record an extraordinary accounting item
of approximately $200 million in the first quarter of 1998.
In connection with the MCI Merger, WorldCom has agreed to pay BT $51.00 in cash
without interest for each of the Class A Shares of MCI Stock it owns, or $6.94
billion in the aggregate. Additionally, WorldCom has paid BT a fee of $465
million to induce BT to terminate the previously signed BT/MCI Merger Agreement
and to enter into the BT Agreement. WorldCom expects to fund this commitment
through a combination of bank and bond financing. The MCI/WorldCom Merger is
expected to close
27
<PAGE> 32
by mid-year 1998, and therefore funding of this commitment is not expected to
occur until the second half of 1998. Increases in interest rates on WorldCom's
debt would have an adverse effect upon WorldCom's reported net income and cash
flow. WorldCom believes that the combined operations of WorldCom, CNS, ANS,
BFP and, upon consummation of the MCI/WorldCom Merger, MCI, would generate
sufficient cash flow to service WorldCom's debt and capital requirements;
however, economic downturns, increased interest rates and other adverse
developments, including factors beyond WorldCom's control, could impair its
ability to service its indebtedness. In addition, the cash flow required to
service WorldCom's debt may reduce its ability to fund internal growth,
additional acquisitions and capital improvements.
The Company has historically utilized cash flow from operations to finance
capital expenditures and a mixture of cash flow, debt and stock to finance
acquisitions. The Company expects to experience increased capital intensity
due to network expansion and merger related expenses as noted above and
believes that funding needs in excess of internally generated cash flow and the
New Credit Facilities will be met by accessing the debt markets. The Company
has filed shelf registration statements on Form S-3 with the SEC for the sale,
from time to time, of one or more series of unsecured debt securities having an
aggregate value of $6.0 billion. The Company expects to utilize the shelf
registrations in connection with the MCI/WorldCom Merger and the $6.94 billion
payment to BT during 1998. No assurance can be given that any public financing
will be available on terms acceptable to the Company.
The Company believes that the CompuServe Merger and the AOL Transaction will
generate sufficient cash flow to adequately fund the capital requirements of
these businesses. Additionally, management believes that the BFP Merger will
accelerate WorldCom's local city development plans by one to two years.
Therefore, the BFP Merger is expected to result in a reduction in WorldCom's
previously expected capital spending for local city development. As a result
of the CompuServe Merger, the AOL Transaction, the BFP Merger and, if
consummated, the MCI/WorldCom Merger, the Company believes that the operating
and capital synergies from the integration of these acquisitions into
WorldCom's operations will further enhance the cash flow contribution for the
Company.
Absent significant capital requirements for other acquisitions, the Company
believes that cash flow from operations and available liquidity, including
$1.94 billion under its New Credit Facilities, and funds anticipated to be
received from debt to be issued under the shelf registration statements will be
more than adequate to meet the Company's capital needs for the remainder of
1998.
RECENTLY ISSUED ACCOUNTING STANDARDS AND YEAR 2000 ISSUES
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
130, "Reporting Comprehensive Income." This statement establishes standards for
reporting and display of comprehensive income and its components (revenues,
expenses, gains and losses) in a full set of general purpose financial
statements. This statement requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence as
other financial statements. The statement is effective for fiscal years
beginning after December 15, 1997. WorldCom intends to comply with the
provisions of this standard in 1998.
In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of an
Enterprise and Related Information." This statement establishes standards for
the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports issued to shareholders. It also establishes standards for related
disclosures about products and services, geographic areas and major customers.
This statement is effective for financial statements for periods beginning
after December 15, 1997. WorldCom intends to comply with the provisions of this
standard in 1998.
The Company is aware of the complexity and the significance of the "Year 2000"
issue. The Company has created a project team comprised of internal resources
to help identify products and systems where the Year 2000 problem may exist,
and to renovate, replace or retire those products or systems. At this time,
the Company believes that the cost of addressing Year 2000 issues is not
material to its future operating results or financial position. The Company
is gathering information concerning the Year 2000 compliance
status of its suppliers. In the event that any of the Company's
significant suppliers do not successfully and timely achieve Year
2000 compliance, the Company's business or operations could be adversely
affected.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The Company is exposed to market risk from changes in marketable equity
security prices and from changes in interest rates on long-term debt
obligations that impact the fair value of these obligations.
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<PAGE> 33
At December 31, 1997, marketable equity securities of the Company were recorded
at a fair value of $113.2 million. The fair value of marketable equity
securities is based on quoted market prices. The marketable equity securities
held by the Company have exposure to price risk, which is estimated as the
potential loss in fair value due to a hypothetical 10 percent adverse change in
quoted market prices, and would amount to a decrease in the recorded value of
marketable equity securities of approximately $11.3 million.
The table below provides information about the Company's risk exposure
associated with changing interest rates. The Company's policy is to manage
interest rates through use of a combination of fixed and variable rate debt.
Currently, the Company does not use derivative financial instruments to manage
its interest rate risk. The Company has no cash flow exposure due to general
interest rate changes for its fixed long-term debt obligations. All items
described are non-trading.
<TABLE>
<CAPTION>
EXPECTED MATURITY
----------------------------------------------------------------------------------------
Fair Value
1998 1999 2000 2001 2002 Thereafter Total 12/31/97
-------- -------- -------- -------- ------------ ------------ ------------ ------------
(In thousands of dollars)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Long-term debt:
Fixed rate $ 10,605 $ 12,386 $ 5,204 $ 4,966 $ 6,251 $ 3,365,150 $ 3,404,562 $ 3,625,686
Average interest rate 8.0% 7.5% 11.7% 10.0% 10.0% 8.3% 8.3%
Variable rate -- -- -- -- $ 3,133,250 -- $ 3,133,250 $ 3,133,250
Average interest rate -- -- -- -- 6.1% -- 6.1%
</TABLE>
Although the Company conducts business in foreign countries, the international
operations were not material to the Company's consolidated financial position,
results of operations or cash flows as of December 31, 1997. Additionally,
foreign currency transaction gains and losses were not material to the
Company's results of operations for the year ended December 31, 1997.
Accordingly, the Company was not subject to material foreign currency exchange
rate risk from the effects that exchange rate movements of foreign currencies
would have on the Company's future costs or on future cash flows it would
receive from its foreign subsidiaries. To date, the Company has not entered
into any significant foreign currency forward exchange contracts or other
derivative financial instruments to hedge the effects of adverse fluctuations
in foreign currency exchange rates. The Company is evaluating the future use
of such financial instruments.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's consolidated financial statements and notes thereto are included
elsewhere in this Annual Report on Form 10-K as follows:
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of independent public accountants F-2
Consolidated financial statements-
Consolidated balance sheets - December 31, 1997 and 1996 F-3
Consolidated statements of operations for the three F-4
years ended December 31, 1997
Consolidated statements of shareholders' investment
for the three years ended December 31, 1997 F-5
Consolidated statements of cash flows for the
three years ended December 31, 1997 F-6
Notes to consolidated financial statements F-7
Financial statement schedule F-26
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
29
<PAGE> 34
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following states each director and each executive officer's age,
principal occupation, present position with the Company and the year in which
each director first was elected a director (each serving continuously since
first elected except as set forth otherwise). Unless indicated otherwise, each
individual has held his present position for at least five years.
JAMES C. ALLEN, 51, has been a director of the Company since March
1998. Mr. Allen is the former Vice Chairman and Chief Executive Officer and a
former director of BFP, where he served in such capacities from 1993 until
February 1998. Mr. Allen served as President and Chief Operating Officer of
Brooks Telecommunications Corporation, a founder of BFP, from April 1993 until
it was merged with BFP in January 1996. Prior thereto, he was Chief Operating
Officer and Chief Financial Officer of David Lipscomb University. Mr. Allen
was appointed to the WorldCom Board of Directors pursuant to the expectation
expressed by WorldCom during the negotiation and approval of the BFP Merger
Agreement that the WorldCom Board would consider the nomination of an
individual designated by the BFP Board of Directors following the effective
time of the BFP Merger. Mr. Allen serves as a director of Metronet
Communications Corp., and Verio, Inc.
CARL J. AYCOCK, 48, has been a director of the Company since 1983.
Mr. Aycock served as Secretary of the Company from 1987 to 1995 and was the
Secretary and Chief Financial Officer of Master Corporation, a motel management
and ownership company, from 1989 until 1992. Subsequent to 1992, Mr. Aycock
has been self employed as a financial administrator.
MAX E. BOBBITT, 53, has been a director of the Company since 1992.
Mr. Bobbitt was a director of Advanced Telecommunications Corporation ("ATC")
until its merger with the Company in December 1992 (the "ATC Merger"). Mr.
Bobbitt is currently President and Chief Executive Officer of Metromedia Asia
Corporation, a telecommunications company. From 1996 until February 1997, Mr.
Bobbitt was President and Chief Executive Officer of Asian American
Telecommunications Corporation. Prior to 1996, Mr. Bobbitt held various
positions including President and Chief Operating Officer and director of
ALLTEL Corporation, a telecommunications company, from 1970 until January 1995.
STEPHEN M. CASE, 39, has been a director of the Company since March
1998. Mr. Case, a co-founder of AOL, has been Chairman of the Board of
Directors of AOL since October 1995, Chief Executive Officer of AOL since April
1993 and a director of AOL since September 1992. Mr. Case served as President
of AOL from July 1996 until February 1998 and from January 1991 to February
1996. Previously, he served as Executive Vice President of AOL from September
1987 to January 1991 and Vice President, Marketing, from 1985 to September
1987. Mr. Case was appointed to the WorldCom Board of Directors pursuant to
the AOL Agreement, which provided that, if so requested a specified time before
the closing of the AOL Transaction, WorldCom would appoint Mr. Case to the
WorldCom Board. Mr. Case made such request.
BERNARD J. EBBERS, 56, has been President and Chief Executive Officer
of the Company since April 1985. Mr. Ebbers has served as a director of the
Company since 1983.
FRANCESCO GALESI, 67, has been a director of the Company since 1992.
Mr. Galesi was a director of ATC until the ATC Merger. Mr. Galesi is the
Chairman and Chief Executive Officer of the Galesi Group, which includes
companies engaged in distribution, manufacturing, real estate and
telecommunications. Mr. Galesi serves as a director of Amnex, Inc., and Walden
Residential Properties, Inc.
STILES A. KELLETT, JR., 54, has served as a director of the Company
since 1981. Mr. Kellett has been Chairman of Kellett Investment Corp. since
1995. From 1978 to 1995, Mr. Kellett served as Chairman of the Board of
Directors of Convalescent Services, Inc., a long-term health care company in
Atlanta, Georgia. Mr. Kellett serves as a director of Frederica Bank & Trust
Company, St. Simons Island, Georgia, and Mariner Health Group, Inc., New
London, Connecticut.
JOHN A. PORTER, 54, has been a director of the Company since 1988.
Mr. Porter served as Vice Chairman of the Board of the Company from September
1993 until the MFS Merger and served as Chairman of the Board of Directors of
the Company from 1988 until September 1993. From May 1995 to the present, Mr.
Porter has served as Chairman of the Board of Directors and Chief Executive
Officer of Industrial Electric Manufacturing, Inc., a manufacturer of
electrical power distribution products. Mr. Porter also serves as Chairman of
Phillips & Brooks/Gladwin, Inc., a manufacturer of pay telephone enclosures and
equipment. Mr. Porter was previously President and sole shareholder of P.M.
Restaurant Group, Inc. which filed for protection under Chapter 11 of the
United States Bankruptcy Code in March 1995. Subsequent to March 1995, Mr.
Porter sold all of his shares in P.M. Restaurant Group, Inc. He is also a
director of Uniroyal Technology Corporation, and XL Connect, Inc.
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<PAGE> 35
JOHN W. SIDGMORE, 46, serves as Vice Chairman of the Board and Chief
Operations Officer of the Company. Mr. Sidgmore has been a director of the
Company since the MFS Merger and has served as a director of MFS since August
1996. Mr. Sidgmore was President and Chief Operating Officer of MFS from
August 1996 until the MFS Merger and has been Chief Executive Officer and a
director of UUNET from June 1994 to the present, and also held the position of
President of UUNET from June 1994 to August 1996 and from January 1997 to
September 1997. From 1989 to 1994, he was President and Chief Executive
Officer of CSC Intelicom, a telecommunications software company. Mr. Sidgmore
is a director of Saville Systems PLC, and Earthlink Network, Inc.
SCOTT D. SULLIVAN, 36, serves as Chief Financial Officer and Secretary
of the Company. From the ATC Merger until December 1994, Mr. Sullivan served
as Vice President and Assistant Treasurer of the Company. From 1989 until
1992, Mr. Sullivan served as an executive officer of two long-distance
companies, including ATC. From 1983 to 1989, Mr. Sullivan served in various
capacities with KPMG Peat Marwick LLP. Mr. Sullivan has served as a director
of the Company since March 1996.
LAWRENCE C. TUCKER, 55, is a general partner of Brown Brothers
Harriman & Co. ("Brown Brothers"), which is the general and managing partner of
The 1818 Fund, L.P. and The 1818 Fund II, L.P. (collectively, "The 1818
Funds"). He is also a director of The WellCare Management Group, Inc.,
Riverwood International Corporation and National HealthCare Corporation. Mr.
Tucker has served as a director of the Company since May 1995, and previously
served as director of the Company from May 28, 1992 until the ATC Merger.
MANAGEMENT OF MCI WORLDCOM FOLLOWING THE MCI/WORLDCOM MERGER. WorldCom has
agreed to cause the WorldCom Board of Directors as of the MCI/WorldCom
Effective Time to consist of seventeen members, which shall consist of eleven
members designated by WorldCom from among directors of WorldCom and six members
designated by MCI from among directors of MCI. As of the date hereof, the
WorldCom Board of Directors is comprised of eleven members. Additionally on
March 11, 1998, MCI and WorldCom announced that the seventeen member board
would include the current WorldCom Board members plus the MCI selections of
Clifford L. Alexander, Jr., Judith Areen, Gordon S. Macklin, Bert C. Roberts,
Timothy F. Price and Gerald H. Taylor. If, prior to the MCI/WorldCom Effective
Time, any of the persons named by either WorldCom or MCI to serve on the Board
of Directors of the Company following the MCI/WorldCom Merger ("MCI WorldCom")
as of the MCI/WorldCom Effective Time declines or is unable to serve as a
director, the party that designated such individual may name a replacement to
become a director. The directors of WorldCom are elected annually.
WorldCom has agreed to cause Bert C. Roberts, Jr. to be appointed Chairman of
MCI WorldCom, and to cause the senior management of MCI WorldCom to be as
previously agreed between the parties. Pursuant to the MCI/WorldCom Merger
Agreement, Bernard J. Ebbers will be the President and Chief Executive Officer
of MCI WorldCom. In addition, Gerald H. Taylor, currently Chief Executive
Officer of MCI, will become President and Chief Executive Officer of MCI
WorldCom International, responsible for all strategy, operations and ventures
outside of the U.S.; Timothy F. Price, currently President and Chief Operating
Officer of MCI, will become President and Chief Executive Officer of MCI
WorldCom's U.S. communications operating subsidiary. The U.S. operating
subsidiary will be responsible for the communications business in the United
States, including all sales and marketing, customer service, product
development, and network operations. John W. Sidgmore, currently Vice Chairman
and Chief Operations Officer of WorldCom, will become President and Chief
Executive Officer of Internet & Technology, responsible for managing WorldCom's
Internet businesses, and information technology (IT) services, including MCI
Systemhouse, architecture, design, and planning for the global network; and
Scott D. Sullivan will continue to serve as Chief Financial Officer of MCI
WorldCom.
Additional information about MCI selected Board members follows:
CLIFFORD L. ALEXANDER, Jr., age 64, has been President of Alexander &
Associates, Inc., management consultants, since 1981. Mr. Alexander is also a
director of Dreyfus 3rd Century Fund, Dreyfus General Family of Funds, Mutual
of America Life Insurance Company, Dun & Bradstreet Corporation, American Home
Products Corporation, Cognizant Corporation and TLC Holdings, Inc.
JUDITH AREEN, age 53, has been Executive Vice President for Law Center
Affairs and Dean of the Law Center, Georgetown University, since 1989. She has
been a Professor of Law, Georgetown University, since 1976.
GORDON S. MACKLIN, age 68, has been Chairman, White River Corporation,
an information services company since 1993. Mr. Macklin is also a director of
Fund American Enterprises Holdings, Inc.; CCC Information Services Group, Inc.;
MedImmune, Inc.; Shoppers Express; Spacehab, Inc.; and director, trustee or
managing general partner, as the case may be, of 52 of the investment companies
in the Franklin Templeton Group of Funds. Mr. Macklin was formerly chairman,
Hambrecht and Quist Group; director, H&Q Healthcare Investors; and President,
National Association of Securities Dealers, Inc.
31
<PAGE> 36
TIMOTHY F. PRICE, age 44, has been President and Chief Operating
Officer of MCI since November 1996. He has been President and Chief Operating
Officer of MCIT since July 1995. He was an Executive Vice President and Group
President of MCIT, serving as Group President, Communication Services, from
December 1994 to July 1995. He was an Executive Vice President of MCIT, serving
as President, Business Markets, from June 1993 to December 1994. He was a
Senior Vice President of MCIT from November 1990 to June 1993, serving as
President, Business Services, from July 1992 to June 1993 and as Senior Vice
President, Consumer Markets, from November 1990 to July 1992.
BERT C. ROBERTS, JR., age 55, has been Chairman of the Board of MCI
since June 1992. He was Chief Executive Officer of MCI from December 1991 to
November 1996. He was President and Chief Operating Officer of MCI from October
1985 to June 1992 and President of MCI Telecommunications Corporation ("MCIT")
from May 1983 to June 1992. Mr. Roberts has been a director of MCI since 1985;
a non-executive director of BT from October 1994 to March 1998; and a non-
executive director of The News Corporation Limited, a global multi-media
company located in Australia, since 1995.
GERALD H. TAYLOR, age 56, has been Chief Executive Officer of MCI
since November 1996. He has been Vice Chairman of MCIT since July 1995. He was
President and Chief Operating Officer of MCI from July 1994 to November 1996
and President and Chief Operating Officer of MCIT from April 1994 to July 1995.
He was an Executive Vice President and Group Executive of MCIT from September
1993 to April 1994. He was an Executive Vice President of MCIT, serving as
President, Consumer Markets, from November 1990 to September 1993. Mr. Taylor
has been a director of MCI since September 1994 and was a non-executive
director of BT from November 1996 to November 1997.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires directors,
executive officers and 10% or greater shareholders of the Company ("Reporting
Persons") to file with the SEC initial reports of ownership and reports of
changes in ownership of equity securities of the Company. To the Company's
knowledge, based solely on its review of the copies of such reports furnished
to the Company and written representations that certain reports were not
required, during the year ended December 31, 1997, all Section 16(a) filing
requirements applicable to Reporting Persons were complied with, except that
Messrs. Galesi, Jaros, Porter and Tucker each filed one late report covering
one, four, five, and one transactions, respectively.
ITEM 11. EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth the compensation of the named executive officers
of the Company for the three years ended December 31, 1997. The table also
sets forth, for informational purposes, the compensation paid by MFS and/or
UUNET during 1996 to Messrs. Crowe and Sidgmore, who became executive officers
of the Company upon completion of the MFS Merger.
<TABLE>
<CAPTION>
Long Term
Compensation
-------------
Annual Compensation Awards
------------------------- -------------
Securities
Underlying
Options/ All Other
Name and Principal Position Year Salary ($) Bonus($) SARs (#) Compensation($)
- -------------------------------- -------- ----------- ------------- -------------- ----------------
<S> <C> <C> <C> <C> <C>
Bernard J. Ebbers 1997 935,000 $17,096,250(1) 1,200,000/0 4,500(2)
President and 1996 935,000 2,337,500 1,200,000/0 4,500
Chief Executive Officer 1995 860,000 2,125,000 900,000/0 4,500
James Q. Crowe(4) 1997 150,769 0 0/0 20,710,685(3)
Former Chief Executive 1996 496,923 1,000,000 0/0 149,692
Officer, MFS
John W. Sidgmore (5) 1997 500,000 0 1,000,000/0 961,750(2)(3)
Chief Operations Officer 1996 283,577 494,443 -0- 2,182,654
</TABLE>
32
<PAGE> 37
<TABLE>
<CAPTION>
Long Term
Compensation
-------------
Annual Compensation Awards
------------------------- -------------
Securities
Underlying
Options/ All Other
Name and Principal Position Year Salary ($) Bonus($) SARs (#) Compensation($)
- -------------------------------- -------- ----------- ------------ -------------- ----------------
<S> <C> <C> <C> <C> <C>
Scott D. Sullivan 1997 500,000 3,500,000(1) 1,000,000/0 4,500(2)
Chief Financial Officer 1996 375,000 500,000 100,000/0 4,500
and Secretary 1995 294,000 225,000 240,000/0 4,500
</TABLE>
- -----------
(1) Includes payments received by Mr. Ebbers and Mr. Sullivan of $13.0
million and $3.5 million, respectively, pursuant to the WorldCom
Performance Bonus Plan.
(2) Matching contributions to the Company's 401(k) Plan.
(3) Includes MFS Shareworks Plus Awards paid out on January 9, 1997 in
connection with the MFS Merger. The value received from such awards
was $20,276,000 for Mr. Crowe and $957,250 for Mr. Sidgmore. The
amount for Mr. Crowe also includes $434,685 in compensation received
in connection with the employer match portion of Mr. Crowe's
shareworks distribution.
(4) Resigned in June 1997. See "Employment Agreements and Termination of
Employment Arrangements."
(5) As of December 31, 1997, the total number (and value) of restricted
stock holdings of Mr. Sidgmore was 193,533 ($5,854,373). See
"Employment Agreements and Termination of Employment Arrangements."
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth information concerning stock option grants made
in the fiscal year ended December 31, 1997, to the individuals named in the
Summary Compensation Table. There were no grants of stock appreciation rights
("SARs") to said individuals during the year.
<TABLE>
<CAPTION>
Individual Grants
- --------------------------------------------------------------------------------- Potential Realizable Value at
Number of Assumed Annual Rates of Stock Price
Securities % of Total Appreciation for Option Term(3)
Underlying Options Granted -----------------------------------
Options to Employees Exercise or Expiration
Name Granted (#)(1) in FY Base Price ($/Sh)(2) Date 5% ($) 10% ($)
- ----------------- ---------- ---------- ------------------ --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Bernard J. Ebbers 1,200,000 4.1% 26.00 01/23/07 19,621,512 49,724,765
James Q. Crowe -- -- -- -- -- --
John W. Sidgmore 1,000,000 3.4% 26.00 02/11/07 16,351,260 41,437,304
Scott D. Sullivan 1,000,000 3.4% 26.00 02/11/07 16,351,260 41,437,304
</TABLE>
- -------------------
(1) The options terminate on the earlier of their expiration date or ten
years after grant or, generally, immediately on termination for
reasons other than retirement, disability, death or without cause;
three months after termination of employment on retirement; 12 months
after termination for disability, death or without cause; or upon the
consummation of a specified change of control transaction. The
options may be transferred to certain family members and related
entities with the consent of the Compensation and Stock Option
Committee.
The options for Messrs. Ebbers, Sidgmore and Sullivan become
exercisable in three equal annual installments beginning January 1,
1998 through January 1, 2000.
33
<PAGE> 38
(2) The exercise price may be paid in cash or, in the discretion of the
Company's Compensation and Stock Option Committee, by shares of Common
Stock valued at the closing quoted selling price on the date of
exercise, or a combination of cash and Common Stock.
(3) The indicated 5% and 10% rates of appreciation are provided to comply
with SEC regulations and do not necessarily reflect the views of the
Company as to the likely trend in the stock price. Actual gains, if
any, on stock option exercises and the sale of Common Stock holdings
will be dependent on, among other things, the future performance of
the Common Stock and overall stock market conditions. There can be no
assurance that the amounts reflected in this table will be achieved.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
The following table sets forth information concerning the number and value
realized as to options exercised during 1997 and options held at December 31,
1997, by the individuals named in the Summary Compensation Table and the value
of those options held at such date. The options exercised were not exercised
as SARs and no SARs were held at year end. All options had exercise prices
lower than the fair market value of the Common Stock on December 31, 1997
("in-the-money" options).
<TABLE>
<CAPTION>
Value of Unexercised
Number of Securities Underlying In-The-Money Options at
Unexercised Options at FY-End (#) FY-End ($)(2)
Shares Acquired Value ------------------------------- ----------------------------
Name on Exercise (#) Realized ($)(1) Exercisable Unexercisable Exercisable Unexercisable
---- --------------- --------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Bernard J. Ebbers - - 2,875,696 1,200,000 44,326,826 8,350,000
James Q. Crowe 1,810,263 48,202,166 - - - -
John W. Sidgmore - - 368,704 666,667 2,299,555 2,833,335
Scott D. Sullivan 373,028 5,581,314 433,333 766,667 3,091,665 4,070,825
</TABLE>
- --------------------
(1) Based upon the difference between the closing price on the date of
exercise and the option exercise price.
(2) Based upon a price of $30.25 per share, which was the closing price of
Common Stock on December 31, 1997.
COMPENSATION OF DIRECTORS. WorldCom's directors are paid fees of $22,500 per
year and $1,000 per meeting attended of the Board plus certain expenses.
Committee members are paid a fee of $750 for any committee meeting attended on
the same day as a Board meeting and $1,000 for any other committee meeting
attended, plus certain expenses. The chairman of each committee receives an
additional $3,000 per year.
Pursuant to WorldCom's Third Amended and Restated 1990 Stock Option Plan, each
non-employee director receives annually a non-discretionary grant of options to
purchase 5,000 shares of Common Stock at the fair market value of such stock on
the date of grant. Such options are immediately exercisable and expire on the
earliest to occur of (a) ten years following the date of grant, (b) three
months following retirement, (c) 12 months following termination of service due
to disability or death, (d) upon cessation of service for reasons other than
retirement, death or disability, or (e) the date of consummation of a specified
change in control transaction defined generally to include the dissolution or
liquidation of the Company, a reorganization, merger or consolidation of the
Company in which the Company is not the surviving corporation, or a sale of
substantially all of the assets or 80% or more of the outstanding stock of the
Company to another entity. The exercise price may be paid in cash or, in the
discretion of the Compensation Committee and Stock Option Committee, the Common
Stock. In the discretion of the Compensation and Stock Option Committee,
shares receivable on exercise may be withheld to pay applicable taxes on the
exercise.
EMPLOYMENT AGREEMENTS AND TERMINATION OF EMPLOYMENT ARRANGEMENTS. Pursuant to
the employment agreement of Mr. Sidgmore with UUNET, approximately 420,000
restricted shares of Common Stock vested as a result of the MFS Merger.
Pursuant to the terms of Mr. Sidgmore's employment agreement with UUNET, Mr.
Sidgmore's initial base salary was $220,000 per year, plus a bonus targeted at
$130,000 per year. Mr. Sidgmore received a bonus of $400,000 for 1996 under
his employment agreement. If Mr. Sidgmore's employment is terminated without
cause, he will receive severance payments totaling $300,000. Under the
employment agreement, Mr. Sidgmore also received options to purchase at $0.04
per share 4,644,635 shares of WorldCom Common Stock (which options were
exercised and 193,533 of the shares issued remain subject to a right of
repurchase, which right lapses as to 13,823 shares each month). In the event
of a change in control of WorldCom or an
34
<PAGE> 39
involuntary termination other than for cause of Mr. Sidgmore's employment,
WorldCom's right of repurchase lapses with respect to 50 percent of any of the
shares subject to a right of repurchase at the time and such right also lapses
over time. If as a result of such acceleration, Mr. Sidgmore would incur an
excise tax pursuant to Section 4999 of the Internal Revenue Code or
corresponding provision of applicable state law, the Company is required to pay
him when due to the applicable tax authority an amount sufficient to pay the
excise tax and any federal, state and local taxes payment with respect thereto.
Effective June 26, 1997, Mr. Crowe resigned as director, Chairman of the Board
and employee of WorldCom. Pursuant to an employment arrangement, as
subsequently modified, among other things, Mr. Crowe did not have any direct
operating responsibility but continued to serve as a director and Chairman of
the Board of the Company for a specified term in 1997, in connection with which
he received a base salary of $120,000 per year for certain services.
Additionally, pursuant to such agreement, Mr. Crowe's options to purchase an
aggregate of 872,562 shares of WorldCom Common Stock at an exercise price of
$2.869 per share became fully exercisable and all shares granted under the
WorldCom/MFS Employee Stock Bonus Plan and the WorldCom/MFS 1995 Deferred Stock
Purchase Plan vested immediately.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION. From January 1,
1997 until June 27, 1997 the Company's Compensation and Stock Option Committee
was composed of Stiles A. Kellett, Jr. (Chairman), Walter Scott, Jr., Lawrence
C. Tucker and Michael B. Yanney. From June 28, 1997 until July 30, 1997 the
Company's Compensation and Stock Option Committee was comprised of Stiles A.
Kellett, Jr. (Chairman), Lawrence C. Tucker and Michael B. Yanney. Subsequent
to July 30, 1997, the Company's Compensation and Stock Option Committee was
composed of Stiles A. Kellett, Jr. (Chairman), Max E. Bobbitt, and Lawrence C.
Tucker.
COMPENSATION OF EXECUTIVE OFFICERS AFTER THE MCI/WORLDCOM MERGER. WorldCom
relies on the Compensation and Stock Option Committee of the WorldCom Board
(the "Compensation Committee") to recommend the form and amount of compensation
of its executive officers. It is anticipated that, when the Compensation
Committee meets to determine such compensation after the closing of the
MCI/WorldCom Merger, the Compensation Committee will evaluate its policies
designed to attract, motivate, reward and retain executives with the skills,
experience and talents required to promote the short-term and long-term
performance and growth of MCI/WorldCom. Historically, WorldCom's executive
compensation has had three elements: base salary, annual incentive compensation
and long-term incentive compensation.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
PRINCIPAL HOLDERS OF VOTING SECURITIES. As of March 6, 1998, the following
persons, individually or as a group, were known to the Company to be deemed to
be the beneficial owners of more than five percent of the issued and
outstanding Common Stock, each of which persons has sole voting and investment
power over such Common Stock, except as set forth in the footnotes hereto:
<TABLE>
<CAPTION>
Amount and
Name and Address of Nature of Existing Percent
Beneficial Owner Beneficial Ownership (1) Of Class(1)
- ------------------- ------------------------ -----------
<S> <C> <C>
FMR Corp. 73,298,304(2) 7.1%
82 Devonshire Street
Boston, Massachusetts 02109
</TABLE>
- --------------------
(1) Based upon 1,026,645,863 shares of WorldCom Common Stock issued and
outstanding plus, as to the holder thereof only, exercise or conversion
of all derivative securities that are exercisable or convertible
currently or within 60 days after March 6, 1998.
(2) Based upon shares owned as of December 31, 1997, as provided by FMR
Corp., including 64,238,970 shares beneficially owned by Fidelity
Management & Research Company ("Fidelity"), as the result of serving as
investment adviser to various investment companies registered under
Section 8 of the Investment Company Act of 1940 and serving as
investment adviser to certain other funds which are generally offered to
limited groups of investors; 8,026,134 shares beneficially owned by
35
<PAGE> 40
Fidelity Management Trust Company, as a result of its serving as
investment manager of the institutional accounts; and 1,033,200 shares
beneficially owned by Fidelity International Limited, as a result of its
serving as investment adviser to various non-United States investment
companies.
The number of shares beneficially owned by Fidelity includes 5,151,716
shares issuable upon conversion of the WorldCom Series A Preferred
Stock. The number of shares beneficially owned by Fidelity Management
Trust Company includes 237,589 shares issuable upon conversion of
WorldCom Series A Preferred Stock. FMR Corp. has sole voting power with
respect to 7,145,497 shares and sole dispositive power with respect to
73,298,304 shares. Fidelity International Limited has sole voting and
dispositive power with respect to all the shares it beneficially owns.
SECURITY OWNERSHIP OF MANAGEMENT. The following table sets forth the
beneficial ownership of Common Stock, as of March 6, 1998, by each director,
each MCI designee, the named executive officers and by all persons, as a group,
who are currently directors and executive officers of WorldCom. No person
listed on the following table is the beneficial owner of any shares of WorldCom
Series A Preferred Stock. Each director or executive officer has sole voting
and investment power over the shares listed opposite his name except as set
forth in the footnotes hereto.
<TABLE>
<CAPTION>
Number of Shares Percent
Name of Beneficial Owner Beneficially Owned(1) of Class(1)
- ------------------------ --------------------- ----------
<S> <C> <C>
Clifford Alexander, Jr 0 *
James C. Allen 481,929(2) *
Judith Areen 0 *
Carl J. Aycock 706,734(3) *
Max E. Bobbitt 256,292(4) *
Stephen M. Case 0 *
Bernard J. Ebbers 16,920,539(5) 1.6%
Francesco Galesi 3,021,908(6) *
Stiles A. Kellett, Jr 4,036,816(7) *
Gordon S. Macklin 0 *
John A. Porter 4,433,924(8) *
Bert C. Roberts, Jr 0 *
John W. Sidgmore 3,468,586(9) *
</TABLE>
36
<PAGE> 41
<TABLE>
<CAPTION>
Number of Shares Percent
Name of Beneficial Owner Beneficially Owned(1) of Class(1)
- ------------------------ --------------------- ----------
<S> <C> <C>
Scott D. Sullivan 436,904(10) *
Gerald H. Taylor 0 *
Lawrence C. Tucker 3,170,096(11) *
All Directors and Current Executive
Officers as a Group (11 persons) 36,933,782(12) 3.6%
</TABLE>
- ---------------
* Less than one percent.
(1) Based upon 1,026,645,863 shares of WorldCom Common Stock issued and
outstanding plus, as to the holder thereof only, exercise or conversion
of all derivative securities that are exercisable or convertible
currently or within 60 days after March 6, 1998.
(2) Includes 684 shares owned by Mr. Allen's spouse, as to which beneficial
ownership is disclaimed; and 37,000 shares held in a revocable trust as
to which Mr. Allen is a co-trustee.
(3) Includes 5,576 shares owned by Mr. Aycock's spouse; 73,048 shares
purchasable upon exercise of options; and 2,208 shares held as custodian
for children.
(4) Includes 38,512 shares purchasable upon exercise of options; and 108,890
shares as to which Mr. Bobbitt shares voting and investment power with
his spouse.
(5) Includes 36,432 shares held as custodian for children; 2,875,696 shares
purchasable upon exercise of options; and 855,448 shares owned by Linda
Ebbers, as to which Mr. Ebbers has voting power.
(6) Consists of 2,983,396 shares owned by Rotterdam Ventures, Inc., of which
Mr. Galesi is sole shareholder; and 38,512 shares purchasable upon
exercise of options.
(7) Includes 16,000 shares owned by Mr. Kellett's spouse; and 900,000 shares
owned by a family partnership; 30,500 shares owned by a partnership as
to which Mr. Kellett is a general partner; 80,816 shares purchasable upon
exercise of options; and 9,500 shares purchasable upon exercise of
options held by Mr. Kellett's spouse.
(8) Includes 165,560 shares held as custodian or trustee for minor children;
73,048 shares purchasable upon exercise of options; 85,812 shares held
in trust for son of majority age, as to which beneficial ownership is
also disclaimed; 6,049 shares held in a trust of which Mr. Porter is
trustee with sole voting and dispositive power; and 6,500 shares held in
trust for employees of Mr. Porter.
(9) Includes 368,704 shares purchasable upon exercise of options; and 11,120
shares held in a trust of which Mr. Sidgmore is sole trustee with sole
voting and dispositive power.
(10) Includes 433,333 shares purchasable upon exercise of options.
(11) A total of 3,131,828 of these shares are beneficially owned by The 1818
Funds. Mr. Tucker is the general and managing partner of The 1818 Funds
and Mr. Tucker, as a general partner of Brown Brothers Harriman & Co.,
shares voting and investment power with respect to such securities.
Also includes 38,268 shares purchasable upon exercise of options.
(12) Includes 4,029,437 shares purchasable upon exercise of options.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
As of December 31, 1996, R. Douglas Bradbury held 52,500 MFS Shareworks Plus
Awards. This award, totaling $6.4 million, was paid out in January 1997 in
connection with the MFS Merger. Additionally, in accordance with the
WorldCom/MFS 1992 Stock Option Plan, upon the termination of Mr. Bradbury as
Chief Financial Officer of MFS on February 28, 1997, all of Mr. Bradbury's
options to purchase an aggregate of 749,725 shares of WorldCom Common Stock at
an exercise price of $2.869 per share were immediately vested. Mr. Bradbury
subsequently exercised all such options and sold the underlying shares of
WorldCom Common Stock.
The AOL Agreement provided that, if so requested at least five business days
before the closing of the AOL Transaction, WorldCom would cause Stephen M.
Case, Chairman of the Board, Chief Executive Officer and President of AOL, to
be appointed to the WorldCom Board. Mr. Case made such request.
AOL and WorldCom and/or certain of its subsidiaries are currently parties to
certain agreements regarding the provision of dial-up and leased line access to
AOL. Upon closing of the AOL Transaction, WorldCom, AOL and ANS entered into a
Master Agreement for Data Communications which has an initial term expiring
December 31, 2002, subject to extension by AOL in certain circumstances. The
agreement provides that ANS will (i) continue to maintain and operate portions
of AOL's dial-up member access network; (ii) install, activate, maintain and
operate additional modems for AOL's dial-up network in the United States and
37
<PAGE> 42
Canada; and (iii) provide AOL with Internet access. AOL committed to purchase
from ANS specified percentages of its incremental modem requirements each year,
subject to ANS fulfilling certain obligations. The fees for the foregoing
services are based on several factors, including certain fixed base prices, the
prices offered by ANS to its non- affiliated customers, prices paid by AOL to,
or offered to AOL by, other significant suppliers of modems and modem services,
and, if AOL provides such services to itself, AOL's cost. The fees are subject
to adjustment twice per year and include certain agreed-upon discounts. AOL,
UUNET and the surviving corporation of the CompuServe Merger also entered into
a Network Services Agreement, which has an initial term expiring December 31,
2002, subject to extension by AOL in certain circumstances. Under this
agreement, such surviving corporation provides AOL with capacity on the
CompuServe network, and AOL committed to use the network for specified portions
of its requirements. The fees to be paid by AOL are based on several factors,
including certain fixed base prices, the prices offered to AOL by other
significant suppliers of network capacity, and such surviving corporation's
actual cost to provide the network capacity. Expenditures by AOL under all of
such agreements during the twelve month period commencing as of the closing of
the AOL Transaction is anticipated to exceed $400 million. Actual results may
vary materially from such expectation. See "Cautionary Statement Regarding
Forward-Looking Statements" and "Item 1. Business --Risk Factors."
The AOL Agreement included customary representations and warranties, and
provisions for each of AOL and WorldCom to indemnify the other for certain
losses and expenses, subject to specified time limits and minimum amounts. AOL
and ANS also entered into a Noncompetition and Nonsolicitation Agreement under
which (i) AOL agreed to certain limitations on its business activities in the
network services business, (ii) WorldCom agreed that CompuServe will be subject
to certain limitations in the online services business, and (iii) each of the
parties agreed to certain restrictions on its rights to solicit or otherwise
deal with customers, suppliers, employees, independent contractors, agents or
representatives of the other.
In connection with the negotiation and approval of the BFP Merger Agreement,
Mr. Ebbers indicated his expectation that the WorldCom Board would consider the
nomination of an individual designated by the BFP Board of Directors (who was
expected to be Mr. James C. Allen) for election as a director of WorldCom
following the effective time of the BFP Merger. The BFP Merger resulted in the
vesting of Mr. Allen's 66,667 shares of BFP stock options exercisable at $12.50
per share. All of Mr. Allen's BFP common stock were converted into WorldCom
Common Stock in the BFP Merger. As of November 30, 1997, Mr. Allen
beneficially owned 319,885 shares of BFP common stock. Pursuant to a Change in
Control Agreement entered into as of April 8, 1997 between BFP and Mr. Allen,
Mr. Allen received a $2,075,158 payment (including a gross-up payment in
respect of excise tax imposed by Section 4999 and of the Code and related
interest and penalties), upon his termination as Vice Chairman and Chief
Executive Officer of BFP in February 1998. Mr. Allen is also entitled to
continuation of medical insurance benefits for a three year period, and is
subject to certain non-competition and non-solicitation provisions.
On August 19, 1997, in connection with the acquisition by the Company of the
outstanding shares of McCourt Fiber Network, Inc., which was the holder of the
shares of Metropolitan Fiber Systems - McCourt, Inc. not already owned by the
Company, the Company issued to shareholders of McCourt Fiber Network, Inc.
846,154 shares of WorldCom Common Stock which total included 812,308 shares
issued to David C. McCourt, then a member of the WorldCom Board of Directors.
INTERESTS OF CERTAIN PERSONS IN THE MCI/WORLDCOM MERGER
A number of executive officers of MCI, including some of the officers who are
also directors, have certain interests in the MCI/WorldCom Merger that are
different from, or in addition to, the interests of the stockholders of MCI
generally. With respect to Messrs. Roberts, Price and Taylor, executives who
serve as directors of MCI and who will serve as executives and directors of the
combined company, and the other MCI designees each will be entitled to receive
in connection with the MCI/WorldCom Merger a number of shares of WorldCom Common
Stock and options to purchase shares of WorldCom Common Stock based upon the MCI
Exchange Ratio, in exchange for the shares of MCI Common Stock beneficially
owned by Messrs. Roberts, Price and Taylor and the other MCI designees as of the
MCI/WorldCom Effective Time and options to purchase shares of MCI Common Stock
held by Messrs. Roberts, Price and Taylor and the other MCI designees as of the
MCI/WorldCom Effective Time. In addition, in connection with the MCI/WorldCom
Merger, Messrs. Roberts, Taylor and Price and the other MCI designees will
receive cash retention bonuses of $10.5 million, $9.5 million and $9.0 million,
respectively, which replace the senior retention incentive stock units granted
pursuant to the BT/MCI Merger Agreement, which were discontinued when that
agreement was terminated.
OWNERSHIP OF MCI COMMON STOCK; STOCK OPTIONS. As of December 31, 1997,
directors and executive officers of MCI beneficially owned an aggregate of
2,557,871 shares of MCI Common Stock (or approximately 0.4% of the then
outstanding MCI Common Stock), including restricted shares of MCI Common Stock
("MCI Restricted Shares") and incentive stock units ("ISUs") but excluding
shares of MCI Common Stock that may be acquired upon the exercise of
outstanding options to purchase MCI Common Stock ("MCI Stock Options.")
38
<PAGE> 43
As of December 31, 1997, directors and executive officers of MCI held options
to purchase an aggregate of 4,299,020 shares of MCI Common Stock, of which
options to purchase 2,870,830 shares of MCI Common Stock were exercisable, and
the remainder of which will, pursuant to the MCI/WorldCom Merger Agreement,
become fully vested and exercisable immediately prior to the MCI/WorldCom
Effective Time if not previously vested. The MCI/WorldCom Merger Agreement
provides that, on or prior to the MCI/WorldCom Effective Time, MCI shall take
all action necessary to cause each option to purchase shares of MCI Common
Stock that remains outstanding at the MCI/WorldCom Effective Time to be
converted into an option to acquire that number of shares of WorldCom Common
Stock determined by multiplying the number of shares of MCI Common Stock
subject to such option by the MCI Exchange Ratio, rounded, if necessary, up to
the nearest whole share of WorldCom Common Stock, at a price per share equal to
the per-share exercise price specified in such MCI Stock Option divided by the
MCI Exchange Ratio.
As of December 31, 1997, executive officers of MCI held an aggregate of
1,083,324 MCI Restricted Shares and ISUs, including in the case of Mr. Roberts,
Mr. Taylor, and Mr. Price, 299,903, 229,641 and 154,138 shares, respectively.
Pursuant to the MCI/WorldCom Merger Agreement at the MCI/WorldCom Effective
Time, all unvested and unpaid MCI Restricted Shares and ISUs outstanding on the
date of execution of the MCI/WorldCom Merger Agreement will become fully vested
and (unless voluntarily deferred) paid. Any MCI Restricted Shares or ISUs
outstanding, at the MCI/WorldCom Effective Time shall be converted to the
number of shares of WorldCom Common Stock or ISUs determined by multiplying
such MCI Restricted Shares and ISUs by the MCI Exchange Ratio.
The following table sets forth certain information regarding the beneficial
ownership of MCI Common Stock as of December 31, 1997, assuming the exercise of
all options exercisable on, or within 60 days of, such date, by the persons
selected by MCI to serve as directors of MCI WorldCom. Each such individual
has sole voting and investment power over the shares listed opposite his or her
name except as set forth in the footnotes hereto.
<TABLE>
<CAPTION>
NUMBER OF SHARES PERCENT
NAME OF BENEFICIAL OWNER BENEFICIALLY OWNED(1) OF CLASS
------------------------ --------------------- --------
<S> <C> <C>
Clifford L. Alexander, Jr. . . . . . . . . 20,000(2) *
Judith Areen . . . . . . . . . . . . . . . 22,803 *
Gordon S. Macklin . . . . . . . . . . . . 64,000(3) *
Timothy F. Price . . . . . . . . . . . . . 290,243(4) *
Bert C. Roberts, Jr. . . . . . . . . . . . 1,609,823(5) *
Gerald H. Taylor . . . . . . . . . . . . . 998,579(6) *
</TABLE>
- ----------
* Less than one percent.
(1) Unless otherwise noted, each person has sole voting power and sole
investment power with respect to the securities reported, except with
respect to shares of MCI Common Stock allocated to accounts under MCI's
Employee Stock Ownership and 401(k) Plan ("ESOP"), with respect to which
shares such person has sole voting power only. Where indicated, the data
also include shares which each person had the right to acquire upon
exercise of stock options within sixty days of December 31, 1997, and also
shares issued as awards of MCI Restricted Shares and/or ISUs.
(2) Consists of 20,000 shares of MCI Common Stock Mr. Alexander has the right
to acquire pursuant to the exercise of stock options.
(3) Includes 40,000 shares of MCI Common Stock Mr. Macklin has the right to
acquire pursuant to the exercise of stock options. Does not include 3,200
shares of MCI Common Stock owned solely by Mr. Macklin's wife, in which
shares he disclaims beneficial ownership.
(4) Includes 14,891 shares of MCI Common Stock allocated to Mr. Price's ESOP
account, 102,825 shares of MCI Common Stock he has the right to acquire
pursuant to the exercise of stock options and 154,138 shares of MCI Common
Stock issued as ISUs. Does not include 1,000 shares of MCI Common Stock
held by Mr. Price's wife as custodian for the benefit of their minor
children, in which shares Mr. Price disclaims beneficial ownership.
(5) Includes 46,020 shares of MCI Common Stock allocated to Mr. Roberts' ESOP
account, 798,500 shares of MCI Common Stock he has the right to acquire
pursuant to the exercise of stock options, 255,736 shares of MCI Common
Stock issued as restricted stock awards, 44,167 shares of MCI Common Stock
issued as ISUs, 122,400 shares of MCI Common Stock owned by a limited
39
<PAGE> 44
partnership in which Mr. Roberts is a general partner, and 18,000 shares
of MCI Common Stock owned by the Roberts' Foundation. Does not include
12,000 shares of MCI Common Stock held by Mr. Roberts' wife as custodian
for the benefit of their minor child, in which shares Mr. Roberts
disclaims beneficial ownership.
(6) Includes 36,251 shares of MCI Common Stock allocated to Mr. Taylor's ESOP
account, 661,420 shares of MCI Common Stock he has the right to acquire
pursuant to the exercise of stock options, and 229,641 shares of MCI
Common Stock issued as ISUs.
EMPLOYMENT AGREEMENTS. MCI had previously entered into employment agreements
(the "Employment Agreements") with Messrs. Roberts, Taylor and Price, (as well
as five other MCI executives) (collectively, the "Executives"), effective as of
November 2, 1996, and expiring on December 31, 1999.
Pursuant to the Employment Agreements, each Executive will receive an annual
base salary, subject to increases (but not decreases) at the discretion of MCI.
The 1997 annual salaries of certain of the Executives under the Employment
Agreements were as follows: Bert C. Roberts, Jr., $1,000,000; Gerald H. Taylor,
$700,000; and Timothy F. Price, $550,000. In addition, each Executive will
receive an annual bonus for each fiscal year of MCI ending during the term of
the Executive's employment with a minimum bonus amount of no less than the
average annual bonus earned by the Executive in respect of the 1994, 1995 and
1996 fiscal years. The Executives will also participate in any long-term
incentive compensation plan or program maintained by MCI for senior executives
of MCI and all long-term compensation plans and programs in existence
immediately prior to the MCI/WorldCom Merger are, under the Employment
Agreements, required to be maintained for at least two years following the
MCI/WorldCom Effective Time or replaced by programs that are no less favorable
to the Executives. In addition, the Executives will participate in all MCI
pension and welfare benefit plans and programs which are applicable to senior
executives of MCI, and all pension and welfare benefit plans and programs in
existence immediately prior to the MCI/WorldCom Merger are, under the
Employment Agreements, required to be maintained for at least two years
following the MCI/WorldCom Effective Time or be replaced by programs that are
no less favorable to the Executives.
Under the Employment Agreements, in the event an Executive's employment is
terminated by MCI (for this purpose "MCI" shall mean MCI, MCI/WorldCom and
their respective affiliates) without "Cause" or by the Executive for "Good
Reason" (as each such term is defined below), the Executive is to receive (a)
the Executive's accrued but unpaid salary and vacation pay, and any unpaid
bonus from the prior fiscal year, (b) a cash payment equal to three times the
sum of (x) the Executive's annual base salary and (y) the greater of (A) the
average annual bonus paid to or accrued for the Executive by MCI in respect of
the three calendar years preceding the termination of employment and (B) the
annual bonus paid to or accrued for the Executive in respect of 1995 (c)
continued medical, dental and life insurance coverage for the Executive and the
Executive's eligible dependents on the same basis as in effect immediately
prior to the Executive's termination of employment until the earlier of (x) 36
months after the Executive's termination of employment or (y) the commencement
of coverage with a subsequent employer, but only to the extent such coverage
duplicates or exceeds the coverage provided by MCI, (d) unless otherwise
expressly elected by the Executive prior to such termination, payment, in a
cash lump sum, of all amounts deferred by the Executive under any non-qualified
plan of deferred compensation maintained by MCI or MCI WorldCom
(notwithstanding the payment provisions of any such plan to the contrary), (e)
full acceleration of vesting and exercisability of any equity based and cash
retention awards (including, but not limited to, MCI Stock Options, MCI
Restricted Shares and ISUs) granted to the Executive prior to the Executive's
termination of employment and (f) 36 months of age and service credit for all
purposes under all defined benefit plans of MCI (or the equivalent).
For purposes of the Employment Agreements, "Cause" means: (i) a deliberate and
material breach by the Executive of his duties and responsibilities under the
Employment Agreement that results in material harm to MCI, which breach is (A)
either the product of willful malfeasance or gross neglect, (B) committed in
bad faith or without reasonable belief that such breach is in, or not contrary
to, the best interests of MCI and (C) not remedied within 30 days after receipt
of written notice from MCI specifying such breach; (ii) the Executive's willful
and material breach of the restrictive covenants contained in the Employment
Agreements which is not remedied within 30 days after receipt of written notice
from MCI specifying such breach; or (iii) the Executive's plea of guilty or
nolo contendre to, or nonappealable conviction of, a felony, which conviction
or plea causes material harm to the reputation or financial position of MCI.
"Good Reason" means the occurrence of any of the following without the
Executive's express written consent: (i) the assignment to the Executive of any
duties inconsistent with the Executive's current positions, duties,
responsibilities and status with MCI, a change in the Executive's reporting
responsibilities, title or offices or any removal of the Executive from or
failure to elect or re-elect the Executive to any position with MCI (including
membership on the MCI Board) except in connection with the Executive's
promotion or a termination of employment for Cause; (ii) a reduction in the
Executive's base salary or target annual bonus or long-term incentives, as such
salary, target bonus and incentives are increased from time to time; (iii) the
failure to continue in effect any employee benefit plan or compensation plan in
which the Executive participates unless the Executive is provided with
participation in other plans that provide substantially comparable benefits or
the taking of any action that would adversely affect the Executive's benefits
under any such plan; (iv) any relocation of the Executive's principal place of
business from
40
<PAGE> 45
the location described in the Employment Agreement; (v) any reduction in fringe
benefits and perquisites provided to the Executive; (vi) any material breach by
MCI of any provisions of the Employment Agreement; and (vii) a failure by MCI
WorldCom to expressly assume, as of the date of the MCI/WorldCom Merger, all
obligations of MCI under the Employment Agreement.
The Employment Agreements further provide that if the payments described above
constitute "parachute payments" under applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), MCI is to pay the Executive an
additional amount sufficient to place the Executive in the same after-tax
financial position the Executive would have been in if the Executive had not
incurred the excise tax imposed under Section 4999 of the Code in respect of
such parachute payments.
In the event an Executive's employment is terminated due to the Executive's
death or "Disability" (as defined in the Employment Agreements), the Employment
Agreements provide that MCI is to pay to the Executive (or the Executive's
beneficiaries) a lump sum cash amount equal to (i) the annual rate of the
Executive's annual base salary as in effect on the date of termination and (ii)
the highest bonus paid to the Executive under MCI's annual bonus plan during
the three fiscal years preceding the termination of employment. In addition,
the Executive is to receive (i) the unpaid portion of his annual base salary
accrued to the date of termination and any accrued vacation as of the date of
termination and (ii) the unpaid portion of his bonus accrued with respect to
the last full fiscal year of MCI ended prior to the date of termination, when
such bonus would otherwise be payable.
The Employment Agreements contain confidentiality, non-competition and
non-solicitation clauses which provide, among other things, that the Executive
is not to (i) render services to a competitor of MCI or its affiliates or (ii)
solicit or offer employment to any employee of MCI or its affiliates during the
Executive's employment with MCI or its affiliates and, thereafter, for a period
expiring on the earlier of (x) the first anniversary of the Executive's
termination of employment and (y) the expiration of the term of the Employment
Agreement.
RETENTION BONUSES FOR SENIOR EXECUTIVES. In connection with the MCI/WorldCom
Merger, a cash retention award pool (the "Executive Retention Program") of up
to approximately $170 million will be created to provide retention incentives
for MCI senior executives, including Messrs. Roberts, Taylor and Price, who
will receive $10.5 million, $9.5 million and $9.0 million, respectively. These
bonuses generally replace the Senior Retention ISUs granted pursuant to the
BT/MCI Merger Agreement dated November 3, 1996, which were discontinued when
that agreement was terminated. The schedule of payments of such incentives will
be subject to the approval of WorldCom, which will not be unreasonably
withheld; and WorldCom will be informed as to the other aspects of the
incentives.
DISCRETIONARY RETENTION BONUS POOL. In addition, a cash retention pool of up
to $150 million has been created for post- MCI/WorldCom Merger retention; such
pool will be allocated in consultation with WorldCom.
DIRECTOR AND OFFICER INDEMNIFICATION AND INSURANCE. Pursuant to the
MCI/WorldCom Merger Agreement, from and after the MCI/WorldCom Effective Time,
the surviving corporation in the MCI/WorldCom Merger is to cause to be
maintained in effect in its certificate of incorporation and bylaws (i) for a
period of six years after the MCI/WorldCom Effective Time, the current
provisions regarding indemnification of officers and directors contained in the
MCI Restated Certificate of Incorporation (the "MCI Restated Certificate of
Incorporation") and the MCI Bylaws (the "MCI Bylaws") and (ii) for a period of
six years, the current policies of directors' and officers' liability insurance
and fiduciary liability insurance maintained by MCI with respect to claims
arising from facts or events that occurred on or before the MCI/WorldCom
Effective Time, except that in no event is the MCI/WorldCom surviving
corporation to be required to expend in any one year an amount in excess of
200% of the annual premiums currently paid by MCI for such insurance, and, if
the annual premiums of such insurance coverage exceed such amount, the
MCI/WorldCom surviving corporation is to obtain a policy with the greatest
coverage available for a cost not exceeding such amount.
BOARD OF DIRECTORS; MANAGEMENT. Pursuant to the MCI/WorldCom Merger Agreement,
WorldCom originally agreed that the WorldCom Board, as of the MCI/WorldCom
Effective Time, shall consist of fifteen members, eight of whom shall be
designated by WorldCom from among the directors of WorldCom, five of whom shall
be designated by MCI from among the directors of MCI and two of whom shall be
directors designated by WorldCom from among pending acquisitions of WorldCom;
provided that the persons designated by each party shall be reasonably
acceptable to the other party. See, however, Item 10. "Directors and Executive
Officers of the Registrant." As of the date hereof, the WorldCom Board is
composed of eleven directors. WorldCom has further agreed to cause Bert C.
Roberts, Jr. to be appointed Chairman of MCI WorldCom, and to cause the senior
management of MCI WorldCom to be as previously agreed between the parties.
Pursuant to the MCI/WorldCom Merger Agreement, Bernard J. Ebbers will be the
President and Chief Executive Officer of MCI WorldCom. In addition, Gerald H.
Taylor, currently Chief Executive Officer of MCI, will become President and
Chief Executive Officer of MCI WorldCom International, responsible for all
strategy, operations, and ventures outside of the U.S.; Timothy F. Price,
currently President and Chief Operating Officer of MCI, will become President
and Chief Executive Officer of MCI WorldCom's U.S. communications operating
subsidiary. The U.S. operating
41
<PAGE> 46
subsidiary will be responsible for the communications business in the United
States, including all sales and marketing, customer service, product
development, and network operations. John W. Sidgmore, currently Vice Chairman
and Chief Operations Officer of WorldCom, will become President and Chief
Executive Officer of Internet & Technology, responsible for information
technology (IT) services, including MCI Systemhouse, architecture, design, and
planning for the global network, and managing MCI WorldCom's largest commercial
Internet relationships; and Scott D. Sullivan will continue to serve as Chief
Financial Officer of MCI WorldCom. See "Item 10. Directors and Executive
Officers of the Registrant - Directors and Management of MCI WorldCom Following
the MCI/WorldCom Merger."
CERTAIN RELATED TRANSACTIONS
WorldCom and MCI have entered into certain interconnection or other service
agreements with each other and certain of their affiliates in the ordinary
course of their businesses, which agreements have been amended from time to
time. In fiscal 1997, fiscal 1996 and fiscal 1995, MCI and its subsidiaries
and WorldCom and its subsidiaries have engaged in transactions aggregating
approximately $655 million, $558 million, and $273 million, respectively.
OTHER
Certain other interests of other MCI executives and employees are described in
"The MCI/WorldCom Merger - Interests of Certain Persons in the MCI/WorldCom
Merger" contained in WorldCom's Current Report on Form 8-K/A-1 dated November
9, 1997 (filed January 27, 1998), which is incorporated by reference herein.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) 1 and 2
Financial statements and financial statement schedule
See Index to Consolidated Financial Statements and Financial Statement
Schedule.
(a) 3
Exhibits required by Item 601 of Regulation S-K
See Exhibit Index for the exhibits filed as part of or incorporated by
reference into this Report. There are omitted from the exhibits filed with or
incorporated by reference into this Annual Report on Form 10-K certain
promissory notes and other instruments and agreements with respect to long-term
debt of the Company, none of which authorizes securities in a total amount that
exceeds 10% of the total assets of the Company on a consolidated basis.
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, the Company hereby agrees to
furnish to the Securities and Exchange Commission copies of any such omitted
promissory notes or other instruments or agreements as the Commission requests.
(b) Reports on Form 8-K
(i) Current Report on Form 8-K dated October 1, 1997 (filed
October 2, 1997) reporting under Item 5, Other Events,
information related to the Company's intention to commence an
offer to acquire all of the outstanding shares of MCI.
(ii) Current Report on Form 8-K dated October 3, 1997 (filed
October 3, 1997) reporting under Item 5, Other Events, the
Company's press release dated October 3, 1997.
(iii) Current Report on Form 8-K dated October 9, 1997 (filed
October 10, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 9, 1997.
(iv) Current Report on Form 8-K dated October 10, 1997 (filed
October 14, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 10, 1997.
42
<PAGE> 47
(v) Current Report on Form 8-K dated October 14, 1997 (filed
October 14, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 14, 1997.
(vi) Current Report on Form 8-K dated October 15, 1997 (filed
October 16, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 15, 1997.
(vii) Current Report on Form 8-K dated October 16, 1997 (filed
October 17, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 16, 1997.
(viii) Current Report on Form 8-K dated October 23, 1997 (filed
October 23, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 23, 1997.
(ix) Current Report on Form 8-K dated October 31, 1997 (filed
November 3, 1997) reporting under Item 5, Other Events,
information related to the Company's press release dated
October 31, 1997.
(x) Current Report on Form 8-K dated November 9, 1997 (filed
November 12,1997) reporting under Item 5, Other Events,
information related to WorldCom's announcement that the
Company had entered into a Merger Agreement with MCI.
(xi) Current Report on Form 8-K/A dated August 25, 1996 (filed
December 19, 1997) reporting information required to be
reported under Item 7(a) Financial Statements of Business
Acquired, the following financial statements of MFS
Communications, Inc. and Subsidiaries:
Report of Independent Public Accountants
Consolidated Statement of Operations for the period
ended December 31, 1996 Consolidated Balance Sheet as
of December 31, 1996 Consolidated Statement of
Changes in Stockholders' Equity for the period ended
December 31, 1996
Consolidated Statement of Cash Flows for the period
ended December 31, 1996
Notes to Consolidated Financial Statements
Reports of Independent Public Accountants
Consolidated Statements of Operations for the three
years ended December 31, 1996
Consolidated Balance Sheet as of December 31, 1995
Consolidated Statements of Changes in Stockholders'
Equity for the three years ended December 31, 1996
Consolidated Statement of Cash Flows for the three
years ended December 31, 1996
Notes to Consolidated Financial Statements
43
<PAGE> 48
SIGNATURES
Pursuant to the requirements of Section 13 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.
WorldCom, Inc.
By: /s/ Scott D. Sullivan
-------------------------------------
Date: March 27, 1998 Scott D. Sullivan,
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
Director March 27, 1998
- -----------------------------------
James C. Allen
/s/ Carl J. Aycock Director March 27, 1998
- -----------------------------------
Carl J. Aycock
/s/ Max E. Bobbitt Director March 27, 1998
- -----------------------------------
Max E. Bobbitt
Director March 27, 1998
- -----------------------------------
Stephen M. Case
Director, President
/s/ Bernard J. Ebbers and Chief Executive March 27, 1998
- ----------------------------------- Officer
Bernard J. Ebbers
Director March 27, 1998
- -----------------------------------
Francesco Galesi
/s/ Stiles A. Kellett, Jr. Director March 27, 1998
- -----------------------------------
Stiles A. Kellett, Jr.
Director March 27, 1998
- -----------------------------------
John A. Porter
/s/ John W. Sidgmore Director March 27, 1998
- -----------------------------------
John W. Sidgmore
Director,
Principal Financial
/s/ Scott D. Sullivan Officer and Principal March 27, 1998
- ----------------------------------- Accounting Officer
Scott D. Sullivan
/s/ Lawrence C. Tucker Director March 27, 1998
- -----------------------------------
Lawrence C. Tucker
</TABLE>
44
<PAGE> 49
INDEX TO FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULE
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of independent public accountants F-2
Consolidated financial statements-
Consolidated balance sheets as of December 31, 1997
and 1996 F-3
Consolidated statements of operations for the
three years ended December 31, 1997 F-4
Consolidated statements of shareholders' investment
for the three years ended December 31, 1997 F-5
Consolidated statements of cash flows for the
three years ended December 31, 1997 F-6
Notes to consolidated financial statements F-7
Financial statement schedule:
II. Valuation and qualifying accounts F-26
</TABLE>
Schedules other than the schedule listed above have been omitted because of the
absence of conditions under which they are required or because the information
is included in the financial statements or notes thereto.
F-1
<PAGE> 50
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of WorldCom, Inc.:
We have audited the accompanying consolidated balance sheets of WorldCom, Inc.
(a Georgia corporation) and Subsidiaries as of December 31, 1997 and 1996, and
the related consolidated statements of operations, shareholders' investment and
cash flows for each of the years in the three-year period ended December 31,
1997. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of WorldCom, Inc. and Subsidiaries
as of December 31, 1997 and 1996, and the results of their operations and their
cash flows for each of the years in the three-year period ended December 31,
1997, in conformity with generally accepted accounting principles.
Our audit was made for the purpose of forming an opinion on the basic financial
statements taken as a whole. The schedule listed in the Index to Financial
Statements and Financial Statement Schedule is presented for purposes of
complying with the Securities and Exchange Commission's rules and is not a
required part of the basic financial statements. This schedule has been
subjected to the auditing procedures applied in our audit of the basic financial
statements and, in our opinion, fairly states in all material respects the
financial data required to be set forth therein in relation to the basic
financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Jackson, Mississippi,
February 19, 1998 (except with
respect to the matter discussed
in Note 12, as to which the date
is March 11, 1998).
F-2
<PAGE> 51
WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In Thousands of Dollars, Except Per Share Data)
<TABLE>
<CAPTION>
December 31,
------------------------------
1997 1996
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 66,904 $ 222,729
Marketable securities 746 760,260
Accounts receivable, net of allowance for bad debts of $200,211 and $135,696 at
December 31, 1997 and 1996, respectively 1,199,169 999,962
Income taxes receivable 5,422 10,820
Deferred tax asset -- 276
Other current assets 410,391 223,842
------------ ------------
Total current assets 1,682,632 2,217,889
------------ ------------
Property and equipment:
Transmission equipment 3,573,973 2,371,376
Communications equipment 2,404,904 1,296,723
Furniture, fixtures and other 807,798 614,476
------------ ------------
6,786,675 4,282,575
Less - accumulated depreciation (793,689) (385,451)
------------ ------------
5,992,986 3,897,124
------------ ------------
Goodwill and other intangible assets 13,689,927 13,126,855
Deferred tax asset 404,864 392,634
Other assets 619,144 328,695
------------ ------------
$ 22,389,553 $ 19,963,197
============ ============
LIABILITIES AND SHAREHOLDERS' INVESTMENT
Current liabilities:
Short-term debt and current maturities of long-term debt $ 10,605 $ 22,424
Accounts payable 463,340 588,738
Accrued line costs 861,830 649,324
Accrued interest 116,978 29,519
Deferred tax liability 59,442 --
Other current liabilities 535,661 651,484
------------ ------------
Total current liabilities 2,047,856 1,941,489
------------ ------------
Long-term liabilities, less current portion:
Long-term debt 6,527,207 4,803,581
Other liabilities 304,625 258,151
------------ ------------
Total long-term liabilities 6,831,832 5,061,732
------------ ------------
Commitments and contingencies
Shareholders' investment:
Series A preferred stock, par value $.01 per share; authorized, issued and
outstanding: 94,992 shares in 1997 and 1996 (variable liquidation preference) 1 1
Series B preferred stock, par value $.01 per share; authorized, issued and
outstanding: 12,421,858 shares in 1997 and 12,699,948 shares in 1996 (liquidation
preference of $1.00 per share plus unpaid dividends) 124 127
Preferred stock, par value $.01 per share; authorized: 34,905,008 shares in
1997 and 1996; none issued -- --
Common stock, par value $.01 per share; authorized: 2,500,000,000 shares; issued
and outstanding: 909,201,028 shares in 1997 and 885,080,264 shares in 1996 9,092 8,851
Additional paid-in capital 15,043,262 14,855,881
Unrealized holding gain on marketable equity securities 33,883 28,832
Retained earnings (deficit) (1,576,497) (1,933,716)
------------ ------------
Total shareholders' investment 13,509,865 12,959,976
------------ ------------
$ 22,389,553 $ 19,963,197
============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-3
<PAGE> 52
WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
For the Year Ended December 31,
---------------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Revenues $ 7,351,354 $ 4,485,130 $ 3,696,345
----------- ----------- -----------
Operating expenses:
Line costs 3,791,599 2,457,102 2,030,635
Selling, general and administrative 1,540,428 828,673 677,895
Depreciation and amortization 920,721 303,301 312,671
Provision to reduce carrying value of certain assets -- 402,000 --
Restructuring and other charges -- 198,148 --
Charge for in-process research and development -- 2,140,000 --
----------- ----------- -----------
Total 6,252,748 6,329,224 3,021,201
----------- ----------- -----------
Operating income (loss) 1,098,606 (1,844,094) 675,144
Other income (expense):
Interest expense (319,748) (221,801) (249,216)
Miscellaneous 20,415 6,479 11,801
----------- ----------- -----------
Income (loss) before income taxes and
extraordinary item 799,273 (2,059,416) 437,729
Provision for income taxes 415,621 129,528 171,458
----------- ----------- -----------
Net income (loss) before extraordinary item 383,652 (2,188,944) 266,271
Extraordinary item (net of income taxes of
$15,621 in 1996) -- (24,434) --
----------- ----------- -----------
Net income (loss) 383,652 (2,213,378) 266,271
Preferred dividend requirement 26,433 860 18,191
Special dividend payment to Series 1 preferred
shareholder -- -- 15,000
----------- ----------- -----------
Net income (loss) applicable to common shareholders $ 357,219 $(2,214,238) $ 233,080
=========== =========== ===========
Earnings (loss) per common share
Net income (loss) before extraordinary item:
Basic $ 0.40 $ (5.50) $ 0.67
Diluted 0.40 (5.50) 0.64
Extraordinary item -- (0.06) --
Net income (loss):
Basic 0.40 (5.56) 0.67
Diluted 0.40 (5.56) 0.64
</TABLE>
The accompanying notes are an integral part of these statements.
F-4
<PAGE> 53
WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' INVESTMENT
For the Three Years Ended December 31, 1997
(In Thousands)
<TABLE>
<CAPTION>
Series A Series B Series 1 Preferred Series 2 Preferred
Preferred Stock Preferred Stock Stock Stock
--------------- ----------------- ------------------ ---------------------
Shares Amount Shares Amount Shares Amount Shares Amount
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balances, December 31, 1994 -- $ -- -- $ -- 10,897 $ 109 2,000 $ 20
Exercise of stock options -- -- -- -- -- -- -- --
Conversion of Series 1 Preferred Stock -- -- -- -- (10,897) (109) -- --
Conversion of Series 2 Preferred Stock -- -- -- -- -- -- (756) (8)
Tax adjustment resulting from exercise
of stock options -- -- -- -- -- -- -- --
Cash for fractional shares -- -- -- -- -- -- -- --
Shares issued for acquisitions -- -- -- -- -- -- -- --
Net income -- -- -- -- -- -- -- --
Cash dividends on preferred
stock -- -- -- -- -- -- -- --
--- ------- ------- ------- ------- ------- -------- -------
Balances, December 31, 1995 -- -- -- -- -- -- 1,244 12
Exercise of stock options -- -- -- -- -- -- -- --
Conversion of Series 2 Preferred Stock -- -- -- -- -- -- (1,244) (12)
Conversion of IDB convertible notes -- -- -- -- -- -- -- --
Tax adjustment resulting from exercise
of stock options -- -- -- -- -- -- -- --
Net change in unrealized holding gain on
marketable equity securities -- -- -- -- -- -- -- --
Shares issued for acquisitions 95 1 12,700 127 -- -- -- --
Net loss -- -- -- -- -- -- -- --
Cash dividends on preferred
stock -- -- -- -- -- -- -- --
--- ------- ------- ------- ------- ------- -------- -------
Balances, December 31, 1996 95 1 12,700 127 -- -- -- --
Exercise of stock options -- -- -- -- -- -- -- --
Conversion of Series B Preferred Stock -- -- (278) (3) -- -- -- --
Tax adjustment resulting from exercise
of stock options -- -- -- -- -- -- -- --
Net change in unrealized holding gain on
marketable equity securities -- -- -- -- -- -- -- --
Foreign Currency Adjustment -- -- -- -- -- -- -- --
Shares issued for acquisitions -- -- -- -- -- -- -- --
Net income -- -- -- -- -- -- -- --
Cash dividends on preferred
stock -- -- -- -- -- -- -- --
--- ------- ------- ------- ------- ------- -------- -------
Balances, December 31, 1997 95 $ 1 12,422 $ 124 -- $ -- -- $ --
=== ======= ====== ======= ======= ======= ======== =======
<CAPTION>
Common Stock Additional Retained
---------------------------- Paid-in Unrealized Earnings
Shares Amount Capital Holding Gain (Deficit)
------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balances, December 31, 1994 319,285 $ 3,192 $ 1,778,191 $ -- $ 47,442
Exercise of stock options 18,966 190 90,342 -- --
Conversion of Series 1 Preferred Stock 43,754 438 (329) -- --
Conversion of Series 2 Preferred Stock 3,200 32 (24) -- --
Tax adjustment resulting from exercise
of stock options -- -- 22,280 -- --
Cash for fractional shares -- -- (15) -- --
Shares issued for acquisitions 1,280 13 12,837 -- --
Net income -- -- -- -- 266,271
Cash dividends on preferred
stock -- -- -- -- (33,191)
----------- ----------- ------------ ------------ -----------
Balances, December 31, 1995 386,485 3,865 1,903,282 -- 280,522
Exercise of stock options 6,416 64 39,695 -- --
Conversion of Series 2 Preferred Stock 5,266 53 (40) -- --
Conversion of IDB convertible notes 10,266 103 190,971 -- --
Tax adjustment resulting from exercise
of stock options -- -- 32,726 -- --
Net change in unrealized holding gain on
marketable equity securities -- -- -- 28,832 --
Shares issued for acquisitions 476,647 4,766 12,689,247 -- --
Net loss -- -- -- -- (2,213,378)
Cash dividends on preferred
stock -- -- -- -- (860)
----------- ----------- ------------ ------------ -----------
Balances, December 31, 1996 885,080 8,851 14,855,881 28,832 (1,933,716)
Exercise of stock options 21,197 212 126,329 -- --
Conversion of Series B Preferred Stock 27 -- 3 -- --
Tax adjustment resulting from exercise
of stock options -- -- 24,105 -- --
Net change in unrealized holding gain on
marketable equity securities -- -- -- 5,051 --
Foreign Currency Adjustment -- -- (24,303) -- --
Shares issued for acquisitions 2,897 29 61,427 -- --
Net income -- -- -- -- 383,652
Cash dividends on preferred
stock -- -- -- -- (26,433)
----------- ----------- ------------ ------------ -----------
Balances, December 31, 1997 909,201 $ 9,092 $ 15,043,262 $ 33,883 $(1,576,497)
=========== =========== ============ ============ ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-5
<PAGE> 54
WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
<TABLE>
<CAPTION>
For the Year Ended December 31,
---------------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 383,652 $(2,213,378) $ 266,271
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Extraordinary item -- 24,434 --
Provision to reduce carrying value of certain assets -- 402,000 --
Restructuring and other charges -- 198,148 --
Charge for in-process research and development -- 2,140,000 --
Depreciation and amortization 920,721 303,301 312,671
Provision for losses on accounts receivable 107,327 57,678 40,250
Provision for deferred income taxes 368,043 58,449 171,425
Change in assets and liabilities, net of effect of business
combinations:
Accounts receivable (422,867) (206,507) (83,808)
Income taxes, net 29,503 40,831 (6,351)
Other current assets (208,892) (76,568) 1,003
Accrued line costs 97,463 (970) 63,830
Shareholder litigation reserve -- -- (75,000)
Accounts payable and other current liabilities (10,138) 79,567 (63,165)
Other 53,424 (8,867) (10,469)
----------- ----------- -----------
Net cash provided by operating activities 1,318,236 798,118 616,657
----------- ----------- -----------
Cash flows from investing activities:
Capital expenditures (2,644,915) (657,061) (359,281)
Sale of short-term investments, net 760,304 -- 1,000
Acquisitions and related costs (1,090,665) 116,053 (2,766,355)
Increase in intangible assets (117,471) (60,056) (46,062)
Proceeds from disposition of long-term assets 93,165 21,962 34,970
Increase in other assets (236,290) (131,450) (8,171)
Decrease in other liabilities (41,576) (42,284) (83,553)
----------- ----------- -----------
Net cash used in investing activities (3,277,448) (752,836) (3,227,452)
----------- ----------- -----------
Cash flows from financing activities:
Borrowings 1,848,750 113,000 2,712,159
Principal payments on debt (145,471) (16,696) (138,276)
Common stock issuance 123,133 39,759 90,532
Dividends paid on preferred stock (26,433) (860) (33,191)
Other 3,408 -- 1,828
----------- ----------- -----------
Net cash provided by financing activities 1,803,387 135,203 2,633,052
----------- ----------- -----------
Net increase (decrease) in cash and cash equivalents (155,825) 180,485 22,257
Cash and cash equivalents at beginning of period 222,729 42,244 19,987
----------- ----------- -----------
Cash and cash equivalents at end of period $ 66,904 $ 222,729 $ 42,244
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-6
<PAGE> 55
WORLDCOM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
(1) THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES -
DESCRIPTION OF BUSINESS AND ORGANIZATION:
WorldCom, Inc., a Georgia corporation ("WorldCom" or the "Company"), is one of
the largest telecommunications companies in the United States, serving local,
long distance and Internet customers domestically and internationally. The
Company provides telecommunications services to business, government,
telecommunications companies and consumer customers, through its networks of
fiber optic cables, digital microwave, and fixed and transportable satellite
earth stations. WorldCom provides products and services including: switched and
dedicated long distance and local products, dedicated and dial-up Internet
access, resale cellular services, 800 services, calling cards, domestic and
international private lines, broadband data services, debit cards, conference
calling, advanced billing systems, enhanced fax and data connections, high speed
data communications, facilities management, local access to long distance
companies, local access to ATM-based backbone service, web server hosting and
integration services and interconnection via network access points ("NAPs") to
Internet service providers ("ISPs").
THE MERGERS:
On December 31, 1996, WorldCom, through a wholly owned subsidiary, merged with
MFS Communications Company, Inc. ("MFS") in a transaction accounted for as a
purchase. The excess purchase price over net tangible assets acquired has been
allocated to in-process research and development projects (See Note 3),
goodwill, developed technology and assembled workforce. Through this purchase,
the Company acquired local network access facilities via digital fiber optic
cable networks installed in and around major United States cities, and in
several major European cities. The Company also acquired a network platform,
which consists of Company-owned transmission and switching facilities, and
network capacity leased from other carriers primarily in the United States and
Western Europe.
As a result of the merger (the "MFS Merger"), each share of MFS common stock was
converted into the right to receive 2.1 shares of WorldCom common stock (the
"Common Stock") or approximately 471.0 million WorldCom common shares in the
aggregate. Each share of MFS Series A 8% Cumulative Convertible Preferred Stock
("MFS Series A Preferred Stock") was converted into the right to receive one
share of Series A 8% Cumulative Convertible Preferred Stock of WorldCom
("WorldCom Series A Preferred Stock") or 94,992 shares of WorldCom Series A
Preferred Stock in the aggregate. Each share of MFS Series B Convertible
Preferred Stock was converted into the right to receive one share of Series B
Convertible Preferred Stock of WorldCom ("WorldCom Series B Preferred Stock") or
approximately 12.7 million shares of WorldCom Series B Preferred Stock in the
aggregate. In addition, each depositary share representing 1/100th of a share of
MFS Series A Preferred Stock was exchanged for a depositary share representing
1/100th of a share of WorldCom Series A Preferred Stock.
On August 12, 1996, MFS acquired UUNET Technologies, Inc. ("UUNET") through a
merger of a subsidiary of MFS with and into UUNET (the "UUNET Acquisition").
UUNET is a leading worldwide provider of a comprehensive range of Internet
access options, applications, and consulting services to businesses,
professionals and on-line services providers.
On December 30, 1994, WorldCom, through a wholly owned subsidiary, merged with
IDB Communications Group, Inc. ("IDB"), and, in connection therewith, issued
approximately 71.8 million shares of Common Stock, for all of the outstanding
shares of IDB common stock (the "IDB Merger"). In addition, WorldCom assumed, on
a subordinated basis, jointly and severally with IDB, the obligations of IDB to
pay the principal of and interest on $195.5 million 5% convertible subordinated
notes due 2003, issued by IDB. In 1996, WorldCom exercised its option to redeem
all of the outstanding IDB notes. A majority of the holders of the IDB notes
elected to convert their notes into Common Stock prior to the redemption date,
resulting in the issuance of approximately 10.3 million shares of Common Stock.
The IDB Merger was accounted for as a pooling-of-interests.
On September 15, 1993, a three-way merger occurred whereby (i) Metromedia
Communications Corporation, a Delaware corporation ("MCC"), merged with and into
Resurgens Communications Group, Inc., a Georgia corporation ("Resurgens"), and
(ii) LDDS Communications, Inc., a Tennessee corporation ("LDDS-TN"), merged with
and into Resurgens (the "Prior Mergers"). The Prior Mergers were accounted for
as a purchase.
At the time of the Prior Mergers, the name of Resurgens, the legal survivor, was
changed to LDDS Communications, Inc., and the separate corporate existences of
LDDS-TN and MCC terminated. For accounting purposes, however, LDDS-TN was the
survivor because the former shareholders of LDDS-TN acquired majority ownership
of the Company. Accordingly, unless otherwise indicated, all historical
information presented herein reflects the operations of LDDS-TN. At the annual
meeting of
F-7
<PAGE> 56
shareholders held May 25, 1995, shareholders of LDDS Communications, Inc. voted
to change the name of the Company to WorldCom, Inc., effective immediately.
Information in this document has also been revised to reflect the stock splits
of the Company's Common Stock.
PRINCIPLES OF CONSOLIDATION:
The consolidated financial statements include the accounts of the Company and
its subsidiaries. All significant intercompany transactions and balances have
been eliminated in consolidation. Investments in joint ventures and other equity
investments in which the Company owns a 20% to 50% ownership interest, are
accounted for by the equity method. Investments of less than 20% ownership are
recorded at cost.
The Company serves as a holding company for its subsidiaries, the operations of
which are organized along the Company's business lines. References herein to the
Company include the Company and its subsidiaries, unless the context otherwise
requires.
FAIR VALUE OF FINANCIAL INSTRUMENTS:
The carrying amounts for cash, marketable securities, accounts receivable, notes
receivable, accounts payable and accrued liabilities approximate their fair
value. The fair value of long-term debt is determined based on quoted market
rates or the cash flows from such financial instruments discounted at the
Company's estimated current interest rate to enter into similar financial
instruments. At December 31, 1997, the fair value of the Company's fixed rate
long-term debt is as follows (in thousands):
<TABLE>
<S> <C>
7.55% Senior Notes Due 2004 $ 627,372
7.75% Senior Notes Due 2007 1,173,304
7.75% Senior Notes Due 2027 329,637
Senior Discount Notes Due 2006 716,727
Senior Discount Notes Due 2004 720,922
</TABLE>
The recorded amounts for all other long-term debt of the Company approximate
fair values.
CASH AND CASH EQUIVALENTS AND MARKETABLE SECURITIES:
The Company considers cash in banks and short-term investments with original
maturities of three months or less as cash and cash equivalents. The Company has
classified all marketable securities other than cash equivalents as
available-for-sale. At December 31, 1997, the amortized cost of the Company's
marketable securities equals the estimated fair value and contractually mature
within one year from December 31, 1997.
Sales activity in available-for-sale securities for the year ended December 31,
1997 included gross realized gains of $1.4 million and gross realized losses of
$0.5 million on the total proceeds received of $760.3 million. There was no
sales activity in available-for-sale securities for the twelve months ended
December 31, 1996 or 1995.
PROPERTY AND EQUIPMENT:
Property and equipment are stated at cost. Depreciation is provided for
financial reporting purposes using the straight-line method over the following
estimated useful lives:
<TABLE>
<S> <C>
Transmission equipment 5 to 45 years
Communications equipment 5 to 20 years
Furniture, fixtures and other 4 to 30 years
</TABLE>
Maintenance and repairs are expensed as incurred. Replacements and betterments
are capitalized. The cost and related reserves of assets sold or retired are
removed from the accounts, and any resulting gain or loss is reflected in
results of operations.
The Company constructs certain of its own transmission systems and related
facilities. Internal costs directly related to the construction of such
facilities, including interest and salaries of certain employees, are
capitalized. Such internal costs were $194.5 million ($78.1 million in
interest), $28.7 million ($7.6 million in interest), and $14.7 million ($4.9
million in interest), in 1997, 1996 and 1995, respectively.
F-8
<PAGE> 57
GOODWILL AND OTHER INTANGIBLE ASSETS:
The major classes of intangible assets are summarized below (in thousands):
<TABLE>
<CAPTION>
December 31,
--------------------------------
Amortization Period 1997 1996
------------------- --------------- --------------
<S> <C> <C> <C>
Goodwill 5 to 40 years $ 13,175,289 $ 12,777,474
Developed technology 5 years 400,000 400,000
Other intangibles 5 to 10 years 906,559 307,083
------------ ------------
14,481,848 13,484,557
Less accumulated amortization 791,921 357,702
------------ ------------
$ 13,689,927 $ 13,126,855
============ ============
</TABLE>
Intangible assets are amortized using the straight-line method for the periods
noted above.
Goodwill is recognized for the excess of the purchase price of the various
business combinations over the value of the identifiable net tangible and
intangible assets acquired. See Note 2. Realization of acquisition-related
intangibles, including goodwill, is periodically assessed by the management of
the Company based on the current and expected future profitability and cash
flows of acquired companies and their contribution to the overall operations of
WorldCom.
At December 31, 1997, other intangibles include an alternative transaction fee
of $450 million and expenses of $15 million paid by WorldCom to British
Telecommunications plc ("BT") in accordance with the prior merger agreement
between BT and MCI Communications Corporation ("MCI"). See Note 12.
Also included in other intangibles are costs incurred to develop software for
internal use. Such costs were $91.4 million, $42.5 million and $38.3 million for
the years ended December 31, 1997, 1996 and 1995, respectively.
UNREALIZED HOLDING GAIN ON MARKETABLE EQUITY SECURITIES:
The Company's equity investment in certain publicly traded companies is
classified as available-for-sale securities. Accordingly, these investments are
included in other assets at their fair value of approximately $113.2 million and
$105.1 million at December 31, 1997 and 1996, respectively. The unrealized
holding gain on these marketable equity securities, net of taxes, is included as
a component of shareholders' investment in the accompanying consolidated
financial statements. As of December 31, 1997, the gross unrealized holding gain
on these securities was $54.3 million.
OTHER LONG-TERM LIABILITIES:
At December 31, 1997 and 1996, other long-term liabilities includes $266.1
million and $207.1 million, respectively, related to estimated costs of
unfavorable commitments of acquired entities, and other non-recurring costs
arising from various acquisitions and mergers. See Note 2.
RECOGNITION OF REVENUES:
The Company records revenues for telecommunications services at the time of
customer usage. The Company also performs systems integration services
consisting of design and installation of transmission equipment and systems for
its customers. Revenues and related costs for these services are recorded under
the percentage of completion method.
ACCOUNTING FOR INTERNATIONAL LONG DISTANCE TRAFFIC:
The Company enters into operating agreements with telecommunications carriers in
foreign countries under which international long distance traffic is both
delivered and received. The terms of most switched voice operating agreements,
as well as established Federal Communications Commission ("FCC") policy, require
that inbound switched voice traffic from the foreign carrier to the United
States be routed to United States international carriers, like WorldCom, in
proportion to the percentage of United States outbound traffic routed by that
United States international carrier to the foreign carrier. Mutually exchanged
traffic between the Company and foreign carriers is settled in cash through a
formal settlement policy that generally extends over a six-month period at an
agreed upon settlement rate. Although the Company can estimate the amount of
inbound traffic it will receive, it generally
F-9
<PAGE> 58
must wait up to six months before it actually receives the inbound traffic.
WorldCom records the inbound traffic as revenue when it is received.
EXTRAORDINARY ITEMS:
In the second quarter of 1996, the Company recorded charges for extraordinary
items totaling $24.4 million, net of income tax benefit of $15.6 million. The
items consisted of $4.2 million in connection with the Company's debt
refinancing, and $20.2 million related to a write-off of deferred international
costs. Previously, a portion of the outbound call fee due the foreign carrier
was deferred and accounted for as a cost attributable to the revenue associated
with the inbound call. Currently, the outbound call fee due the foreign carrier
is expensed as incurred. This change in accounting for international line costs
was immaterial to the results of operations.
LINE COSTS:
Line costs primarily include all payments to local exchange carriers ("LECs"),
interexchange carriers and post telephone and telegraph administrations
primarily for access and transport charges.
INCOME TAXES:
The Company recognizes current and deferred income tax assets and liabilities
based upon all events that have been recognized in the consolidated financial
statements as measured by the provisions of the enacted tax laws. See Note 10.
EARNINGS PER SHARE:
Earnings per share are calculated in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 128 "Earnings Per Share." The following is a
reconciliation of the numerators and the denominators of the basic and diluted
per share computations (in thousands, except per share data):
<TABLE>
<CAPTION>
For the Year Ended December 31,
-----------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Basic
Net income (loss) before extraordinary items $ 383,652 $(2,188,944) $ 266,271
Preferred stock dividends (26,433) (860) (33,191)
----------- ----------- -----------
Net income (loss) applicable to common shareholders
before extraordinary items $ 357,219 $(2,189,804) $ 233,080
=========== =========== ===========
Weighted average shares outstanding 898,889 397,890 346,666
=========== =========== ===========
Basic earnings (loss) per share
before extraordinary items $ 0.40 $ (5.50) $ 0.67
=========== =========== ===========
Diluted
Net income (loss) applicable to common shareholders
before extraordinary items $ 357,219 $(2,189,804) $ 233,080
Add back:
Preferred stock dividends 26,433 -- 18,191
Interest on 5% convertible notes, net of taxes -- -- 5,963
----------- ----------- -----------
Net income (loss) applicable to common shareholders $ 383,652 $(2,189,804) $ 257,234
=========== =========== ===========
Weighted average shares outstanding 898,889 397,890 346,666
Common stock equivalents 27,000 -- 9,967
Common stock issuable upon conversion of:
Preferred stock dividends 33,927 -- 35,674
5% convertible notes -- -- 10,270
----------- ----------- -----------
Diluted shares outstanding 959,816 397,890 402,577
=========== =========== ===========
Diluted earnings (loss) per share before extraordinary items $ 0.40 $ (5.50) $ 0.64
=========== =========== ===========
</TABLE>
F-10
<PAGE> 59
STOCK SPLITS:
On May 23, 1996, the Board of Directors authorized a 2-for-1 stock split in the
form of a 100% stock dividend which was distributed on July 3, 1996 to
shareholders of record on June 6, 1996. All per share data and numbers of common
shares have been retroactively restated to reflect these stock splits.
CONCENTRATION OF CREDIT RISK:
A portion of the Company's revenues is derived from services provided to others
in the telecommunications industry, mainly resellers of long distance
telecommunications service and Internet online services. As a result, the
Company has some concentration of credit risk among its customer base. The
Company performs ongoing credit evaluations of its larger customers' financial
condition and, at times, requires collateral from its customers to support its
receivables, usually in the form of assignment of its customers' receivables to
the Company in the event of nonpayment.
RECENTLY ISSUED ACCOUNTING STANDARDS:
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No.
130, "Reporting Comprehensive Income." This statement establishes standards for
reporting and display of comprehensive income and its components (revenues,
expenses, gains and losses) in a full set of general purpose financial
statements. This statement requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence as
other financial statements. This statement is effective for fiscal years
beginning after December 15, 1997. WorldCom intends to comply with the
provisions of this standard in 1998.
In June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of an
Enterprise and Related Information." This statement establishes standards for
the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports issued to shareholders. It also establishes standards for related
disclosures about products and services, geographic areas and major customers.
This statement is effective for financial statements for periods beginning after
December 15, 1997. WorldCom intends to comply with the provisions of this
standard in 1998.
USE OF ESTIMATES:
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
revenues and expenses during the period reported. Actual results could differ
from those estimates. Estimates are used when accounting for long-term
contracts, allowance for doubtful accounts, accrued line costs, depreciation and
amortization, taxes, restructuring reserves and contingencies.
RECLASSIFICATIONS:
Certain consolidated financial statement amounts have been reclassified for
consistent presentation.
(2) BUSINESS COMBINATIONS -
On December 31, 1996, WorldCom completed the MFS Merger. The MFS Merger was
accounted for as a purchase. On January 5, 1995, WorldCom completed the
acquisition of Williams Telecommunications Group, Inc. ("WilTel"), a subsidiary
of The Williams Companies, Inc., for approximately $2.5 billion in cash (the
"WilTel Acquisition"). Through this purchase, the Company acquired a nationwide
transmission network of approximately 11,000 miles of fiber optic cable and
digital microwave facilities.
The Company has acquired other telecommunications companies offering similar or
complementary services to those offered by the Company. Such acquisitions have
been accomplished through the purchase of the outstanding stock or assets of the
acquired entity for cash, notes, shares of the Company's common stock, or a
combination thereof. The cash portion of acquisition costs has generally been
financed through the Company's bank credit facilities. See Note 4.
Most of the acquisitions have been accounted for as purchases and resulted in an
excess of the purchase costs over the net tangible assets acquired. These costs,
composed primarily of goodwill, are amortized over 5 to 40 years using the
straight-line method. The results of those purchased businesses have been
included since the dates of acquisition. Business combinations which have
F-11
<PAGE> 60
been accounted for as poolings-of-interests have been included in all periods
presented. The table below sets forth information concerning recent acquisitions
which were accounted for as purchases.
<TABLE>
<CAPTION>
Purchase Price
--------------------------------
Shares Issued
-----------------
Acquired Entity Acquisition Date Cash Number Value Goodwill
- --------------- ---------------- ---- ------ ----- --------
(In thousands)
<S> <C> <C> <C> <C> <C>
WilTel January 1995 $2,500,000 -- -- $2,216,909
MFS December 1996 -- * * 8,912,345
</TABLE>
- ------------
* See the third paragraph of Note 1 for a description of the common and
preferred shares.
In addition to those acquisitions listed above, the Company or its predecessors
completed smaller acquisitions during the three years ended December 31, 1997.
See Note 12, "Subsequent Events" for information regarding mergers consummated
subsequent to December 31, 1997 as well as information related to the pending
merger with MCI.
The following unaudited pro forma combined results of operations for the Company
assume that the MFS Merger and the UUNET Acquisition were completed on January
1, 1995 (in millions, except per share data):
<TABLE>
<CAPTION>
For the Year Ended December 31,
-------------------------------
1996 1995
---- ----
<S> <C> <C>
Revenues $5,635 $4,324
Loss before extraordinary item (2,747) (273)
Loss applicable to common shareholders (2,771) (273)
Loss per common share:
Loss before extraordinary item ($3.16) ($0.37)
Net loss ($3.19) ($0.37)
</TABLE>
These pro forma amounts represent the historical operating results of these
acquired entities combined with those of the Company with appropriate
adjustments which give effect to a research and development charge of $2.14
billion, amortization and the common shares issued. These pro forma amounts are
not necessarily indicative of operating results which would have occurred if MFS
and UUNET had been operated by current management during the periods presented
because these amounts do not reflect full network optimization and the
synergistic effect on operating, selling, general and administrative expenses.
(3) RESTRUCTURING AND OTHER CHARGES -
In the fourth quarter of 1996, the Company recorded charges for employee
severance, employee compensation charges, alignment charges and costs to exit
unfavorable telecommunications contracts.
The following table reflects the components of the significant items shown as
restructuring and other charges for the year ended December 31, 1996 (in
thousands):
F-12
<PAGE> 61
<TABLE>
<S> <C>
Severance and other employee related costs $ 57,916
Costs to exit unfavorable telecommunications contracts 134,866
Other 5,366
----------
$ 198,148
==========
</TABLE>
As of December 31, 1997 and 1996, the accompanying consolidated financial
statements reflect $1.7 million and $167.2 million, respectively, in other
current liabilities and $2.0 million and $2.5 million, respectively, in other
long-term liabilities, in connection with the restructuring and other charges.
PROVISION TO REDUCE THE CARRYING VALUE OF CERTAIN ASSETS:
In the second quarter of 1996, the Company incurred non-cash charges related to
a write-down in the carrying value of certain assets, including goodwill and
equipment. Because of events resulting from the passage of the
Telecommunications Act of 1996 (the "Telecom Act"), and changes in circumstances
impacting certain non-core operations, management estimates of the Company's
fair value of operating assets within its core and non-core businesses resulted
in a non-cash charge of $344 million after-tax. On a pre-tax basis, the
write-down was $402 million and included $139 million for network facilities and
$263 million for non-core businesses, primarily operator services goodwill. Fair
value of the non-core business was determined by estimating the present value of
future cash flows to be generated from those operations while the majority of
the network facilities were recorded at net salvage value due to anticipated
early disposal.
In connection with the signing of agreements to provide long distance
telecommunications services to certain local exchange carriers, and after the
successful assimilation of recent facilities-based acquisitions, WorldCom
evaluated the impact that the increased traffic volumes would have on the
Company's networks. This review resulted in the Company's current plans to
expand and upgrade its existing network switching, transmission and other
communications equipment. This capital project directly affected the estimated
useful lives of certain network facilities which resulted in replacement of
these facilities.
Additionally, due to the decreasing emphasis on operator services, including
non-renewal of existing long-term contracts, management adjusted the fair value
of this non-core business based upon its projections of future cash flow.
WorldCom completed the sale of its operator services division in the third
quarter of 1997 which comprised less than 3% of WorldCom's consolidated
revenues.
CHARGE FOR IN-PROCESS RESEARCH AND DEVELOPMENT:
In the fourth quarter of 1996, the Company recorded a $2.14 billion charge for
in-process research and development related to the MFS Merger. The charge was
based upon a valuation analysis of the technologies of MFS' worldwide
information system, the Internet network expansion system of UUNET, and certain
other identified research and development projects purchased in the merger. At
the date of the MFS Merger, the technological feasibility of the acquired
technology had not yet been established and the technology had no future
alternative uses. The expense includes $1.6 billion associated with UUNET and
$0.54 billion related to MFS.
(4) LONG-TERM DEBT -
Long-term debt outstanding consists of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
------------------------------
1997 1996
------------ ------------
<S> <C> <C>
Credit facilities $ 3,133,250 $ 3,284,500
7.55% Senior Notes Due 2004 600,000 -
7.75% Senior Notes Due 2007 1,100,000 -
7.75% Senior Notes Due 2027 300,000 -
Senior Notes Due 2006 666,723 -
Senior Notes Due 2004 680,115 -
Senior Discount Notes Due 2006 - 674,520
Senior Discount Notes Due 2004 - 685,838
Other debt (maturing through 2006) 57,724 181,147
------------ ------------
6,537,812 4,826,005
Less: Short-term debt and current maturities 10,605 22,424
------------ ------------
$ 6,527,207 $ 4,803,581
============ ============
</TABLE>
F-13
<PAGE> 62
On July 3, 1997, the Company replaced its $3.75 billion revolving credit
facility (the "Old Credit Facility") with $5.0 billion in new revolving credit
facilities which consist of a $3.75 billion Facility A Revolving Credit
Agreement (the "Facility A Loans") and a $1.25 billion Facility B Revolving
Credit and Term Loan Agreement (the "Facility B Loans," and together with the
Facility A Loans, the "New Credit Facilities"). The Facility A Loans have a
five-year term and may be extended for up to two successive one-year terms
thereafter to the extent of the committed amounts from those lenders consenting
thereto, with a requirement that lenders holding at least two-thirds of the
committed amounts consent. The Facility B Loans have a 364 day term, which may
be extended for up to two successive 364 day terms thereafter to the extent of
the committed amounts from those lenders consenting thereto, with a requirement
that lenders holding at least two-thirds of the committed amounts consent.
Alternatively, effective as of the end of such 364 day term, the Company may
elect to convert the Facility B Loans from revolving loans to term loans with a
maturity date corresponding with the maturity date then in effect with respect
to the Facility A Loans. The New Credit Facilities bear interest payable in
varying periods depending on the interest period, not to exceed six months, at
rates selected by the Company under the terms of the New Credit Facilities,
including a Base Rate or the Eurodollar Rate, plus applicable margin. The
applicable margin for a Eurodollar Rate borrowing varies from 0.30% to 0.75%
based upon the better of certain debt ratings or a specified financial test. At
December 31, 1997 and 1996, the weighted average interest rates under the
Company's credit facilities were 6.1% and 6.3%, respectively. The New Credit
Facilities are unsecured but include a negative pledge of the assets of the
Company and its subsidiaries (subject to certain exceptions). The New Credit
Facilities require compliance with certain financial and operating covenants
which limit, among other things, the incurrence of additional indebtedness by
the Company, investments by the Company, sales of assets and mergers and
dissolutions, which covenants are generally less restrictive than those
contained in the Old Credit Facility and which do not restrict distributions to
shareholders, provided the Company is not in default under the New Credit
Facilities. At December 31, 1997 the Company was in compliance with these
covenants. The current commitment fee for any unborrowed portion of Facility A
Loans and Facility B Loans are 0.15% and 0.10%, respectively.
Additionally, on April 1, 1997, the Company completed the public offering of
$2.0 billion principal amount of debt securities. The net proceeds of the
offering ($1.98 billion) were used to pay down commercial bank debt. The public
offering included the 7.55% Senior Notes Due 2004 (the "Notes Due 2004"), which
will mature on April 1, 2004, the 7.75% Senior Notes Due 2007 (the "Notes Due
2007"), which will mature on April 1, 2007, and the 7.75% Senior Notes Due 2027
(the "Notes Due 2027"), which will mature on April 1, 2027 (collectively, with
the Notes Due 2004 and the Notes Due 2007, the "Notes"). The Notes bear interest
payable semiannually on April 1 and October 1 of each year, with payments
commencing October 1, 1997, and limit the incurrence of liens. Each holder of
the Notes Due 2027 may require the Company to repurchase all or a portion of the
Notes Due 2027 owned by such holder on April 1, 2009, at a purchase price equal
to 100% of the principal amount thereof.
The Notes Due 2004 and the Notes Due 2007 are redeemable, as a whole or in part,
at the option of the Company, at any time or from time to time. The Notes Due
2027 will be redeemable, as a whole or in part, at the option of the Company, at
any time and from time to time beginning April 2, 2009. The redemption prices
for the three bond series equal the greater of (i) 100% of the principal amount
of the Notes to be redeemed or (ii) the sum of the present values of the
Remaining Scheduled Payments (as defined therein) discounted at the Treasury
Rate (as defined therein) plus 15 basis points for the Notes Due 2004 or plus 20
basis points for the Notes Due 2007 and the Notes Due 2027, plus in the case of
each of clause (i) and (ii) accrued interest to the date of redemption.
In July 1997, WorldCom offered to exchange (the "Exchange Offers") (i) $871.60
principal amount of its 9-3/8% Senior Notes due January 15, 2004 for each $1,000
principal amount at stated maturity, as of the date of their original issuance,
of outstanding 9- 3/8% Senior Discount Notes due January 15, 2004 of MFS,
properly tendered, and (ii) $737.91 principal amount of its 8-7/8% Senior Notes
due January 15, 2006 for each $1,000 principal amount at stated maturity, as of
the date of their original issuance, of outstanding 8-7/8% Senior Discount Notes
due January 15, 2006 of MFS (collectively the "MFS Notes"), properly tendered.
In connection with the Exchange Offers, the Company also solicited consents to
certain amendments to the respective indentures governing the MFS Notes (the
"Consent Solicitations").
In August 1997, the Company exercised its option to accept all MFS Notes validly
tendered in its on-going Exchange Offers and Consent Solicitations. The Company
received requisite consents from holders of notes of MFS to allow the Company to
accept tenders prior to the expiration of the Exchange Offers and Consent
Solicitations and thereby effect certain amendments to the respective indentures
governing the MFS Notes. As of August 22, 1997, the Company exchanged
approximately $680.1 million and $666.7 million of its 9-3/8% Senior Notes due
January 15, 2004 and its 8-7/8% Senior Notes due January 15, 2006, respectively,
for MFS Notes validly tendered as of the close of business on August 19, 1997.
The aggregate principal repayments and reductions required in each of the years
ending December 31, 1998 through December 31, 2002 and thereafter for the
Company's long-term debt including capital leases is as follows (in thousands):
F-14
<PAGE> 63
<TABLE>
<S> <C>
1998 $ 10,605
1999 12,386
2000 5,204
2001 4,966
2002 3,139,501
Thereafter 3,365,150
----------
$6,537,812
==========
</TABLE>
(5) PREFERRED STOCK -
In connection with the MFS Merger, the Company issued 9,499,200 depositary
shares (the "Depositary Shares"), each representing 1/100th interest in a share
of WorldCom Series A Preferred Stock. There is no established public trading
market for the WorldCom Series A Preferred Stock. The Depositary Shares are
traded on The Nasdaq National Market under the trading symbol "WCOMP."
Each Depositary Share is mandatorily convertible into 4.2 shares of Common Stock
on May 31, 1999 (the "Mandatory Conversion Date"). The Depositary Shares are
also convertible at the option of the holder at any time into 3.44274 shares of
Common Stock for each Depositary Share, plus payment of unpaid dividends.
The WorldCom Series A Preferred Stock (and the related Depositary Shares) are
not redeemable by WorldCom prior to May 31, 1998 (the "Initial Redemption
Date"). On or after the Initial Redemption Date and prior to the Mandatory
Conversion Date, WorldCom may redeem the WorldCom Series A Preferred Stock (and
thereby the Depositary Shares), in whole or in part. Upon any such redemption,
the holder of record of shares of WorldCom Series A Preferred Stock will receive
shares of Common Stock equal to the call price of the WorldCom Series A
Preferred Stock in effect on the date of redemption (the "Call Price") divided
by the Current Market Price (as defined in the WorldCom Articles of
Incorporation) of the Common Stock. The Call Price of each WorldCom Series A
Preferred Share is (i) $3,417.00 ($34.170 per Depositary Share) on and after the
Initial Redemption Date through August 30, 1998, $3,400.25 ($34.003 per
Depositary Share) on and after August 31, 1998 through November 29, 1998,
$3,383.50 ($33.835 per Depositary Share) on and after November 30, 1998 through
February 27, 1999, $3,366.75 ($33.668 per Depositary Share) on and after
February 28, 1999 through April 29, 1999, and $3,350.00 ($33.500 per Depositary
Share) on and after April 30, 1999 until the Mandatory Conversion Date, plus
(ii) all accrued and unpaid dividends thereon to the date fixed for redemption.
The Depositary Shares are entitled to receive dividends, when, as and if
declared by the Board of Directors, accruing at the rate of $2.68 per share per
annum, payable quarterly in arrears on each February 28, May 31, August 31 and
November 30. Dividends are payable in cash or in shares of Common Stock, at the
election of the Company. The Company paid dividends during 1997 in cash, and
expects to continue to pay cash dividends on WorldCom Series A Preferred Stock.
The Depositary Shares are entitled to vote on the basis of 0.10 of a vote for
each Depositary Share held (equivalent to 10 votes for each share of WorldCom
Series A Preferred Stock). The WorldCom Series A Preferred Stock has a
liquidation preference equal to the greater of (i) the sum of (a) $3,350 per
share and (b) all accrued and unpaid dividends thereon to the date of
liquidation and (ii) the value of the shares of Common Stock into which such
Series A Preferred Stock are convertible on the date of liquidation.
The WorldCom Series B Preferred Stock is convertible into shares of Common Stock
at any time at a conversion rate of 0.0973912 shares of Common Stock for each
share of WorldCom Series B Preferred Stock (an effective initial conversion
price of $10.268 per share of Common Stock). Dividends on the WorldCom Series B
Preferred Stock accrue at the rate per share of $0.0775 per annum and are
payable in cash. Dividends will be paid only when, as and if declared by the
Board of Directors. The Company anticipates that dividends on the WorldCom
Series B Preferred Stock will not be declared but will continue to accrue. Upon
conversion, accrued but unpaid dividends are payable in cash or shares of Common
Stock at the Company's election.
The WorldCom Series B Preferred Stock is also redeemable at the option of the
Company at any time after September 30, 2001 at a redemption price of $1.00 per
share, plus accrued and unpaid dividends. The redemption price will be payable
in cash or shares of Common Stock at the Company's election.
The WorldCom Series B Preferred Stock is entitled to one vote per share with
respect to all matters. The WorldCom Series B Preferred Stock has a liquidation
preference of $1.00 per share plus all accrued and unpaid dividends thereon to
the date of liquidation. There is no established market for the WorldCom Series
B Preferred Stock.
F-15
<PAGE> 64
As a result of the Prior Mergers, 10,896,785 shares of the Series 1 Preferred
Stock were issued to Metromedia, the sole stockholder of MCC. In August 1995,
Metromedia converted its Series 1 Preferred Stock into 61.7 million shares of
WorldCom Common Stock. In connection with the preferred stock conversion,
WorldCom made a non-recurring payment of $15.0 million to Metromedia,
representing a discount to the minimum nominal dividends that would have been
payable on the Series 1 Preferred Stock prior to the September 15, 1996 optional
call date of approximately $26.6 million (which amount included an annual
dividend requirement of $24.5 million plus accrued dividends to such call date).
In 1996 the Company exercised its option to redeem its Series 2 Preferred Stock.
Prior to the redemption date, all of the remaining outstanding Series 2
Preferred Stock was converted into 5,266,160 shares of Common Stock.
(6) SHAREHOLDER RIGHTS PLAN -
On August 25, 1996, the Board of Directors of WorldCom declared a dividend of
one preferred share purchase right (a "Right") for each outstanding share of
Common Stock. Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series 3 Junior Participating Preferred
Stock, par value $.01 per share (the "Junior Preferred Stock") of the Company at
an initial price of $160.00 per one one-thousandth of a share of Junior
Preferred Stock (the "Purchase Price"), subject to adjustment.
The Rights generally will be exercisable only after the close of business on the
tenth business day following the date of public announcement or the date on
which the Company first has notice or determines that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, 15% or more of the outstanding shares of voting
stock of the Company without the prior express written consent of the Company,
by a person which, upon consummation, would result in such party's control of
15% or more of the Company's voting stock. The Rights will expire, if not
previously exercised, exchanged or redeemed, on September 6, 2001.
If any person or group acquires 15% or more of the Company's outstanding voting
stock without prior written consent of the Board of Directors, each Right,
except those held by such persons, would entitle each holder of a Right to
acquire such number of shares of the Company's Common Stock as shall equal the
result obtained by multiplying the then current Purchase Price by the number of
one one-thousandths of a share of Junior Preferred Stock for which a Right is
then exercisable and dividing that product by 50% of the then current per-share
market price of Common Stock.
If any person or group acquires more than 15% of the outstanding Common Stock
without prior written consent of the Board of Directors, each Right, except
those held by such persons, may be exchanged by the Board of Directors for one
share of Common Stock.
If the Company were acquired in a merger or other business combination
transaction where the Company is not the surviving corporation or where Common
Stock is exchanged or changed or 50% or more of the Company's assets or earnings
power is sold in one or several transactions without the prior written consent
of the Board of Directors, each Right would entitle the holders thereof (except
for the Acquiring Person) to receive such number of shares of the acquiring
company's common stock as shall be equal to the result obtained by multiplying
the then current Purchase Price by the number one one-thousandths of a share of
Junior Preferred Stock for which a Right is then exercisable and dividing that
product by 50% of the then current market price per share of the common stock of
the acquiring company on the date of such merger or other business combination
transaction.
At any time prior to the time an Acquiring Person becomes such, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of the Rights will be to receive the
Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights, including an amendment to
lower certain thresholds described above to not less than the greater of (i) any
percentage greater than the largest percentage of the voting power of all
securities of the Company then known to the Company to be beneficially owned by
any person or group of affiliated or associated persons (other than an excepted
person) and (ii) 10%, except that from and after such time as any person or
group of affiliated or associated persons becomes an Acquiring Person no such
amendment may adversely affect the interests of the holders of the Rights.
F-16
<PAGE> 65
(7) LEASES AND OTHER COMMITMENTS -
The Company leases office facilities and certain equipment under noncancellable
operating leases having initial or remaining terms of more than one year. In
addition, the Company leases a right-of-way from a railroad company under a
fifteen-year lease with three fifteen-year renewal options. The Company is also
obligated under rights-of-way and franchise agreements with various entities for
the use of their rights-of-way for the installation of the Company's
telecommunications systems. Rental expense under these operating leases was
$130.8 million, $56.7 million, and $45.1 million in 1997, 1996 and 1995,
respectively.
In prior years, the Company sold to independent entities and leased back its
Pacific Northwest microwave system and its Kansas City to Los Angeles fiber
optic system over primary lease terms ranging from 15 to 20 years. The leases
have renewal options permitting the Company to extend the leases for terms
expiring during the years 2012 to 2019 and purchase options based upon the fair
market value. The annual lease commitments pursuant to the sale-leasebacks are
included below under the heading Telecommunications Facilities.
At the end of 1997, minimum lease payments under noncancellable operating leases
and commitments were as follows (in thousands):
<TABLE>
<CAPTION>
MINIMUM LEASE PAYMENTS
-------------------------------------------------
OFFICE
FACILITIES
AND TELECOMMUNICATIONS
YEAR EQUIPMENT FACILITIES TOTAL
---- --------- ---------- -----
<S> <C> <C> <C>
1998 $103,443 $112,049 $215,492
1999 99,973 105,263 205,236
2000 85,064 95,761 180,825
2001 66,899 81,087 147,986
2002 56,193 73,736 129,929
</TABLE>
Certain of the Company's facility leases include renewal options, and most
leases include provisions for rent escalation to reflect increased operating
costs and/or require the Company to pay certain maintenance and utility costs.
WorldCom also has agreements with a company that installs, operates and
maintains certain WorldCom data processing, telecommunications and billing
systems. The agreements expire in 2003 and are renewable on an annual basis
thereafter. The agreements require minimum annual payments of approximately
$25.2 million.
Pursuant to an agreement with a joint venture, the Company is obligated to
invest up to $75 million by the end of 1998 in the form of capital contributions
and to pay $60 million over the next three years to purchase an indefeasible
right of use for certain undersea capacity that is being constructed by the
joint venture between the United States and Europe.
In 1997, the Company's existing receivables purchase agreement generated
additional proceeds of $41.8 million, bringing the total amount outstanding to
$416.8 million. The Company used these proceeds to reduce outstanding debt under
the Company's New Credit Facilities. As of December 31, 1997, the purchaser
owned an undivided interest in a $978.7 million pool of receivables which
includes the $416.8 million sold.
(8) CONTINGENCIES -
FEDERAL REGULATION. On February 8, 1996, President Clinton signed the Telecom
Act, which permits the Bell System Operating Companies (the "BOCs") to provide
domestic and international long distance services to customers located outside
of the BOCs' home regions; permits a petitioning BOC to provide domestic and
international long distance services to customers within its operating area on a
state by state basis upon a finding by the FCC that a petitioning BOC has
satisfied certain criteria for opening up its local exchange network to
competition and that its provision of long distance services would further the
public interest; and removes existing barriers to entry into local service
markets. Additionally, there were significant changes in: the manner in which
carrier-to-carrier arrangements are regulated at the federal and state level;
procedures to revise universal service standards; and penalties for unauthorized
switching of customers. The FCC has instituted and, in most instances completed,
proceedings addressing the implementation of this legislation.
F-17
<PAGE> 66
In implementing the Telecom Act, the FCC established nationwide rules designed
to encourage new entrants to participate in the local services markets through
interconnection with the Incumbant Local Exchange Carriers ("ILECs"), resale
of ILEC's retail services and use of individual and combinations of unbundled
network elements. These rules set the groundwork for the statutory criteria
governing BOC entry into the long distance market. Appeals of the FCC order
adopting those rules were consolidated before the United States Court of Appeals
for the Eighth Circuit (the "Eighth Circuit"). The Eighth Circuit found
constitutional challenges to certain practices implementing cost provisions of
the Telecom Act that were ordered by certain Public Utility Commissions
("PUCs") to be premature, but vacated significant portions of the FCC's
nationwide pricing rules and vacated an FCC rule requiring that unbundled
network elements be provided on a combined basis. In response to requests by the
Solicitor General, on behalf of the FCC, and certain other parties, including
WorldCom, the United States Supreme Court has agreed to review the decision of
the Eighth Circuit. Certain BOCs have also raised constitutional challenges to
provisions of the Telecom Act restricting BOC provision of long distance
services, manufacturing of telecommunications equipment, electronic publishing
and alarm monitoring services. On December 31, 1997, the United States District
Court for the Northern District of Texas (the "Texas District Court") ruled that
these restrictions violate the Bill of Attainder Clause of the U.S.
Constitution. Currently, this decision only applies to SBC Corporation ("SBC"),
US WEST Communications Group ("US WEST"), and Bell Atlantic Corporation ("Bell
Atlantic"). At the request of various parties, on February 11, 1998 the Texas
District Court issued a stay of its decision pending appeal. AT&T, MCI, the
Department of Justice, the FCC and other parties have appealed the decision to
the United States Court of Appeals for the Fifth Circuit. BellSouth Corporation
("BellSouth") raised the Bill of Attainder issue in its appeal before the United
States Court of Appeals for the Fifth Circuit of the electronic publishing
restrictions imposed under the Telecom Act. A decision on that appeal is
pending. WorldCom cannot predict either the ultimate outcome of these or future
challenges to the Telecom Act, any related appeals of regulatory or court
decisions, or the eventual effect on WorldCom's business or the industry in
general.
The FCC has denied applications filed by Ameritech Corporation ("Ameritech"),
SBC and BellSouth seeking authority to provide interLATA long distance service
in Michigan, Oklahoma, Louisiana and South Carolina, respectively. SBC appealed
the FCC's denial of its application covering Oklahoma to the United States Court
of Appeals for the District of Columbia Circuit. The court has affirmed the
FCC's denial of that application. In its denial of an Ameritech application and
a BellSouth application, the FCC provided detailed guidance to applicants
regarding the obligations of the applicants, the format of future applications,
the content of future applications, and the review standards that it will apply
in evaluating any future applications. The National Association of Regulatory
Utility Commissioners and several state regulatory commissions have appealed
jurisdictional aspects of that Ameritech application denial to the Eighth
Circuit. WorldCom cannot predict either the outcome of these appeals, or the
BOCs' willingness to abide by these FCC guidelines, or the timing or outcome of
future applications submitted to the FCC. Additionally, several Regional Bell
Operating Companies ("RBOCs") have filed petitions requesting that the FCC
forbear from imposing the line of business restrictions upon their data service
offerings and data network deployment. Other BOCs have announced their intention
to file applications at the FCC for authority to provide interLATA services.
Additionally, the FCC and several PUCs are considering a proposal that would
allow BOCs electing to create separate wholesale network and retail
organizations to enter the long distance market on an accelerated basis.
WorldCom cannot predict the outcome of these proceedings or whether the outcome
will have a material impact upon its consolidated financial position or results
of operations.
On May 7, 1997, the FCC announced that it will issue a series of orders that
will reform Universal Service Subsidy allocations and adopted various reforms to
the existing rate structure for interstate access services provided by the ILECs
that are designed to reduce access charges, over time, to more economically
efficient levels and rate structures. It also affirmed that information service
providers (including, among others, ISPs) should not be subject to existing
access charges ("ISP Exemption"). Petitions for reconsideration of, among other
things, the access service and ISP Exemption related actions were filed before
the FCC and appeals taken to various United States Courts of Appeals. On
reconsideration, the FCC in significant part affirmed the access charge and ISP
Exemption actions and the court appeals have been consolidated before the Eighth
Circuit. Also, several state agencies have started proceedings to address the
reallocation of implicit subsidies contained in the access rates and retail
service rates to state universal service funds. Access charges are a principal
component of WorldCom's telecommunications expense. Additionally, modification
of the ISP Exemption could have an adverse effect on the Company's
Internet-related services business. WorldCom cannot predict either the outcome
of these appeals or whether or not the result(s) will have a material impact
upon its consolidated financial position or results of operations.
The FCC issued on December 24, 1996 a Notice of Inquiry to seek comment on
whether it should consider various actions relating to interstate information
services and the Internet. The FCC recognized that these services and recent
technological advances may be constrained by current regulatory practices that
have their foundations in traditional circuit switched telecommunications
services and technologies. Based upon this and other proceedings, the FCC may
permit telecommunications companies, BOCs, or others to increase the scope or
reduce the cost of their Internet access services. WorldCom cannot predict the
effect that the Notice of
F-18
<PAGE> 67
Inquiry, the Telecom Act or any future legislation, regulation or regulatory
changes may have on its consolidated financial position or results of
operations.
INTERNATIONAL. In December 1996, the FCC adopted a new policy that will make it
easier for United States international carriers to obtain authority to route
international public switched voice traffic to and from the United States
outside of the traditional settlement rate and proportionate return regimes. In
February 1997, the United States entered into a World Trade Organization
Agreement (the "WTO Agreement") that should have the effect of liberalizing the
provision of switched voice telephone and other telecommunications services in
scores of foreign countries over the next several years. The WTO Agreement
became effective in February 1998. In order to comply with United States
commitments to the WTO Agreement, the FCC implemented new rules in February 1998
that liberalize existing policies regarding (i) the services that may be
provided by foreign affiliated United States international common carriers,
including carriers controlled or more than 25 percent owned by foreign carriers
that have market power in their home markets, and (ii) the provision of
international switched voice services outside of the traditional settlement rate
and proportionate return regimes. The new rules make it much easier for foreign
affiliated carriers to enter the United States market for the provision of
international services.
In August 1997, the FCC adopted mandatory settlement rate benchmarks. These
benchmarks are intended to reduce the rates that United States carriers pay
foreign carriers to terminate traffic in their home countries. The FCC will also
prohibit a United States carrier affiliated with a foreign carrier from
providing facilities-based service to the foreign carrier's home market until
and unless the foreign carrier has implemented a settlement rate within the
benchmark. The FCC also adopted new rules that will liberalize the provision of
switched services over private lines to World Trade Organization member
countries, by allowing such services on routes where 50% or more of United
States billed traffic is being terminated in the foreign country at or below the
applicable settlement rate benchmark or where the foreign country's rules
concerning provision of international switched services over private lines
deemed equivalent to United States rules.
Although the FCC's new policies and implementation of the WTO Agreement may
result in lower costs to WorldCom to terminate international traffic, there is a
risk that the revenues that WorldCom will receive from inbound international
traffic may decrease to an even greater degree. The implementation of the WTO
Agreement may also make it easier for foreign carriers with market power in
their home markets to offer United States and foreign customers end-to-end
services to the disadvantage of WorldCom, which may continue to face substantial
obstacles in obtaining from foreign governments and foreign carriers the
authority and facilities to provide such end-to-end services. Further, many
foreign carriers have challenged, in court and at the FCC, the FCC's order
adopting mandatory settlement rate benchmarks. If the FCC's settlement rate
benchmark order was overturned, it could accelerate the full-fledged entry of
foreign carriers into the United States, and make it more advantageous for
foreign carriers to route international traffic into the United States at low,
cost-based termination rates, while United States carriers would continue to
have little choice but to route international traffic into most foreign
countries at much higher, above cost, settlement rates.
The Company is involved in other legal and regulatory proceedings generally
incidental to its business. In some instances, rulings by regulatory authorities
in some states may result in increased operating costs to the Company. While the
results of these various legal and regulatory matters contain an element of
uncertainty, the Company believes that the probable outcome of any of the these
matters should not have a material adverse effect on the Company's consolidated
results of operations or financial position.
(9) EMPLOYEE BENEFIT PLANS -
STOCK OPTION PLANS:
The Company has several stock option plans under which options to acquire up to
203.6 million shares may be granted to directors, officers and certain employees
of the Company (including the stock option plans acquired through the MFS
Merger). The Company accounts for these plans under APB Opinion No. 25, under
which no compensation cost is recognized. Terms and conditions of the Company's
options, including exercise price and the period in which options are
exercisable, generally are at the discretion of the Compensation and Stock
Option Committee of the Board of Directors; however, no options are exercisable
for more than 10 years after date of grant. As of December 31, 1997, 144.1
million options had been granted under these plans, and 29.5 million options
were fully exercisable.
Additionally, there are outstanding warrants to acquire shares of Common Stock
at $6.25 per share which were granted by MFS prior to the MFS Merger.
Additional information regarding options and warrants granted and outstanding is
summarized below:
F-19
<PAGE> 68
<TABLE>
<CAPTION>
Number of Exercise
Options Price
----------- ----------------
<S> <C> <C>
Balance, December 31, 1994 28,794,110 $ 0.30 - 15.07
Granted to employees/directors 12,862,876 10.35 - 16.94
Granted in connection with acquisition 2,304,004 9.20 - 10.96
Exercised (18,965,034) 0.30 - 15.07
Expired or canceled (1,791,780) 1.59 - 15.07
-----------
Balance, December 31, 1995 23,204,176 0.34 - 16.94
Granted to employees/directors 7,963,412 14.81 - 27.50
Granted in connection with acquisition 52,930,232 0.01 - 25.95
Exercised (6,215,165) 1.58 - 15.07
Expired or canceled (864,993) 0.34 - 27.50
-----------
Balance, December 31, 1996 77,017,662 0.01 - 27.50
Granted to employees/directors 29,090,502 26.00 - 31.88
Exercised (20,545,286) 0.01 - 27.50
Expired or canceled (5,401,017) 0.01 - 26.00
------------
Balance, December 31, 1997 80,161,861 $ 0.01 - 31.88
============
</TABLE>
In October 1995, the FASB issued SFAS No. 123, "Accounting for Stock-Based
Compensation". SFAS No. 123 requires disclosure of the compensation cost for
stock-based incentives granted after January 1, 1995 based on the fair value at
grant date for awards. Applying SFAS No. 123 would result in pro forma net
income (loss) and earnings (loss) per share ("EPS") amounts as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1997 1996 1995
-------- ----------- --------
<S> <C> <C> <C> <C>
Net income (loss) before extraordinary item As reported $357,219 $(2,189,804) $233,080
Pro forma 306,566 (2,205,407) 226,954
Basic EPS As reported 0.40 (5.50) 0.67
Pro forma 0.34 (5.54) 0.65
Diluted EPS As reported 0.40 (5.50) 0.64
Pro forma 0.34 (5.54) 0.62
</TABLE>
The fair value of each option or restricted stock grant is estimated on the date
of grant using an option-pricing model with the following weighted-average
assumptions used for grant:
<TABLE>
<CAPTION>
WEIGHTED-
AVERAGE GRANT-
DATE
DATE GRANTED EXPECTED VOLATILITY RISK-FREE INTEREST RATE FAIR VALUE
- ------------ ------------------- ----------------------- ----------
<S> <C> <C> <C>
January 1995 25.6% 7.9% $4.06
July 1995 24.5% 6.0% $4.65
September 1995 23.1% 6.0% $5.66
January 1996 21.6% 5.4% $5.56
July 1996 21.3% 6.5% $9.26
January 1997 22.8% 6.4% $8.88
February 1997 22.7% 6.2% $8.02
March 1997 22.8% 6.4% $7.88
July 1997 23.3% 6.3% $10.96
</TABLE>
F-20
<PAGE> 69
Additionally, for all options, a 15% forfeiture rate was assumed with an
expected life of 5 years and no dividend yield. Because the SFAS No. 123 method
of accounting has been applied only to grants after December 31, 1994, the
resulting pro forma compensation cost may not be representative of that to be
expected in future periods.
401(k) PLANS:
The Company and its subsidiaries offer its qualified employees the opportunity
to participate in one of its defined contribution retirement plans qualifying
under the provisions of Section 401(k) of the Internal Revenue Code. Each
employee may contribute on a tax deferred basis a portion of annual earnings not
to exceed $9,500. The Company matches individual employee contributions in
certain plans, up to a maximum level which in no case exceeds 6% of the
employee's compensation.
Expenses recorded by the Company relating to its 401(k) plans were $6.9 million,
$5.7 million and $3.6 million for the years ended December 31, 1997, 1996, and
1995, respectively.
SHAREWORKS:
Through the MFS Merger, the Company offered MFS employees a grant plan and a
match plan jointly known as Shareworks. The grant plan enabled the Company to
grant shares of Common Stock to eligible MFS employees based upon a percentage
of that employee's eligible pay, up to 5%. The match plan allowed eligible
employees to defer between 1% and 10% of eligible pay to purchase Common Stock
at the stock price on each pay period date. The Company matched the shares
purchased by the employee on a one-for-one basis. The grant plan and match plan
were terminated effective June 30, 1997, and all shares within the plan for
active employees as of such date were immediately vested.
(10) INCOME TAXES -
The Company accounts for income taxes in accordance with SFAS No. 109
"Accounting for Income Taxes." When SFAS No. 109 was adopted, the cumulative
effect of this change in accounting principle was not material to the Company.
The provision for income taxes is composed of the following (in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Current $ 47,578 $ 71,079 $ 33
Deferred 368,043 58,449 171,425
-------- -------- --------
Total provision for income taxes $415,621 $129,528 $171,458
======== ======== ========
</TABLE>
The following is a reconciliation of the provision for income taxes to the
expected amounts using the statutory rate:
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Expected statutory amount 35.0% (35.0)% 35.0%
Nondeductible amortization of excess of
cost over net tangible assets acquired 12.1 1.0 4.5
State income taxes 2.0 0.4 2.9
Charge for in-process research and development -- 36.4 --
Write-down of assets -- 4.2 --
Valuation allowance -- (1.7) (1.6)
Other 2.9 1.0 (1.6)
-------- -------- --------
Actual tax provision 52.0% 6.3% 39.2%
======== ======== ========
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and amounts used for income tax purposes and the impact of available
net operating loss carryforwards.
F-21
<PAGE> 70
At December 31, 1997, the Company had unused net operating loss ("NOL")
carryforwards for federal income tax purposes of approximately $1.5 billion
which expire in various amounts during the years 2002 through 2012. These NOL
carryforwards together with state and other NOL carryforwards result in a
deferred tax asset of approximately $580.4 million at December 31, 1997. A
valuation allowance of $109.9 million has been established related to deferred
tax assets due to the uncertainty of realizing the full benefit of the NOL
carryforwards. In evaluating the amount of valuation allowance needed, the
Company considers the acquired companies' prior operating results and future
plans and expectations. The utilization period of the NOL carryforwards and the
turnaround period of other temporary differences are also considered.
Approximately $384.1 million of the Company's deferred tax assets are related to
preacquisition NOL carryforwards attributable to entities acquired in
transactions accounted for as purchases. Accordingly, any future reductions in
the valuation allowance related to such deferred tax assets will result in a
corresponding reduction in goodwill. If, however, subsequent events or
conditions dictate an increase in the valuation allowance attributable to such
deferred tax assets, income tax expense for the period of the increase will be
increased accordingly.
The following is a summary of the significant components of the Company's
deferred tax assets and liabilities as of December 31, 1997 and 1996 (in
thousands):
<TABLE>
<CAPTION>
December 31,
----------------------------------------------------
1997 1996
-------------------------- ------------------------
Assets Liabilities Assets Liabilities
----------- ----------- --------- -----------
<S> <C> <C> <C> <C>
Allowance for bad debts $ 11,823 $ -- $ 10,644 $ --
Fixed assets -- (142,850) -- (50,728)
Goodwill and other intangibles -- (252,694) -- (287,481)
Software -- (64,326) -- (39,017)
Investments -- (22,768) -- (17,376)
Line installation costs -- (39,678) -- (23,427)
Accrued liabilities 266,586 -- 102,685 --
NOL carryforwards 580,351 -- 488,931 --
Stock options 146,248 -- 297,135 --
Other 9,121 (36,467) 34,543 (13,075)
----------- --------- --------- ---------
1,014,129 (558,783) 933,938 (431,104)
Valuation allowance (109,924) -- (109,924) --
----------- --------- --------- ---------
$ 904,205 $(558,783) $ 824,014 $(431,104)
=========== ========= ========= =========
</TABLE>
(11) SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION -
Interest paid by the Company during the years ended December 31, 1997, 1996 and
1995 amounted to $249.2 million, $234.7 million and $224.3 million,
respectively. Income taxes paid, net of refunds, during the years ended December
31, 1997, 1996 and 1995 were $13.7 million, $6.0 million and $7.3 million,
respectively.
In conjunction with business combinations during the years ended December 31,
1997, 1996 and 1995 (See Note 2), assets acquired, liabilities assumed and
common stock issued were as follows (in thousands):
<TABLE>
December 31,
------------------------------------------
1997 1996 1995
----------- ------------ -----------
<S> <C> <C> <C>
Fair value of assets acquired $ 250,237 $ 3,242,792 $ 805,482
Goodwill and other intangible assets 902,065 9,170,483 2,301,567
Liabilities assumed (361) (1,975,315) (327,844)
Common stock issued (61,276) (10,554,013) (12,850)
----------- ------------ -----------
Net cash paid (acquired) $ 1,090,665 $ (116,053) $ 2,766,355
=========== ============ ===========
</TABLE>
(12) SUBSEQUENT EVENTS -
On January 31, 1998, WorldCom acquired CompuServe Corporation ("CompuServe"), a
Delaware corporation, pursuant to the merger (the "CompuServe Merger") of a
wholly owned subsidiary of WorldCom, with and into CompuServe. Upon consummation
of the CompuServe Merger, CompuServe became a wholly owned subsidiary of
WorldCom.
F-22
<PAGE> 71
As a result of the CompuServe Merger, each share of CompuServe common stock was
converted into the right to receive 0.40625 shares of Common Stock or
approximately 37.6 million WorldCom common shares in the aggregate. Prior to the
CompuServe Merger, CompuServe operated primarily through two divisions:
Interactive Services and Network Services. Interactive Services offered
worldwide online and Internet access services for consumers, while Network
Services provided worldwide network access, management and applications, and
Internet service to businesses. The CompuServe Merger is being accounted for as
a purchase; accordingly, operating results for CompuServe will be included from
the date of acquisition.
On January 31, 1998, WorldCom also acquired ANS Communications, Inc. ("ANS"),
from America Online, Inc. ("AOL") and has entered into five year contracts with
AOL under which WorldCom and its subsidiaries will provide network services to
AOL (collectively, the "AOL Transaction"). As part of the AOL Transaction, AOL
acquired CompuServe's Interactive Services division and received a $175 million
cash payment from WorldCom. WorldCom retained the CompuServe Network Services
division. ANS provides Internet access to AOL and AOL's subscribers in the
United States, Canada, the United Kingdom, Sweden and Japan, and also designs,
develops and operates high performance wide-area networks for business,
research, education and governmental organizations.
On January 29, 1998, WorldCom acquired Brooks Fiber Properties, Inc., a Delaware
corporation ("BFP"), pursuant to the merger (the "BFP Merger") of a wholly owned
subsidiary of WorldCom, with and into BFP. Upon consummation of the BFP Merger,
BFP became a wholly owned subsidiary of WorldCom. BFP is a leading
facilities-based provider of competitive local telecommunications services,
commonly referred to as a competitive local exchange carrier in selected cities
within the United States. BFP acquires and constructs it own state-of-the-art
fiber optic networks and facilities and leases network capacity from others to
provide long distance carriers, ISPs, wireless carriers and business, government
and institutional end users with an alternative to the ILECs for a broad array
of high quality voice, data, video transport and other telecommunications
services.
As a result of the BFP Merger, each share of BFP common stock was converted into
the right to receive 1.85 shares of Common Stock or approximately 72.6 million
WorldCom common shares in the aggregate. The BFP Merger is being accounted for
under the pooling-of-interests method. Separate and combined unaudited results
of operations are as follows (in thousands, except per share data):
<TABLE>
<CAPTION>
For the Year Ended December 31,
-----------------------------------------
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Revenues:
BFP $ 128,782 $ 45,574 $ 14,160
WorldCom 7,351,354 4,485,130 3,696,345
Intercompany elimination (3,596) (3,877) (5)
----------- ----------- -----------
Combined $ 7,476,540 $ 4,526,827 $ 3,710,500
=========== =========== ===========
Net income (loss) before extraordinary items:
BFP $ (136,391) $ (43,843) $ (9,551)
WorldCom 383,652 (2,188,944) 266,271
----------- ----------- -----------
Combined $ 247,261 $(2,232,787) $ 256,720
=========== =========== ===========
Combined earnings (loss) per share:
Basic $ 0.23 $ (5.08) $ 0.59
=========== =========== ===========
Diluted $ 0.23 $ (5.08) $ 0.57
=========== =========== ===========
</TABLE>
On November 9, 1997, WorldCom entered into an Agreement and Plan of Merger (the
"MCI/WorldCom Merger Agreement") with MCI and a wholly owned acquisition
subsidiary of WorldCom ("MCI Merger Sub"), providing for the merger (the
"MCI/WorldCom Merger") of MCI with and into MCI Merger Sub, with MCI Merger Sub
surviving as a wholly owned subsidiary of WorldCom. As a result of the
MCI/WorldCom Merger, the separate corporate existence of MCI will cease, and MCI
Merger Sub (which will be renamed "MCI Communications Corporation") will succeed
to all the rights and be responsible for all the obligations of MCI in
accordance with the Delaware General Corporation Law. Subject to the terms and
conditions of the MCI/WorldCom Merger Agreement, each share of MCI common stock,
par value $0.10 per share ("MCI Common Stock") outstanding immediately prior to
the effective time of the MCI/WorldCom Merger (the "MCI/WorldCom Effective
Time") will be converted into the right to receive that number of shares of
Common Stock equal to the MCI Exchange Ratio (as defined below), and each share
of MCI Class A common stock, par value $.10 per share ("MCI Class A Common
Stock" and, together with the MCI Common Stock, the "MCI Capital Stock"),
outstanding immediately prior to the MCI/WorldCom Effective Time will be
converted into the right to receive $51.00 in cash, without interest
F-23
<PAGE> 72
thereon. The "MCI Exchange Ratio" means the quotient (rounded to the nearest
1/10,000) determined by dividing $51.00 by the average of the high and low sales
prices of Common Stock (the "MCI/WorldCom Average Price") as reported on The
Nasdaq National Market on each of the 20 consecutive trading days ending with
the third trading day immediately preceding the MCI/WorldCom Effective Time;
provided, however, that the MCI Exchange Ratio will not be less than 1.2439 or
greater than 1.7586. Cash will be paid in lieu of the issuance of any fractional
share of WorldCom Common Stock in the MCI/WorldCom Merger.
Based on the number of shares of MCI Common Stock outstanding as of January 20,
1998 and assumed MCI Exchange Ratios of 1.2439 and 1.7586, approximately
710,554,160 shares and 1,004,566,722 shares, respectively, of Common Stock would
be issued in the MCI/WorldCom Merger. In addition, as of December 31, 1997,
outstanding options to purchase shares of MCI Common Stock would be converted in
the MCI/WorldCom Merger to options to acquire an aggregate of approximately
86,491,688 shares and 122,280,154 shares, respectively, of Common Stock, and the
exercise price would be adjusted to reflect the MCI Exchange Ratio, so that, on
exercise, the holders would receive, in the aggregate, the same number of shares
of Common Stock as they would have received had they exercised prior to the
MCI/WorldCom Merger, at the same exercise price.
The MCI/WorldCom Merger was approved by the MCI stockholders and the WorldCom
shareholders at separate meetings held on March 11, 1998. The MCI/WorldCom
Merger is also subject to approvals from the FCC, the Department of Justice and
various state government bodies. In addition, the MCI/WorldCom Merger is subject
to approval by the Commission of the European Communities. WorldCom anticipates
that the MCI/WorldCom Merger will close mid-year 1998.
Termination of the MCI/WorldCom Merger Agreement by MCI or WorldCom under
certain conditions will require MCI to pay WorldCom $750 million as a
termination fee and to reimburse WorldCom the $450 million alternative
transaction fee and certain related expenses paid by WorldCom to BT. Further,
termination of the MCI/WorldCom Merger Agreement by MCI or WorldCom under
certain conditions, will require WorldCom to pay MCI $1.635 billion as a
termination fee.
Pursuant to an agreement (the "BT Agreement") among MCI, WorldCom and BT, the
prior merger agreement between BT and MCI (the "BT/MCI Merger Agreement") was
terminated, and WorldCom agreed to pay BT an alternative transaction fee of $450
million and expenses of $15 million payable to BT in accordance with the BT/MCI
Merger Agreement. These fees were paid on November 12, 1997. WorldCom also
agreed to pay to BT an additional payment of $250 million in the event that
WorldCom is required to make the $1.635 billion payment to MCI in accordance
with the MCI/WorldCom Merger Agreement. In addition, pursuant to the BT
Agreement, BT voted (or caused to be voted) its shares of MCI Class A Common
Stock in favor of the MCI/WorldCom Merger Agreement and the approval of the
other transactions contemplated by the MCI/WorldCom Merger Agreement.
(13) UNAUDITED QUARTERLY FINANCIAL DATA -
<TABLE>
<CAPTION>
Quarter Ended
----------------------------------------------------------------------------------------------------
March 31, June 30, September 30, December 31,
----------------------- ---------------------- ----------------------- -----------------------
1997 1996 1997 1996 1997 1996 1997 1996
---------- ---------- ---------- ---------- ---------- ---------- ---------- -----------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues $1,677,239 $1,034,060 $1,770,084 $1,073,538 $1,901,199 $1,143,428 $2,002,832 $ 1,234,104
Operating income (loss) 170,520 195,857 239,210 (183,749) 309,917 232,343 378,959 (2,088,545)
Net income (loss) 49,664 86,307 78,607 (267,602) 112,445 109,255 142,936 (2,141,338)
Preferred dividend
requirement 6,610 505 6,611 355 6,606 -- 6,606 --
Earnings (loss) per
common share:
Basic $ 0.05 $ 0.22 $ 0.08 $ (0.69) $ 0.12 $ 0.27 $ 0.15 $ (5.22)
Diluted 0.05 0.21 0.08 (0.69) 0.12 0.27 0.15 (5.22)
</TABLE>
F-24
<PAGE> 73
Results for 1996 include a $2.14 billion, fourth quarter charge for in-process
research and development related to the MFS Merger. The charge is based upon a
valuation analysis of the technologies of MFS' worldwide information system, the
Internet network expansion system of UUNET, and certain other identified
research and development projects purchased in the MFS Merger. The expense
includes $1.6 billion associated with UUNET and $0.54 billion related to MFS.
Additionally, fourth quarter 1996 results include other after-tax charges of
$121.0 million for employee severance, employee compensation charges, alignment
charges, and costs to exit unfavorable telecommunications contracts and $344.0
million after-tax write-down of operating assets within its non-core businesses.
On a pre-tax basis, these charges totaled $600.1 million.
In connection with certain debt refinancing, the Company recognized in 1996,
extraordinary items of approximately $4.2 million, net of income taxes,
consisting of unamortized debt discount, unamortized issuance cost and
prepayment fees. Additionally, in 1996 the Company recorded an extraordinary
item of $20.2 million, net of income taxes, related to a write-off of deferred
international costs.
F-25
<PAGE> 74
WORLDCOM, INC.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
------------------------
BALANCE AT CHARGED TO FROM DEDUCTIONS
BEGINNING OF COSTS AND PURCHASE AND ACCOUNTS BALANCE AT
DESCRIPTION PERIOD EXPENSES TRANSACTIONS WRITTEN OFF END OF PERIOD
----------- ------------ ---------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts:
Accounts Receivable
1997 $135,696 $107,327 $15,754 $58,566 $ 200,211
1996 59,185 57,678 63,749 44,916 135,696
1995 53,199 40,250 22,042 56,306 59,185
</TABLE>
F-26
<PAGE> 75
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
2.1 Agreement and Plan of Merger, dated as of September 7, 1997, by and
among H&R Block, Inc., H&R Block Group, Inc., CompuServe Corporation,
WorldCom, Inc., and Walnut Acquisition Company, L.L.C. (incorporated
herein by reference to Exhibit 2.1 to the Company's Current Report on
Form 8-K dated September 7, 1997(File No. 0-11258))*
2.2 Stockholders Agreement, dated as of September 7, 1997, by and among
H&R Block, Inc., a Missouri corporation, H&R Block Group, Inc., a
Delaware corporation, and WorldCom, Inc., a Georgia corporation.
(incorporated herein by reference to Exhibit 2.2 to the Company's
Current Report on Form 8-K dated September 7, 1997(File No. 0-11258))
2.3 Standstill Agreement dated as of September 7, 1997, by and among H&R
Block, Inc., a Missouri corporation, H&R Block Group, Inc., a Delaware
corporation, and WorldCom, Inc., a Georgia corporation (incorporated
herein by reference to Exhibit 2.3 to the Company's Current Report on
Form 8-K dated September 7, 1997(File No. 0-11258))
2.4 Purchase and Sale Agreement by and among America Online, Inc., ANS
Communications, Inc. and WorldCom, Inc., dated as of September 7, 1997
(incorporated herein by reference to Exhibit 2.4 to the Company's
Current Report on Form 8-K dated September 7, 1997(File No. 0-11258))*
2.5 Amended and Restated Agreement and Plan of Merger dated as of October
1, 1997 by and among WorldCom, Inc., BV Acquisition, Inc. and Brooks
Fiber Properties, Inc. ("BFP") (incorporated by reference to Exhibit
2.1 to WorldCom's Registration Statement on Form S-4 (File No.
333-43253))*
2.6 Agreement and Plan of Merger dated as of November 9, 1997 among
WorldCom., Inc., TC Investments Corp. and MCI Communications
Corporation (incorporated by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K dated November 9, 1997 (filed November 12,
1997))*
2.7 Agreement dated as of November 9, 1997 among British
Telecommunications plc, WorldCom, Inc. and MCI Communications
Corporation (incorporated by reference to Exhibit 99.1 to the
Company's Current Report on Form 8-K dated November 9, 1997 (filed
November 12, 1997))*
4.1 Second Amended and Restated Articles of Incorporation of WorldCom
(including preferred stock designations) as of December 31, 1996
(incorporated herein by reference to Exhibit 3.1 to the Current Report
on Form 8-K dated December 31, 1996 (File No. 0-11258))
4.2 Restated Bylaws of WorldCom, Inc. (incorporated by reference to
Exhibit 4.2 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 (File No. 0-11258))
4.3 Deposit Agreement between WorldCom, The Bank of New York and the
holders from time to time of the Depositary Shares representing 1/100
of a share of WorldCom Series A Preferred Stock (the "WorldCom
Depositary Shares") (incorporated by reference to Exhibit 4.5 to
Registration Statement on Form S-4 filed by WorldCom (Registration No.
333-16015))
4.4 Form of certificate representing WorldCom Depositary Shares
(incorporated by reference to Exhibit A to the Deposit Agreement filed
as Exhibit 4.5 to Registration Statement on Form S-4 filed by WorldCom
(Registration No. 333-16015))
4.5 Rights Agreement dated as of August 25, 1996 between WorldCom and The
Bank of New York, which includes the form of Certificate of
Designations, setting forth the terms of the Series 3 Junior
Participating Preferred Stock, par value $.01 per share, as Exhibit A,
the form of Rights Certificate as Exhibit B and the Summary of
Preferred Stock Purchase Rights as Exhibit C (incorporated herein by
reference to Exhibit 4 to the Current Report on Form 8-K dated August
26, 1996 (as amended) filed by WorldCom on August 26, 1996 (File No.
0-11258))
</TABLE>
E-1
<PAGE> 76
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4.6 Amendment No. 1 To Rights Agreement dated as of May 22, 1997 by and
between the Company and The Bank of New York, as Rights Agent
(incorporated herein by reference to Exhibit 4.2 to the Company's
Current Report on Form 8-K dated May 22, 1997 (filed June 6, 1997)
(File No. 0-11258))
4.7 Form of 7.55% Senior Note due 2004 (incorporated herein by reference
to Exhibit 4.1 to the Company's Current Report on Form 8-K dated March
26, 1997(File No. 0-11258))
4.8 Form of 7.75% Senior Note due 2007 (incorporated herein by reference
to Exhibit 4.2 to the Company's Current Report on Form 8-K dated March
26, 1997 (File No. 0-11258))
4.9 Form of 7.75% Senior Note due 2027 (incorporated herein by reference
to Exhibit 4.3 to the Company's Current Report on Form 8-K dated March
26, 1997 (File No. 0-11258))
4.10 Senior Indenture dated as of March 1, 1997 by and between WorldCom,
Inc. and Mellon Bank, N.A., as trustee (under which The Chase
Manhattan Bank now acts as trustee) (incorporated herein by reference
to Exhibit 4.6 to the Company's Form 10-Q for the period ended March
31, 1997 (File No. 0-11258))
4.11 Form of First Supplemental Indenture of WorldCom to Mellon Bank,
N.A.(under which The Chase Manhattan Bank now acts as trustee)
relating to 9-3/8% Notes Due 2004 and 8-7/8% Senior Notes Due 2006
(including form of 9-3/8% Senior Note Due 2004 attached as Exhibit A
thereto and form of 8-7/8% Senior Note Due 2006 attached as Exhibit B
thereto) (incorporated herein by reference to Exhibit 4.9 to the
Company's Registration Statement on Form S-4 (Registration No.
333-27345))
10.1 Facility A Revolving Credit Agreement among WorldCom, Inc.,
NationsBank of Texas, N.A. (Managing Agent and Administrative Agent),
Bank of America NT & SA, Bank of Montreal, The Bank of New York, The
Bank of Nova Scotia, Bank of Tokyo-Mitsubishi Trust Company, Barclays
Bank PLC, Canadian Imperial Bank of Commerce, The Chase Manhattan
Bank, Citibank, N.A., Credit Lyonnais New York Branch, First Union
National Bank, Fleet National Bank, The Industrial Bank of Japan,
Limited, Atlanta Agency, Morgan Guaranty Trust Company of New York,
Royal Bank of Canada, and Toronto Dominion (Texas), Inc. (Agents) and
the Lenders named therein (Facility A Lenders), dated as of July 3,
1997 (incorporated herein by reference to Exhibit 10.1 to the
Company's Current Report on Form 8-K dated June 30, 1997 (File No.
0-11258))*
10.2 Facility B Revolving Credit and Term Loan Agreement among WorldCom,
Inc., NationsBank of Texas, N.A. (Managing Agent and Administrative
Agent), Bank of America NT and SA, Bank of Montreal, The Bank of New
York, The Bank of Nova Scotia, Bank of Tokyo-Mitsubishi Trust Company,
Barclays Bank PLC, Canadian Imperial Bank of Commerce, The Chase
Manhattan Bank, Citibank, N.A., Credit Lyonnais New York Branch, First
Union National Bank, Fleet National Bank, The Industrial Bank of
Japan, Limited, Atlanta Agency, Morgan Guaranty Trust Company of New
York, Royal Bank of Canada, and Toronto Dominion (Texas), Inc.
(Agents) and the Lenders named therein (Facility B Lenders), dated as
of July 3, 1997 (incorporated herein by reference to Exhibit 10.2 to
the Company's Current Report on Form 8-K dated June 30, 1997 (File No.
0-11258))*
10.3 364-Day Revolving Credit and Term Loan Agreement among WorldCom, Inc.,
Borrower, NationsBank of Texas N.A., Administrative Agent and the
lenders name therein, dated as of February 19, 1998.*
10.4 Amended and Restated Transfer and Administration Agreement between
Enterprise Funding Corporation, WorldCom Funding Corporation as
Transferor, WorldCom, individually and as Collection Agent, Sheffield
Receivables Corporation and NationsBank, N.A. as Agent and Investor
dated as of December 31, 1996 (incorporated herein by reference to
Exhibit 10.7 to the Company's Annual Report on Form 10-K for the
period ended December 31, 1996 (File No. 0-11258))*
10.5 Amendment Number 1 to Amended and Restated Transfer and Administration
Agreement (incorporated herein by reference to Exhibit 10.8 to the
Company's Annual Report on Form 10-K for the period ended December 31,
1996 (File No. 0-11258))
</TABLE>
E-2
<PAGE> 77
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
10.6 WorldCom, Inc. Third Amended and Restated 1990 Stock Option Plan
(incorporated herein by reference to Exhibit A to WorldCom's Proxy
Statement dated April 22, 1996 used in connection with WorldCom's 1996
Annual Meeting of Shareholders (File No. 0-11258)) (compensatory plan)
10.7 LDDS Communications, Inc. 1988 Nonqualified Stock Option Plan
(incorporated herein by reference to the exhibits to LDDS-TN's
Registration Statement on Form S-4 (File No. 33-29051)) (compensatory
plan)
10.8 LDDS Annual Performance Bonus Plan (incorporated by reference to the
Company's Proxy Statement used in connection with the Company's 1994
Annual Meeting of Shareholders (File No. 1-10415)) (compensatory plan)
10.9 WorldCom, Inc. Special Performance Bonus Plan (incorporated herein by
reference to Exhibit B to the Company's Proxy Statement dated April
22,1996 used in connection with the Company's 1996 Annual Meeting of
Shareholders (File No. 0-11258)) (compensatory plan)
10.10 WorldCom, Inc. Performance Bonus Plan (incorporated herein by
reference to Exhibit A to the Company's Proxy Statement dated April
21, 1997 (File No. 0-11258)) (compensatory plan)
10.11 WorldCom/MFS 1995 Deferred Stock Purchase Plan (incorporated herein
by reference to Exhibit 10.13 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No.0- 11258))
(compensatory plan)
10.12 WorldCom/MFS Employee Stock Bonus Plan (incorporated herein by
reference to Exhibit 10.14 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No. 0-11258))
(compensatory plan)
10.13 WorldCom/MFS 1992 Stock Plan (incorporated herein by reference to
Exhibit 10.15 to the Company's Annual Report on Form 10-K for the
period ended December 31, 1996 (File No. 0-11258)) (compensatory
plan)
10.14 WorldCom/MFS 1993 Stock Plan (incorporated herein by reference to
Exhibit 10.16 to the Company's Annual Report on Form 10-K for the
period ended December 31, 1996) (File No. 0-11258)) (compensatory
plan)
10.15 WorldCom/MFS/UUNET 1995 Performance Option Plan (incorporated herein
by reference to Exhibit 10.17 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No. 0- 11258))
(compensatory plan)
10.16 WorldCom/MFS/UUNET Equity Incentive Plan (incorporated herein by
reference to Exhibit 10.18 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No. 0-11258))
(compensatory plan)
10.17 WorldCom/MFS/UUNET Incentive Stock Plan (incorporated herein by
reference to Exhibit 10.19 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No. 0-11258))
(compensatory plan)
10.18 WorldCom/MFS Employee Stock Purchase Plan (incorporated herein by
reference to Exhibit 10.20 to the Company's Annual Report on Form
10-K for the period ended December 31, 1996 (File No. 0-11258))
(compensatory plan)
10.19 Employment Agreement between UUNET and John W. Sidgmore dated May 13,
1994 (incorporated herein by reference to UUNET's Registration
Statement on Form S-1 (Registration No. 33-91028)) (compensatory
plan)
10.20 Ongoing relationship memorandum between the Company and James Q.
Crowe dated February 11, 1997 (incorporated herein by reference to
Exhibit 10.22 to the Company's Annual Report on Form 10-K for the
period ended December 31, 1996 (File No. 0-11258)) (compensatory
plan)
</TABLE>
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<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
10.21 Memorandum between the Company and James Q. Crowe dated June 26,
1997 (incorporated herein by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the period ended June
30, 1997 (File No. 0-11258)) (compensatory plan)
10.22 Change of Control Severance Agreement effective April 8, 1997
between Brooks Fiber Properties, Inc. ("BFP") and James C. Allen
(incorporated herein by reference from Exhibit 10.1 to BFP's
Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1997 (File No. 0-28036)) (compensatory plan)
12.1 Statement regarding computation of ratio of earnings and preferred
stock dividends to combined fixed charges
21.1 Subsidiaries of the Company
23.1 Consent of Arthur Andersen LLP
27.1 Financial Data Schedule - December 31, 1997
27.2 Restated Financial Data Schedule - December 31, 1996
27.3 Restated Financial Data Schedule - December 31, 1995
99.1 WorldCom's Current Report on Form 8-K/A-1 dated November 9, 1997
(filed January 27, 1998) (File No. 0-11258), which is incorporated
herein by reference.
</TABLE>
- -----------------------------------
* The Registrant hereby agrees to furnish supplementally a copy of any
omitted schedules to this Agreement to the Securities and Exchange
Commission upon its request.
E-4
<PAGE> 1
EXHIBIT 10.3
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
WORLDCOM, INC.,
Borrower
NATIONSBANK OF TEXAS, N.A.,
Administrative Agent
and
THE LENDERS NAMED HEREIN,
Lenders
$1,250,000,000
DATED AS OF FEBRUARY 19, 1998
<PAGE> 2
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SECTION 1 DEFINITIONS AND TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Number and Gender of Words; Other References . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2 BORROWING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2 Competitive Bid Subfacility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 Conversion of Facility to Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.5 Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3 TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Loan Accounts, Notes, and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2 Interest and Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Interest Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.4 Quotation of Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.5 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.6 Interest Recapture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.7 Interest Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.8 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.9 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.10 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.11 Order of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.12 Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.13 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.14 Booking Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.15 Basis Unavailable or Inadequate for Eurodollar Rate . . . . . . . . . . . . . . . . . . . . . . . . 29
3.16 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.17 Change in Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.18 Consequential Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.19 Negative Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1 Treatment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Fees of Administrative Agent and Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Competitive Bid Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.4 Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.1 Conditions Precedent to Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.2 Conditions Precedent to a Permitted Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.3 Conditions Precedent to Each Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Purpose of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Existence, Good Standing, Authority, and Authorizations . . . . . . . . . . . . . . . . . . . . . . 34
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6.3 Subsidiaries; Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.4 Authorization and Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.5 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.7 Litigation, Claims, Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.9 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.11 Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.12 Government Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.13 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.14 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.15 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.17 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.18 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.19 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.20 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.21 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.22 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.3 Items to be Furnished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.4 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.6 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.7 Maintenance of Existence, Assets, and Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.9 Preservation and Protection of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.12 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.13 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.14 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.15 Compliance with Laws and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.16 Permitted Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.17 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.18 Fiscal Year and Accounting Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.19 Government Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.20 Loans, Advances, and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.21 Permitted Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.22 Restrictions on Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.23 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.24 Sale-Leaseback Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.25 Amendments to Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.26 Mergers and Dissolutions; Sale of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.27 Designation of Unrestricted Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.28 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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SECTION 8 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.1 Payment of Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.2 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.3 Debtor Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.4 Judgments and Attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.5 Government Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.6 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.7 SEC Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.8 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.9 Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.10 Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.12 Validity and Enforceability of Loan Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.13 Payment of Certain Other Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.14 Default or Acceleration under any Certain Other Debt . . . . . . . . . . . . . . . . . . . . . . . . 51
8.15 Redemption of Certain Other Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9 RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.1 Remedies Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.2 Company Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.3 Performance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.4 Delegation of Duties and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.5 Not in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.6 Course of Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.7 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.8 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.9 Certain Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.10 Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.11 Expenditures by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.12 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10 AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.1 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.3 Proportionate Absorption of Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.4 Delegation of Duties; Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.5 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.6 Default; Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.7 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.8 Relationship of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.9 Foreign Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.10 Benefits of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.1 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.2 Nonbusiness Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.3 Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.4 Form and Number of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.5 Exceptions to Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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<TABLE>
<S> <C> <C>
11.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.8 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.9 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.10 Jurisdiction; Venue; Service of Process; Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 61
11.11 Amendments, Consents, Conflicts, and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.12 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
11.14 Successors and Assigns; Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . 63
11.15 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances . . . . . . . . . . . . 65
11.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
</TABLE>
iv
<PAGE> 6
SCHEDULES AND EXHIBITS
<TABLE>
<S> <C> <C>
Schedule 2.1 - Lenders and Commitments
Schedule 5.1 - Conditions Precedent to Closing
Schedule 6.2 - Subsidiaries
Schedule 6.3 - Warrants, Options, or Other Rights
Schedule 6.13 - Transactions with Affiliates
Schedule 7.12 - Existing Debt
Schedule 7.13 - Existing Liens
Schedule 7.20 - Other Investments
Exhibit A-1 - Form of Revolving/Term Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit B-3 - Form of Competitive Bid Request
Exhibit B-4 - Form of Notice to Lenders of Competitive Bid Request
Exhibit B-5 - Form of Competitive Bid
Exhibit B-6 - Form of Term Conversion Request
Exhibit C - Form of Administrative Questionnaire
Exhibit D-1 - Form of Compliance Certificate
Exhibit D-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit E - Form of Assignment and Acceptance Agreement
Exhibit F-1 - Form of Opinion of General Counsel of Borrower
Exhibit F-2 - Form of Opinion of Special Communications Counsel
</TABLE>
v
<PAGE> 7
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AGREEMENT is entered into as of February 19, 1998, among
WORLDCOM, INC., a Georgia corporation ("BORROWER"), the Lenders (hereafter
defined) listed on SCHEDULE 2.1 attached hereto, and NATIONSBANK OF TEXAS,
N.A., as a Lender and as Administrative Agent (hereinafter defined) for itself
and the other Lenders.
RECITALS
A. Borrower has requested that Lenders extend credit to Borrower
in the form of the Agreement (hereinafter defined), providing for a 364-day
revolving credit and term loan facility, in the aggregate principal amount of
$1,250,000,000, to finance the tender offer, exchange offer, consent
solicitation, or other acquisition by Borrower of the Brooks Notes (hereafter
defined); provided, that, up to $300,000,000 of the proceeds may be used to
finance loan and advances to Brooks Fiber Properties, Inc. ("BROOKS") to fund
working capital and to use for general corporate purposes.
B. Upon and subject to the terms and conditions of this
Agreement, Lenders are willing to extend such credit to Borrower.
Accordingly, in consideration of the mutual covenants contained
herein, Borrower, Administrative Agent, and Lenders agree as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
ACCOUNTS RECEIVABLE FINANCING means any transaction or series of
transactions that may be entered into by any Consolidated Company pursuant to
which such Consolidated Company may sell, convey, grant a security interest in,
or otherwise transfer, undivided percentage interests in the Receivables
Program Assets; provided that, for purposes of determinations made pursuant to
SECTIONS 7.23(e) and 7.12(g), any Accounts Receivable Financing involving a
sale of Receivables Program Assets to the Receivables Subsidiary by any
Restricted Company and a subsequent substantially concurrent resale of such
Receivables Program Assets, or an interest therein, to a third party shall be
treated as a single Accounts Receivable Financing transaction.
ACCOUNTS RECEIVABLE FINANCING AMOUNT means, with respect to any
Accounts Receivable Financing and without duplication, the aggregate
outstanding principal amount of the undivided percentage interests in the
Receivables Program Assets, representing Rights to be paid a specified
principal amount from such Receivables Program Assets.
ACQUISITION means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
by any Restricted Company of all or substantially all of the assets of a Person
or of any business or division of a Person, (b) the acquisition by any
Restricted Company of more than 50% of any class of Voting Stock (or similar
ownership interests) of any Person (provided that, formation or organization of
any entity shall not constitute an "Acquisition" to the extent that the amount
of the loan, advance, investment, or capital contribution in such entity
constitutes a permitted investment under SECTION 7.20); or (c) a merger,
consolidation, amalgamation, or other combination by any Restricted Company
with another Person if a Restricted Company is the surviving
<PAGE> 8
entity; provided that, in any merger involving Borrower, Borrower or a
Permitted Successor Corporation must be the surviving entity.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent
to be equal to the quotient obtained by dividing (a) the Eurodollar Rate for
such Eurodollar Rate Borrowing for such Interest Period by (b) 1 minus the
Reserve Requirement for such Eurodollar Rate Borrowing for such Interest
Period.
ADMINISTRATIVE AGENT means NationsBank of Texas, N.A., and its
permitted successor or successors as administrative agent for Lenders under
this Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Lender shall complete
and provide to Administrative Agent.
AFFILIATE of any Person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under common
control with, such Person, and, for purposes of this definition only,
"control," "controlled by," and "under common control with" mean possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of voting securities, by contract, or
otherwise).
AGREEMENT means this 364-Day Revolving Credit and Term Loan Agreement
(as the same may hereafter be amended, modified, supplemented, or restated from
time to time).
ANNUALIZED OPERATING CASH FLOW means, for any Person, an amount equal
to the product of four (4) multiplied by the amount of the Operating Cash Flow
for the relevant period for calculation (subject to adjustments as set forth in
the definition of "Operating Cash Flow"). The relevant period for calculation
of Annualized Operating Cash Flow of the Consolidated Companies on any date of
determination shall be (a) for purposes of SECTION 7.28, the three-month period
then ending for which financial results are available, and (b) for all other
purposes under the Loan Papers, the then most recently ended fiscal quarter for
which quarterly or annual Financial Statements calculated for the Consolidated
Companies on a consolidated basis have been delivered by Borrower pursuant to
SECTIONS 7.3(a) and 7.3(b).
APPLICABLE MARGIN means the lowest percentage set forth in the table
below for the Type of Borrowing or commitment fees (as the case may be) which
corresponds to Borrower's conformity, on any date of determination, with either
the (i) Leverage Ratio or (ii) the ratings (or implied ratings) established by
both S&P and Moody's applicable to Borrower's senior, unsecured,
non-credit-enhanced long term indebtedness for borrowed money ("INDEX DEBT"):
2
<PAGE> 9
<TABLE>
<CAPTION>
APPLICABLE MARGIN
--------------------------------------------------------------------
RATINGS LEVERAGE RATIO BASE RATE EURODOLLAR RATE COMMITMENT
BORROWINGS BORROWINGS FEES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Category 1
----------
Equal to or higher than BBB+
by S&P; Less than 2.00:1.0 0.000% 0.300% 0.070%
Equal to or higher than Baa1
by Moody's
- -----------------------------------------------------------------------------------------------------------------------------
Category 2
----------
Greater than or equal
BBB by S&P; to 2.00:1.0, 0.000% 0.350% 0.090%
but less than 2.50:1.0
Baa2 by Moody's
- -----------------------------------------------------------------------------------------------------------------------------
Category 3
----------
Greater than or equal
BBB- by S&P; to 2.50:1.0, 0.000% 0.400% 0.100%
but less than 3.50:1.0
Baa3 by Moody's
- -----------------------------------------------------------------------------------------------------------------------------
Category 4
----------
Greater than or equal
BB+ by S&P; to 3.50:1.0, 0.000% 0.500% 0.150%
but less than 4.0:1.0
Ba1 by Moody's
- -----------------------------------------------------------------------------------------------------------------------------
Category 5
----------
Equal to BB or lower by S&P; Greater than or equal 0.000% 0.750% 0.225%
to 4.0:1.0
Equal to Ba2 or lower by
Moody's
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
For purposes of determining the Applicable Margin:
(a) With respect to the debt ratings criteria: (i) if
neither Moody's nor S&P shall have in effect a rating for Index Debt
(other than by reason of the circumstances referred to in the last
sentence of this definition), then both such rating agencies will be
deemed to have established ratings for Index Debt in Category 5; (ii)
if only one of Moody's or S&P shall have in effect a rating for Index
Debt, Borrower and the Lenders will negotiate in good faith to agree
upon another rating agency to be substituted by an agreement for the
rating agency which shall not have a rating in effect, and in the
absence of such agreement the Applicable Margin will be determined by
reference to the available rating; (iii) if the ratings established by
Moody's and S&P shall differ by one Category, the Applicable Margin
shall be determined by reference to the numerically lower Category:
(for example, if the rating from S&P is in Category 1 and the rating
from Moody's is in Category 2, the Applicable Margin shall be
determined by reference to Category 1); (iv) if the ratings
established by Moody's and S&P shall differ by more than one Category,
the Applicable Margin shall be determined by reference to the Category
that is one numerical
3
<PAGE> 10
Category lower than the numerically higher of the two Categories
corresponding to the ratings established by the two rating agencies:
(for example, if the rating from S&P is in Category 2 and the rating
from Moody's is in Category 5, the Applicable Margin shall be
determined by reference to Category 4); and (iv) if any rating
established by Moody's or S&P shall be changed (other than as a result
of a change in the rating system of either Moody's or S&P), such
change shall be effective as of the date on which such change is first
announced by the rating agency making such change. If the rating
system of either Moody's or S&P shall change prior to the payment in
full of the Obligation and the cancellation of all commitments to lend
hereunder, Borrower and the Lenders shall negotiate in good faith to
amend the references to specific ratings in this definition to reflect
such changed rating system. If both Moody's and S&P shall cease to be
in the business of rating corporate debt obligations, Borrower and the
Lenders shall negotiate in good faith to agree upon a substitute
rating agency and to amend the references to specific ratings in this
definition to reflect the ratings used by such substitute rating
agency.
(b) Until the second Business Day after the initial
Financial Statements and Compliance Certificate for the fiscal quarter
ending March 31, 1998, shall have been delivered hereunder, the
Applicable Margin for Leverage Ratio purposes shall be deemed to be
0.0% for Base Rate Borrowings, and 0.40% for Eurodollar Rate
Borrowings. With respect to any adjustments in the Applicable Margin
as a result of changes in the Leverage Ratio, such adjustment shall be
effective commencing on the second Business Day after the delivery of
Financial Statements (and related Compliance Certificate) pursuant to
SECTIONS 7.3(a) and 7.3(b) or the most recent Notice of Borrowing or
Permitted Acquisition Compliance Certificate for a Permitted
Acquisition, as the case may be.
(c) During any time that the Applicable Margin is
determined with respect to the Leverage Ratio, if Borrower fails to
timely furnish to Lenders the Financial Statements and related
Compliance Certificates as required to be delivered pursuant to
SECTIONS 7.3(a) and 7.3(b), and such failure shall not be remedied
within five days after written notice thereof from the Administrative
Agent or any Lender, then the Applicable Margin shall be the lesser of
(i) the then-effective Applicable Margin with respect to the debt
rating criteria, if any, or (ii) the maximum Applicable Margin
specified in the table above for Category 5.
(d) On the 271st day following the Closing Date, the
Applicable Margin for all Eurodollar Rate Borrowings shall be
increased by 0.125%.
ARRANGER means NationsBanc Montgomery Securities LLC, and its
successors and assigns.
ASSUMED TAXES means, with respect to any Equity Issuance, an amount
equal to such incremental annual increase in franchise Taxes as Borrower
estimates in good faith shall be payable as a result of such Equity Issuance.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority (including, without limitation, the FCC and applicable PUCs),
including without limitation, any of the foregoing authorizing or permitting
the acquisition, construction, or operation of network facilities or any other
telecommunications system.
BASE RATE means, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (.5%)
and (b) the Prime Rate for such day. Any change
4
<PAGE> 11
in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to
Borrower under the Loan Papers (under the Competitive Bid Subfacility or
otherwise), whether such amount constitutes an original disbursement of funds
or the continuation of an amount outstanding, or (b) by any Lender in
accordance with, and to satisfy the obligations of any Restricted Company
under, any Loan Paper.
BORROWING DATE is defined in SECTION 2.5(a).
BROOKS is defined in the recitals to this Agreement.
BROOKS NOTE TRANSACTION means, the contemplated tender offer, exchange
offer, consent solicitation, or other acquisition by Borrower of the Brooks
Notes, consummated in a manner and upon terms and conditions reasonably
satisfactory to Administrative Agent.
BROOKS NOTES means, collectively or individually, (a) the 10% Senior
Notes due 2007, issued under the Indenture dated as of May 29, 1997, between
Brooks and The Bank of New York, as Trustee, (b) the 10 7/8% Senior Discount
Notes due 2006, issued under the Indenture dated as of February 26, 1996,
between Brooks and The Bank of New York, as Trustee, and (c) the 11 7/8% Senior
Discount Notes due 2006, issued under the Indenture dated as of November 7,
1996, between Brooks and The Bank of New York, as Trustee.
BROOKS NOTE AGREEMENTS means, collectively or individually, (a) the
Indenture dated as of May 29, 1997, between Brooks and the Bank of New York, as
Trustee, pursuant to which the 10% Senior Notes of Brooks were issued (as the
same may have been and may hereafter be supplemented, amended, and modified,
subject to the provisions of SECTION 7.25 on and after the date upon which
Brooks and its Subsidiaries are redesignated as Restricted Subsidiaries); (b)
the Indenture dated as of February 26, 1996, between Brooks and the Bank of New
York, as Trustee, pursuant to which the 10 7/8% Senior Discount Notes of Brooks
were issued (as the same may have been and may hereafter be supplemented,
amended, and modified, subject to the provisions of SECTION 7.25 on and after
the date upon which Brooks and its Subsidiaries are redesignated as Restricted
Subsidiaries); and (c) the Indenture dated as of November 7, 1996, between
Brooks and the Bank of New York, as Trustee, pursuant to which the 11 7/8%
Senior Discount Notes of Brooks were issued (as the same may have been and may
hereafter be supplemented, amended, and modified, subject to the provisions of
SECTION 7.25 on and after the date upon which Brooks and its Subsidiaries are
redesignated as Restricted Subsidiaries).
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in New York, New York, and (b) in addition to
the foregoing, in respect of any Eurodollar Rate Borrowing, a day on which
dealings in United States dollars are conducted in the London interbank market
and commercial banks are open for international business in London.
5
<PAGE> 12
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been
executed by Borrower, Administrative Agent, and Lenders and all conditions
precedent specified in SECTION 5.1 have been satisfied or waived.
CODE means the Internal Revenue Code of 1986, as amended, together
with rules and regulations promulgated thereunder.
COMMITMENT means an amount (subject to reduction or cancellation as
herein provided) equal to $1,250,000,000.
COMMITMENT PERCENTAGE means the proportion that any Lender's Committed
Sum bears to the Commitment then in effect.
COMMITTED SUM means the amount stated beside each Lender's name on the
most-recently amended SCHEDULE 2.1 to the Agreement (which amount is subject to
increase, reduction, or cancellation in accordance with this Agreement).
COMPETITIVE BID means an offer by a Lender to fund a Borrowing under
the Competitive Bid Subfacility pursuant to SECTION 2.4.
COMPETITIVE BID AVAILABILITY means, on any date of determination
thereof, 100% of the then-effective Commitment.
COMPETITIVE BID NOTE means a promissory note in substantially the form
of EXHIBIT A-2, and all renewals and extensions of all or any part thereof.
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Lender
pursuant to SECTION 2.2, (a) in the case of a Eurodollar Rate Borrowing, the
margin which shall be added to or subtracted from the Adjusted Eurodollar Rate,
and (b) in the case of a Fixed Rate Borrowing, the fixed rate of interest, in
each case, offered by the Lender making such Competitive Bid.
COMPETITIVE BID REQUEST means a request for Competitive Bids made
pursuant to SECTION 2.2(b) substantially in the form of EXHIBIT B-3.
COMPETITIVE BID SUBFACILITY means the subfacility described in and
subject to the limitations of SECTION 2.2.
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
Subfacility.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D-1.
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing or a Fixed Rate
Borrowing as a consequence of (a) any failure or refusal of Borrower (for any
reasons whatsoever other than a default by Administrative Agent or a Lender) to
accept or utilize such Borrowing after Borrower shall have requested it under
this Agreement, or (b) any
6
<PAGE> 13
prepayment or payment of such Borrowing or conversion of such Borrowing to a
Borrowing of another Type, in each case, prior to the last day of the Interest
Period therefor.
CONSOLIDATED COMPANIES means, at any date of determination thereof,
Borrower and each of its Subsidiaries (including the Unrestricted
Subsidiaries).
CONSOLIDATED NET INCOME means, for any period, the amount that should,
in accordance with GAAP, be reflected on the Consolidated Companies'
consolidated income statement as net income for that period.
CONSOLIDATED NET WORTH means, for any period, the consolidated
stockholders' equity of the Consolidated Companies as determined in accordance
with GAAP.
CURRENT FINANCIALS means, at the time of any determination thereof,
the more recently delivered to Lenders of either (a) the Financial Statements
of Borrower for the fiscal year ended December 31, 1996, and the nine-month
period ended September 30, 1997, calculated on a consolidated basis for the
Consolidated Companies and the Financial Statements of Brooks and its
consolidated Subsidiaries for the nine-month period ending September 30, 1997;
or (b) the Financial Statements required to be delivered under SECTIONS 7.3(a)
or 7.3(b), as the case may be, separately calculated on a consolidated basis
for the Consolidated Companies.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor,
guarantor, or otherwise; (c) all obligations of the type referred to in CLAUSES
(a)(i) through CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons
secured by any Lien on any property or asset of such Person (whether or not
such obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount
of the obligation so secured; (d) the face amount of all letters of credit and
banker's acceptances issued for the account of such Person, and without
duplication, all drafts drawn and unpaid thereunder; and (e) obligations
arising under any Accounts Receivable Financing which in accordance with GAAP
should be classified upon such Person's balance sheet as liabilities.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to
time in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
Base Rate Borrowings plus 2% and (b) the Maximum Rate.
7
<PAGE> 14
DETERMINING LENDERS means, on any date of determination occurring
prior to the date upon which the Commitment has been terminated, those Lenders
who collectively hold at least 51% of the Commitment (or 51% of the Principal
Debt, if the Facility has been terminated or converted to a Term Loan).
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any such
securities, (b) the declaration or payment of any dividend on or with respect
to any such securities, and (c) any other payment by such Person with respect
to such securities.
DOLLARS and the symbol $ shall mean lawful money of the United States
of America.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); and (c) any other Person approved by Administrative Agent (which
approval will not be unreasonably withheld or delayed by Administrative Agent)
and, unless a Default has occurred and is continuing at the time any assignment
is effected in accordance with SECTION 11.14, Borrower, such approval not to be
unreasonably withheld or delayed by Borrower and such approval to be deemed
given by Borrower if no objection is received by the assigning Lender and the
Administrative Agent from Borrower within five Business Days after notice of
such proposed assignment has been provided by the assigning Lender to Borrower;
provided, however, that neither Borrower nor any Affiliate of Borrower shall
qualify as an Eligible Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
but not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. Section 136 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
201 and Section 300f et seq.) and the Rivers and Harbors Act (33 U.S.C.
Section 401 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.)
and analogous state and local Laws, as any of the foregoing may have been and
may be amended or supplemented from time to time, and any analogous future
enacted or adopted Law, or (d) the Release or threatened Release of Hazardous
Substances.
EQUITY ISSUANCE means the issuance by any Restricted Company of any
shares of any class of stock, warrants, or other equity interests, other than
(a) stock issued by Borrower as payment of all or any portion of the purchase
price for a Permitted Acquisition, (b) present and future shares of stock,
options, or warrants issued to employees, directors or consultants of the
Restricted Companies, or stock issued upon their exercise, and (c) stock issued
upon the exercise of the existing options and warrants described on SCHEDULE
6.3.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
8
<PAGE> 15
ERISA AFFILIATE means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is a member of
Borrower's controlled group or which is under common control with Borrower
within the meaning of Section 414(b) or (c) of the Code.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means, as the case may be, either (a) a
Borrowing (other than a Competitive Borrowing) bearing interest at the sum of
the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings, or (b) a Competitive Borrowing bearing interest at the sum of the
Adjusted Eurodollar Rate plus or minus the margin indicated for such
Competitive Borrowing in the related Competitive Bid.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
EXISTING DEBT means the Debt described on SCHEDULE 7.12(d).
EXISTING LIENS means those Liens described on SCHEDULE 7.13.
FACILITY means the credit facility described in SECTION 2.1 and
subject to the limitations of the Agreement.
FACILITY A AGREEMENT means the Facility A Revolving Credit Agreement
dated as of July 3, 1997, among Borrower, Administrative Agent, the Agents and
Co-Agents (as such terms are defined therein), and the Facility A Lenders (as
the same may be amended, modified, supplemented, or restated from time to
time).
FACILITY A LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 to the Facility A Agreement (as the same may
be amended from time to time) and their respective successors and assigns, but
not any participant who is not otherwise a party to the Facility A Agreement.
FACILITY B AGREEMENT means the Facility B Revolving Credit and Term
Loan Agreement dated as of July 3, 1997, among Borrower, Administrative Agent,
the Agents and Co-Agents (as such terms are defined therein), and the Facility
B Lenders (as the same may be amended, modified, supplemented, or restated from
time to time).
FACILITY B LENDERS means, on any date of determination, the financial
institutions named on SCHEDULE 2.1 to the Facility B Agreement (as the same may
be amended from time to time) and their
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respective successors and assigns, but not any Participant who is not otherwise
a party to the Facility B Agreement.
FCC means the Federal Communications Commission and any successor
regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that, (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by Administrative Agent (which determination shall be conclusive and
binding, absent manifest error).
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk of fluctuations in
interest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
or other contract which is intended to reduce or eliminate the market risk of
holding currency or a commodity in either the cash or futures markets, which
Financial Hedge under either CLAUSE (a) or CLAUSE (b) is entered into by any
Restricted Company with any Lender or an Affiliate of any Lender or any other
Person under the Laws of a jurisdiction in which such contracts are legal and
enforceable (except as enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity).
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures.
FIXED RATE BORROWING means any Competitive Borrowing made from a
Lender pursuant to SECTION 2.2 based upon an actual percentage rate per annum
offered by such Lender, expressed as a decimal (to no more than four decimal
places) and accepted by Borrower.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which (a) with respect to the
covenants contained in SECTION 7.28 and the defined terms "ANNUALIZED OPERATING
CASH FLOW," "INTEREST EXPENSE," "LEVERAGE RATIO," and "OPERATING CASH FLOW,"
(and, to the extent used in or relating to such covenants or such defined
terms, any other defined terms), are in effect on the date hereof, and (b) for
all other purposes hereunder, are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or
federal judicial, executive, or legislative instrumentality, (b) private
arbitration board or panel, or (c) central bank.
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
defined or classified as a hazardous waste, hazardous material, pollutant,
contaminant or toxic or hazardous substance under any Environmental Law,
including without limitation, any hazardous substance within the meaning of
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Section 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil,
motor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons,
(c) regulated asbestos and asbestos-containing materials in any form, (d)
polychlorinated biphenyls, or (e) urea formaldehyde foam.
INTEREST EXPENSE means, for any period of calculation thereof, for any
Person, all interest (including commitment fees) on all Debt of such Person,
whether paid in cash or accrued as a liability and payable in cash during such
period (including, without limitation, imputed interest on Capital Lease
obligations) and all cash premiums or penalties for repayment, redemption, or
repurchase of Debt.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LENDERS means, on any date of determination, the financial
institution(s) named on SCHEDULE 2.1 (as the same may be amended from time to
time by Administrative Agent to reflect the assignments made in accordance with
SECTION 11.14(c) of this Agreement) and subject to the terms and conditions of
this Agreement, and their respective successors and assigns, but not any
Participant who is not otherwise a party to this Agreement.
LEVERAGE RATIO means, on any date of determination thereof, the ratio
of (a) Total Debt outstanding, minus (i) the amount of any
immediately-available cash or Cash Equivalents owned by the Restricted
Companies, and (ii) the market value (determined as of any date of
determination) of any immediately-available Marketable Securities owned by the
Restricted Companies, to (b) Annualized Operating Cash Flow of the Consolidated
Companies. The Leverage Ratio shall be (x) determined, for purposes of SECTION
7.28, as of any such date of determination, and (y) determined for all other
purposes under the Loan Papers, from the then most current of (A) the quarterly
or annual Financial Statements calculated for the Consolidated Companies on a
consolidated basis and related Compliance Certificate delivered by Borrower
pursuant to SECTIONS 7.3(a) and 7.3(b), or (B) the most recent Notice of
Borrowing for a Permitted Acquisition or any Permitted Acquisition Compliance
Certificate, calculating any adjustments to the Leverage Ratio necessitated as
a result of the Permitted Acquisition. As used in this definition:
(i) the term "immediately-available" shall mean that any
such cash, Cash Equivalents, or Marketable Securities are capable of
being liquidated (without premium, penalty, or restriction, other than
premiums, penalties, or restrictions not exceeding in the aggregate
for any marketable security 3% of the market value of such security on
the date of determination) within thirty days of any date of
determination, are not subject to any Liens or claims of third
persons, and are unconditionally available for payment of the
Principal Debt upon liquidation;
(ii) the term "Cash Equivalent" shall mean any investments
of the Restricted Companies which are permitted by SECTION 7.20(a) -
(f), and which mature within 30 days of any date of determination, and
which are unconditionally available for repayment of the Principal
Debt, upon liquidation; and
(iii) the term "Marketable Securities" shall mean any debt
or equity investments in any Person other than a Consolidated Company
(or an Affiliate of any Consolidated Company), which is traded on a
national securities exchange, which is owned of record legally and
beneficially by a Restricted Company, which is free and clear of any
Liens, which is not subject to any restriction
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on transfer or sale (other than restrictions imposed by securities
Laws and general corporate Laws), and which is unconditionally
available for repayment of the Principal Debt upon liquidation.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Agreement, certificates delivered pursuant
to this Agreement, and Exhibits and Schedules hereto, (b) all agreements,
documents, or instruments in favor of Administrative Agent or Lenders (or
Administrative Agent on behalf of Lenders) ever delivered pursuant to this
Agreement, or otherwise delivered in connection with all or any part of the
Obligation, (c) any Financial Hedge between any Restricted Company and any
Lender or any Affiliate of any Lender, and (d) all renewals, extensions, or
restatements of, or amendments or supplements to, any of the foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Restricted Company
to perform any of its payment or other material obligations under the Loan
Papers or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers, (b)
material and adverse effect on the business, properties, condition (financial
or otherwise) or results of operations of the Restricted Companies, in each
case considered as a whole, (c) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of operations of the
Consolidated Companies, in each case considered as a whole, or (d) Default or
Potential Default. The phrase "could be a Material Adverse Event" (and any
similar phrase herein) means that there is a material probability of such
Material Adverse Event occurring, and the phrase "could not be a Material
Adverse Event" (and any similar phrase herein) means that there is not a
material probability of such Material Adverse Event occurring.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender,
the maximum non-usurious amount and the maximum non-usurious rate of interest
which, under applicable Law, such Lender is permitted to contract for, charge,
take, reserve, or receive on the Obligation.
MFS means MFS Communications Company, Inc., and its successors and
assigns.
MFS NOTE AGREEMENTS means collectively or individually (i) the
Indenture dated as of January 15, 1994, between MFS and IBJ Schroder Bank &
Trust Company, as Trustee, pursuant to which the 9-3/8% Senior Discount Notes
of MFS were issued, as supplemented by the First Supplemental Indenture dated
as of March 31, 1995 (as the same may be further supplemented, amended, and
modified, subject to the provisions of SECTION 7.25 on and after the date upon
which MFS and its Subsidiaries are redesignated as Restricted Subsidiaries) and
(ii) the Indenture dated as of January 15, 1996, between MFS and IBJ Schroder
Bank & Trust Company, as Trustee, as supplemented by the First Supplemental
Indenture dated as of January 15, 1996, pursuant to which the 8-7/8% Senior
Discount Notes of MFS were issued (as the same may be further supplemented,
amended, and modified subject to the provisions of SECTION 7.25 on and after
the date upon which MFS and its Subsidiaries are redesignated as Restricted
Subsidiaries).
MOODY'S means Moody's Investors Service, Inc. or any successor
thereto.
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MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
Restricted Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make contributions.
NET CASH PROCEEDS means, with respect to any Equity Issuance, cash
(freely convertible into Dollars) (including any cash received by way of
deferred payment pursuant to a promissory note, or otherwise, but only as and
when received) received, on or after the date of such Equity Issuance, by any
Restricted Company from such Equity Issuance, net of usual and customary
transaction costs and expenses and Assumed Taxes.
NOTE AGREEMENTS means, collectively, any indentures or other
agreements pursuant to which notes, debentures, bonds, or debt securities are
issued in accordance with the limitations set forth in SECTION 7.12(F).
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Revolving/Term Notes and Competitive Bid Notes.
NOTICE OF BORROWING is defined in SECTION 2.5(a).
NOTICE OF CONVERSION is defined in SECTION 3.10.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent or any Lender by any Restricted
Company arising from, by virtue of, or pursuant to any Loan Paper, together
with all interest accruing thereon, fees, costs, and expenses (including,
without limitation, all attorneys' fees and expenses incurred in the
enforcement or collection thereof) payable under the Loan Papers.
OPERATING CASH FLOW means, for any Person and any period of
calculation thereof, the sum (without duplication and without giving effect to
any extraordinary losses or gains during such period) of (a) pre-tax income or
deficit during such period, plus (b) to the extent already deducted in
computing such pre-tax income, (i) Interest Expense during such period, (ii)
depreciation, amortization, and other non-cash expense items during such
period, and (iii) any non-recurring cash and non-cash merger and restructuring
charges related solely to Acquisitions occurring on or after July 3, 1997 (so
long as the aggregate amount of all adjustments made pursuant to this CLAUSE
(iii) for the entire period on or after July 3, 1997, shall not exceed
$100,000,000) less (c) any income (or plus any loss) attributable to any Person
accounted for on the "equity" method of accounting (other than dividends or
distributions actually received by any Restricted Company from such Person);
provided that, in calculating Operating Cash Flow for the Consolidated
Companies, no more than 7.5% of such Operating Cash Flow may be comprised of
Operating Cash Flow of Unrestricted Subsidiaries. Only for the purpose of the
calculation of the Leverage Ratio with respect to the Consolidated Companies,
Operating Cash Flow of the Consolidated Companies shall be calculated after
giving effect to Acquisitions and divestitures of Restricted Companies
permitted by the Loan Papers during such period as if such transactions had
occurred on the first day of such period, regardless whether the effect is
positive or negative. In the case of any Permitted Acquisition during any
period of calculation, Operating Cash Flow of the Consolidated Companies shall,
for the purposes of the foregoing calculations, be adjusted to give effect to
such Permitted Acquisition, as if such Permitted Acquisition occurred on the
first day of such period, by increasing, if positive, or decreasing, if
negative, the Operating Cash Flow of the Consolidated Companies by the
Operating Cash Flow of such newly-acquired business during such period of
calculation occurring prior to the date of such Permitted Acquisition. In the
case of any Restricted Company being sold, transferred, or otherwise disposed
of by
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any Restricted Company as permitted under the Loan Papers (a "PERMITTED
DISPOSITION") during any period of calculation, Operating Cash Flow shall, for
the purposes of the foregoing calculations be adjusted to give effect to such
Permitted Disposition, as if such Permitted Disposition occurred on the first
day of such period, by decreasing, if positive, or increasing, if negative, the
Operating Cash Flow of the Consolidated Companies by the Operating Cash Flow of
such newly- sold Restricted Companies during such period prior to the date of
the Permitted Disposition. Only for the purpose of the calculation of the
Leverage Ratio with respect to the Consolidated Companies, Operating Cash Flow
of the Consolidated Companies shall be adjusted to give effect to any
designation of a Restricted or Unrestricted Subsidiary on the first day of the
calculation period in which such Subsidiaries are so designated pursuant to
SECTION 7.27 hereof.
PARTICIPANT is defined in SECTION 11.14(e).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED ACQUISITION means:
(a) Any Acquisition by a Restricted Company with a
Purchase Price of less than $250,000,000, so long as: (i) all
representations and warranties under the Loan Papers are true and
correct immediately prior to and after giving effect to the
Acquisition; and (ii) no Default or Potential Default exists at the
time of the Acquisition and after giving effect to the Acquisition;
provided that, if the Purchase Price for any Acquisition exceeds
$50,000,000 (or, shall exceed $50,000,000 when aggregated with all
other Acquisitions under this ITEM (a) consummated during any fiscal
quarter of the Restricted Companies), Borrower shall certify in
writing (delivered to Administrative Agent) compliance with the
requirements of this ITEM (a) on the closing date of such Acquisition,
and, to the extent applicable, shall comply with the requirements of
SECTION 5.2(b);
(b) Any Acquisition by a Restricted Company with a
Purchase Price of $250,000,000 or more, with respect to which each of
the following requirements shall have been satisfied:
(i) as of the closing of any Acquisition, the
Acquisition has been approved and recommended by the board of
directors or other similar governing body of the Person to be
acquired or from which such business is to be acquired;
(ii) not later than the closing date of the
Acquisition, Borrower shall have delivered to Administrative
Agent a written description of the targeted entity to be
acquired and its operations and a copy of the related purchase
agreement (and, upon the request of Administrative Agent, all
of the schedules and exhibits thereto);
(iii) as of the closing of any Acquisition, after
giving effect to such Acquisition, the acquiring party must be
Solvent and the Restricted Companies, on a consolidated basis,
must be Solvent;
(iv) prior to consummation of any Acquisition,
Borrower shall have satisfied the conditions precedent to a
Permitted Acquisition as set forth in SECTION 5.2;
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(v) as of the closing of any Acquisition, no
Default or Potential Default shall exist or occur as a result
of, and after giving effect to, such Acquisition; and
(vi) as of the closing of any Acquisition, if such
Acquisition is structured as a merger, Borrower or a Permitted
Successor Corporation (or if such merger is with any
Restricted Company other than Borrower, then a Restricted
Company) must be the surviving entity after giving effect to
such merger; and
(c) any other Acquisition for which the prior written
consent of Determining Lenders has been obtained; provided that at the
request of Administrative Agent, Borrower shall have delivered to
Administrative Agent the following: (i) five year income and balance
sheet projections in respect of the Restricted Companies and the
entity to be acquired, after giving effect to such Acquisition; and
(ii) such other information in respect of such Acquisition as
Administrative Agent or Determining Lenders shall have reasonably
requested. Administrative Agent shall, upon request of Borrower,
confirm to Borrower that it has received all such agreements,
documents, instruments, and other information so requested by
Administrative Agent or Determining Lenders.
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a certificate
signed by a Responsible Officer of Borrower, substantially in the form of
EXHIBIT D-2.
PERMITTED DEBT means Debt permitted under SECTION 7.12 as described in
such Section.
PERMITTED LIENS means Liens permitted under SECTION 7.13 as described
in such Section.
PERMITTED SUCCESSOR CORPORATION means any corporation into which
Borrower is merged or consolidated, so long as:
(a) immediately after giving effect to such merger or
consolidation, the surviving corporation shall have then-effective
ratings (or implied ratings) published by Moody's and S&P applicable
to such surviving corporation's senior, unsecured,
non-credit-enhanced, long term Debt, which ratings shall be equal to
or higher than the debt ratings of Borrower immediately prior to
giving effect to such merger or consolidation;
(b) such surviving corporation shall be a corporation
organized and existing under the Laws of the United States of America,
any state thereof or the District of Columbia, and shall expressly
assume all of Borrower's obligations for the due and punctual payment
of the Obligation and the performance or observance of the Loan
Papers;
(c) immediately after giving effect to such merger or
consolidation, no Default or Potential Default shall have occurred and
be continuing;
(d) Borrower shall have delivered to Administrative Agent
a certificate signed by a Responsible Officer of Borrower and a
written opinion of counsel satisfactory to the Administrative Agent
(and its counsel), each stating that such merger or consolidation
complies with the requirements for a Permitted Successor Corporation
and that all conditions precedent herein provided for relating to such
merger or consolidation have been satisfied;
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(e) No "Change of Control" (as defined in SECTION 8.8)
has occurred as a result of such merger or consolidation; and
(f) on and prior to the closing of any such merger or
consolidation, such merger and consolidation shall have been approved
and recommended by the board of directors of Borrower.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of
any circumstance which, with the giving of notice or lapse of time or both,
would become a Default.
PRIME RATE means the per annum rate of interest established from time
to time by NationsBank of Texas, N.A. as its prime rate, which rate may not be
the lowest rate of interest charged by NationsBank of Texas, N.A. to its
customers.
PRINCIPAL DEBT means, on any date of determination, the aggregate
unpaid principal balance of all Borrowings under this Facility.
PRO RATA or PRO RATA PART means on any date of determination thereof:
(a) for each Lender with respect to allocation of any
principal or interest payments on any Competitive Borrowing -- the
proportion that the outstanding principal amount or accrued and unpaid
interest (as the case may be) owed to any Lender participating in such
Competitive Borrowing bears to the total principal amount outstanding
or accrued and unpaid interest (as the case may be) owed to all
Lenders participating in such Competitive Borrowing; and
(b) for all other purposes, for any Lender, (a) at any
time prior to the termination of the Commitment, the proportion that
such Lender's Committed Sum bears to the Commitment, or (b) at any
time on and after the termination of the Commitment, the proportion
that the Principal Debt owed to such Lender bears to the Principal
Debt.
PUC means any state or local regulatory agency or governmental
authority that exercises jurisdiction over the rates or services or the
ownership, construction, or operation of network facilities or
telecommunications systems or over Persons who own, construct, or operate
network facilities or telecommunications systems.
PURCHASE PRICE means with respect to any Acquisition the "purchase
price" as specified and determined in accordance with the purchase agreement
and other related acquisition documents evidencing such Acquisition.
RECEIVABLES means all Rights of any Consolidated Company (as a
"Seller" under Receivables Documents) to payments (whether constituting
accounts, chattel paper, instruments, general intangibles, or otherwise, and
including the Right to payment of any interest or finance charges) with respect
to dedicated telecommunications services provided by any such Consolidated
Company to its customers between designated customer premises.
RECEIVABLES DOCUMENTS means one or more receivables purchase
agreements entered into by one or more Consolidated Companies and each other
instrument, agreement, and document entered into by such Consolidated Companies
evidencing Accounts Receivable Financings.
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RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which
undivided percentage interests are transferred by any Consolidated Company
pursuant to the Receivables Documents, (b) all Receivables Related Assets with
respect to the Receivables described in CLAUSE (A) of this definition, and (c)
all collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
documentation governing or relating to Receivables (including Rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables), (b) any proceeds of such Receivables and any lockboxes or
accounts in which such proceeds are deposited, and (c) spread accounts and
other similar accounts (and any amounts on deposit therein) established in
connection with an Accounts Receivable Financing.
RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
created in connection with the transactions contemplated by an Accounts
Receivable Financing, which Subsidiary engages in no activities or owns no
other assets, other than those incidental to such Accounts Receivable
Financing.
REGISTER is defined in SECTION 11.14(c).
REGULATION D means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the
Federal Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
REPORTABLE EVENT shall have the meaning specified in Section 4043 of
ERISA or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in Sections 2615.11, 2615.15
and 2615.19 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
RESERVE REQUIREMENT means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental,
or emergency reserves) are required to be maintained under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against, in the
case of Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (a) any category of liabilities which
includes deposits by reference to which the Adjusted Eurodollar Rate is to be
determined, or (b) any category of extensions of credit or other assets which
include Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in the
Reserve Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive
officer, chief financial officer, senior vice president, or treasurer of
Borrower, or, for all purposes under the Loan Papers other than
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SECTION 8.8, any other officer designated from time to time by the Board of
Directors of Borrower, which designated officer is acceptable to Administrative
Agent.
RESTRICTED COMPANIES, at any time of determination thereof, shall mean
Borrower and each of its Subsidiaries (other than the Unrestricted
Subsidiaries) of which more than 50% (by number of votes) of the Voting Stock
is beneficially owned, directly or indirectly, by Borrower or any Restricted
Subsidiary.
RESTRICTED SUBSIDIARIES means the Restricted Companies, other than
Borrower.
REVOLVING/TERM NOTE means a promissory note in substantially the form
of EXHIBIT A-1, and all renewals and extensions of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate and maintain the
network facilities.
SALE-LEASEBACK FINANCINGS means those certain transactions pursuant to
the Sale-Leaseback Participation Agreements pursuant to which Williams
Telecommunications Company (predecessor in interest to WorldCom Network
Services, Inc.) sold (a) its fiber optics telecommunications system from
Fairfax, Kansas to Salt Lake City, Utah, (b) its fiber optics
telecommunications system from Salt Lake City, Utah to Los Angeles, California,
and (c) its digital microwave telecommunications system from Evanston, Wyoming
to Portland, Oregon, and the owner participants leased such systems back to
Williams Telecommunications Company (predecessor in interest to WorldCom
Network Services, Inc.).
SALE-LEASEBACK PARTICIPATION AGREEMENTS means (a) the First
Supplemental Participation Agreement, dated as of April 15, 1987, among
Williams Telecommunications Company (predecessor in interest to WorldCom
Network Services, Inc.), as lessee, The CIT Group/Factoring Manufacturers
Hanover, Inc. ("CIT"), as owner participant, Wilmington Trust Company and
William J. Wade, as owner trustee, the purchasers listed in Schedule I thereto,
as purchasers, and The Connecticut Trust Company, National Association
("CBT"), as indenture trustee, (b) the Participation Agreement, dated as of
April 15, 1987, among Williams Telecommunications Company (predecessor in
interest to WorldCom Network Services, Inc.), as lessee, Ford Motor Credit
Company, as owner participant, Wilmington Trust Company and William J. Wade as
owner trustee, the financial institutions listed in Schedule I thereto as loan
participants, and CBT, as indenture trustee, and (c) the Participation
Agreement, dated as of April 16, 1987, among Williams Telecommunications
Company (predecessor in interest to WorldCom Network Services, Inc.), as
lessee, Ford Motor Credit Company, as owner participant, Wilmington Trust
Company and William J. Wade, as owner trustee, the financial institutions
listed in Schedule I thereto, as loan participants, and CBT, as indenture
trustee.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SCHEDULE means, unless specified otherwise, a schedule attached to
this Agreement, as the same may be supplemented and modified from time to time
in accordance with the terms of the Loan Papers.
SOLVENT means, as to a Person, that (a) the aggregate fair market
value of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such
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Person has sufficient cash flow to enable it to pay its Debts as they mature,
and (c) such Person does not have unreasonably small capital to conduct such
Person's businesses.
SUBSIDIARY of any Person means any entity of which an aggregate of
more than 50% (in number of votes) of the stock (or equivalent interests) is
owned of record or beneficially, directly or indirectly, by such Person.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERM CONVERSION DATE means the date upon which the Principal Debt is
converted to a term loan in accordance with SECTION 2.3.
TERM CONVERSION REQUEST is defined in SECTION 2.3(a).
TERM LOANS means loans made by the Lenders pursuant to SECTION 2.3.
TERM LOAN MATURITY DATE is defined in SECTION 2.3.
TERMINATION DATE means the earliest of (a) February 18, 1999 and (b)
the effective date of any other termination or cancellation of Lenders'
commitments to lend under, and in accordance with, this Agreement.
TOTAL DEBT means (without duplication), all Debt of the Restricted
Companies.
TYPE means any type of Borrowing determined with respect to the
interest option applicable thereto.
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
mean (a) the Receivables Subsidiary, (b) any Subsidiary of Borrower designated
as an "Unrestricted Subsidiary" from time to time in accordance with SECTION
7.27, and (c) each of Brooks and its Subsidiaries, until the date upon which
such Companies are designated as Restricted Subsidiaries pursuant to SECTION
7.27. UNRESTRICTED SUBSIDIARY, at any time of determination, shall mean any of
the Unrestricted Subsidiaries.
VOTING STOCK shall mean securities (as such term is defined in Section
2(1) of the Securities Act of 1933, as amended) of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
WTG means Williams Telecommunications Group, Inc., a Delaware
corporation that merged with and into Borrower effective as of February 22,
1995.
1.2 Number and Gender of Words; Other References. Unless
otherwise specified, in the Loan Papers (a) where appropriate, the singular
includes the plural and vice versa, and words of any gender include each other
gender, (b) heading and caption references may not be construed in interpreting
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provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Paper in which they are used, (e)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (f) references to "including" mean including without
limiting the generality of any description preceding that word, (g) the rule of
construction that references to general items that follow references to
specific items are limited to the same type or character of those specific
items is not applicable in the Loan Papers, (h) references to any Person
include that Person's heirs, personal representatives, successors, trustees,
receivers, and permitted assigns, (i) references to any Law include every
amendment or supplement to it, rule and regulation adopted under it, and
successor or replacement for it, and (j) references to any Loan Paper or other
document include every renewal and extension of it, amendment and supplement to
it, and replacement or substitution for it.
1.3 Accounting Principles. All accounting and financial terms
used in the Loan Papers and the compliance with each financial covenant therein
shall be determined in accordance with GAAP, and, all accounting principles
shall be applied on a consistent basis so that the accounting principles in a
current period are comparable in all material respects to those applied during
the preceding comparable period.
SECTION 2 BORROWING PROVISIONS.
2.1 Commitments. Subject to and in reliance upon the terms,
conditions, representations, and warranties in the Loan Papers, each Lender
severally and not jointly agrees to lend to Borrower such Lender's Pro Rata
Part of one or more Borrowings not to exceed such Lender's Committed Sum,
which, subject to the Loan Papers, Borrower may borrow, repay, and reborrow
under this Agreement; provided that (a) each such Borrowing must occur on a
Business Day and no later than the Business Day immediately preceding the
Termination Date; (b) each such Borrowing shall be in an amount not less than
(i) $5,000,000 or a greater integral multiple of $1,000,000 (if a Base Rate
Borrowing), (ii) $20,000,000 or a greater integral multiple of $1,000,000 (if a
Eurodollar Rate Borrowing), or (iii) $20,000,000 or a greater integral multiple
of $1,000,000 (if a Competitive Borrowing) and (c) on any date of
determination, the Principal Debt shall never exceed the Commitment.
2.2 Competitive Bid Subfacility.
(a) In addition to Borrowings otherwise provided for
herein, but subject to the terms and conditions of the Loan Papers,
Borrower may, as set forth in this SECTION 2.2, request Lenders to
make offers to make Competitive Borrowings under the Facility.
Lenders may, but shall have no obligation to, make any such offers,
and Borrower may, but shall have no obligation to, accept any such
offers. Any Competitive Borrowings made available to Borrower
hereunder shall be subject, however, to the conditions that on any
date of determination: (i) the aggregate principal outstanding under
all Competitive Borrowings hereunder made by all Lenders shall not
exceed the Competitive Bid Availability then in effect; (ii) on any
date of determination, the Principal Debt shall not exceed the
Commitment; and (iii) each Borrowing under the Competitive Bid
Subfacility must occur on a Business Day and prior to the Business Day
immediately preceding the Termination Date.
(b) In order to request Competitive Bids, Borrower shall
deliver a Competitive Bid Request to Administrative Agent no later
than 10:00 a.m. Dallas, Texas time (i) on the fifth Business Day
preceding the Borrowing Date for any requested Competitive Borrowing
that will be comprised of Eurodollar Rate Borrowings, or (ii) not
later than 10:00 a.m. Dallas, Texas time one Business Day before the
Borrowing Date for any requested Competitive Borrowing that will
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be comprised of Fixed Rate Borrowings. A Competitive Bid Request that
does not conform substantially to the format of EXHIBIT B-3 may be
rejected by Administrative Agent, and Administrative Agent shall
promptly notify Borrower of such rejection. Each Competitive Bid
Request shall specify (i) whether the Competitive Borrowing then being
requested will be comprised of Eurodollar Rate Borrowings or Fixed
Rate Borrowings, (ii) the Borrowing Date of such Competitive Borrowing
(which shall be a Business Day) and the aggregate principal amount
thereof (which shall not be less than $20,000,000 or a greater
integral multiple of $1,000,000), and (iii) the Interest Period with
respect thereto (which may not be more than six months and which may
not extend beyond the Termination Date). Promptly after its receipt
of a Competitive Bid Request that is not rejected as aforesaid,
Administrative Agent shall notify Lenders of the Competitive Bid
Request on a form substantially similar to EXHIBIT B-4 hereto,
pursuant to which the Lenders are invited to bid, subject to the terms
and conditions of this Agreement, to make Competitive Borrowings
pursuant to such Competitive Bid Request. Notwithstanding the
foregoing, Administrative Agent shall have no obligation to invite any
Lender to make a Competitive Bid pursuant to this SECTION 2.2 until
such Lender has delivered a completed Administrative Questionnaire to
Administrative Agent.
(c) Each Lender may make one or more Competitive Bids to
Borrower responsive to each respective Competitive Bid Request. Each
Competitive Bid by a Lender must be received by Administrative Agent
substantially in the form of EXHIBIT B-5, (i) no later than 11:00 a.m.
Dallas, Texas time on the fourth Business Day preceding the Borrowing
Date for any requested Competitive Borrowing that will be comprised of
Eurodollar Rate Borrowings, or (ii) prior to 10:00 a.m. Dallas, Texas
time on the Borrowing Date for any requested Competitive Borrowing
that will be comprised of Fixed Rate Borrowings. Competitive Bids
that do not conform substantially to the format of EXHIBIT B-5 may be
rejected by Administrative Agent after conferring with, and upon the
instruction of, Borrower, and Administrative Agent shall notify the
appropriate Lender of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and shall (x) specify
the principal amount (which shall be in a minimum principal amount of
$5,000,000 or a greater integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Borrowing
requested by Borrower and may exceed such Lender's Committed Sum,
subject to the limitations set forth in SECTION 2.2(a) hereof) of the
Competitive Borrowing such Lender is willing to make to Borrower, (y)
specify the Competitive Bid Rate at which such Lender is prepared to
make its Competitive Borrowing, and (z) confirm the Interest Period
with respect thereto specified by Borrower in its Competitive Bid
Request. A Competitive Bid submitted by a Lender pursuant to this
SECTION 2.2(c) shall be irrevocable.
(d) Administrative Agent shall promptly notify Borrower
of all Competitive Bids made and the Competitive Bid Rate and the
principal amount of each Competitive Borrowing in respect of which a
Competitive Bid was made and the identity of the Lender that made each
bid.
(e) Borrower may, subject only to the provisions of this
SECTION 2.2(e), accept or reject any or all of the Competitive Bids
referred to in SECTION 2.2(c); provided, however, that the aggregate
amount of the Competitive Bids so accepted by Borrower may not exceed
the principal amount of the Competitive Borrowing requested by
Borrower (subject to the further limitations of SECTION 2.2(a)
hereof). Borrower shall notify Administrative Agent whether and to
what extent it has decided to accept or reject any or all of the bids
referred to in SECTION 2.2(c), (i) not later than 10:00 a.m. Dallas,
Texas time three Business Days before the Borrowing Date specified for
a proposed Competitive Borrowing that is deemed a Eurodollar Rate
Borrowing or (ii) not later than 11:00 a.m., Dallas, Texas time on the
day specified for a proposed Competitive Borrowing
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that is deemed a Fixed Rate Borrowing; provided, however, that (w) the
failure by Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in SECTION 2.2(c), (x) Borrower
shall not accept a bid in the same or lower principal amount made at a
particular Competitive Bid Rate if Borrower has decided to reject a
bid made at a lower Competitive Bid Rate, (y) if Borrower shall accept
bids made at a particular Competitive Bid Rate but shall be restricted
by other conditions hereof from borrowing the principal amount of the
Competitive Borrowing in respect of which bids at such Competitive Bid
Rate have been made, then Borrower shall accept a ratable portion of
each bid made at such Competitive Bid Rate based as nearly as possible
on the respective principal amounts of the Competitive Borrowing for
which such bids were made, and (z) no bid shall be accepted for a
Competitive Borrowing unless the aggregate principal amount to be
funded pursuant to all accepted bids shall be in a minimum amount of
$5,000,000 or a greater integral multiple of $1,000,000 for each
respective Lender whose bid is accepted. Notwithstanding the
foregoing, if it is necessary for Borrower to accept a ratable
allocation of the bids made in response to a Competitive Bid Request
(whether pursuant to the events specified in CLAUSE (Y) above or
otherwise) and the available principal amount of the Competitive
Borrowing to be allocated among Lenders submitting Competitive Bids is
not sufficient to enable Competitive Borrowings to be allocated to
each such Lender in a minimum principal amount of $5,000,000 or a
greater integral multiple of $1,000,000, then Borrower shall select
the Lenders to be allocated such Competitive Borrowings and shall
round allocations up or down to the next higher or lower multiple of
$500,000 as it shall deem appropriate. A notice given by Borrower
pursuant to this SECTION 2.2(e) shall be irrevocable.
(f) Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted
(which notice to those Lenders whose Competitive Bids have been
accepted will be given within one hour from the time such bid was
accepted by Borrower and shall further indicate in what amount and at
what Competitive Bid Rate), and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to
advance the Competitive Borrowing in respect of which its bid has been
accepted. After completing the notifications referred to in the
immediately preceding sentence, Administrative Agent shall notify each
bidding Lender of the aggregate principal amount of all Competitive
Bids accepted for and the range of Competitive Bid Rates submitted in
connection with that Competitive Borrowing.
(g) If Administrative Agent shall at any time elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit
such bid directly to Borrower one-half hour earlier than the latest
time at which the other Lenders are required to submit their bids to
Administrative Agent pursuant to SECTION 2.2(c).
(h) Each Competitive Borrowing shall be due and payable
on the last day of the applicable Interest Period; provided that if
Borrower fails to repay any Competitive Borrowing on such day,
Borrower shall be deemed to have given a Notice of Borrowing
requesting the Lenders to make a Borrowing in the amount of such
Competitive Borrowing, subject to satisfaction of the conditions
specified in SECTIONS 2.1 and 5.3; provided that failure to repay such
Competitive Borrowing on the last day of the applicable Interest
Period shall not constitute a failure to satisfy such conditions.
2.3 Conversion of Facility to Term Loans. Borrower shall have the
option to convert the Principal Debt outstanding on the Termination Date to a
Term Loan maturing no later than the earlier of (a) July 1, 2004, and (b) one
Business Day after the later of the "Facility A Termination Date" (as such
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term is defined in the Facility A Agreement), the "Term Loan Maturity Date" (as
such term is defined in the Facility B Agreement), and the "Facility B
Termination Date" (as such term is defined in the Facility B Agreement) (the
"TERM LOAN MATURITY DATE"), subject to and on the terms and conditions set
forth below:
(a) No sooner than 30 days (and not later than 10 days)
preceding the Termination Date, Borrower shall deliver to
Administrative Agent a Term Conversion Request in substantially the
form of EXHIBIT B-6, which, among other things, shall (i) specify
Borrower's election to make such conversion to a Term Loan, and (ii)
specify the Type of Borrowing or Borrowings to which the Principal
Debt shall be converted and the Interest Periods therefor (if
applicable) on the Term Conversion Date; and
(b) No Default or Potential Default shall exist on either
the date such Term Conversion Request is delivered or on the Term
Conversion Date; and no Default or Potential Default shall exist after
giving effect to the Term Loan Conversion.
2.4 Termination of Commitments. Without premium or penalty, and
upon giving not less than ten (10) Business Days prior written and irrevocable
notice to Administrative Agent, Borrower may terminate in whole or in part the
unused portion of the Commitment; provided that: (a) each partial termination
shall be in an amount of not less than $5,000,000 or a greater integral
multiple of $1,000,000; (b) the amount of the Commitment may not be reduced
below the Principal Debt then outstanding; and (c) each reduction shall be
allocated Pro Rata among the Lenders in accordance with their respective Pro
Rata Parts. Promptly after receipt of such notice of termination or reduction,
Administrative Agent shall notify each Lender of the proposed cancellation or
reduction. Such termination or partial reduction of the Commitment shall be
effective on the Business Day specified in Borrower's notice (which date must
be at least ten Business Days after Borrower's delivery of such notice). In
the event that the Commitment is reduced to zero at a time when there shall be
no outstanding Principal Debt, this Agreement shall be terminated to the extent
specified in SECTION 11.15, and all commitment fees and other fees then earned
and unpaid hereunder and all other amounts of the Obligation then due and owing
shall be immediately due and payable, without notice or demand by
Administrative Agent or any Lender.
2.5 Borrowing Procedure. The following procedures apply to
Borrowings (other than Competitive Borrowings):
(a) Each Borrowing shall be made on Borrower's notice (a
"NOTICE OF BORROWING," substantially in the form of EXHIBIT B-1) to
Administrative Agent requesting that Lenders fund a Borrowing on a
certain date (the "BORROWING DATE"), which notice (i) shall be
irrevocable and binding on Borrower, (ii) shall specify the Borrowing
Date, amount, Type, and (for a Borrowing comprised of Eurodollar Rate
Borrowings) Interest Period, and (iii) must be received by
Administrative Agent no later than 10:00 a.m. Dallas, Texas time on
the third Business Day preceding the Borrowing Date for any Eurodollar
Rate Borrowing or on the Business Day immediately preceding the
Borrowing Date for any Base Rate Borrowing. Administrative Agent
shall timely notify each Lender with respect to each Notice of
Borrowing.
(b) Each Lender shall remit its Pro Rata Part of each
requested Borrowing to Administrative Agent's principal office in
Dallas, in funds which are or will be available for immediate use by
Administrative Agent by 1:00 p.m. Dallas time on the Borrowing Date
therefor. Subject to receipt of such funds, Administrative Agent
shall (unless to its actual knowledge any of the conditions precedent
therefor have not been satisfied by Borrower or waived by
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Determining Lenders) make such funds available to Borrower by causing
such funds to be deposited to Borrower's account as designated to
Administrative Agent by Borrower. Notwithstanding the foregoing,
unless Administrative Agent shall have been notified by a Lender prior
to a Borrowing Date that such Lender does not intend to make available
to Administrative Agent such Lender's Pro Rata Part of the applicable
Borrowing, Administrative Agent may assume that such Lender has made
such proceeds available to Administrative Agent on such date, as
required herein, and Administrative Agent may (unless to its actual
knowledge any of the conditions precedent therefor have not been
satisfied by Borrower or waived by Determining Lenders), in reliance
upon such assumption (but shall not be required to), make available to
Borrower a corresponding amount in accordance with the foregoing
terms, but, if such corresponding amount is not in fact made available
to Administrative Agent by such Lender on such Borrowing Date,
Administrative Agent shall be entitled to recover such corresponding
amount on demand (i) from such Lender, together with interest at the
Federal Funds Rate during the period commencing on the date such
corresponding amount was made available to Borrower and ending on (but
excluding) the date Administrative Agent recovers such corresponding
amount from such Lender, or (ii) if such Lender fails to pay such
corresponding amount forthwith upon such demand, then from Borrower,
together with interest at a rate per annum equal to the applicable
rate for such Borrowing during the period commencing on such Borrowing
Date and ending on (but excluding) the date Administrative Agent
recovers such corresponding amount from Borrower. No Lender shall be
responsible for the failure of any other Lender to make its Pro Rata
Part of any Borrowing.
SECTION 3 TERMS OF PAYMENT.
3.1 Loan Accounts, Notes, and Payments.
(a) The Principal Debt owed to each Lender shall be
evidenced by one or more loan accounts or records maintained by such
Lender in the ordinary course of business. The loan accounts or
records maintained by the Administrative Agent (including, without
limitation, the Register) and each Lender shall be conclusive evidence
absent manifest error of the amount of the Borrowings made by Borrower
from each Lender (and the Competitive Bid Subfacility thereunder) and
the interest and principal payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect
the obligation of Borrower under the Loan Papers to pay any amount
owing with respect to the Obligation.
(b) Upon the request of any Lender made through the
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be):
(i) a Revolving/Term Note (with respect to Principal Debt other than
Principal Debt arising and outstanding under the Competitive Bid
Subfacility); and (ii) a Competitive Bid Note (with respect to
Principal Debt arising and outstanding under the Competitive Bid
Subfacility).
(c) Each payment or prepayment on the Obligation is due
and must be paid at Administrative Agent's principal office in Dallas
in funds which are or will be available for immediate use by
Administrative Agent by 12:00 noon Dallas, Texas time on the day due.
Payments made after 12:00 noon, Dallas, Texas, time shall be deemed
made on the Business Day next following. Administrative Agent shall
pay to each Lender any payment or prepayment to which such Lender is
entitled hereunder on the same day Administrative Agent shall have
received the same from Borrower; provided such payment or prepayment
is received by Administrative
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Agent prior to 12:00 noon Dallas, Texas time, and otherwise before
12:00 noon Dallas time on the Business Day next following. If and to
the extent Administrative Agent shall not make such payments to
Lenders when due as set forth in the preceding sentence, such unpaid
amounts shall accrue interest, payable by Administrative Agent, at the
Federal Funds Rate from the due date until (but not including) the
date on which Administrative Agent makes such payments to Lenders.
3.2 Interest and Principal Payments.
(a) Interest on each Eurodollar Rate Borrowing or on each
Fixed Rate Borrowing shall be due and payable as it accrues on the
last day of its respective Interest Period and on the Termination Date
and Term Loan Maturity Date, as applicable; provided that if any
Interest Period is a period greater than three (3) months, then
accrued interest shall also be due and payable on the date three (3)
months after the commencement of such Interest Period. Interest on
each Base Rate Borrowing shall be due and payable as it accrues on
each March 31, June 30, September 30, and December 31, and on the
Termination Date and Term Loan Maturity Date, as applicable.
(b) Unless the Principal Debt is converted to a Term Loan
on or prior to the Termination Date, Borrower shall pay on such
Termination Date all outstanding Principal Debt, together with all
accrued and unpaid interest and fees.
(c) In the event the Principal Debt is converted to a
Term Loan, the Principal Debt outstanding under the Term Loan shall be
due and payable in a single installment on the Term Loan Maturity
Date.
(d) On any date of determination, if the Principal Debt
exceeds the Commitment then in effect, then Borrower shall make a
mandatory prepayment of the Principal Debt in at least the amount of
such excess, together with (i) all accrued and unpaid interest on the
principal amount so prepaid and (ii) any Consequential Loss arising as
a result thereof.
(e) After giving Administrative Agent advance written
notice of the intent to prepay, Borrower may voluntarily prepay all or
any part of the Principal Debt from time to time and at any time, in
whole or in part, without premium or penalty; provided that: (i) such
notice must be received by Administrative Agent by 12:00 noon Dallas,
Texas time on (A) the third Business Day preceding the date of
prepayment of a Eurodollar Rate Borrowing, and (B) one Business Day
preceding the date of prepayment of a Base Rate Borrowing; (ii) each
such partial prepayment must be in a minimum amount of at least
$5,000,000 or a greater integral multiple of $1,000,000 thereof (if a
Eurodollar Rate Borrowing or a Base Rate Borrowing); (iii) all accrued
interest on the Obligation must also be paid in full, to the date of
such prepayment; and (iv) Borrower shall pay any related Consequential
Loss within ten (10) days after demand therefor. Each notice of
prepayment shall specify the prepayment date, whether the Facility or
the Competitive Bid Subfacility is being prepaid, the Type of
Borrowing(s) and amount(s) of such Borrowing(s) to be prepaid and
shall constitute a binding obligation of Borrower to make a prepayment
on the date stated therein. Notwithstanding the foregoing, Borrower
shall not voluntarily prepay any Competitive Borrowing prior to the
last day of the Interest Period therefor.
(f) This SECTION 3.2(F) shall apply in the event of an
asset disposition by any Restricted Company, as a result of which
Borrower is required to prepay, or to offer to prepay, all or any part
of the Debt under any Note Agreement. In the event that any
Restricted Company shall consummate such an asset disposition,
Borrower shall provide Administrative Agent and each
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Lender with written notice of such asset disposition and the amount of
the aggregate net proceeds thereof. Borrower shall, within ten (10)
Business Days after the consummation of such disposition, prepay the
Obligation in an amount equal to the aggregate net proceeds received
by Borrower or any Restricted Company from such asset disposition
multiplied by a fraction, the numerator of which fraction shall be the
outstanding principal amount of the Principal Debt on the date of such
disposition, and the denominator of which fraction shall be the
outstanding consolidated aggregate pari passu Debt on such date.
Prepayments on the Obligation under this SECTION 3.2(f) shall be
applied in such order and manner as set forth in SECTION 3.11(b).
(g) In the event that Facility A and Facility B are
refinanced or repaid in full, including, without limitation, any
repayment or refinancing in connection with the closing of the merger
between Borrower, TC Investments Corp., a wholly-owned Subsidiary of
Borrower, and MCI Communications Corp., then on the date of such
repayment or refinancing of Facility A and Facility B, Borrower shall
repay the outstanding Obligation in full and the Commitment shall be
permanently terminated.
3.3 Interest Options. Except where specifically otherwise
provided, Borrowings shall bear interest at a rate per annum equal to the
lesser of (a) as to the respective Type of Borrowing (as designated by Borrower
in accordance with this Agreement), the Base Rate plus the Applicable Margin
for Base Rate Borrowings, the Adjusted Eurodollar Rate plus the Applicable
Margin for Eurodollar Rate Borrowings, or any Competitive Bid Rate, as the case
may be, and (b) the Maximum Rate. Each change in the Base Rate and the Maximum
Rate, subject to the terms of this Agreement, will become effective, without
notice to Borrower or any other Person, upon the effective date of such change.
3.4 Quotation of Rates. It is hereby acknowledged that a
Responsible Officer or other appropriately designated officer of Borrower may
call Administrative Agent on or before the date on which a Notice of Borrowing
is to be delivered by Borrower in order to receive an indication of the rates
then in effect, but such indicated rates shall neither be binding upon
Administrative Agent or Lenders nor affect the rate of interest which
thereafter is actually in effect when the Notice of Borrowing is given.
3.5 Default Rate. At the option of Determining Lenders and to the
extent permitted by Law, all past-due Principal Debt and accrued interest
thereon shall bear interest from maturity (stated or by acceleration) at the
Default Rate until paid, regardless whether such payment is made before or
after entry of a judgment.
3.6 Interest Recapture. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing
shall be limited to the Maximum Rate, but any subsequent reductions in such
designated rate shall not reduce the rate of interest thereon below the Maximum
Rate until the total amount of interest accrued thereon equals the amount of
interest which would have accrued thereon if such designated rate had at all
times been in effect. In the event that at maturity (stated or by
acceleration), or at final payment of the Principal Debt, the total amount of
interest paid or accrued is less than the amount of interest which would have
accrued if such designated rates had at all times been in effect, then, at such
time and to the extent permitted by Law, Borrower shall pay an amount equal to
the difference between (a) the lesser of the amount of interest which would
have accrued if such designated rates had at all times been in effect and the
amount of interest which would have accrued if the Maximum Rate had at all
times been in effect, and (b) the amount of interest actually paid or accrued
on the Principal Debt.
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3.7 Interest Calculations.
(a) All payments of interest shall be calculated on the
basis of actual number of days (including the first day but excluding
the last day) elapsed but computed as if each calendar year consisted
of 360 days in the case of a Eurodollar Rate Borrowing, a Fixed Rate
Borrowing, Base Rate Borrowings calculated with reference to the
Federal Funds Rate (unless such calculation would result in the
interest on the Borrowings exceeding the Maximum Rate in which event
such interest shall be calculated on the basis of a year of 365 or 366
days, as the case may be) and 365 or 366 days, as the case may be, in
the case of a Base Rate Borrowing calculated with reference to Prime
Rate. All interest rate determinations and calculations by
Administrative Agent shall be conclusive and binding absent manifest
error.
(b) The provisions of this Agreement relating to
calculation of the Base Rate, the Adjusted Eurodollar Rate, and
Competitive Bid Rates are included only for the purpose of determining
the rate of interest or other amounts to be paid hereunder that are
based upon such rate.
3.8 Maximum Rate. Regardless of any provision contained in any
Loan Paper, no Lender shall ever be entitled to contract for, charge, take,
reserve, receive, or apply, as interest on the Obligation, or any part thereof,
any amount in excess of the Maximum Rate, and, if Lenders ever do so, then such
excess shall be deemed a partial prepayment of principal and treated hereunder
as such and any remaining excess shall be refunded to Borrower. In determining
if the interest paid or payable exceeds the Maximum Rate, Borrower and Lenders
shall, to the maximum extent permitted under applicable Law, (a) treat all
Borrowings as but a single extension of credit (and Lenders and Borrower agree
that such is the case and that provision herein for multiple Borrowings is for
convenience only), (b) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (c) exclude voluntary prepayments and
the effects thereof, and (d) amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the Obligation;
provided that, if the Obligation is paid and performed in full prior to the end
of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Amount, Lenders shall
refund such excess, and, in such event, Lenders shall not, to the extent
permitted by Law, be subject to any penalties provided by any Laws for
contracting for, charging, taking, reserving, or receiving interest in excess
of the Maximum Amount.
3.9 Interest Periods. When Borrower requests any Eurodollar Rate
Borrowing or a Fixed Rate Borrowing, Borrower may elect the interest period
(each an "INTEREST PERIOD") applicable thereto, which shall be, at Borrower's
option, one, two, three, or six months (in respect of any Eurodollar Rate
Borrowing) and any period of up to six (6) months (with respect to any Fixed
Rate Borrowing); provided, however, that: (a) the initial Interest Period for a
Eurodollar Rate Borrowing shall commence on the date of such Borrowing
(including the date of any conversion thereto), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period applicable thereto expires; (b) if any
Interest Period for a Eurodollar Rate Borrowing begins on a day for which there
is no numerically corresponding Business Day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the next Business
Day immediately following what otherwise would have been such numerically
corresponding day in the calendar month at the end of such Interest Period
(unless such date would be in a different calendar month from what would have
been the month at the end of such Interest Period, or unless there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); (c) no Interest Period
may be chosen with respect to any portion of the Principal Debt which would
extend beyond the scheduled
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repayment date (including any dates on which mandatory prepayments are required
to be made) for such portion of the Principal Debt; and (d) no more than an
aggregate of seven (7) Interest Periods (including, without limitation,
Interest Periods for Competitive Borrowings) shall be in effect at one time.
3.10 Conversions. Borrower may (a) convert a Eurodollar Rate
Borrowing on the last day of an Interest Period to a Base Rate Borrowing, (b)
convert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing),
by giving notice (a "NOTICE OF CONVERSION," substantially in the form of
EXHIBIT B-2) of such intent no later than 10:00 a.m. Dallas, Texas time on the
third Business Day prior to the date of conversion or the last day of the
Interest Period, as the case may be (in the case of a conversion to a
Eurodollar Rate Borrowing or an election of a new Interest Period), and no
later than 10:00 a.m. Dallas, Texas time one Business Day prior to the last day
of the Interest Period (in the case of a conversion to a Base Rate Borrowing);
provided that the principal amount converted to, or continued as, a Eurodollar
Rate Borrowing shall be in an amount not less than $20,000,000 or a greater
integral multiple of $1,000,000. Administrative Agent shall timely notify each
Lender with respect to each Notice of Conversion. Absent Borrower's Notice of
Conversion or election of a new Interest Period, a Eurodollar Rate Borrowing
shall be deemed converted to a Base Rate Borrowing effective as of the
expiration of the Interest Period applicable thereto. No Eurodollar Rate
Borrowing may be either made or continued as a Eurodollar Rate Borrowing, and
no Base Rate Borrowing may be converted to a Eurodollar Rate Borrowing, if the
interest rate for such Eurodollar Rate Borrowing would exceed the Maximum Rate.
3.11 Order of Application.
(a) So long as no Default or Potential Default has
occurred and is continuing, payments and prepayments of the Obligation
shall be applied in the order and manner as Borrower may direct;
provided that, each such payment or prepayment (other than payments of
fees payable solely to Administrative Agent or a specific Lender)
shall be allocated among Lenders in proportion to their respective Pro
Rata Parts appropriate for the Facilities (or subfacilities
thereunder) in respect of which such payments were made.
(b) If a Default or Potential Default has occurred and is
continuing (or if Borrower fails to give directions as permitted under
SECTION 3.11(a)), any payment or prepayment (including proceeds from
the exercise of any Rights) shall be applied in the following order:
(i) to the ratable payment of all fees and expenses for which
Administrative Agent or Lenders have not been paid or reimbursed in
accordance with the Loan Papers; (as used in this SECTION 3.11(b), a
"ratable payment" for any Lender or Administrative Agent shall be, on
any date of determination, that proportion which the portion of the
total fees and indemnities owed to such Lender or Administrative Agent
bears to the total aggregate fees and indemnities owed to all Lenders
and Administrative Agent on such date of determination); (ii) to the
Pro Rata payment of all accrued and unpaid interest on the Principal
Debt; (iii) to the Pro Rata payment of the remaining Principal Debt in
such order as Determining Lenders may elect (provided that,
Determining Lenders will apply such proceeds in an order that will
minimize any Consequential Loss); and (iv) to the payment of the
remaining Obligation in the order and manner Determining Lenders deem
appropriate.
Subject to the provisions of SECTION 10 and provided that Administrative Agent
shall in any event not be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Determining Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute
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as to any apportionment or distribution contemplated hereby, Administrative
Agent shall promptly distribute such amounts to each Lender in accordance with
the Agreement and the related Loan Papers.
3.12 Sharing of Payments, Etc.. If any Lender shall obtain any
payment (whether voluntary, involuntary, or otherwise, including, without
limitation, as a result of exercising its Rights under SECTION 3.13) which is
in excess of its ratable share of any such payment, such Lender shall purchase
from the other Lenders such participations as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may to the fullest extent permitted by Law,
exercise all of its Rights of payment (including the Right of offset) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
3.13 Offset. Upon the occurrence and during the continuance of a
Default, each Lender shall be entitled to exercise (for the benefit of all
Lenders in accordance with SECTION 3.12) the Rights of offset and/or banker's
Lien against each and every account and other property, or any interest
therein, which Borrower may now or hereafter have with, or which is now or
hereafter in the possession of, such Lender to the extent of the full amount of
the Obligation owed to such Lender.
3.14 Booking Borrowings. To the extent permitted by Law, any
Lender may make, carry, or transfer its Borrowings at, to, or for the account
of any of its branch offices or the office of any of its Affiliates; provided
that no Affiliate shall be entitled to receive any greater payment under
SECTION 3.16 than the transferor Lender would have been entitled to receive
with respect to such Borrowings.
3.15 Basis Unavailable or Inadequate for Eurodollar Rate. If, on
or before any date on which a Eurodollar Rate is to be determined for a
Borrowing, Administrative Agent determines that the basis for determining any
such rate is not available or Determining Lenders determine that the resulting
rate does not accurately reflect the cost to Lenders of making, maintaining, or
converting Borrowings at such rate for the applicable Interest Period, then
Administrative Agent shall promptly give notice of such determination to
Borrower and Lenders (and such determination shall be conclusive and binding on
Borrower, absent manifest error) and such Borrowing shall bear interest at the
sum of the Base Rate plus the Applicable Margin for Base Rate Borrowings.
Until Administrative Agent notifies Borrower that the circumstances giving rise
to such condition no longer exist, Lenders' commitments hereunder to make or
maintain, or to convert to, Eurodollar Rate Borrowings shall be suspended and
such Borrowings shall be made or maintained at the sum of the Base Rate plus
the Applicable Margin for Base Rate Borrowings. Subject to the terms and
conditions of this Agreement, if Administrative Agent notifies Borrower that
the circumstances giving rise to the suspension of Lenders' obligations to make
or maintain Eurodollar Rate Borrowings no longer exist, Borrower shall be
entitled to request Eurodollar Rate Borrowings and convert Base Rate Borrowings
to Eurodollar Rate Borrowings as if the provisions of this Section had never
applied.
3.16 Additional Costs.
(a) If, in respect of all or any portion of any Lender's
commitment hereunder, any Eurodollar Rate Borrowing, or any Fixed Rate
Borrowing owed to any Lender (i) any present or future Law shall
impose, modify, or deem applicable, or compliance by such Lender with
any requirement (whether or not having the force of Law) of any
Governmental Authority shall result in, any requirement that any
reserves (including, without limitation, any marginal, emergency,
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supplemental, special, or other reserves) be maintained, and (ii) any
of the same results in a reduction in any sums receivable by such
Lender hereunder or an increase in the costs incurred by such Lender
in advancing or maintaining any portion of any Eurodollar Rate
Borrowing or any Fixed Rate Borrowing, then (A) such Lender (through
Administrative Agent) shall notify Borrower upon becoming aware of
same and deliver to Borrower a certificate setting forth in reasonable
detail the amount necessary to compensate such Lender for such
reduction or such increase (which certificate shall be conclusive and
binding as to such amount, absent manifest error), and (B) Borrower
shall promptly pay such amount to such Lender within ten (10) days
after demand therefor.
(b) If with respect to all or any portion of any
Borrowing, any present or future Law regarding capital adequacy or
compliance by Administrative Agent or any Lender or its holding
company with any request, directive, or requirement now existing or
hereafter imposed by any Governmental Authority regarding capital
adequacy (whether or not having the force of Law), or any change in
the risk category of this transaction shall result in a reduction in
the rate of return on any Lender's or Administrative Agent's capital
as a consequence of its obligations under this Agreement to a level
below that which it otherwise could have achieved by an amount deemed
by it to be material (and it may, in determining such amount, utilize
such assumptions and allocations of costs and expenses as it shall
deem reasonable and may use any reasonable averaging or attribution
method), then (unless the effect of such event is already reflected in
the rate of interest then applicable hereunder) Administrative Agent
or such Lender (through Administrative Agent) shall notify Borrower
and deliver to Borrower a certificate setting forth in reasonable
detail the calculation of the amount necessary to compensate
Administrative Agent or such Lender or its holding company therefor,
which certificate shall be conclusive and binding absent manifest
error, and Borrower shall promptly pay such amount to Administrative
Agent (for the account of such Lender) or such Lender within ten (10)
days after demand therefor. The provisions of and undertakings and
indemnifications set forth in this SECTION 3.16 shall survive the
satisfaction and payment of the Obligation and termination of this
Agreement.
3.17 Change in Laws. If at any time any Law shall make it unlawful
for any Lender to make or maintain Eurodollar Rate Borrowings, then such Lender
(through Administrative Agent) shall promptly notify Borrower and
Administrative Agent, and (a) in respect of undisbursed funds, such Lender
shall not be obligated to make any requested Borrowing which would be unlawful,
and (b) in respect of any outstanding Borrowing (i) if maintaining such
Borrowing until the last day of the Interest Period applicable thereto is
unlawful, such Borrowing shall be converted to a Base Rate Borrowing as of the
date of such notice, and Borrower shall pay any related Consequential Loss, or
(ii) if not so prohibited by Law, such Borrowing shall be converted to a Base
Rate Borrowing as of the last day of the Interest Period then applicable
thereto, or (iii) if any such conversion will not resolve such unlawfulness,
Borrower shall prepay promptly such Eurodollar Rate Borrowing, without penalty,
but with any related Consequential Loss.
3.18 Consequential Loss. Borrower shall indemnify each Lender
against, and shall pay to such Lender within ten (10) days after demand, any
Consequential Loss of such Lender. Such Consequential Loss shall include,
without limitation, an amount equal to the excess, if any, of (a) the amount of
interest which otherwise would have accrued on the principal amount so paid,
converted, or not borrowed for the period from the date of such payment,
conversion, or failure to borrow to the last day of the Interest Period for
such Eurodollar Rate Borrowing (or, in the case of a failure to borrow, the
Interest Period for such Eurodollar Rate Borrowing which would have commenced
on the date specified for such Borrowing) at the applicable rate of interest
for such Eurodollar Rate Borrowing provided for in this Agreement over (b) the
interest component of the amount such Lender would have bid in the London
interbank market for
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Dollar deposits of leading banks in amounts comparable to such principal amount
and with maturities comparable to such period. When any Lender demands that
Borrower pay any Consequential Loss, such Lender shall deliver to Borrower and
Administrative Agent a certificate setting forth in reasonable detail the basis
for imposing such Consequential Loss and the calculation of such amount
thereof, which calculation shall be conclusive and binding absent manifest
error. The provisions of and undertakings and indemnifications set forth in
this SECTION 3.18 shall survive the satisfaction and payment of the Obligation
and termination of this Agreement.
3.19 Negative Pledge. Borrower hereby covenants and agrees (and
agrees to cause each Restricted Company) not to directly or indirectly create,
incur, grant, suffer, or permit to be created or incurred any Lien on any of
the respective assets of such Restricted Companies, other than Permitted Liens.
Furthermore, in the event that, notwithstanding the foregoing, any such Liens
(other than Permitted Liens) are granted, incurred, or created, then (unless
Determining Lenders shall consent to such grant, incurrence or creation), in
addition to other Rights granted to Lenders hereunder or under applicable Law,
(a) Borrower (for itself and on behalf of the Restricted Companies) hereby
grants to Lenders an equal and ratable Lien in and to the Property so
encumbered, (b) any Person receiving the benefit of any such additional Liens
shall be deemed to receive any such grant or conveyance of Liens for the
ratable and pari passu benefit of Lenders and Administrative Agent and shall be
deemed the bailee and agent for such Lenders for the sole purpose of holding
any such collateral and Liens and perfecting Lenders' Liens therein; and (c)
upon the request of Administrative Agent, Borrower (for itself and on behalf of
the Restricted Companies) shall execute, and shall request the other Party to
execute, all such documents and take all actions requested by Determining
Lenders to more fully evidence and create such ratable, pari passu Liens in
favor of Lenders and Administrative Agent.
SECTION 4 FEES.
4.1 Treatment of Fees. Except as otherwise provided by Law, the
fees described in this SECTION 4: (a) do not constitute compensation for the
use, detention, or forbearance of money, (b) are in addition to, and not in
lieu of, interest and expenses otherwise described in this Agreement, (c) shall
be payable in accordance with SECTION 3.1, (d) shall be non-refundable, (e)
shall, to the fullest extent permitted by Law, bear interest, if not paid when
due, at the Default Rate, and (f) shall be calculated on the basis of actual
number of days (including the first day but excluding the last day) elapsed,
but computed as if each calendar year consisted of 360 days, unless such
computation would result in interest being computed in excess of the Maximum
Rate in which event such computation shall be made on the basis of a year of
365 or 366 days, as the case may be.
4.2 Fees of Administrative Agent and Arranger. Borrower shall pay
to Administrative Agent or Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of February 13, 1998, between Borrower, Administrative
Agent, and Arranger, which payments shall be made on the dates specified, and
in amounts calculated in accordance with, such letter agreement.
4.3 Competitive Bid Fee. Each Competitive Bid Request submitted
by Borrower to Administrative Agent shall be accompanied by a competitive bid
fee of $1500 (payable solely to Administrative Agent for its own account) and
shall only request bids for a single Borrowing Date.
4.4 Commitment Fees. Following the Closing Date and until the
earlier to occur of either the Termination Date or the Term Conversion Date,
Borrower shall pay to Administrative Agent, for the ratable account of Lenders,
a commitment fee, payable in installments in arrears, on each March 31,
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June 30, September 30, and December 31 and on the earlier to occur of the
Termination Date or the Term Conversion Date, commencing March 31, 1998. Each
installment shall be in an amount equal to the Applicable Margin for Commitment
Fees multiplied by the amount by which (i) the average daily Commitment exceeds
(ii) the average daily Principal Debt, in each case during the period from and
including the last payment date to and excluding the payment date for such
installment; provided that each such installment shall be calculated in
accordance with SECTION 4.1(f). Solely for the purposes of this SECTION 4.4,
(i) determinations of the average daily Principal Debt shall exclude the
Principal Debt of all Competitive Borrowings; and (ii) "ratable" shall mean,
for any period of calculation, with respect to any Lender, that proportion
which (x) the average daily unused Committed Sum of such Lender during such
period bears to (y) the amount of the average daily unused Commitment during
such period.
SECTION 5 CONDITIONS PRECEDENT.
5.1 Conditions Precedent to Closing. This Agreement shall not
become effective unless Administrative Agent has received all of the
agreements, documents, instruments, and other items described on SCHEDULE 5.1
(with sufficient copies for the Lenders).
5.2 Conditions Precedent to a Permitted Acquisition.
(a) Prior to the consummation of any Acquisition pursuant
to ITEM (A) of the definition of "Permitted Acquisition" (whether or
not the purchase price for such Acquisition is funded by Borrowings),
Borrower shall deliver to Administrative Agent a written certification
that (i) all representations and warranties under the Loan Papers are
true and correct immediately prior to and after giving effect to the
Acquisition, and (ii) no Default or Potential Default exists at the
time of the Acquisition and after giving effect to the Acquisition;
provided that, no such written certification shall be required if the
Purchase Price for the Acquisition does not exceed $50,000,000 (and
does not exceed $50,000,000 when aggregated with all other Permitted
Acquisitions satisfying the requirements of ITEM (a) under the
definition of "Permitted Acquisition" consummated during the fiscal
quarter of Borrower and its Restricted Subsidiaries in which the
Acquisition occurs) so long as Borrower confirms in its next quarterly
or annual Compliance Certificates required to be delivered pursuant to
SECTIONS 7.3(a) and 7.3(b) its compliance with CLAUSES (i) and (ii)
above with respect to such Acquisition consummated during the subject
period.
(b) Prior to the consummation of any Acquisition (whether
or not the purchase price for such Acquisition is funded by
Borrowings), Borrower shall deliver to Administrative Agent all
supplements to, or revisions of, SCHEDULES 6.13, 7.12, 7.13, and 7.20
which are required to make the disclosures in such Schedules accurate
after giving effect to such Acquisition, so long as, on or prior to
the date of consummation of such Acquisition, the consent of
Determining Lenders with respect to such revised or supplemental
Schedules have been obtained. In addition, prior to the consummation
of any Acquisition pursuant to ITEMS (b) and (c) of the definition of
"Permitted Acquisition" (whether or not the purchase price for such
Acquisition is funded by Borrowings), Borrower shall have delivered to
Administrative Agent a Permitted Acquisition Compliance Certificate
(substantially in the form of EXHIBIT D-2 and otherwise acceptable to
Administrative Agent).
5.3 Conditions Precedent to Each Borrowing. In addition to the
conditions stated in SECTION 5.1 and SECTION 5.2, Lenders will not be obligated
to fund (as opposed to continue or convert) any Borrowing (including any
Competitive Borrowing) unless on the date of such Borrowing (and after giving
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effect thereto): (a) Administrative Agent shall have timely received therefor
a Notice of Borrowing or Notice of Competitive Borrowing as the case may be;
(b) Administrative Agent shall have received the Competitive Bid fees as
provided for in SECTION 4.3 hereof, if applicable; (c) all of the
representations and warranties of any Consolidated Company set forth in the
Loan Papers are true and correct in all material respects (except to the extent
that (i) the representations and warranties speak to a specific date or (ii)
the facts on which such representations and warranties are based have been
changed by transactions contemplated or permitted by the Loan Papers and, if
applicable, supplemental Schedules have been delivered with respect thereto;
provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be
approved by Determining Lenders); (d) no change in the financial condition of
any Consolidated Company which is a Material Adverse Event shall have occurred;
(e) no Default or Potential Default shall have occurred and be continuing; (f)
the funding of such Borrowings is permitted by Law; (g) in the event all or any
part of the proceeds of the Borrowing will be used to finance a Permitted
Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted
Acquisition, Administrative Agent shall have timely received certified copies
of any and all purchase agreements (together with, upon the request of
Administrative Agent, all schedules and exhibits thereto) executed by any
Consolidated Company in connection with such Permitted Acquisition, accompanied
by all financial information, projections, and certifications required by the
Loan Papers in connection with a Permitted Acquisition, including, without
limitation, all items required in SECTION 5.2; (h) all matters related to such
Borrowing must be satisfactory to Determining Lenders and their respective
counsel in their reasonable determination, and upon the reasonable request of
Administrative Agent, Borrower shall deliver to Administrative Agent evidence
substantiating any of the matters in the Loan Papers which are necessary to
enable Borrower to qualify for such Borrowing; and (i) in the event that all or
any part of the proceeds of the Borrowing will be advanced by Borrower to
Brooks, the Borrowing by Borrower and the related advance by Borrower to Brooks
shall be made in compliance with the terms and conditions of the Brooks Notes.
Each Notice of Borrowing delivered to Administrative Agent shall constitute the
representation and warranty by Borrower to Administrative Agent that the
statements in CLAUSES (c), (d), (e), (f), and (i) above are true and correct in
all respects. Each condition precedent in this Agreement is material to the
transactions contemplated in this Agreement, and time is of the essence in
respect of each thereof. Subject to the prior approval of Determining Lenders,
Lenders may fund any Borrowing without all conditions being satisfied, but, to
the extent permitted by Law, the same shall not be deemed to be a waiver of the
requirement that each such condition precedent be satisfied as a prerequisite
for any subsequent funding, unless Determining Lenders specifically waive each
such item in writing.
SECTION 6 REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Administrative Agent and Lenders as follows:
6.1 Purpose of Credit Facility. Borrower will use proceeds of
Borrowings to fund the purchase price and other costs associated with the
Brooks Note Transaction; provided, that up to $300,000,000 of the proceeds may
be used by Borrower to make loans, advances, or investments in or to Brooks for
use by Brooks as working capital or for other general corporate purposes. No
Consolidated Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying any "margin stock" within the meaning of Regulation U. No part of
the proceeds of any Borrowing will be used, directly or indirectly, for a
purpose which violates any Law, including, without limitation, the provisions
of Regulations G, T, U, or X (as enacted by the Board of Governors of the
Federal Reserve System, as amended). Without the prior written consent of
Determining Lenders, no part of the proceeds of any Borrowing will be used to
make any prepayments on, or redemptions of, any Debt evidenced by or associated
with any Note Agreement except any payments or redemptions of any Debt under
the Brooks Notes or any Debt of Borrower issued in exchange for the Brooks
Notes to the extent such Debt is permitted by SECTION 7.12(f).
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6.2 Existence, Good Standing, Authority, and Authorizations. Each
Restricted Company is duly organized, validly existing, and in good standing
under the Laws of its jurisdiction of organization (such jurisdictions being
identified on SCHEDULE 6.2, as supplemented and modified in writing from time
to time to reflect any changes to such Schedule as a result of transactions
permitted by the Loan Papers). Except where failure could not be a Material
Adverse Event, each Restricted Company (a) is duly qualified to transact
business and is in good standing in each jurisdiction where the nature and
extent of its business and properties require the same, and (b) possesses all
requisite authority, power, licenses, permits, Authorizations, and franchises
to use its assets and conduct its business as is now being, or is contemplated
herein to be, conducted, except where failure could not be a Material Adverse
Event. No Authorization is required to authorize, or is required in connection
with, the execution, delivery, legality, validity, binding effect, performance,
or enforceability of the Loan Papers or any Permitted Acquisition (including
any change of control occurring as a result thereof) consummated on or prior to
the date this representation or warranty (or reconfirmation thereof) is made
under the Loan Papers, except (i) as shall have been obtained upon or prior to
the consummation of the relevant Permitted Acquisition, and (ii) those
Authorizations the failure of which to be obtained or made could not be a
Material Adverse Event and, in the case of the relevant Permitted Acquisition,
would not reasonably be expected to materially impair the value to the
Restricted Companies of, or the benefits to be derived by the Restricted
Companies from, the relevant Permitted Acquisition. The Restricted Companies
have obtained all Authorizations of the FCC and any applicable PUC necessary to
conduct their businesses, and all such Authorizations are in full force and
effect, without conditions, except such conditions as are generally applicable
to holders of such Authorizations. There are no violations of any such
Authorizations which could, individually or collectively, be a Material Adverse
Event, nor are there any proceedings pending or, to the knowledge of Borrower,
threatened against the Restricted Companies to revoke or limit any such
Authorization which could, individually or collectively, be a Material Adverse
Event, and Borrower has no knowledge that any such Authorizations will not be
renewed in the ordinary course, except for any nonrenewals that could not be a
Material Adverse Event.
6.3 Subsidiaries; Capital Stock. Borrower has no Subsidiaries
except as disclosed on SCHEDULE 6.2 (as supplemented and modified in writing
from time to time to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Papers). Each Unrestricted Subsidiary is
identified as such on SCHEDULE 6.2. All of the outstanding shares of capital
stock (or similar voting interests) of each Restricted Subsidiary are duly
authorized, validly issued, fully paid, and nonassessable and are owned of
record and beneficially as set forth on SCHEDULE 6.2 (as supplemented and
modified in writing from time to time to reflect any changes to such Schedule
as a result of transactions permitted by the Loan Papers), free and clear of
any Liens, restrictions, claims, or Rights of another Person, other than
Permitted Liens, and none of such shares owned by any Restricted Company is
subject to any restriction on transfer thereof except for restrictions imposed
by securities Laws and general corporate Laws. No Restricted Subsidiary has
outstanding any warrant, option, or other Right of any Person to acquire any of
its capital stock or similar equity interests, except as set forth on SCHEDULE
6.3 (as supplemented and modified in writing from time to time to reflect any
changes to such Schedule as a result of transactions permitted by the Loan
Papers). The Receivables Subsidiary is not engaged in any activity, nor does
it own any asset, other than those incidental to Accounts Receivable
Financings.
6.4 Authorization and Contravention. The execution and delivery
by each Restricted Company of each Loan Paper to which it is a party and the
performance by such Restricted Company of its obligations thereunder (a) are
within the corporate power of such Restricted Company, (b) will have been duly
authorized by all necessary corporate action on the part of such Restricted
Company when such Loan Paper is executed and delivered, (c) require no action
by or in respect of, or filing with, any Governmental Authority, which action
or filing has not been taken or made on or prior to the Closing Date (or if
later,
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the date of execution and delivery of such Loan Paper), (d) will not violate
any provision of the charter or bylaws of such Restricted Company, (e) will not
violate any provision of Law applicable to it, other than such violations which
individually or collectively could not be a Material Adverse Event, (f) will
not violate any material written or oral agreements, contracts, commitments, or
understandings to which it is a party, other than such violations which could
not be a Material Adverse Event, or (g) will not result in the creation or
imposition of any Lien on any asset of any Consolidated Company. The
Restricted Companies have (or will have upon consummation thereof) all
necessary consents and approvals of any Person or Governmental Authority
required to be obtained in order to effect any asset transfer, change of
control, merger, or consolidations permitted by the Loan Papers.
6.5 Binding Effect. Upon execution and delivery by all parties
thereto, each Loan Paper will constitute a legal, valid, and binding obligation
of each Restricted Company party thereto, enforceable against each such
Restricted Company in accordance with its terms, except as enforceability may
be limited by applicable Debtor Relief Laws and general principles of equity.
6.6 Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Consolidated Companies as of and for the portion of the fiscal year ending on
the date or dates thereof (subject only to normal year-end audit adjustments).
There were no material liabilities, direct or indirect, fixed or contingent, of
the Consolidated Companies as of the date or dates of the Current Financials
which are required under GAAP to be reflected therein or in the notes thereto,
and are not so reflected. Except for transactions directly related to, or
specifically contemplated by, the Loan Papers, there have been no changes in
the consolidated financial condition of the Consolidated Companies from that
shown in the Current Financials after such date which could be a Material
Adverse Event, nor has Borrower or any Restricted Company or Consolidated
Company (as the case may be) incurred any liability (including, without
limitation, any liability under any Environmental Law), direct or indirect,
fixed or contingent, after such date which could be a Material Adverse Event.
6.7 Litigation, Claims, Investigations. No Restricted Company is
subject to, or aware of the threat of, any Litigation which is reasonably
likely to be determined adversely to any Restricted Company, and, if so
adversely determined, could (individually or collectively with other
Litigation) be a Material Adverse Event. There are no outstanding orders or
judgments for the payment of money in excess of $100,000,000 (individually or
collectively) or any warrant of attachment, sequestration, or similar
proceeding against any Restricted Company's assets having a value (individually
or collectively) of $100,000,000 or more which is not either (i) stayed on
appeal or (ii) being diligently contested in good faith by appropriate
proceedings and adequate reserves have been set aside on the books of such
Restricted Company in accordance with GAAP. There are no formal complaints,
suits, claims, investigations, or proceedings initiated at or by any
Governmental Authority pending or threatened by or against any Restricted
Company which could be a Material Adverse Event, nor any judgments, decrees, or
orders of any Governmental Authority outstanding against any Restricted Company
that could be a Material Adverse Event.
6.8 Taxes. All Tax returns of each Consolidated Company required
to be filed have been filed (or extensions have been granted) prior to
delinquency, except for any such returns for which the failure to so file could
not be a Material Adverse Event, and all Taxes imposed upon each Consolidated
Company which are due and payable have been paid prior to delinquency, other
than Taxes for which the criteria for Permitted Liens (as specified in SECTION
7.13(B)(VII)) have been satisfied or for which nonpayment thereof could not
constitute a Material Adverse Event.
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6.9 Environmental Matters. No Consolidated Company (a) knows of
any environmental condition or circumstance, such as the presence or Release of
any Hazardous Substance, on any property presently or previously owned by any
Consolidated Company that could be a Material Adverse Event, (b) knows of any
violation by any Consolidated Company of any Environmental Law, except for such
violations that could not be a Material Adverse Event, or (c) knows that any
Consolidated Company is under any obligation to remedy any violation of any
Environmental Law, except for such obligations that could not be a Material
Adverse Event; provided, however, that each Consolidated Company (x) to the
best of its knowledge, has in full force and effect all environmental permits,
licenses, and approvals required to conduct its operations and is operating in
substantial compliance thereunder, and (y) has taken prudent steps to determine
that its properties and operations are not in violation of any Environmental
Law.
6.10 Employee Benefit Plans. (a) No Employee Plan has incurred an
accumulated funding deficiency, as defined in section 302 of ERISA and section
412 of the Code, (b) neither Borrower nor any ERISA Affiliate has incurred
material liability which is currently due and remains unpaid under Title IV of
ERISA to the PBGC or to an Employee Plan in connection with any such Employee
Plan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in whole or in
part from participation in a Multiemployer Plan, (d) Borrower has not engaged
in any "prohibited transaction" (as defined in section 406 of ERISA or section
4975 of the Code) which would be a Material Adverse Event, and (e) no
Reportable Event has occurred which is likely to result in the termination of
an Employee Plan. The present value of all benefit liabilities within the
meaning of Title IV of ERISA under each Employee Plan (based on those actuarial
assumptions used to fund such Employee Plan) did not, as of the last annual
valuation date for the 1996 plan year of such Plan, exceed the value of the
assets of such Employee Plan, and the total present values of all benefit
liabilities within the meaning of Title IV of ERISA of all Employee Plans
(based on the actuarial assumptions used to fund each such Plan) did not, as of
the respective annual valuation dates for the 1996 plan year of each such Plan,
exceed the value of the assets of all such plans.
6.11 Properties; Liens. Each Restricted Company has good and
marketable title to (or, in the case of Rights of Way, the right to use) all
its property reflected on the Current Financials, except for (a) property that
is obsolete, (b) property that has been disposed of in the ordinary course of
business, (c) property with title defects or failures in title which would not
be a Material Adverse Event, or (d) as otherwise permitted by the Loan Papers.
Except for Permitted Liens, there is no Lien on any property of any Restricted
Company, and the execution, delivery, performance, or observance of the Loan
Papers will not require or result in the creation of any Lien on such property.
6.12 Government Regulations. No Consolidated Company is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, or any other Law (other than
Regulations G, T, U, and X of the Board of Governors of the Federal Reserve
System and the requirements of any PUC or public service commission) which
regulates the incurrence of Debt.
6.13 Transactions with Affiliates. Except as disclosed on SCHEDULE
6.13, no Consolidated Company is a party to a material transaction with any of
its Affiliates (excluding transactions between or among Restricted Companies),
other than transactions in the ordinary course of business and upon fair and
reasonable terms not materially less favorable than such Consolidated Company
could obtain or could become entitled to in an arm's-length transaction with a
Person that was not its Affiliate. For purposes of this SECTION 6.13, a
transaction is "material" if it requires any Consolidated Company to pay more
than $50,000,000 during the term of the agreement governing such transaction.
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6.14 Debt. No Restricted Company is an obligor on any Debt other
than Permitted Debt. The Receivables Subsidiary is not an Obligor on any Debt
other than any Debt arising under the Accounts Receivable Financing permitted
by the Loan Papers.
6.15 Material Agreements. There are no failures of any material
written or oral agreements, contracts, commitments, or understandings to which
any Restricted Company is a party to be in full force and effect which could be
a Material Adverse Event, and no default or potential default exists on the
part of any Restricted Company thereunder, which could be a Material Adverse
Event. All of the Obligation constitutes "senior debt" under the terms of any
documents evidencing subordinated Debt incurred in accordance with SECTION
7.12(H) or any subordinated Debt issued pursuant to any Note Agreement.
6.16 Insurance. Each Restricted Company maintains with financially
sound, responsible, and reputable insurance companies or associations (or, as
to workers' compensation or similar insurance, with an insurance fund or by
self-insurance authorized by the jurisdictions in which it operates) insurance
concerning its properties and businesses against such casualties and
contingencies and of such types and in such amounts (and with co-insurance and
deductibles) as is customary in the case of same or similar businesses.
6.17 Labor Matters. There are no actual or threatened strikes,
labor disputes, slow downs, walkouts, or other concerted interruptions of
operations by the employees of any Restricted Company that could be a Material
Adverse Event. Hours worked by and payment made to employees of the Restricted
Companies have not been in violation of the Fair Labor Standards Act or any
other applicable Law dealing with such matters, other than any such violations,
individually or collectively, which could not constitute a Material Adverse
Event. All payments due from any Restricted Company on account of employee
health and welfare insurance have been paid or accrued as a liability on its
books, other than any such nonpayments which could not, individually or
collectively, constitute a Material Adverse Event.
6.18 Solvency. At the time of each Borrowing hereunder and on the
date of each Permitted Acquisition, each Restricted Company is (and after
giving effect to the transactions contemplated by the Loan Papers, any
Permitted Acquisition, and any incurrence of additional Debt will be) Solvent.
6.19 Intellectual Property. Each Restricted Company owns or has
sufficient and legally enforceable rights to use all material licenses,
patents, patent applications, copyrights, service marks, trademarks, trademark
applications, and trade names necessary to continue to conduct its businesses
as heretofore conducted by it, now conducted by it, and now proposed to be
conducted by it. Each Restricted Company is conducting its business without
infringement or claim of infringement of any license, patent, copyright,
service mark, trademark, trade name, trade secret, or other intellectual
property right of others, other than any such infringements or claims which, if
successfully asserted against or determined adversely to any Restricted
Company, could not, individually or collectively, constitute a Material Adverse
Event.
6.20 Compliance with Laws. No Consolidated Company is in violation
of any Laws, other than such violations which could not, individually or
collectively, be a Material Adverse Event. No Consolidated Company has
received notice alleging any noncompliance with any Laws, except for such
noncompliance which no longer exists, or which could not constitute a Material
Adverse Event.
6.21 Regulation U. "Margin Stock" (as defined in Regulation U)
constitutes less than 25% of those assets of the Consolidated Companies which
are subject to any limitation on sale, pledge, or other restriction hereunder,
if any.
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6.22 Full Disclosure. There is no material fact or condition
relating to the Loan Papers or the financial condition, business, or property
of any Consolidated Company which could be a Material Adverse Event and which
has not been related, in writing, to Administrative Agent. All information
heretofore furnished by any Consolidated Company to any Lender or
Administrative Agent in connection with the Loan Papers was, and all such
information hereafter furnished by any Consolidated Company to any Lender or
Administrative Agent will be, true and accurate in all material respects or
based on reasonable estimates on the date as of which such information is
stated or certified.
SECTION 7 COVENANTS. Borrower covenants and agrees (and agrees to cause
each other Restricted Company and Consolidated Company to the extent any
covenant is applicable to such Restricted Company or Consolidated Company) to
perform, observe, and comply with each of the following covenants, from the
Closing Date and so long thereafter as Lenders are committed to fund Borrowings
and thereafter until the payment in full of the Principal Debt and payment in
full of all other interest, fees, and other amounts of the Obligation then due
and owing, unless Borrower receives a prior written consent to the contrary by
Administrative Agent as authorized by Determining Lenders:
7.1 Use of Proceeds. Borrower shall use the proceeds of
Borrowings only for the purposes represented herein.
7.2 Books and Records. The Consolidated Companies shall maintain
books, records, and accounts necessary to prepare financial statements in
accordance with GAAP.
7.3 Items to be Furnished. Borrower shall cause the following to
be furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 90 days
after the last day of each fiscal year of Borrower, Financial
Statements showing the consolidated financial condition and results of
operations calculated for the Consolidated Companies (and calculated
separately with respect to the Unrestricted Subsidiaries designated
from time to time pursuant to SECTION 7.27 for any fiscal year of
Borrower in which either (i) the Operating Cash Flow of the
Unrestricted Subsidiaries is greater than 7.5% of total Operating Cash
Flow of the Consolidated Companies, or (ii) the value of the assets
(determined in accordance with GAAP) of the Unrestricted Subsidiaries
(excluding the Receivables Subsidiary) is greater than 7.5% of the
aggregate value of all assets (determined in accordance with GAAP) of
the Consolidated Companies) as of, and for the year ended on, such
day, accompanied by:
(i) the unqualified opinion of a firm of
nationally-recognized independent certified public
accountants, based on an audit using generally accepted
auditing standards, that such Financial Statements (calculated
with respect to the Consolidated Companies) were prepared in
accordance with GAAP and present fairly the consolidated
financial condition and results of operations of the
Consolidated Companies;
(ii) any management letter prepared by such
accounting firm;
(iii) a certificate from such accounting firm to
Administrative Agent indicating that during its audit it
obtained no knowledge of any Default or Potential Default or,
if it obtained such knowledge, the nature and period of
existence thereof;
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(iv) a letter from such accounting firm addressed
to Borrower, with a copy to Administrative Agent,
acknowledging that (A) Borrower plans to provide
Administrative Agent with such audited Financial Statements
and accompanying audit report, (B) Administrative Agent has
informed Borrower that Administrative Agent and Lenders intend
to rely on such firm's audit report accompanying such
Financial Statements, and (C) Borrower intends for
Administrative Agent and Lenders to so rely; and
(v) a Compliance Certificate with respect to such
Financial Statements.
(b) Promptly after preparation, and no later than 45 days
after the last day of each fiscal quarter of Borrower (other than the
fourth fiscal quarter of each fiscal year), Financial Statements
showing the consolidated financial condition and results of operations
calculated for the Consolidated Companies (and calculated separately
with respect to the Unrestricted Subsidiaries designated from time to
time pursuant to SECTION 7.27 for any fiscal year of Borrower in which
either (i) the Operating Cash Flow of the Unrestricted Subsidiaries is
greater than 7.5% of total Operating Cash Flow of the Consolidated
Companies, or (ii) the value of the assets (determined in accordance
with GAAP) of the Unrestricted Subsidiaries (excluding the Receivables
Subsidiary) is greater than 7.5% of the aggregate value of all assets
(determined in accordance with GAAP) of the Consolidated Companies)
for such fiscal quarter and for the period from the beginning of the
then-current fiscal year to, such last day, accompanied by a
Compliance Certificate with respect to such Financial Statements.
(c) On or prior to March 31 of each fiscal year of
Borrower, the financial budget for such fiscal year, accompanied by a
certificate executed by a Responsible Officer certifying that such
budget was prepared by Borrower based on assumptions which, in light
of the historical performance of the Restricted Companies and their
prospects for the future, are realistic and achievable.
(d) Notice, promptly after Borrower knows or has reason
to know of (i) the existence and status of any Litigation against any
Consolidated Company which could be a Material Adverse Event, or of
any order or judgment for the payment of money which (individually or
collectively) is in excess of $100,000,000, or any warrant of
attachment, sequestration or similar proceeding against a Consolidated
Company's assets having a value (individually or collectively) of
$100,000,000, (ii) any material change in any material fact or
circumstance represented or warranted in any Loan Paper, (iii) a
Default or Potential Default, specifying the nature thereof and what
action Borrower or any other Consolidated Company has taken, is
taking, or proposes to take with respect thereto, (iv) the receipt by
any Consolidated Company of any notice from any Governmental Authority
of the expiration without renewal, termination, material modification
or suspension of, or institution of any proceedings to terminate,
materially modify, or suspend, any Authorization granted by the FCC or
any applicable PUC, or any other Authorization which any Consolidated
Company is required to hold in order to operate its business in
compliance with all applicable Laws, other than such expirations,
terminations, suspensions, or modifications which individually or in
the aggregate would not constitute a Material Adverse Event, (v) any
federal, state, or local statute, regulation, or ordinance or judicial
or administrative order limiting or controlling the operations of any
Consolidated Company which has been issued or adopted hereafter and
which is of material adverse importance or effect in relation to the
operation of any Consolidated Company, (vi) the receipt by any
Consolidated Company of notice of any violation or alleged violation
of any Environmental Law, which violation or alleged violation could
individually or collectively with other such violations or
allegations, constitute a Material Adverse Event, or (vii) (A) the
occurrence of a Reportable Event that, alone or together with any
other
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Reportable Event, could reasonably be expected to result in liability
of Borrower to the PBGC in an aggregate amount exceeding $100,000,000;
(B) any expressed statement in writing on the part of the PBGC of its
intention to terminate any Employee Plan or Plans; (C) Borrower's or
an ERISA Affiliate's becoming obligated to file with the PBGC a notice
of failure to make a required installment or other payment with
respect to an Employee Plan; or (D) the receipt by Borrower or an
ERISA Affiliate from the sponsor of a Multiemployer Plan of either a
notice concerning the imposition of withdrawal liability in an
aggregate amount exceeding $10,000,000 or of the impending termination
or reorganization of such Multiemployer Plan.
(e) Promptly after any of the information or disclosures
provided on any of the Schedules delivered pursuant to this Agreement
becomes outdated or incorrect in any material respect, such revised or
updated Schedule(s) as may be necessary or appropriate to update or
correct such information or disclosures; provided that in the case of
updates to SCHEDULES 6.13, 7.12, 7.13, and 7.20, the information
thereon shall not be deemed accepted for purposes of this Agreement or
become part of the Loan Papers unless approved by Determining Lenders.
(f) Promptly after preparation, true, correct, and
complete copies of all material reports or filings filed by or on
behalf of any Consolidated Company with any Governmental Authority
(including the FCC and the Securities and Exchange Commission).
(g) Promptly after the filing thereof, a true, correct,
and complete copy of each Form 10-K, Form 10-Q, and Form 8-K filed by
or on behalf of Borrower or any Consolidated Company with the
Securities and Exchange Commission.
(h) Promptly upon request therefor by Administrative
Agent or Lenders holding at least 25% of the Commitment (through
Administrative Agent), such information (not otherwise required to be
furnished under the Loan Papers) respecting the business affairs,
assets, and liabilities of the Consolidated Companies, and such
opinions, certifications and documents, in addition to those mentioned
in this Agreement, as reasonably requested.
7.4 Inspections. Upon reasonable notice, the Consolidated
Companies shall allow Administrative Agent or any Lender (or their respective
Representatives) to inspect any of their properties, to review reports, files,
and other records and to make and take away copies thereof, to conduct tests or
investigations, and to discuss any of their affairs, conditions, and finances
with the Consolidated Companies' other creditors, directors, officers, or
employees, or other representatives, and at any time after the occurrence and
during the continuance of a Default, with the Consolidated Companies'
independent accountants, from time to time, during reasonable business hours;
provided that, notwithstanding the foregoing, prior to the occurrence of a
Default or Potential Default, Administrative Agent or any Lender (or their
respective Representatives) will obtain the prior approval of a Responsible
Officer prior to any such discussions with officers or employees of the
Consolidated Companies; provided, further, that, if a Default or Potential
Default has occurred and is continuing, no such prior approval from a
Responsible Officer shall be required to have been obtained by any Lender,
Administrative Agent or their respective Representatives.
7.5 Taxes. Each Consolidated Company (a) shall promptly pay when
due any and all Taxes other than Taxes the applicability, amount or validity of
which is being contested in good faith by lawful proceedings diligently
conducted, and against which reserve or other provision required by GAAP has
been made, and in respect of which levy and execution of any lien securing same
have been and continue to be stayed, and (b) shall not, directly or indirectly,
use any portion of the proceeds of any Borrowing
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to pay the wages of employees unless a timely payment to or deposit with the
appropriate Governmental Authorities of all amounts of Tax required to be
deducted and withheld with respect to such wages is also made.
7.6 Payment of Obligations. Borrower shall pay the Obligation in
accordance with the terms and provisions of the Loan Papers. Each Restricted
Company (a) shall promptly pay (or renew and extend) all of its material
obligations as the same become due (unless such obligations [other than the
Obligation arising under the Loan Papers] are being contested in good faith by
appropriate proceedings), and (b) shall not (i) at any time a Default or
Potential Default exists or would be caused by such payment, make any voluntary
prepayment of principal of, or interest on, any other Debt (other than the
Obligation), whether subordinate to the Obligation or not or (ii) use proceeds
from the Facility to make any voluntary prepayment of principal of, or interest
on, or sinking fund payment in respect of any Note Agreement, other than
prepayments or redemptions of any Debt under the Brooks Notes.
7.7 Maintenance of Existence, Assets, and Business. Except as
otherwise permitted by SECTION 7.26, each Restricted Company shall at all
times: (a) maintain its existence and good standing in the jurisdiction of its
organization and its authority to transact business in all other jurisdictions
where the failure to so maintain its authority to transact business could be a
Material Adverse Event; (b) maintain all licenses, permits, and franchises
necessary for its business where the failure to so maintain could be a Material
Adverse Event; (c) keep all of its assets which are useful in and necessary to
its business in good working order and condition (ordinary wear and tear
excepted) and make all necessary repairs thereto and replacements thereof; and
(d) do all things necessary to obtain, renew, extend, and continue in effect
all Authorizations issued by the FCC or any applicable PUC which may at any
time and from time to time be necessary for the Consolidated Companies to
operate their businesses in compliance with applicable Law, where the failure
to so renew, extend, or continue in effect could be a Material Adverse Event.
7.8 Insurance. Each Consolidated Company shall, at its cost and
expense, maintain insurance with financially sound and reputable insurers, in
such amounts, and covering such risks, as shall be ordinary and customary for
similar companies in the industry. Each Consolidated Company shall deliver to
Administrative Agent certificates of insurance for each such policy of
insurance and evidence of payment of all premiums thereon.
7.9 Preservation and Protection of Rights. Each Consolidated
Company shall perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record any additional agreements, documents, instruments,
and certificates as Administrative Agent or Determining Lenders may reasonably
deem necessary or appropriate in order to preserve and protect the Rights of
Administrative Agent and Lenders under any Loan Paper.
7.10 Employee Benefit Plans. Borrower shall not directly or
indirectly, engage in any "prohibited transaction" (as defined in section 406
of ERISA or section 4975 of the Code), and Borrower and its ERISA Affiliates
shall not, directly or indirectly, (a) incur any "accumulated funding
deficiency" as such term is defined in section 302 of ERISA with respect to any
Employee Plan, (b) permit any Employee Plan to be subject to involuntary
termination proceedings pursuant to Title IV of ERISA, or (c) fully or
partially withdraw from any Multiemployer Plan, if such prohibited transaction,
accumulated funding deficiency, termination proceeding or withdrawal would
result in liability on the part of Borrower in excess of $50,000,000.
7.11 Environmental Laws. Each Consolidated Company shall (a)
conduct its business so as to comply with all applicable Environmental Laws and
shall promptly take corrective action to remedy
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any non-compliance with any Environmental Law, (b) shall promptly investigate
and remediate any known Release or threatened Release of any Hazardous
Substance on any property owned by any Consolidated Company or at any facility
operated by any Consolidated Company to the extent and degree necessary to
comply with Law and to assure that any Release or threatened Release does not
result in a substantial endangerment to human health or the environment, and
(c) establish and maintain a management system designed to ensure compliance
with applicable Environmental Laws and minimize financial and other risks to
each Consolidated Company arising under applicable Environmental Laws or as a
result of environmentally-related injuries to Persons or property.
7.12 Debt. No Restricted Company shall, directly or indirectly,
create, incur, or suffer to exist any direct, indirect, fixed, or contingent
liability for any Debt, other than:
(a) The Obligation hereunder, the "Obligation" as defined
in the Facility A Agreement, and the "Obligation" as defined in the
Facility B Agreement;
(b) Debt incurred by Borrower under any Financial Hedge;
(c) Debt between Restricted Companies, or Debt of any
Restricted Company to the Receivables Subsidiary;
(d) Debt existing on July 3, 1997, as more particularly
described on SCHEDULE 7.12 (or such later date as such Schedule is
revised or supplemented with the consent of Determining Lenders) (the
"EXISTING DEBT");
(e) Debt not otherwise permitted by this SECTION 7.12
(including, without limitation, Capital Leases or Debt assumed or
created in connection with any Permitted Acquisition) of any
Restricted Company, so long as (a) no Default or Potential Default
exists on the date any such Debt is created, incurred, or assumed or
arises as a result of or after giving effect to any such Debt
incurrence; and (b) the aggregate amount of all such additional Debt
of the Restricted Companies, when aggregated with the principal amount
of Existing Debt then outstanding, does not exceed, at the time of any
determination thereof, 7.5% of the amount of Total Debt for which the
Restricted Companies may be obligated without violating the Leverage
Ratio requirements set forth in SECTION 7.28(a); provided that, the
additional Debt permitted by this SECTION 7.12(e) is further limited
as it relates to such Debt of the Restricted Subsidiaries, such that
the Restricted Subsidiaries may not be obligated for, or create,
incur, or assume Debt (including, without limitation, amounts
outstanding on any date of determination under Capital Leases, Debt
assumed or created in connection with any Permitted Acquisition and
any Existing Debt pursuant to SECTION 7.12(d)) which, after giving
effect to the incurrence thereof, would cause the aggregate amount of
such Debt for all such Restricted Subsidiaries on any date of
determination to exceed the lesser of (i) $100,000,000 or (ii) an
amount which, when aggregated with the Debt of Borrower incurred
pursuant to SECTION 7.12(d) and outstanding on any such date of
determination, does not exceed 7.5% of the amount of Total Debt for
which the Restricted Companies may be obligated without violating the
Leverage Ratio requirement set forth in SECTION 7.28(a);
(f) Debt of Borrower not otherwise permitted by this
SECTION 7.12 arising under or in connection with public or
privately-placed notes, debentures, bonds, debt securities, or related
indentures, or credit arrangements or other agreements, so long as (i)
no Default or Potential 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
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restrictive (as reasonably determined by Administrative Agent) than
the provisions of the Loan Papers, including, without limitation, any
requirements for mandatory prepayments or redemptions at any time
where similar payments are not required under the Loan Papers; (iii)
such Debt is unsecured senior or unsecured subordinated Debt; and (iv)
the documents pursuant to which such Debt is issued are reasonably
satisfactory to Administrative Agent and its counsel;
(g) Debt (including any Debt of the Receivables
Subsidiary to any Restricted Company) arising under or in connection
with any Accounts Receivable Financing to the extent such Accounts
Receivable Financing and the related Accounts Receivable Financing
Amount is permitted by SECTION 7.23(e);
(h) Debt of any Restricted Company to any Unrestricted
Company (other than the Receivables Subsidiary) so long as (i) such
Debt is subordinate in right of payment to the Obligation upon terms
satisfactory to Administrative Agent and its counsel and (ii) such
Debt is incurred and maintained in compliance with SECTIONS 7.12(e)
and 7.14 (it being understood that such subordinated Debt shall be
included in Debt for purposes of the calculations and determinations
made in accordance with SECTION 7.12(e));
(i) Debt of MFS and its Subsidiaries arising under the
MFS Note Agreements; and
(j) On and after the date that Brooks and its
Subsidiaries are designated as Restricted Subsidiaries pursuant to
SECTION 7.27 (the "DESIGNATION DATE"), Debt of Brooks and its
Subsidiaries arising under the Brooks Note Agreements, so long as (i)
no Default or Potential Default exists hereunder or arises as a result
of such designation, (ii) no "default" or "potential default" exists
or arises as a result of such designation under the Facility A
Agreement or the Facility B Agreement; (iii) the provisions of the
Brooks Note Agreements are not materially more restrictive (as
reasonably determined by Administrative Agent) than the provisions of
the Loan Papers, including, without limitation, any requirements for
mandatory prepayments or redemptions at any time where similar
payments are not required under the Loan Papers; (iv) such Debt is
unsecured; (v) the Brooks Note Agreements are reasonably satisfactory
to Administrative Agent and its counsel; and (vi) the aggregate
principal amount of the Brooks Notes outstanding on and after the
Designation Date shall never exceed an amount equal to 49.9% of the
outstanding indebtedness under the Brooks Notes immediately prior to
consummation of the Brooks Note Transaction.
7.13 Liens. No Restricted Company will, directly or indirectly,
(a) enter into or permit to exist any arrangement or agreement which directly
or indirectly prohibits any Restricted Company from creating or incurring any
Lien on any of its assets, other than the Loan Papers, any Note Agreement, or
any Receivables Documents evidencing Accounts Receivable Financings permitted
by SECTION 7.23(e) (so long as any such Lien prohibition under such Receivables
Documents is limited to the Receivables Program Assets transferred by such
Receivables Documents), operating leases or Capital Leases (so long as any such
Lien prohibition under such leases is limited to the property being leased
thereunder), any arrangements or agreements relating to the Rights of Way and
existing on January 5, 1995 (so long as any such Lien prohibition under any
such arrangement or agreement is limited to the Rights of Way and related
interests), and any other arrangements or agreements entered into by WTG or any
Subsidiary thereof on or before January 5, 1995, which arrangements or
agreements are permitted under this Agreement, or (b) create, incur, or suffer
or permit to be created or incurred or to exist any Lien upon any of its
assets, except:
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(i) Liens existing on the Closing Date as more
particularly described on SCHEDULE 7.13 (collectively, the "EXISTING
LIENS"), together with renewals and extensions thereof but not
increases in the principal Debt secured thereby;
(ii) Additional Liens (herein so called) securing Debt
permitted under SECTION 7.12(e) so long as (i) no Default or Potential
Default exists on the date any such Lien is granted or created and
(ii) the aggregate amount of all Debt secured by any such Additional
Lien, does not exceed the amount of additional Debt permitted in
SECTION 7.12(e) on any date of determination;
(iii) Pledges or deposits made to secure payment of
worker's compensation, or to participate in any fund in connection
with worker's compensation, unemployment insurance, pensions, or other
social security programs, and reasonable and customary reserves
established in connection with the sale of Receivables permitted
pursuant to SECTION 7.23(e);
(iv) Good-faith pledges or deposits made to secure
performance of bids, tenders, insurance or other contracts (other than
for the repayment of borrowed money), or leases, or to secure
statutory obligations, surety or appeal bonds, or indemnity,
performance, or other similar bonds as all such Liens arise in the
ordinary course of business of the Restricted Companies;
(v) Encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, none of
which impair in any material respect the use of such property by the
Person in question in the operation of its business, and none of which
is violated by existing or proposed structures or land use;
(vi) Liens of landlords or of mortgages of landlords,
arising solely by operation of law, on fixtures and movable property
located on premises leased in the ordinary course of business;
(vii) The following, so long as the validity or amount
thereof is being contested in good faith and by appropriate and lawful
proceedings diligently conducted, reserve or other appropriate
provision (if any) required by GAAP shall have been made, levy and
execution thereon have been stayed and continue to be stayed, and they
do not in the aggregate materially detract from the value of the
property of the Person in question, or materially impair the use
thereof in the operation of its business: (i) claims and Liens for
Taxes (other than Liens relating to Environmental Laws or ERISA); (ii)
claims and Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real property or
other legal process prior to adjudication of a dispute of the merits;
(iii) claims and Liens of mechanics, materialmen, warehousemen,
carriers, landlords, or other like Liens; and (iv) adverse judgments
on appeal;
(viii) Liens on the Receivables Program Assets created
pursuant to any Receivables Documents evidencing Accounts Receivables
Financings permitted by SECTION 7.23(e); and
(ix) Any attachment or judgment Lien not constituting a
Default or Potential Default.
7.14 Transactions with Affiliates. Except for those transactions
listed on SCHEDULE 6.13, no Restricted Company shall enter into any material
transaction with any of its Affiliates (excluding transactions among or between
Restricted Companies), other than transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
such Restricted Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate and sales and
contributions of Receivables Program Assets from Borrower or certain Restricted
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Subsidiaries to the Receivables Subsidiary pursuant to an Accounts Receivable
Financing permitted by SECTION 7.23(E). For purposes of this SECTION 7.14, a
transaction is "material" if it requires any Consolidated Company to pay more
than $50,000,000 during the term of the agreement governing such transaction.
7.15 Compliance with Laws and Documents. No Restricted Company
shall violate the provisions of any Laws applicable to it, including, without
limitation, all rules and regulations promulgated by the FCC or any applicable
PUC, or any material written or oral agreement, contract, commitment, or
understanding to which it is a party, if such violation alone, or when
aggregated with all other such violations, could be a Material Adverse Event;
no Consolidated Company shall violate the provisions of its charter or bylaws,
or modify, repeal, replace, or amend any provision of its charter or bylaws, if
such action could adversely affect the Rights of Lenders.
7.16 Permitted Acquisitions. In connection with each Permitted
Acquisition (other than any Permitted Acquisition meeting the requirements of
ITEM (A) under the definition of "Permitted Acquisition" with respect to which
no written compliance certification is required on the closing date of such
Acquisition), Borrower shall within 10 days following the consummation of such
Permitted Acquisition deliver, or cause to be delivered to, Administrative
Agent (with sufficient copies for Lenders) each of the following items: (a) if
the information on any Schedule changes or is incomplete as a result of such
Permitted Acquisition (other than revisions or supplements to SCHEDULES 6.13,
7.12, 7.13, and 7.20, which revised or supplemental Schedules must be submitted
and approved by Determining Lenders in accordance with SECTION 5.2), revised or
supplemental Schedules to the Agreement which are required to make the
disclosures in such Schedules accurate after giving effect to such Acquisition;
(b) copies of any lien searches or certificates of authority and good standing
and any filing officer certificates (or commercial reports similar thereto)
obtained by or delivered to Borrower in connection with the Acquisition; (c)
such other agreements, documents, instruments, opinions, certificates, and
evidences as Administrative Agent may reasonably request. Administrative Agent
shall, upon request of Borrower, confirm to Borrower that it has received all
such items so requested and that all matters required to be satisfactory to the
Administrative Agent are satisfactory.
7.17 Assignment. Borrower shall not assign or transfer any of its
Rights, duties, or obligations under any of the Loan Papers.
7.18 Fiscal Year and Accounting Methods. No Consolidated Company
will change its fiscal year for book accounting purposes or its method of
accounting other than (i) immaterial changes in methods or as required by GAAP,
or (ii) in connection with a Permitted Acquisition, such changes to the
newly-acquired entity so as to conform its fiscal year and its method of
accounting to those of the Consolidated Companies.
7.19 Government Regulations. No Restricted Company will conduct
its business in such a way that it will become subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, or any other Law (other than Regulations G, T, U, and
X of the Board of Governors of the Federal Reserve System and the requirements
of any PUC or public service commission) which regulates the incurrence of
Debt.
7.20 Loans, Advances, and Investments. Except as permitted by
SECTIONS 7.21 or 7.26, no Restricted Company shall make any loan, advance,
extension of credit, or capital contribution to, make any investment in, or
purchase or commit to purchase any stock or other securities or evidences of
Debt of, or interests in, any other Person, other than (a) readily marketable,
direct, full faith and credit
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obligations of the United States of America, or obligations guaranteed by the
full faith and credit of the United States of America, maturing within one year
from the date of acquisition, (b) readily marketable obligations (including
repurchase obligations) of any agency, instrumentality of, or corporation
owned, controlled, or sponsored by, the United States of America, that are
generally considered in the securities industry to be implicit obligations of
the United States of America, maturing within one year from the date of
acquisition; (c) short term certificates of deposit and time deposits, which
mature within one year from the date of issuance and which are fully insured by
the Federal Deposit Insurance Corporation or are issued by commercial banks
organized under the Laws of the United States or any state thereof, Canada,
western Europe, or Japan, with a long term debt rating of "A" or better by S&P
or of "A2" or better by Moody's or with a short term commercial paper rating of
"A-1" or better by S&P or "P-1" or better by Moody's; (d) commercial paper
maturing in 270 days or less from the date of issuance and rated either "P-1"
or "P-2" by Moody's, or "A-1" or "A-2" by S&P; (e) readily marketable tax-free
municipal bonds of a domestic issuer maturing in three years or less from the
date of acquisition thereof, which are rated "Aaa" or better by Moody's, or
"AAA" or better by S&P; (f) demand deposit accounts or readily redeemable
"money market mutual funds" sponsored by a bank meeting the requirements of
CLAUSE (c) above, that has and maintains an investment policy limiting its
investments primarily to instruments of the types otherwise permitted in CLAUSE
(a)-(e) hereof and which demand deposit accounts or money market mutual funds
are maintained in the ordinary course of business; (g) loans, advances,
extensions of credit, capital contributions and other investments between
Restricted Companies or between Restricted Companies and the Receivables
Subsidiary; provided that, any loans, advances, extensions of credit, capital
contributions, and other investments by any Restricted Company in or to the
Receivables Subsidiary shall be made solely in connection with an Accounts
Receivable Financing permitted by SECTION 7.23(e); (h) Permitted Acquisitions;
(i) trade accounts receivable (including, without limitation, trade accounts
receivable evidenced by promissory notes) which are for goods furnished or
services rendered in the ordinary course of business and are payable in
accordance with customary trade terms; (j) other investments or commitments to
make investments existing on July 3, 1997, and described on SCHEDULE 7.20; and
(k) other loans, advances, and investments (including, without limitation,
loans, advances, investments in or to Brooks prior to the designation of Brooks
by Borrower as a Restricted Subsidiary of Borrower), so long as (x) the
aggregate principal amount or market value of such loans, advances, or
investments (as the case may be) does not exceed 5% of the Consolidated Net
Worth of the Restricted Companies on any date of determination, (y) no Default
or Potential Default exists, and (z) no Restricted Company makes any investment
under this CLAUSE (k) whereby it incurs any liability as a general partner.
7.21 Permitted Distributions. So long as any Default or Potential
Default exists or will exist as a result of any such Distribution, no
Restricted Company may directly or indirectly declare, make, or pay any
Distribution, other than Distributions made or paid, directly or indirectly, to
Borrower. Any Distribution permitted hereunder is permitted only to the extent
such Distribution is made in accordance with applicable Law and constitutes a
valid, non-voidable transaction.
7.22 Restrictions on Subsidiaries. No Restricted Subsidiary shall
enter into or permit to exist any material arrangement or agreement (other than
the Loan Papers) which directly or indirectly prohibits any such Restricted
Subsidiary from (a) declaring, making, or paying, directly or indirectly, any
Distribution to Borrower or any other Restricted Subsidiary, (b) paying any
Debt owed to Borrower or any other Restricted Subsidiary, (c) making loans,
advances, or investments to Borrower or any other Restricted Subsidiary, or (d)
transferring any of its property or assets to Borrower or any other Restricted
Subsidiary.
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7.23 Sale of Assets. No Restricted Company shall sell, assign,
transfer, or otherwise dispose of any of its assets other than (a) sales of
inventory in the ordinary course of business, (b) the sale, discount, or
transfer of delinquent accounts receivable in the ordinary course of business
for purposes of collection, (c) occasional sales of immaterial assets for
consideration not less than the fair market value thereof, (d) dispositions of
obsolete assets, (e) the sale, assignment, transfer, or other disposition of
undivided percentage interests in the Receivables Program Assets pursuant to
any Accounts Receivables Financing, so long as the aggregate Accounts
Receivable Financing Amount payable from the Receivables Program Assets to the
purchasers under all such Accounts Receivables Financings does not exceed
$750,000,000, and (f) if no Default or Potential Default then exists or arises
as a result thereof, sales of other assets (including sales of accounts
receivable to the extent such accounts receivable are sold in conjunction with
the sale of a business but excluding all other sales of accounts receivable);
provided that, the aggregate fair market value of all assets sold on or after
July 3, 1997, pursuant to this CLAUSE (f) shall not exceed, on any date of
determination, 49% of the Annualized Operating Cash Flow of the Restricted
Companies determined as of the fiscal quarter then most recently ended.
7.24 Sale-Leaseback Financings. Except for the Sale-Leaseback
Financings and any extensions, amendments, or modifications thereto, no
Restricted Company will enter into any sale-leaseback arrangement with any
Person pursuant to which such Restricted Company shall lease any asset (whether
now owned or hereafter acquired) if such asset has been or is to be sold or
transferred by any Restricted Company to any other Person.
7.25 Amendments to Agreements. With respect to any Note Agreement,
any MFS Note Agreement, any Brooks Note Agreement (except in connection with
any amendment of the Brooks Note Agreements arising in connection with the
Brooks Note Transaction and occurring on or before the date Brooks and its
Subsidiaries are designated as Restricted Subsidiaries pursuant to SECTION
7.27) and any agreement evidencing subordinated Debt permitted pursuant to
SECTION 7.12(h) without the prior written consent of Determining Lenders, no
Restricted Company will (a) execute any material amendment, modification, or
supplement thereto, or (b) consent to any material departure therefrom.
7.26 Mergers and Dissolutions; Sale of Capital Stock. No
Restricted Company will, directly or indirectly, merge or consolidate with any
other Person, other than (a) as a result of a Permitted Acquisition, (b)
mergers or consolidations involving Borrower if Borrower or a Permitted
Successor Corporation is the surviving entity, (c) mergers among Wholly-owned
Restricted Companies; provided that, in any merger involving Borrower
(including a Permitted Acquisition effected as a merger), Borrower or a
Permitted Successor Corporation must be the surviving entity, and, in any
merger involving any other Restricted Company (including a Permitted
Acquisition effected as a merger), a Restricted Subsidiary must be the
surviving entity, (d) as previously approved by Determining Lenders, and (e)
mergers between Restricted Companies and Unrestricted Subsidiaries; provided
that, in any merger under this CLAUSE (e) involving Borrower (including a
Permitted Acquisition effected as a merger), Borrower or a Permitted Successor
Corporation must be the surviving entity, and, in any merger involving any
other Restricted Company (including a Permitted Acquisition effected as a
merger), a Restricted Subsidiary must be the surviving entity. No Restricted
Company shall liquidate, wind up, or dissolve (or suffer any liquidation or
dissolution), other than (x) liquidations, wind ups, or dissolutions incident
to mergers permitted under this SECTION 7.26, or (y) liquidations, wind ups, or
dissolutions of a Restricted Subsidiary if no Default or Potential Default
exists or would result therefrom and its assets are transferred to another
Restricted Company. No Restricted Company may sell, assign, lease, transfer,
or otherwise dispose of the capital stock (or other ownership interests) of any
other Restricted Company, except for sales, leases, transfers, or other such
distributions to another Restricted Company.
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7.27 Designation of Unrestricted Companies. So long as no Default
or Potential Default exists or arises as a result thereof, Borrower may from
time to time change the designation of any Subsidiary from a Restricted
Subsidiary to an Unrestricted Subsidiary, or vice versa; provided that, (a)
Borrower shall provide Administrative Agent written notification of such
designation, and (b) Borrower amends SCHEDULE 6.2 to reflect the change in
designation. Brooks and its Subsidiaries shall not be redesignated as
"Restricted Subsidiaries" until the date upon which (i) more than 50% of the
Debt outstanding under the Brooks Note Agreements is (A) assumed in whole or in
part by Borrower and such assumed Debt satisfies the requirements of SECTION
7.12(f) and/or (B) reduced or repaid in whole by Brooks; provided that, if not
repaid in full or assumed by Borrower, any remaining Debt under the Brooks Note
Agreements must satisfy the requirement of SECTION 7.12(j); (ii) Borrower
delivers to Administrative Agent a Compliance Certificate demonstrating
pro-forma compliance with SECTIONS 7.12 and 7.28 immediately prior to and after
giving effect to such redesignation; (iii) Borrower amends SCHEDULE 6.2 to
reflect the change in designation and delivers such amended SCHEDULE 6.2 to
Administrative Agent; and (iv) no Default or Potential Default exists or arises
after giving effect to such redesignation. Any other redesignation from an
Unrestricted Subsidiary to a Restricted Subsidiary shall be effective upon
receipt by Administrative Agent of a notice of redesignation and a revised
SCHEDULE 6.2.
7.28 Financial Covenants. As calculated on a consolidated basis
for the Consolidated Companies:
(a) Borrower shall never permit the Leverage Ratio for
any 3-month period ending on the date of determination to exceed 4.50
to 1.00.
(b) Borrower shall never permit the sum of (i) the
Consolidated Net Worth of the Consolidated Companies as calculated at
the end of each of its fiscal quarters plus (ii) to the extent
deducted in the calculation of Consolidated Net Worth, up to
$100,000,000 in non-recurring cash and non-cash charges made by the
Consolidated Companies in connection with any mergers or corporate
restructurings related solely to Acquisitions occurring on or after
July 3, 1997, to be less than the sum of the following:
(A) 75% of the Consolidated Net Worth of the
Consolidated Companies as of December 31, 1996, plus
(B) 50% of the Consolidated Net Income of the
Consolidated Companies for each fiscal quarter of the
Consolidated Companies ending after December 31, 1996, and
added to Consolidated Net Worth on the last day of each such
successive fiscal quarter (provided that if the Consolidated
Net Income for any fiscal quarter is less than $0, then the
incremental amount added to required Consolidated Net Worth
for that fiscal quarter shall be $0), plus
(C) 75% of the Net Cash Proceeds of any Equity
Issuance occurring on or after the Closing Date.
SECTION 8 DEFAULT. The term "DEFAULT" means the occurrence of any one
or more of the following events:
8.1 Payment of Obligation. The failure or refusal of any
Restricted Company to pay (a) Principal Debt when the same becomes due in
accordance with the Loan Papers, or (b) interest, fees, or any other part of
the Obligation within five days after the same becomes due and payable in
accordance
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with the Loan Papers; (c) the indemnifications and reimbursements provided for
in SECTIONS 3.16 and 3.18 within ten days after demand therefor as required by
such Sections; or (d) the failure of the Restricted Company to punctually and
properly perform, observe, and comply with SECTION 9.12 or with any other
provision in the Loan Papers setting forth indemnification or reimbursement
obligations (other than pursuant to SECTIONS 3.16 and 3.18) of the Restricted
Companies, and such failure or refusal continues for 15 days.
8.2 Covenants. The failure or refusal of Borrower (and, if
applicable, any other Consolidated Company) to punctually and properly perform,
observe, and comply with:
(a) Any covenant, agreement, or condition contained in
SECTIONS 7.1, 7.6 (first sentence thereof), 7.6(b), 7.12, 7.13, 7.14,
7.16, 7.17, 7.18, and 7.19 through 7.28; and
(b) Any other covenant, agreement, or condition contained
in any Loan Paper (other than the covenants to pay the Obligation set
forth in SECTION 8.1 and the covenants in CLAUSE (a)), and such
failure or refusal continues for 30 days.
8.3 Debtor Relief. Borrower or any Restricted Subsidiary (a)
shall not be Solvent, (b) fails to pay its Debts generally as they become due,
(c) voluntarily seeks, consents to, or acquiesces in the benefit of any Debtor
Relief Law, other than as a creditor or claimant, or (d) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of Administrative Agent or any Lender granted in the Loan
Papers (unless, in the event such proceeding is involuntary, the petition
instituting same is dismissed within 60 days after its filing).
8.4 Judgments and Attachments. Any Restricted Company fails,
within 60 days after entry, to pay, bond, or otherwise discharge any judgment
or order for the payment of money in excess of $100,000,000 (individually or
collectively) or any warrant of attachment, sequestration, or similar
proceeding against any Restricted Company's assets having a value (individually
or collectively) of $100,000,000, which is not either (a) stayed on appeal or
(b) being diligently contested in good faith by appropriate proceedings and
adequate reserves have been set aside on the books of such Restricted Company
in accordance with GAAP.
8.5 Government Action. (a) A final non-appealable order is issued
by any Governmental Authority, including, but not limited to, the FCC or the
United States Justice Department, seeking to cause any Consolidated Company to
divest a significant portion of its assets pursuant to any antitrust, restraint
of trade, unfair competition, industry regulation, or similar Laws, or (b) any
Governmental Authority shall condemn, seize, or otherwise appropriate, or take
custody or control of all or any substantial portion of the assets of any
Consolidated Company.
8.6 Misrepresentation. Any representation or warranty made by any
Consolidated Company contained in any Loan Paper shall at any time prove to
have been incorrect in any material respect when made.
8.7 SEC Reporting Requirements. Any Consolidated Company fails to
comply with any reporting requirements of the Securities Exchange Act of 1934,
as amended, for which the failure to report could constitute a Material Adverse
Event.
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8.8 Change of Control. (a) A Responsible Officer or Officers
become the "beneficial owner" (as defined in Rule 13(d)(3) under the 1934 Act
and herein so called) of 50% or more of the Voting Stock of Borrower; (b) any
Special Shareholder or Special Shareholders become beneficial owners of 50% or
more of the Voting Stock of Borrower; or (c) any other Person or two or more
Persons (acting within the meaning of Rule 13(d)(3) under the 1934 Act), other
than Persons described in CLAUSE (a) hereof, become the beneficial owner of 20%
or more of the Voting Stock of Borrower. As used herein, "Special
Shareholders" shall mean (i) any Person or two or more Persons (acting within
the meaning of Rule 13(d)(3) under the 1934 Act) who were on December 4, 1992
(or prior to any change in beneficial ownership were) beneficial owners of 20%
or more of the Voting Stock of LDDS Communications, Inc., a Tennessee
corporation and the predecessor of Borrower, or immediately prior to the merger
between LDDS Communications, Inc., a Tennessee corporation, and Advanced
Telecommunications Corporation, a Delaware corporation, were beneficial owners
of 20% or more of the Voting Stock of either such company, and (ii) Metromedia
Company, a Delaware general partnership.
8.9 Authorizations. (a) Any Authorization necessary for the
ownership or operations of any Consolidated Company shall expire, and on or
prior to such expiration, the same shall not have been renewed or replaced by
another Authorization authorizing substantially the same operations by such
Consolidated Company; or (b) any Authorization necessary for the ownership or
operations of any Consolidated Company shall be canceled, revoked, terminated,
rescinded, annulled, suspended, or modified in a materially adverse respect, or
shall no longer be in full force and effect, or the grant or the effectiveness
thereof shall have been stayed, vacated, reversed, or set aside, and such
action shall be no longer subject to further administrative or judicial review
(provided, however, that neither of the foregoing events described in CLAUSE
(a) or (b) shall constitute a Default if such loss of any such Authorization
could not be a Material Adverse Event).
8.10 Default Under Other Agreements. (a) Any Restricted Company
fails to pay when due (after lapse of any applicable grace periods) any Debt of
such Restricted Company (other than the Obligation) in excess (individually or
collectively) of $50,000,000; (b) any default exists under any agreement to
which a Restricted Company is a party, the effect of which is to cause, or to
permit any Person to cause, an amount of Debt of such Restricted Company in
excess (individually or collectively) of $50,000,000 to become due and payable
by any Restricted Company prior to the stated maturity thereof; (c) any Debt in
excess (individually or collectively) of $50,000,000 shall be declared to be
due and payable or required to be prepaid by any Restricted Company prior to
the stated maturity thereof; (d) any default exists under any material written
or oral agreement, contract, commitment, or understanding to which a Restricted
Company is a party, the effect of which would be a Material Adverse Event,
unless, in the case of this CLAUSE (d), and so long as, such default is being
contested by such Restricted Company in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the books of
such Restricted Company to the extent required by GAAP; or (e) any "Default"
exists under the Facility A Agreement or the Facility B Agreement.
8.11 Employee Benefit Plans. (a) A Reportable Event or Reportable
Events, or a failure to make a required installment or other payment (within
the meaning of Section 412(n)(1) of the Code), shall have occurred with respect
to any Employee Plan or Plans that is expected to result in liability of
Borrower to the PBGC or to a Plan in an aggregate amount exceeding $50,000,000
and, within 30 days after the reporting of any such Reportable Event to
Administrative Agent or after the receipt by Administrative Agent of a
statement required pursuant to SECTION 7.3(d) hereof, Administrative Agent
shall have notified Borrower in writing that (i) Determining Lenders have made
a reasonable determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are grounds
under Title IV of ERISA for the termination of such Employee Plan or Plans by
the
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PBGC, or the appointment by the appropriate United States district court of a
trustee to administer such Employee Plan or Plans or the imposition of a lien
pursuant to section 412(n) of the Code in favor of an Employee Plan and (ii) as
a result thereof a Default exists hereunder; or (b) Borrower or any ERISA
Affiliate has provided to any affected party a 60-day notice of intent to
terminate an Employee Plan pursuant to a distress termination in accordance
with section 4041(c) of ERISA if the liability expected to be incurred as a
result of such termination will exceed $50,000,000; or (c) a trustee shall be
appointed by a United States district court to administer any such Employee
Plan; or (d) the PBGC shall institute proceedings (including giving notice of
intent thereof) to terminate any such Employee Plan; or (e)(i) Borrower or any
ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability (within the meaning of section 4201
of ERISA) to such Multiemployer Plan, (ii) Borrower or such ERISA Affiliate
does not have reasonable grounds for contesting such withdrawal liability or is
not contesting such withdrawal liability in a timely and appropriate manner and
(iii) the amount of such withdrawal liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer Plans in
connection with withdrawal liabilities (determined as of the date or dates of
such notification), exceeds $50,000,000; or (f) Borrower or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of Borrower and its ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or have
been or are being terminated have been or will be increased over the amounts
required to be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $50,000,000.
8.12 Validity and Enforceability of Loan Papers. Any Loan Paper
shall, at any time after its execution and delivery and for any reason, cease
to be in full force and effect in any material respect or be declared to be
null and void (other than in accordance with the terms hereof or thereof) or
the validity or enforceability thereof be contested by any Restricted Company
party thereto or any Restricted Company shall deny in writing that it has any
or any further liability or obligations under any Loan Paper to which it is a
party.
8.13 Payment of Certain Other Debt. The payment (including,
without limitation, any payment by any Restricted Company in respect of any
sinking fund, defeasance, or redemption) by any Restricted Company of any
principal amount of any Debt arising under any Note Agreement, the MFS Note
Agreements, or the Brooks Note Agreements, in a manner or at a time during
which such payment is not permitted under the terms of the Loan Papers, the
Note Agreements, the MFS Note Agreements, or the Brooks Note Agreements.
8.14 Default or Acceleration under any Certain Other Debt. (a) The
occurrence of any default or event of default under any Note Agreement, any MFS
Note Agreement, or any Brooks Note Agreement, or (b) the trustee with respect
to, or any holder of, any Note Agreement, any MFS Note Agreement, or any Brooks
Note Agreement shall effectively declare all or any portion of that Debt due
and payable prior to the stated maturity thereof; or (c) Debt under any Note
Agreement, any MFS Note Agreement, or any Brooks Note Agreement becomes due
before its stated maturity by acceleration of the maturity thereof.
8.15 Redemption of Certain Other Debt. If an event shall occur,
including, without limitation, a "Change in Control" as defined in any Note
Agreement, any MFS Note Agreement, or any Brooks Note Agreement, and (a) the
trustee or the holders of any Note Agreement, any MFS Note Agreement, or any
Brooks Note Agreement shall initiate notice to request or require (or any
Restricted Company shall automatically be so required) to redeem or repurchase
any Debt arising under any Note Agreement, the MFS Note Agreements, or the
Brooks Note Agreement, or (b) any Restricted Company shall initiate notice
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to the holders of any Debt arising under any Note Agreement, any MFS Note
Agreement, or any Brooks Note Agreement, in connection with a redemption of any
Debt arising under any Note Agreement, any MFS Note Agreement, or any Brooks
Note Agreement (except as permitted by this Agreement).
SECTION 9 RIGHTS AND REMEDIES.
9.1 Remedies Upon Default.
(a) If a Default exists under SECTION 8.3(c) or 8.3(d),
the commitment to extend credit hereunder shall automatically
terminate and the entire unpaid balance of the Obligation shall
automatically become due and payable without any action or notice of
any kind whatsoever.
(b) If any Default exists, Administrative Agent may (and,
subject to the terms of SECTION 10, shall upon the request of
Determining Lenders) or Determining Lenders may, do any one or more of
the following: (i) if the maturity of the Obligation has not already
been accelerated under SECTION 9.1(a), declare the entire unpaid
balance of the Obligation, or any part thereof, immediately due and
payable, whereupon it shall be due and payable; (ii) terminate the
commitments of Lenders to extend credit hereunder; (iii) reduce any
claim to judgment; (iv) to the extent permitted by Law, exercise (or
request each Lender to, and each Lender shall be entitled to,
exercise) the Rights of offset or banker's Lien against the interest
of Borrower in and to every account and other property of Borrower
which are in the possession of Administrative Agent or any Lender to
the extent of the full amount of the Obligation (to the extent
permitted by Law, Borrower being deemed directly obligated to each
Lender in the full amount of the Obligation for such purposes); (v)
exercise any and all other legal or equitable Rights afforded by the
Loan Papers, the Laws of the State of Texas or any other applicable
jurisdiction as Administrative Agent shall deem appropriate, or
otherwise, including, but not limited to, the Right to bring suit or
other proceedings before any Governmental Authority either for
specific performance of any covenant or condition contained in any of
the Loan Papers or in aid of the exercise of any Right granted to
Administrative Agent or any Lender in any of the Loan Papers.
9.2 Company Waivers. To the extent permitted by Law, Borrower
hereby waives presentment and demand for payment, protest, notice of intention
to accelerate, notice of acceleration, and notice of protest and nonpayment,
and agrees that its liability with respect to the Obligation (or any part
thereof), shall not be affected by any renewal or extension in the time of
payment of the Obligation (or any part thereof), by any indulgence, or by any
release or change in any security for the payment of the Obligation (or any
part thereof).
9.3 Performance by Administrative Agent. If any covenant, duty,
or agreement of any Consolidated Company is not performed in accordance with
the terms of the Loan Papers, after the occurrence and during the continuance
of a Default, Administrative Agent may, at its option (but subject to the
approval of Determining Lenders), perform or attempt to perform such covenant,
duty, or agreement on behalf of such Consolidated Company. In such event, any
amount expended by Administrative Agent in such performance or attempted
performance shall be payable by the Consolidated Companies, jointly and
severally, to Administrative Agent on demand, shall become part of the
Obligation, and shall bear interest at the Default Rate from the date of such
expenditure by Administrative Agent until paid. Notwithstanding the foregoing,
it is expressly understood that Administrative Agent does not assume and shall
never have, except by its express written consent, any liability or
responsibility for the performance of any covenant, duty, or agreement of any
Consolidated Company.
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9.4 Delegation of Duties and Rights. Lenders may perform any of
their duties or exercise any of their Rights under the Loan Papers by or
through their respective Representatives.
9.5 Not in Control. Nothing in any Loan Paper shall, or shall be
deemed to (a) give Administrative Agent or any Lender the Right to exercise
control over the assets (including real property), affairs, or management of
any Consolidated Company, (b) preclude or interfere with compliance by any
Consolidated Company with any Law, or (c) require any act or omission by any
Consolidated Company that may be harmful to Persons or property. Any "Material
Adverse Event" or other materiality qualifier in any representation, warranty,
covenant, or other provision of any Loan Paper is included for credit
documentation purposes only and shall not, and shall not be deemed to, mean
that Administrative Agent or any Lender acquiesces in any non-compliance by any
Consolidated Company with any Law or document, or that Administrative Agent or
any Lender does not expect the Consolidated Companies to promptly, diligently,
and continuously carry out all appropriate removal, remediation, and
termination activities required or appropriate in accordance with all
Environmental Laws. Neither the Administrative Agent nor any Lender has any
fiduciary relationship with or fiduciary duty to Borrower or any Consolidated
Company arising out of or in connection with the Loan Papers, and the
relationship between the Administrative Agent and the Lenders, on the one hand,
and Borrower, on the other hand, in connection with the Loan Papers is solely
that of debtor and creditor. The power of Administrative Agent and Lenders
under the Loan Papers is limited to the Rights provided in the Loan Papers,
which Rights exist solely to assure payment and performance of the Obligation
and may be exercised in a manner calculated by Administrative Agent and Lenders
in their respective good faith business judgment.
9.6 Course of Dealing. The acceptance by Administrative Agent or
Lenders at any time and from time to time of partial payment on the Obligation
shall not be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Determining Lenders, or Lenders of any Default shall be
deemed to be a waiver of any other then- existing or subsequent Default. No
delay or omission by Administrative Agent, Determining Lenders, or Lenders in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
9.7 Cumulative Rights. All Rights available to Administrative
Agent and Lenders under the Loan Papers are cumulative of and in addition to
all other Rights granted to Administrative Agent and Lenders at law or in
equity, whether or not the Obligation is due and payable and whether or not
Administrative Agent or Lenders have instituted any suit for collection,
foreclosure, or other action in connection with the Loan Papers.
9.8 Application of Proceeds. Any and all proceeds ever received
by Administrative Agent or Lenders from the exercise of any Rights pertaining
to the Obligation shall be applied to the Obligation in the order and manner
set forth in SECTION 3.11.
9.9 Certain Proceedings. Borrower will promptly execute and
deliver, or cause the execution and delivery of, all applications,
certificates, instruments, registration statements, and all other documents and
papers Administrative Agent or Lenders may reasonably request in connection
with the obtaining of any consent, approval, registration, qualification,
permit, license, or authorization of any Governmental Authority or other Person
necessary or appropriate for the effective exercise of any Rights under the
Loan Papers. Because Borrower agrees that Administrative Agent's and Lenders'
remedies at Law for failure of Borrower to comply with the provisions of this
paragraph would be inadequate and that such failure would not be adequately
compensable in damages, Borrower agrees that the covenants of this paragraph
may be specifically enforced.
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9.10 Limitation of Rights. Notwithstanding any other provision of
this Agreement or any other Loan Paper, any action taken or proposed to be
taken by Administrative Agent or any Lender under any Loan Paper which would
affect the operational, voting, or other control of any Consolidated Company,
shall be pursuant to Section 310(d) of the Communications Act of 1934 (as
amended), any applicable state Law, and the applicable rules and regulations
thereunder and, if and to the extent required thereby, subject to the prior
consent of the FCC or any applicable PUC.
9.11 Expenditures by Lenders. Borrower shall promptly pay within
fifteen (15) Business Days after request therefor (a) all reasonable costs,
fees, and expenses paid or incurred by Administrative Agent incident to any
Loan Paper (including, but not limited to, the reasonable fees and expenses of
counsel to Administrative Agent and the allocated cost of internal counsel in
connection with the negotiation, preparation, delivery, execution, coordination
and administration of the Loan Papers and any related amendment, waiver, or
consent) and (b) all reasonable costs and expenses of Lenders and
Administrative Agent incurred by Administrative Agent or any Lender in
connection with the enforcement of the obligations of any Restricted Company
arising under the Loan Papers (including, without limitation, costs and
expenses incurred in connection with any workout or bankruptcy) or the exercise
of any Rights arising under the Loan Papers (including, but not limited to,
reasonable attorneys' fees including allocated cost of internal counsel, court
costs, and other costs of collection), all of which shall be a part of the
Obligation and shall bear interest at the Default Rate from the date due until
the date repaid by Borrower.
9.12 Indemnification. BORROWER, FOR ITSELF AND ON BEHALF OF THE
OTHER RESTRICTED COMPANIES, INDEMNIFIES, PROTECTS, AND HOLDS ADMINISTRATIVE
AGENT AND EACH LENDER AND THEIR RESPECTIVE AFFILIATES, PARENTS, AND
SUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES' RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND
ATTORNEYS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, AND PROCEEDINGS AND ALL REASONABLE AND NECESSARY
COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS' FEES
AND LEGAL EXPENSES INCLUDING ALLOCATED COST OF INTERNAL COUNSEL, AND AMOUNTS
PAID IN SETTLEMENT WHETHER OR NOT SUIT IS BROUGHT), AND DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER, AND AMOUNTS PAID IN SETTLEMENT (THE "INDEMNIFIED
LIABILITIES") WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR ARISING OUT OF (A)
THE DIRECT OR INDIRECT RESULT OF THE VIOLATION BY ANY CONSOLIDATED COMPANY OF
ANY ENVIRONMENTAL LAW, AS WELL AS ANY AMENDMENT AND SUPPLEMENT THERETO AND ANY
STATE COUNTERPART THEREOF; (B) ANY CONSOLIDATED COMPANY'S GENERATION,
MANUFACTURE, PRODUCTION, STORAGE, TRANSPORTATION, RELEASE, THREATENED RELEASE,
DISCHARGE, DISPOSAL OR PRESENCE IN CONNECTION WITH ITS PROPERTIES OF A
HAZARDOUS SUBSTANCE (INCLUDING, WITHOUT LIMITATION, (I) ALL DAMAGES ARISING
FROM ANY SUCH USE, GENERATION, MANUFACTURE, PRODUCTION, STORAGE, RELEASE,
THREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE, OR (II) THE COSTS OF ANY
REQUIRED OR NECESSARY ENVIRONMENTAL INVESTIGATION, MONITORING, REPAIR, CLEANUP,
OR DETOXIFICATION AND THE PREPARATION AND IMPLEMENTATION OF ANY CLOSURE,
REMEDIAL, OR OTHER PLANS); (C) THE LOAN PAPERS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN OR THE USE OF PROCEEDS OF ANY BORROWING, TO THE EXTENT
THAT ANY OF THE INDEMNIFIED LIABILITIES RESULTS, DIRECTLY OR INDIRECTLY, FROM
ANY CLAIM MADE OR ACTION, SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY
PERSON OTHER THAN BY THE INDEMNIFIED PARTIES; OR (D) ANY PERMITTED ACQUISITION
OR THE RELATED ACQUISITION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY; (PROVIDED THAT, NONE OF THE RESTRICTED COMPANIES SHALL HAVE ANY
OBLIGATION HEREUNDER TO ANY INDEMNIFIED PARTY WITH RESPECT TO ANY INDEMNIFIED
LIABILITY ARISING FROM (I) THE FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT
OF SUCH INDEMNIFIED PARTY OR ANY ASSOCIATED PERSON OF SUCH
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INDEMNIFIED PARTY, OR (II) LEGAL PROCEEDINGS COMMENCED AGAINST ANY INDEMNIFIED
PARTY BY ANY SECURITY HOLDER OR CREDITOR THEREOF ARISING OUT OF AND BASED UPON
RIGHTS AFFORDED TO SUCH PERSON SOLELY IN SUCH CAPACITY). AS USED IN THIS
PARAGRAPH, THE TERM "ASSOCIATED PERSON" MEANS, WITH RESPECT TO ANY PERSON, THE
AFFILIATES, PARENTS, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS OF SUCH PERSON, OR
OF ANOTHER PERSON OF WHICH SUCH PERSON IS ALSO AN ASSOCIATED PERSON. THE
PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH
SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF
THIS AGREEMENT. AN INDEMNIFIED PARTY WILL PROMPTLY NOTIFY THE RESTRICTED
COMPANIES UPON RECEIPT OF WRITTEN NOTICE OF ANY CLAIM, ACTION, SUIT, OR
PROCEEDING MADE, COMMENCED, OR THREATENED THAT COULD GIVE RISE TO AN
INDEMNIFIED LIABILITY AND AFFORD THE RESTRICTED COMPANIES FIRST RIGHT TO DEFEND
OR RESOLVE THE SAME (WITH COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED
PARTY); PROVIDED THAT, ANY FAILURE BY SUCH INDEMNIFIED PARTY TO GIVE SUCH
NOTICE SHALL NOT RELIEVE THE RESTRICTED COMPANIES FROM THEIR OBLIGATIONS TO
INDEMNIFY THE INDEMNIFIED PARTY TO THE EXTENT SUCH FAILURE DOES NOT PREJUDICE
THE ABILITY OF THE RESTRICTED COMPANIES TO DEFEND OR RESOLVE ANY SUCH CLAIM,
ACTION, SUIT, OR PROCEEDING. THE RESTRICTED COMPANIES SHALL NOT SETTLE ANY
SUCH CLAIM OR ACTION WITHOUT THE CONSENT OF SUCH INDEMNIFIED PARTY, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. IF THE RESTRICTED
COMPANIES ASSUME ANY DEFENSE, THEY SHALL KEEP THE APPLICABLE INDEMNIFIED
PARTIES FULLY ADVISED OF THE STATUS OF, AND SHALL CONSULT WITH THOSE
INDEMNIFIED PARTIES BEFORE TAKING ANY MATERIAL POSITION IN RESPECT OF, THAT
PROCEEDING. IF (I) COUNSEL FOR ANY INDEMNIFIED PARTY DETERMINES IN GOOD FAITH
THAT THERE IS A CONFLICT WHICH REQUIRES SEPARATE REPRESENTATION FOR THE
RESTRICTED COMPANIES AND SUCH INDEMNIFIED PARTY OR FOR SUCH INDEMNIFIED PARTY
AND ANY OTHER INDEMNIFIED PARTY OR (II) THE RESTRICTED COMPANIES FAIL TO ASSUME
OR PROCEED IN A TIMELY AND REASONABLE MANNER WITH THE DEFENSE OF SUCH ACTION OR
FAIL TO EMPLOY COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY IN ANY
SUCH ACTION, THEN IN EITHER SUCH EVENT THE INDEMNIFIED PARTY SHALL BE ENTITLED
TO SELECT COUNSEL OF ITS OWN CHOICE TO REPRESENT THE INDEMNIFIED PARTY, AND THE
RESTRICTED COMPANIES SHALL NO LONGER BE ENTITLED TO ASSUME THE DEFENSE THEREOF
ON BEHALF OF SUCH INDEMNIFIED PARTY, AND SUCH INDEMNIFIED PARTY SHALL CONTINUE
TO BE ENTITLED TO INDEMNIFICATION (INCLUDING, WITHOUT LIMITATION, REASONABLE
FEES AND DISBURSEMENTS OF COUNSEL INCLUDING ALLOCATED COST OF INTERNAL COUNSEL)
TO THE EXTENT PROVIDED IN THIS INDEMNIFICATION PROVISION. NOTHING HEREIN SHALL
PRECLUDE ANY INDEMNIFIED PARTY, AT ITS OWN EXPENSE, FROM RETAINING ADDITIONAL
COUNSEL TO REPRESENT SUCH PARTY IN ANY ACTION WITH RESPECT TO WHICH INDEMNITY
MAY BE SOUGHT FROM THE RESTRICTED COMPANIES HEREUNDER. NO INDEMNIFIED PARTY
SHALL SETTLE ANY SUCH CLAIM OR ACTION WITHOUT THE CONSENT OF THE RESTRICTED
COMPANIES, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED.
SECTION 10 AGREEMENT AMONG LENDERS.
10.1 Administrative Agent.
(a) Each Lender hereby appoints NationsBank of Texas,
N.A. (and NationsBank of Texas, N.A. hereby accepts such appointment)
as its nominee and agent, in its name and on its behalf: (i) to act
as nominee for and on behalf of such Lender in and under all Loan
Papers; (ii) to arrange the means whereby the funds of Lenders are to
be made available to Borrower under the Loan Papers; (iii) to take
such action as may be requested by any Lender under the Loan Papers
(when such Lender is entitled to make such request under the Loan
Papers and after such requesting Lender has obtained the concurrence
of such other Lenders as may be required
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under the Loan Papers); (iv) to receive all documents and items to be
furnished to Lenders under the Loan Papers; (v) to be the secured
party, mortgagee, beneficiary, and similar party in respect of, and to
receive, as the case may be, any collateral for the benefit of
Lenders; (vi) to timely distribute, and Administrative Agent agrees to
so distribute, to each Lender all material information, requests,
documents, and items received from Borrower under the Loan Papers;
(vii) to promptly distribute to each Lender its ratable part of each
payment or prepayment (whether voluntary, as proceeds of collateral
upon or after foreclosure, as proceeds of insurance thereon, or
otherwise) in accordance with the terms of the Loan Papers; (viii) to
deliver to the appropriate Persons requests, demands, approvals, and
consents received from Lenders; and (ix) to execute, on behalf of
Lenders, such releases or other documents or instruments as are
permitted by the Loan Papers or as directed by Lenders from time to
time; provided, however, Administrative Agent shall not be required to
take any action which exposes Administrative Agent to personal
liability or which is contrary to the Loan Papers or applicable Law.
(b) Administrative Agent may resign at any time as
Administrative Agent under the Loan Papers by giving written notice
thereof to Lenders and may be removed as Administrative Agent under
the Loan Papers at any time with cause by Determining Lenders. Should
the initial or any successor Administrative Agent ever cease to be a
party hereto or should the initial or any successor Administrative
Agent ever resign or be removed as Administrative Agent, then
Determining Lenders shall elect the successor Administrative Agent
from among the Lenders (other than the resigning Administrative
Agent). If no successor Administrative Agent shall have been so
appointed by Determining Lenders, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or Determining
Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank
having a combined capital and surplus of at least $1,000,000,000.
Upon the acceptance of any appointment as Administrative Agent under
the Loan Papers by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the Rights of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations of Administrative Agent under the Loan Papers and each
Lender shall execute such documents as any Lender may reasonably
request to reflect such change in and under the Loan Papers. After
any retiring Administrative Agent's resignation or removal as
Administrative Agent under the Loan Papers, the provisions of this
SECTION 10 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the
Loan Papers.
(c) Administrative Agent, in its capacity as a Lender,
shall have the same Rights under the Loan Papers as any other Lender
and may exercise the same as though it were not acting as
Administrative Agent; the term "Lender" shall, unless the context
otherwise indicates, include Administrative Agent; and any
resignation, or removal of by Administrative Agent hereunder shall not
impair or otherwise affect any Rights which it has or may have in its
capacity as an individual Lender. Each Lender and Borrower agree that
Administrative Agent is not a fiduciary for Lenders or for Borrower
but simply is acting in the capacity described herein to alleviate
administrative burdens for both Borrower and Lenders, that
Administrative Agent has no duties or responsibilities to Lenders or
Borrower except those expressly set forth herein, and that
Administrative Agent in its capacity as a Lender has all Rights of any
other Lender.
(d) Administrative Agent and its Affiliates may now or
hereafter be engaged in one or more loan, letter of credit, leasing,
or other financing transactions with Borrower, act as trustee or
depositary for Borrower, or otherwise be engaged in other transactions
with Borrower
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(collectively, the "OTHER ACTIVITIES") not the subject of the Loan
Papers. Without limiting the Rights of Lenders specifically set forth
in the Loan Papers, Administrative Agent and its Affiliates shall not
be responsible to account to Lenders for such other activities, and no
Lender shall have any interest in any other activities, any present or
future guaranties by or for the account of Borrower which are not
contemplated or included in the Loan Papers, any present or future
offset exercised by Administrative Agent and its Affiliates in respect
of such other activities, any present or future property taken as
security for any such other activities, or any property now or
hereafter in the possession or control of Administrative Agent or its
Affiliates which may be or become security for the obligations of
Borrower arising under the Loan Papers by reason of the general
description of indebtedness secured or of property contained in any
other agreements, documents or instruments related to any such other
activities; provided that, if any payments in respect of such
guaranties or such property or the proceeds thereof shall be applied
to reduction of the obligations of Borrower arising under the Loan
Papers, then each Lender shall be entitled to share in such
application ratably. Each Lender acknowledges that, and consents to,
NationsBank of Texas, N.A.'s also serving as the "Administrative
Agent" under both the Facility A Agreement and the Facility B
Agreement and related loan papers.
10.2 Expenses. Upon demand by Administrative Agent, each Lender
shall pay its Pro Rata Part of any reasonable expenses (including, without
limitation, court costs, reasonable attorneys' fees and other costs of
collection) incurred by Administrative Agent in connection with any of the Loan
Papers if and to the extent Administrative Agent does not receive reimbursement
therefor from other sources within 60 days after incurred; provided that each
Lender shall be entitled to receive its Pro Rata Part of any reimbursement for
such expenses, or part thereof, which Administrative Agent subsequently
receives from such other sources.
10.3 Proportionate Absorption of Losses. Except as otherwise
provided in the Loan Papers, nothing in the Loan Papers shall be deemed to give
any Lender any advantage over any other Lender insofar as the Obligation
arising under the Loan Papers is concerned, or to relieve any Lender from
absorbing its Pro Rata Part of any losses sustained with respect to the
Obligation (except to the extent such losses result from unilateral actions or
inactions of any Lender that are not made in accordance with the terms and
provisions of the Loan Papers).
10.4 Delegation of Duties; Reliance. Administrative Agent may
perform any of its duties or exercise any of its Rights under the Loan Papers
by or through its Representatives. Administrative Agent and its
Representatives shall (a) be entitled to rely upon (and shall be protected in
relying upon) any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telecopy, telegram, telex or teletype message, statement,
order, or other documents or conversation believed by it or them to be genuine
and correct and to have been signed or made by the proper Person and, with
respect to legal matters, upon opinion of counsel selected by Administrative
Agent, (b) be entitled to deem and treat each Lender as the owner and holder of
the Principal Debt owed to such Lender for all purposes until, subject to
SECTION 11.14, written notice of the assignment or transfer thereof shall have
been given to and received by Administrative Agent (and any request,
authorization, consent, or approval of any Lender shall be conclusive and
binding on each subsequent holder, assignee, or transferee of the Principal
Debt owed to such Lender or portion thereof until such notice is given and
received), (c) not be deemed to have notice of the occurrence of a Default
unless a responsible officer of Administrative Agent, who handles matters
associated with the Loan Papers and transactions thereunder, has actual
knowledge thereof or Administrative Agent has been notified thereof by a Lender
or Borrower, and (d) be entitled to consult with legal counsel (including
counsel for Borrower), independent accountants and other experts selected
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by Administrative Agent and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts.
10.5 Limitation of Liability.
(a) Neither Administrative Agent nor its Representatives
shall be liable for any action taken or omitted to be taken by it or
them under the Loan Papers in good faith and reasonably believed by it
or them to be within the discretion or power conferred upon it or them
by the Loan Papers or be responsible for the consequences of any error
of judgment, except for fraud, gross negligence, or willful
misconduct; and neither Administrative Agent nor its Representatives
has a fiduciary relationship with any Lender by virtue of the Loan
Papers (provided that nothing herein shall negate the obligation of
Administrative Agent to account for funds received by it for the
account of any Lender).
(b) Unless indemnified to its satisfaction against loss,
cost, liability, and expense, Administrative Agent shall not be
compelled to do any act under the Loan Papers or to take any action
toward the execution or enforcement of the powers thereby created or
to prosecute or defend any suit in respect of the Loan Papers. If
Administrative Agent requests instructions from Lenders or Determining
Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with
any Loan Paper, or Loan Paper, Administrative Agent shall be entitled
(but shall not be required) to refrain (without incurring any
liability to any Person by so refraining) from such act or action
unless and until it has received such instructions. In no event,
however, shall Administrative Agent or any of its respective
Representatives be required to take any action which it or they
determine could incur for it or them criminal or onerous civil
liability. Without limiting the generality of the foregoing, no
Lender shall have any right of action against Administrative Agent as
a result of Administrative Agent's acting or refraining from acting
hereunder in accordance with the instructions of Determining Lenders.
(c) Administrative Agent shall not be responsible in any
manner to any Lender or any Participant for, and each Lender
represents and warrants that it has not relied upon Administrative
Agent in respect of, (i) the creditworthiness of any Restricted
Company and the risks involved to such Lender, (ii) the effectiveness,
enforceability, genuineness, validity, or the due execution of any
Loan Paper, (iii) any representation, warranty, document, certificate,
report, or statement made therein or furnished thereunder or in
connection therewith, (iv) the existence, priority, or perfection of
any Lien hereafter granted or purported to be granted under any Loan
Paper, or (v) observation of or compliance with any of the terms,
covenants, or conditions of any Loan Paper on the part of any
Restricted Company. Each Lender agrees to indemnify Administrative
Agent and its respective Representatives and hold them harmless from
and against (but limited to such Lender's Pro Rata Part of) any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses, and reasonable
disbursements of any kind or nature whatsoever which may be imposed
on, asserted against, or incurred by them in any way relating to or
arising out of the Loan Papers or any action taken or omitted by them
under the Loan Papers, to the extent Administrative Agent and its
respective Representatives are not reimbursed for such amounts by any
Restricted Company (provided that, Administrative Agent and its
respective Representatives shall not have the right to be indemnified
hereunder for its or their own fraud, gross negligence, or willful
misconduct).
10.6 Default; Collateral. Upon the occurrence and continuance of a
Default, Lenders agree to promptly confer in order that Determining Lenders or
Lenders, as the case may be, may agree upon a
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course of action for the enforcement of the Rights of Lenders; and
Administrative Agent shall be entitled to refrain from taking any action
(without incurring any liability to any Person for so refraining) unless and
until Administrative Agent shall have received instructions from Determining
Lenders. In actions with respect to any property of Borrower, Administrative
Agent is acting for the ratable benefit of each Lender. Any and all agreements
to subordinate (whether made heretofore or hereafter) other indebtedness or
obligations of Borrower to the Obligation shall be construed as being for the
ratable benefit of each Lender. If Administrative Agent acquires any security
for the Obligation or any guaranty of the Obligation upon or in lieu of
foreclosure, the same shall be held for the ratable benefit of all Lenders in
proportion to the Principal Debt respectively owed to each Lender.
10.7 Limitation of Liability. To the extent permitted by Law, (a)
Administrative Agent shall not incur any liability to any other Lender or
Participant except for acts or omissions resulting from its own fraud, gross
negligence or wilful misconduct, and (b) neither Administrative Agent nor any
Lender or Participant shall incur any liability to any other Person for any act
or omission of any other Lender or any other Participant.
10.8 Relationship of Lenders. Nothing herein shall be construed as
creating a partnership or joint venture among Administrative Agent and Lenders
or among Lenders.
10.9 Foreign Lenders. Each Lender that is organized under the laws
of any jurisdiction other than the United States of America or any State
thereof (a) represents to Administrative Agent and Borrower that (i) under
applicable Laws and treaties no Taxes are presently required to be withheld by
Administrative Agent or Borrower with respect to any payments to be made to
such Lender in respect of the Obligation and (ii) it has furnished to
Administrative Agent and Borrower two duly completed copies of U.S. Internal
Revenue Service Form 4224, or Form 1001, Form W-8 or Form W-9, as applicable
(wherein such Lender claims entitlement to complete exemption from U.S. federal
withholding Tax on all interest payments hereunder), and (b) covenants to (i)
provide, so long as it is entitled to use such form, Administrative Agent and
Borrower a new Form 4224, Form 1001, Form W-8, or Form W-9, as applicable, upon
the expiration or obsolescence of any previously delivered form in accordance
with applicable Laws, duly executed and completed by such Lender, (ii) provide
any other form or certificate required by any taxing entity (including any
certificate required by Sections 871(h) and 881(c) of the Code, certifying that
such Lender is entitled to an exemption from or a reduced rate of Tax on
payments pursuant to this Agreement or any of the other Loan Papers, and (iii)
otherwise comply from time to time with all applicable Laws with regard to such
withholding Tax exemption.
10.10 Benefits of Agreement. Except for the representations and
covenants in SECTIONS 10.1(c) and 10.9 in favor of Borrower, none of the
provisions of this SECTION 10 shall inure to the benefit of any Restricted
Company or any other Person other than Lenders; consequently, neither any
Restricted Company nor any other Person shall be entitled to rely upon, or to
raise as a defense, in any manner whatsoever, the failure of any Lender to
comply with such provisions.
SECTION 11 MISCELLANEOUS.
11.1 Headings. The headings, captions, and arrangements used in
any of the Loan Papers are, unless specified otherwise, for convenience only
and shall not be deemed to limit, amplify, or modify the terms of the Loan
Papers, nor affect the meaning thereof.
11.2 Nonbusiness Days. In any case where any payment or action is
due under any Loan Paper on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding
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Business Day, but interest and fees shall continue to accrue in respect of any
payment to which it is applicable until such payment is in fact made; provided
that, if in the case of any such payment in respect of a Eurodollar Rate
Borrowing the next-succeeding Business Day is in the next calendar month, then
such payment shall be made on the next- preceding Business Day.
11.3 Communications. Unless specifically otherwise provided,
whenever any Loan Paper requires or permits any consent, approval, notice,
request, or demand from one party to another, such communication must be in
writing (which may be by telex or telecopy) to be effective and shall be deemed
to have been given (a) if by telex, when transmitted to the telex number, if
any, for such party, and the appropriate answer back is received, (b) if by
telecopy, when transmitted to the telecopy number for such party (and all such
communications sent by telecopy shall be confirmed promptly thereafter by
personal delivery or mailing in accordance with the provisions of this section;
provided, that any requirement in this parenthetical shall not affect the date
on which such telecopy shall be deemed to have been delivered), (c) if by mail,
on the third Business Day after it is enclosed in an envelope, properly
addressed to such party, properly stamped, sealed, and deposited in the
appropriate official postal service, or (d) if by any other means, when
actually delivered to such party. Until changed by notice pursuant hereto, the
address (and telex and telecopy numbers, if any) for Administrative Agent and
each Lender is set forth on SCHEDULE 2.1, and for Borrower and each Restricted
Company is the address set forth by Borrower's signature on the signature page
of this Agreement. A copy of each communication to Administrative Agent shall
also be sent to Haynes and Boone, L.L.P., 901 Main Street, Dallas, Texas
75202, Fax: 214/651-5940, Attn: Karen S. Nelson; a copy of each communication
to any Consolidated Company shall also be sent to WorldCom, Inc., 10777 Sunset
Office Drive, St. Louis, MO 63127, Attn: Bruce Borghardt.
11.4 Form and Number of Documents. Each agreement, document,
instrument, or other writing to be furnished under any provision of this
Agreement must be in form and substance and in such number of counterparts as
may be reasonably satisfactory to Administrative Agent and its counsel.
11.5 Exceptions to Covenants. No Restricted Company shall take any
action or fail to take any action which is permitted as an exception to any of
the covenants contained in any Loan Paper if such action or omission would
result in the breach of any other covenant contained in any of the Loan Papers.
11.6 Survival. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Papers shall survive
all closings under the Loan Papers and, except as otherwise indicated, shall
not be affected by any investigation made by any party. All rights of, and
provisions relating to, reimbursement and indemnification of Administrative
Agent or any Lender shall survive termination of this Agreement and payment in
full of the Obligation.
11.7 Governing Law. THE LAWS (OTHER THAN CONFLICT-OF-LAWS
PROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA
SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO THE LOAN PAPERS AND THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THE LOAN PAPERS.
11.8 Invalid Provisions. If any provision in any Loan Paper is
held to be illegal, invalid, or unenforceable, such provision shall be fully
severable; the appropriate Loan Paper shall be construed and enforced as if
such provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Administrative Agent, Lenders, and
each Restricted Company party to such Loan Paper agree to negotiate, in good
faith, the terms of a replacement provision as similar to the severed provision
as may be possible and be legal, valid, and enforceable.
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11.9 Entirety. THE RIGHTS AND OBLIGATIONS OF THE RESTRICTED
COMPANIES, LENDERS, AND ADMINISTRATIVE AGENT SHALL BE DETERMINED SOLELY FROM
WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS
AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN
PAPERS EXECUTED BY ANY RESTRICTED COMPANY, ANY LENDER AND ADMINISTRATIVE AGENT,
(TOGETHER WITH ALL COMMITMENT LETTERS AND FEE LETTERS AS THEY RELATE TO THE
PAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN
THE RESTRICTED COMPANIES, LENDERS AND ADMINISTRATIVE AGENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
SUCH PARTIES.
11.10 Jurisdiction; Venue; Service of Process; Jury Trial. Each
Party Hereto, in Each Case for Itself, its Successors and Assigns (And in the
Case of Borrower, for Each of its Subsidiaries), Hereby (A) irrevocably Submits
to the Nonexclusive Jurisdiction of the State and Federal Courts Located in New
York, and Agrees and Consents That Service of Process May Be Made upon it in
Any Legal Proceeding Arising out of or in Connection with the Loan Papers and
the Obligation by Service of Process as Provided by New York Law, (B)
irrevocably Waives, to the Fullest Extent Permitted by Law, Any Objection Which
it May Now or Hereafter Have to the Laying of Venue of Any Litigation Arising
out of or in Connection with the Loan Papers and the Obligation Brought in Any
Such Court, (C) irrevocably Waives Any Claims That Any Litigation Brought in
Any Such Court Has Been Brought in an Inconvenient Forum, (D) agrees to
Designate and Maintain an Agent for Service of Process in New York, New York in
Connection with Any Such Litigation and to Deliver to Administrative Agent
Evidence Thereof, If Requested, (E) irrevocably Consents to the Service of
Process out of Any of the Aforementioned Courts in Any Such Litigation by the
Mailing of Copies Thereof by Certified Mail, Return Receipt Requested, Postage
Prepaid, at its Address Set Forth Herein, (F) irrevocably Agrees That Any Legal
Proceeding Against Any Party Hereto Arising out of or in Connection with the
Loan Papers or the Obligation Shall Be Brought in One of the Aforementioned
Courts, and (G) irrevocably Waives, to the Fullest Extent Permitted by Law, its
Respective Rights to a Jury Trial of Any Claim or Cause of Action Based upon or
Arising out of Any Loan Paper or the Transactions Contemplated Thereby. The
scope of each of the foregoing waivers is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Borrower (for itself and on behalf of each of its
Subsidiaries) acknowledges that the selection of venue in this SECTION 11.10 is
consistent with similar venue selections set forth in SECTIONS 11.10 of both
the Facility A Agreement and the Facility B Agreement, and is intended to
effect the orderly administration and resolution of matters addressed under the
Facility A Agreement, the Facility B Agreement, and this Agreement. Borrower
(for itself and on behalf of each of its Subsidiaries) and each other party to
this Agreement acknowledge that this waiver is a material inducement to the
agreement of each party hereto to enter into a business relationship, that each
has already relied on this waiver in entering into Facility A, Facility B, and
this Agreement, and each will continue to rely on each of such waivers in
related future dealings. Borrower (for itself and on behalf of each of its
Subsidiaries) and each other party to this Agreement warrant and represent that
they have reviewed these waivers with their legal counsel, and that they
knowingly and voluntarily agree to each such waiver following consultation with
legal counsel. THE WAIVERS IN THIS SECTION 11.10 ARE IRREVOCABLE, MEANING THAT
THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS,
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SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN PAPER. In the
event of Litigation, this Agreement may be filed as a written consent to a
trial by the court.
11.11 Amendments, Consents, Conflicts, and Waivers.
(a) Except as otherwise specifically provided, (i) this
Agreement may only be amended, modified or waived by an instrument in
writing executed jointly by Borrower and Determining Lenders, and, in
the case of any matter affecting Administrative Agent (except removal
of Administrative Agent as provided in SECTION 10), by Administrative
Agent, and may only be supplemented by documents delivered or to be
delivered in accordance with the express terms hereof, and (ii) the
other Loan Papers may only be the subject of an amendment,
modification, or waiver if Borrower and Determining Lenders, and, in
the case of any matter affecting Administrative Agent (except as set
forth above), Administrative Agent, have approved same.
(b) Any amendment to or consent or waiver under this
Agreement or any Loan Paper which purports to accomplish any of the
following must be by an instrument in writing executed by Borrower and
executed (or approved, as the case may be) by each Lender, and, in the
case of any matter affecting Administrative Agent, by Administrative
Agent: (i) extends the due date or decreases the amount of any
scheduled payment (other than mandatory prepayments) of the Obligation
arising under Loan Papers beyond the date specified in the Loan
Papers; (ii) reduces the interest rate or decreases the amount of
interest, fees, or other sums payable to Administrative Agent or
Lenders hereunder (except such reductions as are contemplated by this
Agreement); (iii) changes the definition of "APPLICABLE MARGIN" (other
than changes having the effect of increasing such Applicable Margin),"
"DETERMINING LENDERS," "COMMITMENT," "PRO RATA," or "PRO RATA PART,"
or (iv) increases any one or more Lender's Committed Sum; or (v)
except as otherwise permitted by any Loan Paper, waives compliance
with, amends, or releases (in whole or in part) any guaranty (if any)
or releases (in whole or in part) any collateral, if any, for the
Obligation; or (vi) changes this CLAUSE (b) or any other matter
specifically requiring the consent of all Lenders hereunder. No
amendment or waiver with respect to the definition of "TERMINATION
DATE" or "TERM LOAN MATURITY DATE" may be made without the consent of
all Lenders. Without the consent of such Lender, no Lender's
"COMMITTED SUM" under may be increased.
(c) Any conflict or ambiguity between the terms and
provisions herein and terms and provisions in any other Loan Paper
shall be controlled by the terms and provisions herein.
(d) No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender hereunder shall operate as a waiver thereof. A
waiver must be in writing and signed by Administrative Agent and
Determining Lenders (or by all Lenders, if required hereunder) to be
effective, and such waiver will be effective only in the specific
instance and for the specific purpose for which it is given.
11.12 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that each Lender
execute the same counterpart so long as identical counterparts are executed by
Borrower, each Lender, and Administrative Agent. This Agreement shall become
effective when counterparts hereof shall have been executed and
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delivered to Administrative Agent by each Lender, Administrative Agent, and
Borrower, or, when Administrative Agent shall have received telecopied,
telexed, or other evidence satisfactory to it that such party has executed and
is delivering to Administrative Agent a counterpart hereof.
11.13 Taxes. Any Taxes payable by Administrative Agent or any
Lender or ruled (by a Governmental Authority) payable by Administrative Agent
or any Lender in respect of this Agreement or any other Loan Paper shall be
paid by Borrower, together with interest and penalties, if any (except for
Taxes payable on the overall net income of any such Lender or Administrative
Agent and except for interest and penalties incurred as a result of the gross
negligence or wilful misconduct of Administrative Agent or any Lender).
Administrative Agent or such Lender (through Administrative Agent) shall notify
Borrower and deliver to Borrower a certificate setting forth in reasonable
detail the calculation of the amount of such Taxes, which certificate shall be
conclusive and binding, and Borrower shall promptly pay such amount (including
any additional Taxes applicable to the additional sums paid under this SECTION
11.13, such that Administrative Agent or such Lender receives an amount equal
to the sum it would have received had no such Taxes been payable by
Administrative Agent or any Lender with respect to this Agreement or any Loan
Paper) to Administrative Agent for its account or the account of such Lender,
as the case may be. If Administrative Agent or such Lender subsequently
receives a refund of such Taxes paid to it by Borrower, then such recipient
shall promptly pay such refund to Borrower. The provisions of and undertakings
and indemnifications set forth in this SECTION 11.13 shall survive the
satisfaction and payment of the Obligation and termination of this Agreement.
11.14 Successors and Assigns; Assignments and Participations.
(a) This Agreement shall be binding upon, and inure to
the benefit of the parties hereto and their respective successors and
assigns, except that (i) Borrower may not, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties or obligations under any Loan Papers without the
express written consent of all Lenders, and (ii) except as permitted
under this Section, no Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible
Assignees all or a portion of its Rights and obligations under this
Agreement and the other Loan Papers (including, without limitation,
all or a portion of its Borrowings, its Notes [to the extent such
Principal Debt owed to such Lender is evidenced by Notes]); provided,
however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's Rights
and obligations under this Agreement and the other Loan
Papers, any such partial assignment shall be in an amount at
least equal to $10,000,000;
(iii) each such assignment by a Lender shall be of
a constant, and not varying, percentage of all of its Rights
and obligations under this Agreement and the Notes (to the
extent the Principal Debt owed to the assigning Lender is
evidenced by any Notes);
(iv) each such assignment shall exclude
Competitive Borrowings, unless the assigning Lender is selling
all of its Rights and obligations under the Loan Papers; and
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(v) the parties to such assignment shall execute
and deliver to the Administrative Agent for its acceptance an
Assignment and Acceptance Agreement in the form of EXHIBIT E
hereto, together with any Notes subject to such assignment (to
the extent the Principal Debt owed to the assigning Lender is
evidenced by any Notes) and a processing fee of $3,500 (unless
otherwise specified by Administrative Agent).
Upon execution, delivery, and acceptance of such Assignment and
Acceptance Agreement, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations, Rights,
and benefits of a Lender under the Loan Papers and the assigning
Lender shall, to the extent of such assignment, relinquish its rights
and be released from its obligations under the Loan Papers. Upon the
consummation of any assignment pursuant to this Section, but only upon
the request of the assignor or assignee made through Administrative
Agent, Borrower shall issue appropriate Notes to the assignor and the
assignee, reflecting such Assignment and Acceptance. If the assignee
is not incorporated under the laws of the United States of America or
a state thereof, it shall deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of Taxes
in accordance with SECTION 10.9.
(c) The Administrative Agent shall maintain at its
address referred to in SECTION 11.3 a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the
Commitment, and principal amount of the Borrowings owing to, each
Lender from time to time (the "REGISTER"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrower, Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Papers. The Register shall be
available for inspection by Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice. Upon the
consummation of any assignment in accordance with this SECTION 11.14,
SCHEDULE 2.1 shall automatically be deemed amended (to the extent
required) by Administrative Agent to reflect the name, address, and
respective Committed Sums of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance
Agreement executed by the parties thereto, together with any Notes
subject to such assignment (to the extent the Principal Debt owed to
the assigning Lender is evidenced by any Notes) and payment of the
processing fee, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of
EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement,
(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this section and in
accordance with applicable Law, any Lender may, in the ordinary course
of its commercial banking business and in accordance with applicable
Law, at any time sell to one or more Persons (each a "PARTICIPANT")
participating interests in its portion of the Obligation. In the
event of any such sale to a Participant, (i) such Lender shall remain
a "Lender" under this Agreement and the Participant shall not
constitute a "Lender" hereunder, (ii) such Lender's obligations under
this Agreement shall remain unchanged, (iii) such Lender shall remain
solely responsible for the performance thereof, (iv) such Lender shall
remain the holder of its share of the Principal Debt for all purposes
under this Agreement, (v) Borrower and Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's Rights and obligations under the Loan Papers, and
(vi) such Lender shall be solely responsible for any withholding taxes
or any filing or reporting
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requirements relating to such participation and shall hold Borrower
and Administrative Agent and their respective successors, permitted
assigns, officers, directors, employees, agents, and representatives
harmless against the same. Participants shall have no Rights under
the Loan Papers, other than certain voting Rights as provided below.
Subject to the following, each Lender shall be entitled to obtain (on
behalf of its Participants) the benefits of SECTION 3 with respect to
all participations in its part of the Obligation under outstanding
from time to time so long as Borrower shall not be obligated to pay
any amount in excess of the amount that would be due to such Lender
under SECTION 3 calculated as though no participations have been made.
No Lender shall sell any participating interest under which the
Participant shall have any Rights to approve any amendment,
modification, or waiver of any Loan Paper, except to the extent such
amendment, modification, or waiver extends the due date for payment of
any amount in respect of principal (other than mandatory prepayments),
interest, or fees due under the Loan Papers, reduces the interest rate
or the amount of principal or fees applicable to the Obligation
(except such reductions as are contemplated by this Agreement), or
releases any guaranty or collateral, if any, for the Obligation
(except such releases as are contemplated by this Agreement); provided
that in those cases where a Participant is entitled to the benefits of
SECTION 3 or a Lender grants Rights to its Participants to approve
amendments to or waivers of the Loan Papers respecting the matters
previously described in this sentence, such Lender must include a
voting mechanism in the relevant participation agreement or
agreements, as the case may be, whereby a majority of such Lender's
portion of the Obligation (whether held by such Lender or
participated) shall control the vote for all of such Lender's portion
of the Obligation. Except in the case of the sale of a participating
interest to another Lender, the relevant participation agreement shall
not permit the Participant to transfer, pledge, assign, sell
participations in, or otherwise encumber its portion of the
Obligation, unless the consent of the transferring Lender (which
consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Borrowings and its Notes (to the extent the Principal
Debt owed to such Lender is evidenced by any Notes) to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations
hereunder.
(g) Any Lender may furnish any information concerning the
Consolidated Companies in the possession of such Lender from time to
time to Eligible Assignees and Participants (including prospective
Eligible Assignees and Participants), subject, however, to the
provisions of SECTION 11.16 hereof.
11.15 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. Each Restricted Company's obligations under the Loan Papers
shall remain in full force and effect until termination of the Commitment and
payment in full of the Principal Debt and of all interest, fees, and other
amounts of the Obligation then due and owing, except that SECTIONS 3.16, 3.18,
SECTION 9, and SECTION 11, and any other provisions under the Loan Papers
expressly intended to survive by the terms hereof or by the terms of the
applicable Loan Papers, shall survive such termination. If at any time any
payment of the principal of or interest on any Note or any other amount payable
by Borrower under any Loan Paper is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy, or reorganization of Borrower or
otherwise, the obligations of each Restricted Company under the Loan Papers
with respect to such payment shall be reinstated as though such payment had
been due but not made at such time.
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11.16 Confidentiality. All information furnished by or on behalf of
any Restricted Company in connection with or pursuant to this Agreement or any
of the Loan Papers (including but not limited to in connection with or pursuant
to the negotiation, preparation, or requirements hereof or thereof), which
information has been identified as confidential by any Restricted Company,
shall be held by Administrative Agent, each Lender, and each Participant
(collectively, the "LENDER PARTIES") in accordance with its customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, and no Lender Party shall
disclose any of such information to any other Person; provided that any Lender
or Participant may make disclosure (a) to its attorneys or accountants,
provided that such Lender or Participant shall direct such attorneys or
accountants to maintain such information in confidence in accordance with the
provisions of this SECTION 11.16, and shall be responsible if such attorneys
fail to do so, (b) to any affiliate of any Lender Party or as reasonably
required by any prospective bona fide assignee or Participant in connection
with the contemplated transfer of any interest in the Obligation or
participation, so long as any such contemplated assignee or Participant has
agreed in writing (with a copy to Borrower) to be bound by the provisions of
this SECTION 11.16, (c) as required or requested by any Governmental Authority
or representative thereof or as required pursuant to any Law or legal process,
provided that, unless prohibited by Law or court order, such Lender or
Participant shall give prior notice to Borrower of such disclosure as far in
advance thereof as is practicable (other than disclosure in connection with an
examination of the financial condition of such Person by a Governmental
Authority), (d) in connection with proceedings to enforce the obligation of any
Restricted Company under the Loan Papers, or (e) of any such information that
has become generally available to the public other than through a breach of
this SECTION 11.16 (or of any agreement or obligation to be bound by this
SECTION 11.16) by any Lender Party, any affiliate of any Lender Party, any
prospective assignee or Participant, or their respective attorneys.
EXECUTED on the respective dates shown on the signature pages hereto,
but effective as of the Closing Date.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
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Signature Page to that certain 365-Day Revolving Credit and Term Loan
Agreement dated as of February 19, 1998, among WorldCom, Inc., as Borrower,
NationsBank of Texas, N.A., as Administrative Agent, and certain Lenders now or
hereafter party thereto, including the undersigned.
WORLDCOM, INC.
as Borrower
By: /s/ SCOTT D. SULLIVAN
-----------------------------------
Scott D. Sullivan
Chief Financial Officer
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and a Lender
By: /s/ KEITH M. WILSON
-----------------------------------------
(Name) Keith M. Wilson
--------------------------------------
(Title) Vice President
-------------------------------------
364-DAY REVOLVING CREDIT
SIGNATURE PAGE AND TERM LOAN AGREEMENT
<PAGE> 74
Signature Page to that certain 365-Day Revolving Credit and Term Loan
Agreement dated as of February 19, 1998, among WorldCom, Inc., as Borrower,
NationsBank of Texas, N.A., as Administrative Agent, and certain Lenders now or
hereafter party thereto, including the undersigned.
NATIONSBANK OF TEXAS, N.A.,
as a Lender
By: /s/ KEITH M. WILSON
---------------------------------------
(Name) Keith M. Wilson
--------------------------------------
(Title) Vice President
-------------------------------------
364-DAY REVOLVING CREDIT
SIGNATURE PAGE AND TERM LOAN AGREEMENT
<PAGE> 75
SCHEDULE 2.1
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
====================================================================================================================
NAME AND ADDRESS OF LENDERS COMMITTED SUMS COMMITMENT
PERCENTAGE
====================================================================================================================
<S> <C> <C>
NationsBank of Texas, N.A. $150,000,000.00 12.000000000000000%
Communications Finance Division
Attn: Mr. Keith Wilson
901 Main Street, 64th Floor
Dallas, Texas 75202
- --------------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $1,100,000,000.00 88.000000000000000%
Communications Finance Division
Attn: Mr. Keith Wilson
901 Main Street, 64th Floor
Dallas, Texas 75202
- --------------------------------------------------------------------------------------------------------------------
Totals $1,250,000,000.00 100.00%
====================================================================================================================
</TABLE>
SCHEDULE 2.1
<PAGE> 76
SCHEDULE 5.1
CONDITIONS PRECEDENT TO CLOSING
The Agreement shall not become effective unless Administrative Agent has
received all of the following (unless otherwise indicated, all documents shall
be dated as of the Closing Date, and all terms used with their initial letters
capitalized are used herein with their meanings as defined in the Agreement):
1. The Agreement. The Agreement (together with all Schedules and Exhibits
thereto) executed by Borrower, each Lender, and Administrative Agent.
2. Notes. With respect to any Lender requesting Notes pursuant to SECTION
3.1(b), a Revolving/Term Note and a Competitive Bid Note in the forms of
EXHIBIT A-I and EXHIBIT A-2, respectively, one payable to each such
requesting Lender.
3. Articles of Incorporation. A copy of the Second Amended and Restated
Articles of Incorporation of Borrower, accompanied by a certificate that
such copy is correct and complete, executed by the President or Vice
President and the Secretary or Assistant Secretary of Borrower.
4. Bylaws. A copy of the Bylaws of Borrower and all amendments thereto,
accompanied by a certificate that such copy is correct and complete, and
executed by the President or Vice President and the Secretary or Assistant
Secretary of Borrower.
5. Good Standing and Authority. Certificates (or photocopies thereof) from the
Georgia Secretary of State, dated a Current Date (as used herein, the term
"CURRENT DATE" means any date not more than 60 days prior to the Closing
Date), to the effect that Borrower is in good standing with respect to the
payment of franchise and similar Taxes (to the extent such information is
available) and is duly qualified to transact business in such jurisdiction.
6. Incumbency. Certificates of incumbency with respect to all officers and
"authorized representatives" of Borrower who will be authorized to execute
or attest any of the Loan Papers on behalf of Borrower, executed by the
President, a Vice President, the Secretary or an Assistant Secretary of
Borrower.
7. Resolutions. Copies of resolutions duly adopted by the Board of Directors
of Borrower approving this Agreement and the other Loan Papers and
authorizing the transactions contemplated in such Loan Papers, accompanied
by a certificate of the Secretary or an Assistant Secretary of Borrower
certifying that such copy is a true and correct copy of resolutions duly
adopted at a meeting of (which may be held by conference telephone or
similar communications equipment by means of which all Persons
participating in a meeting can hear each other if permitted by applicable
Law and, if required by such Law, by its Bylaws), or by the unanimous
written consent of (if permitted by applicable Law and, if required by such
Law, by its Bylaws), the Board of Directors of Borrower, and that such
resolutions constitute all the resolutions adopted with respect to such
transactions, have not been amended, modified, or revoked in any respect
(except as any such resolution may be modified by any such other
resolution), and are in full force and effect as of the Closing Date.
1 SCHEDULE 5.1
<PAGE> 77
8. Opinions of Counsel to the Companies. The opinion of counsel to the
Companies, addressed to Administrative Agent and Lenders, substantially in
the form of EXHIBIT F-1, and the opinion of FCC counsel to the Restricted
Companies, substantially in the form of EXHIBIT F-2.
9. Payment of Closing Fees and Expenses. Payment of all fees payable on or
prior to the Closing Date to Administrative Agent as provided for in
SECTION 4 of the Agreement, together with reimbursements to Administrative
Agent for all reasonable fees and expenses incurred in connection with the
negotiation, preparation, and closing of the transactions evidenced by the
Loan Papers (including, without limitation, attorneys' fees and expenses).
10. Notice of Borrowing. A Notice of Borrowing is delivered to Administrative
Agent, together with calculations demonstrating compliance with SECTION
7.28(a) on the Closing Date after giving effect to any Borrowings made on
such date.
11. Current Financials. True and correct copies of the Current Financials have
been delivered to Administrative Agent.
12. Other Documents. Such other agreements, documents, instruments, opinions,
certificates, and evidences as Administrative Agent may reasonably request.
Administrative Agent shall, upon request of Borrower, confirm to Borrower
that it has received all such items so requested.
2 SCHEDULE 5.1
<PAGE> 78
EXHIBIT A-1
FORM OF REVOLVING/TERM NOTE
$_____________ ____________ __, ____
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
corporation ("BORROWER"), hereby promises to pay to the order of
____________________ (the "LENDER"), at the offices of NATIONSBANK OF TEXAS,
N.A., as Administrative Agent for the Lender and others as hereinafter
described, on the Termination Date (or if Borrower has elected to convert to a
Term Loan pursuant to SECTION 2.3 of the Credit Agreement, the Term Loan
Maturity Date), the lesser of (i) __________________________ ($___________) and
(ii) the aggregate Principal Debt (other than under the Competitive Bid
Subfacility) disbursed by the Lender to Borrower and outstanding and unpaid on
the Termination Date (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is
subject to the terms of, the 364-Day Revolving Credit and Term Loan Agreement,
dated as of February ____, 1998 (as amended, modified, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower, the Lender
and other lenders named therein, and the Administrative Agent, and is one of
the "Revolving/Term Notes" referred to therein. Unless defined herein,
capitalized terms used herein that are defined in the Credit Agreement have the
meaning given to such terms in the Credit Agreement. Reference is made to the
Credit Agreement for provisions affecting this note regarding applicable
interest rates, principal and interest payment dates, final maturity, voluntary
and mandatory prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs and other costs of collection, certain
waivers by Borrower and others now or hereafter obligated for payment of any
sums due hereunder and security for the payment hereof. Without limiting the
immediately preceding sentence, reference is made to SECTION 3.8 of the Credit
Agreement for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF
THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS
AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION,
ENFORCEMENT, AND INTERPRETATION HEREOF.
WORLDCOM, INC.
By
(Name)
--------------------------------------
(Title)
-------------------------------------
<PAGE> 79
EXHIBIT A-2
FORM OF COMPETITIVE BID NOTE
____________ __, ____
FOR VALUE RECEIVED, the undersigned, WORLDCOM, INC., a Georgia
corporation ("BORROWER"), hereby promises to pay to the order of
____________________ (the "LENDER"), at the offices of NATIONSBANK OF TEXAS,
N.A., as Administrative Agent for the Lender and others as hereinafter
described:
(1) on the last day of the Interest Period for any
Competitive Borrowing disbursed by the Lender to Borrower under the
Credit Agreement, which Interest Period ends prior to the Termination
Date, the aggregate principal amount of such Competitive Borrowing
outstanding and unpaid on such last day of such Interest Period
(together with accrued and unpaid interest thereon), and
(2) on the Termination Date, the aggregate principal
amount of all Competitive Borrowings disbursed by the Lender to
Borrower under the Credit Agreement and outstanding and unpaid on the
Termination Date (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is
subject to the terms of, the 364-Day Revolving Credit and Term Loan Agreement,
dated as of February ____, 1998 (as amended, modified, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower, the Lender
and other lenders named therein, and the Administrative Agent, and is one of
the "Competitive Bid Notes" referred to therein. Unless defined herein,
capitalized terms used herein that are defined in the Credit Agreement have the
meaning given to such terms in the Credit Agreement. Reference is made to the
Credit Agreement for provisions affecting this note regarding applicable
interest rates, principal and interest payment dates, final maturity, voluntary
and mandatory prepayments, acceleration of maturity, exercise of Rights,
payment of attorneys' fees, court costs and other costs of collection, certain
waivers by Borrower and others now or hereafter obligated for payment of any
sums due hereunder and security for the payment hereof. Without limiting the
immediately preceding sentence, reference is made to SECTION 3.8 of the Credit
Agreement for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF
THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS
AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION,
ENFORCEMENT, AND INTERPRETATION HEREOF.
WORLDCOM, INC.
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
EXHIBIT A-2
<PAGE> 80
EXHIBIT B-1
FORM OF NOTICE OF BORROWING
(OTHER THAN COMPETITIVE BORROWING)
______________ __, ____
NationsBank of Texas, N.A.
as Administrative Agent for the Lenders
under the Credit Agreement referred to below
NationsBank Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 508-2515
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement, dated as of February ____, 1998 (as amended, modified, supplemented,
or restated from time to time, the "CREDIT AGREEMENT"), among the undersigned,
the Lenders named therein, and the Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement. The undersigned hereby gives you notice
pursuant to the Credit Agreement that it requests a Borrowing (other than a
Competitive Borrowing) under the Credit Agreement, and in that connection sets
forth below the terms on which such Borrowing is requested to be made:
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------
(A) Borrowing Date of Borrowing*
- --------------------------------------------------------------------------------------------------
(B) Amount of Borrowing**
- --------------------------------------------------------------------------------------------------
(C) Type of Borrowing***
- --------------------------------------------------------------------------------------------------
(D) For a Eurodollar Rate Borrowing, the Interest Period and the
last day thereof****
- --------------------------------------------------------------------------------------------------
</TABLE>
On the date the rate is set, please confirm the interest rate below
and return by facsimile transmission to ___ _________________________________.
Borrower hereby certifies that the following statements are true and
correct on the date hereof, and will be true and correct on the Borrowing Date
specified herein after giving effect to such Borrowing:
(a) this Borrowing will not cause the Principal Debt to
exceed the Commitment;
(b) all of the representations and warranties of any
Borrower set forth in the Loan Papers are true and correct in all
material respects (except to the extent that (i) the representations
and warranties speak to a specific date, or (ii) the facts on which
such representations and warranties are based have been changed by
transactions contemplated or permitted by the Loan Papers and, if
applicable, supplemental Schedules have been delivered with respect
thereto and, when necessary, approved by Determining Lenders);
EXHIBIT B-1
1
<PAGE> 81
(c) no change in the financial condition of any
Consolidated Company which is a Material Adverse Event has occurred;
(d) no Default or Potential Default has occurred and is
continuing; and
(e) the funding of such Borrowing is permitted by Law.
Very truly yours,
WORLDCOM, INC.
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
Rate:
------------
Confirmed by:
------------------------------
* Must be a Business Day occurring prior to the Termination Date and be
at least (a) three Business Days following receipt by Administrative
Agent of this Notice of Borrowing for any Eurodollar Rate Borrowing,
and (b) one Business Day following receipt by Administrative Agent of
this Notice of Borrowing for any Base Rate Borrowing.
** Not less than $5,000,000 or a greater integral multiple of $1,000,000
(if a Base Rate Borrowing); not less than $20,000,000 or a greater
integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing).
*** Eurodollar Rate Borrowing or Base Rate Borrowing.
**** Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months.
EXHIBIT B-1
2
<PAGE> 82
EXHIBIT B-2
FORM OF NOTICE OF CONVERSION
______________ __, ____
NationsBank of Texas, N.A.
as Administrative Agent for the Lenders
under the Credit Agreement referred to below
NationsBank Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 508-2515
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement, dated as of February ____, 1998 (as amended, modified, supplemented,
or restated from time to time, the "CREDIT AGREEMENT"), among the undersigned,
the Lenders named therein, and the Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement. The undersigned hereby gives you notice
pursuant to SECTION 3.10 of the Credit Agreement that it elects to convert a
Borrowing (other than a Competitive Borrowing) under the Credit Agreement from
one Type to another Type or elects a new Interest Period for a Eurodollar Rate
Borrowing, and in that connection sets forth below the terms on which such
election is requested to be made:
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------
(A) Date of conversion or last day of applicable Interest Period*
- -------------------------------------------------------------------------------------------------------------
(B) Type and principal amount of existing Borrowing being converted or continued**
- -------------------------------------------------------------------------------------------------------------
(C) New Type of Borrowing selected (or Type of Borrowing continued)***
- -------------------------------------------------------------------------------------------------------------
(D) For conversion to, or continuation of, a Eurodollar Rate Borrowing, Interest
Period selected and the last day thereof****
- -------------------------------------------------------------------------------------------------------------
</TABLE>
On the date the rate is set, please confirm the interest rate below
and return by facsimile transmission to ___ _________________________________.
Very truly yours,
WORLDCOM, INC.
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
Rate:_____________________
EXHIBIT B-2
<PAGE> 83
Confirmed by:______________________________
* Must be a Business Day at least (a) three Business Days following
receipt by Administrative Agent of this Notice of Conversion from a
Base Rate Borrowing to a Eurodollar Rate Borrowing or a continuation
of a Eurodollar Rate Borrowing for an additional Interest Period, and
(b) one Business Day following receipt by Administrative Agent of this
Notice of Conversion for a conversion from a Eurodollar Rate Borrowing
to a Base Rate Borrowing.
** Not less than $5,000,000 or a greater integral multiple of $1,000,000
(if a Base Rate Borrowing); not less than $20,000,000 or a greater
integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing).
*** Eurodollar Rate Borrowing or Base Rate Borrowing.
**** Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months.
2
EXHIBIT B-2
<PAGE> 84
EXHIBIT B-3
FORM OF COMPETITIVE BID REQUEST
(1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)
______________ __, ____
NationsBank of Texas, N.A.
as Administrative Agent for the Lenders
under the Credit Agreement referred to below
NationsBank Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 508-2515
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement, dated as of February ______, 1998 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders named therein, and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned
hereby gives you notice pursuant to SECTION 2.2(B) of the Credit Agreement that
it requests a Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive Borrowing is
requested to be made:
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------
(A) Borrowing Date of Competitive Borrowing*
- --------------------------------------------------------------------------------------------------------------
(B) Principal amount of Competitive Borrowing**
- --------------------------------------------------------------------------------------------------------------
(C) Type of Borrowing***
- --------------------------------------------------------------------------------------------------------------
(D) Interest Period and the last day thereof****
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Accompanying this notice is payment of the competitive bid fee payable
to Administrative Agent for its own account pursuant to SECTION 4.3 of the
Credit Agreement.
Borrower hereby certifies that the following statements are true on
the date hereof, and will be true on the Borrowing Date specified herein after
giving effect to such Borrowing:
(a) this Borrowing will not cause the Principal Debt to
exceed the Commitment;
(b) all of the representations and warranties of any
Borrower set forth in the Loan Papers are true and correct in all
material respects (except to the extent that (i) the representations
and warranties speak to a specific date, or (ii) the facts on which
such representations and warranties are based have been changed by
transactions contemplated or permitted by the Loan Papers and, if
applicable, supplemental Schedules have been delivered with respect
thereto and, when necessary, approved by Determining Lenders);
EXHIBIT B-3
<PAGE> 85
(c) no change in the financial condition of any
Consolidated Company which is a Material Adverse Event has occurred;
(d) no Default or Potential Default has occurred and is
continuing; and
(e) the funding of such Borrowing is permitted by Law.
Very truly yours,
WORLDCOM, INC.
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
* Must be a Business Day occurring prior to the Termination Date and be
at least (a) five Business Days following receipt by Administrative
Agent of this Competitive Bid Request for any Competitive Borrowing
that will be comprised of Eurodollar Rate Borrowings, and (b) one
Business Day following receipt by Administrative Agent of this
Competitive Bid Request for any Competitive Borrowing that will be
comprised of Fixed Rate Borrowings.
** Not less than $20,000,000 (and in integral multiples of $1,000,000
thereafter), and not greater than the lesser of (a) the unused and
available portion of the Credit Agreement, and (b) an amount which,
when added to the aggregate outstanding principal amount of
Competitive Borrowings made by all Lenders under the Credit Agreement,
does not exceed the Competitive Bid Availability then in effect for
the Credit Agreement.
*** Eurodollar Rate Borrowing or Fixed Rate Borrowing.
**** Eurodollar Rate Borrowing -- 1, 2, 3 or 6 months. Fixed Rate
Borrowing -- up to 6 months. In no event may the Interest Period end
after the Termination Date.
2
EXHIBIT B-3
<PAGE> 86
EXHIBIT B-4
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
(1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)
______________ __, ____
[Name of Lender]
[Address of Lender]
Attention: ______________________
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement, dated as of February ____, 1998 (as amended, modified, supplemented,
or restated from time to time, the "CREDIT AGREEMENT"), among WorldCom, Inc.,
as Borrower ("BORROWER"), the Lenders named therein, and the undersigned, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Borrower delivered a Competitive Bid Request dated _________ __, ____, pursuant
to SECTION 2.2(B) of the Credit Agreement, and in that connection you are
invited to submit a Competitive Bid by [Date] / [Time] .* Your
Competitive Bid must comply with SECTION 2.2(C) of the Credit Agreement and the
terms set forth below on which the Competitive Bid Request was made:
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------
(A) Borrowing Date of Competitive Borrowing (a Business Day)
- --------------------------------------------------------------------------------------------------------------
(B) Principal amount of Competitive Borrowing
- --------------------------------------------------------------------------------------------------------------
(C) Type of Borrowing
- --------------------------------------------------------------------------------------------------------------
(D) Interest Period and the last day thereof
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Very truly yours,
NATIONSBANK OF TEXAS, N.A., as
Administrative Agent
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
* The Competitive Bid must be received by the Administrative Agent (a)
in the case of Eurodollar Rate Borrowings, not later than 11:00 a.m.,
Dallas, Texas time, four Business Days before the Borrowing Date of
the proposed Competitive Borrowing, and (b) in the case of Fixed Rate
Borrowings, not later than 10:00 a.m., Dallas, Texas time, on the
Borrowing Date of the proposed Competitive Borrowing.
EXHIBIT B-4
<PAGE> 87
EXHIBIT B-5
FORM OF COMPETITIVE BID
(1998 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT)
______________ __, ____
NationsBank of Texas, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
NationsBank Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 508-2515
The undersigned, [Name of Lender] , refers to the 364-Day
Revolving Credit and Term Loan Agreement, dated as of February ______, 1998 (as
amended, modified, supplemented, or restated from time to time, the "CREDIT
AGREEMENT"), among WorldCom, Inc., as Borrower ("BORROWER"), the Lenders named
therein, and the Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby makes a Competitive Bid pursuant to
SECTION 2.2(C) of the Credit Agreement, in response to the Competitive Bid
Request made by Borrower on _____________, ____, and in that connection sets
forth below the terms on which such Competitive Bid is made:
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------
(A) Principal amount*
- --------------------------------------------------------------------------------------------------------------
(B) Competitive Bid Rate**
- --------------------------------------------------------------------------------------------------------------
(D) Interest Period and the last day thereof***
- --------------------------------------------------------------------------------------------------------------
</TABLE>
The undersigned hereby confirms that it is prepared to extend credit
to Borrower upon acceptance by Borrower of this bid in accordance with SECTION
2.2(E) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By
------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
* Not less than $5,000,000 (and in integral multiples of $1,000,000
thereafter) and which may equal the entire principal amount of the
Competitive Borrowing requested by Borrower and which may exceed such
Lender's Committed Sum (subject to the limitations set forth in
SECTION 2.2(A) of the Credit Agreement). Multiple bids will be
accepted by the Administrative Agent.
** Eurodollar Rate + ____________ % or - ____________%, in the case of
Eurodollar Rate Borrowings; or ________%, in the case of Fixed Rate
Borrowings (in each case, expressed in the form of a decimal to no
more than four decimal places).
*** The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
EXHIBIT B-5
<PAGE> 88
EXHIBIT B-6
FORM OF TERM CONVERSION REQUEST
______________ __, ____*
NationsBank of Texas, N.A.
as Administrative Agent for the Lenders
under the Credit Agreement referred to below
NationsBank Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 508-2515
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement, dated as of February _____, 1998 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders named therein, and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned
hereby gives you notice pursuant to SECTION 2.3 of the Credit Agreement that it
requests the Principal Debt be converted to a Term Loan. In connection with
this request, Borrower hereby sets forth below the terms on which such
conversion is requested to be made:
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------
(A) Type of Borrowing(s)**
- --------------------------------------------------------------------------------------------------------------
(B) For Eurodollar Rate Borrowings, the Interest Period(s) and the last
day(s) thereof***
- --------------------------------------------------------------------------------------------------------------
(C) Term Conversion Date
- --------------------------------------------------------------------------------------------------------------
</TABLE>
On the date the rate is set, please confirm the interest rate below
and return by facsimile transmission to _______________________.
Borrower hereby certifies that the following statements are true on
the date hereof and will be true and correct on the Term Conversion Date
specified herein after giving effect to the Term Loan Conversion:
(a) no Default or Potential Default has occurred and is
continuing; and
(b) all of the representations and warranties of any
Borrower set forth in the Loan Papers are true and correct in all
material respects (except to the extent that (i) the representations
and warranties speak to a specific date, or (ii) the facts on which
such representations and warranties are based have been changed by
transactions contemplated or permitted by the Loan
EXHIBIT B-6
<PAGE> 89
Papers and, if applicable, supplemental Schedules have been delivered
with respect thereto and, when necessary, approved by Determining
Lenders).
Very truly yours,
WORLDCOM, INC.
By
------------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
Rate:________
Confirmed by:_________________________
* This Term Conversion Request must be delivered by Borrower to
Administrative Agent no sooner than 30 days (and not later than 10
days) preceding the Termination Date.
** Eurodollar Rate Borrowing(s) or Base Rate Borrowing(s).
*** Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months.
2
EXHIBIT B-6
<PAGE> 90
EXHIBIT C
FORM OF ADMINISTRATIVE QUESTIONNAIRE
BORROWER: WorldCom, Inc.
1) Name of Entity as it should appear on Signature Page:
______________________________________. Please indicate
number of signature lines required for Entity
________________________________.
2) Name and address of Person to Receive Drafts of Loan Papers at
Lender:________________________________________________________
_______________________________________________________________
_______________________________________________________________
3) If different from above, name and address of person to whom
signature pages should be forwarded for execution:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
4) If different from above, name and address of person to whom
signature pages should be forwarded for execution:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
<TABLE>
<CAPTION>
CREDIT CONTACT OPERATIONS CONTACT LEGAL COUNSEL
-------------- ------------------ -------------
<S> <C> <C> <C>
NAME:
-------------- ------------------ -------------
TITLE:
-------------- ------------------ -------------
ADDRESS:
-------------- ------------------ -------------
-------------- ------------------ -------------
-------------- ------------------ -------------
-------------- ------------------ -------------
TELEPHONE:
-------------- ------------------ -------------
FACSIMILE #:
-------------- ------------------ -------------
ANSWERBACK:
-------------- ------------------ -------------
</TABLE>
EXHIBIT C
<PAGE> 91
PAYMENT INSTRUCTIONS
FED WIRE INSTRUCTIONS
<TABLE>
<S> <C> <C> <C>
PAY TO:
---------------------------------------------------------------------------------------
(Name of Lender)
---------------------------------------------------------------------------------------
(Address)
---------------------------------- --------------------------------------------
(City) (State) (Zip)
---------------------------------------------------------------------------------------
(ABA #) (Account #)
---------------------------------------------------------------------------------------
(Attention)
</TABLE>
NATIONSBANK PAYMENT INSTRUCTIONS
PAY TO: NationsBank TX
Dallas, Texas
ABA #: 111000025
ATTENTION: Commercial Loan Operations
REFERENCE: WorldCom Inc.
ACCOUNT #: 120-2000-883
2 EXHIBIT C
<PAGE> 92
EXHIBIT D-1
FORM OF COMPLIANCE CERTIFICATE
FOR _______________ ENDED ________________________________, __________
DATE: ___________________________________, __________
ADMINISTRATIVE AGENT: NationsBank of Texas, N.A.
BORROWER: WorldCom, Inc.
________________________________________________________________________________
This certificate is delivered under the 364-Day Revolving Credit and
Term Loan Agreement, dated as of February ___, 1998 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT") among
Borrower, the Lenders named therein, and the Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meaning given
to such terms in the Credit Agreement.
I certify to Lenders that:
(a) I am a Responsible Officer of the Consolidated Companies in
the position(s) set forth under my signature below;
(b) the Financial Statements of the Consolidated Companies (and
each Unrestricted Subsidiary, as applicable) attached to this certificate were
prepared in accordance with GAAP, and present fairly in all material respects
the consolidated financial condition and results of operations of those
companies as of, and for the (three, six, or nine months, or fiscal year) ended
on, ____________________________________________, ___________ (the "SUBJECT
PERIOD") [(subject only to normal year-end audit adjustments)];
(c) a review of the activities of the Consolidated Companies
during the Subject Period has been made under my supervision with a view to
determining whether, during the Subject Period, the Consolidated Companies have
kept, observed, performed, and fulfilled all of their respective obligations
under the Loan Papers, and during the Subject Period, to my knowledge (i) the
Consolidated Companies kept, observed, performed, and fulfilled each and every
covenant and condition of the Loan Papers (except for the deviations, if any,
set forth on a schedule annexed to this certificate) in all material respects,
and (ii) no Default (nor any Potential Default) has occurred which has not been
cured or waived (except the Defaults or Potential Defaults, if any, described
on the schedule annexed to this certificate);
(d) to my knowledge, the status of compliance by the Restricted
Companies with SECTIONS 7.28(A) and (B) of the Credit Agreement at the end of
the Subject Period is as set forth on ANNEX I to this certificate;
(e) as of the date hereof, to my knowledge, the aggregate Debt
(including, without limitation, the amounts outstanding as of the date hereof
under Capital Leases and Debt assumed or created in connection with any
Permitted Acquisition) of the Restricted Companies restricted by SECTIONS
7.12(D) and 7.12(E) of the Credit Agreement is $_________ ___, which amount is
equal to or less than $_____________________
EXHIBIT D-1
<PAGE> 93
[7.5% of the amount of Total Debt for which the Restricted Companies may be
obligated without violating the Leverage Ratio requirements of SECTION 7.28(A)
of the Credit Agreement];
(f) as of the date hereof, to my knowledge, the aggregate Debt
(including, without limitation, the amounts outstanding as of the date hereof
under Capital Leases and Debt assumed or created in or created in connection
with any Permitted Acquisition) of the Restricted Subsidiaries restricted by
SECTIONS 7.12(D) and 7.12(E) of the Credit Agreement is $ , which
amount is equal to or less than $100,000,000; and
(g) with respect to any Permitted Acquisition consummated during
the Subject Period that met the requirements of ITEM (A) of the definition of
"Permitted Acquisition" (and for which no prior written certification to the
following matters has been delivered by Borrower to Administrative Agent), (i)
all representations and warranties under the Loan Papers were true and correct
immediately prior to and after giving effect to each such Acquisition, (ii) no
Default or Potential Default existed at the time of any such Acquisition or
after giving effect to any such Acquisition, (iii) prior to the consummation of
any such Acquisition, Borrower delivered to Administrative Agent and all
supplements to, or revisions of, SCHEDULES 6.13, 7.12, 7.13 and 7.20 to the
Credit Agreement which were required to make the disclosures in such Schedules
accurate after giving effect to such Acquisition and obtained (prior to the
date of consummation of such Acquisition), the consent of Determining Lenders
with respect to such revised or Supplemental Schedules ([ ] check here if no
such revised or supplemental schedules were required as a result of such
Acquisitions); and (iv) attached hereto are revised or supplemental SCHEDULES
6.2 and 6.3 which are required to make the disclosures accurate after giving
effect to such Acquisition.
By
-----------------------------------------
(Name)
-------------------------------------
(Title)
------------------------------------
2 EXHIBIT D-1
<PAGE> 94
ANNEX I TO COMPLIANCE CERTIFICATE
Status of Compliance with SECTIONS
7.28(A) and (B) of the Credit Agreement(1)
(All on consolidated basis for the Restricted Companies at
the end of Subject Period)
1. SECTION 7.28(A) - LEVERAGE RATIO
<TABLE>
<S> <C> <C>
a. Total Debt* $
----------------
b. Amount of immediately-available cash or Cash
Equivalents owned by the Restricted Companies* $
----------------
c. Market value of any immediately-available Marketable
Securities owned by the Restricted Companies* $
----------------
d. Total Debt (adjusted)* [Line (a) less Line (b) and (c)] $
----------------
e. Pre-tax income** $
----------------
f. Interest Expense** $
----------------
g. Depreciation expense** $
----------------
h. Amortization expense** $
----------------
i. Other non-cash charges** $
----------------
j. Non-recurring cash and non-cash merger and
restructuring charges related solely to Acquisitions
occurring during the Subject Period* (not to exceed
$100,000,000 in the aggregate from the Closing Date
to the end of the Subject Period)** $
----------------
k. Extraordinary Losses** $
----------------
l. Losses accounted for on the "equity" method of
accounting (other than dividends actually received
by any Restricted Company from such Person)** $
----------------
m. Extraordinary gains** $
----------------
n. Gains accounted for on the "equity" method of
accounting (other than dividends actually received
by any Restricted Company from such Person)** $
----------------
o. Operating Cash Flow**
Sum of Lines e through l minus
Lines m and n $
----------------
p. Operating Cash Flow from Unrestricted Subsidiaries** $
----------------
q. 7.5% of Line (o) $
----------------
r. If positive, the amount by which Line (p) exceeds Line (q) $
----------------
s. Operating Cash Flow (adjusted) (Line (o) minus (r)) $
----------------
t. Annualized Operating Cash Flow --
Line s multiplied by 4
u. Actual Leverage Ratio -- The ratio of (Line d to Line t) :
----------------
</TABLE>
__________________________________
(1)All as more particularly determined in accordance with the terms of
the Credit Agreement, which control in the event of conflicts with this form.
3
EXHIBIT D-1
<PAGE> 95
<TABLE>
<S> <C> <C>
v. Maximum ratio for Subject Period 4.50 : 1.00
--------------
2. SECTION 7.28(B) - CONSOLIDATED NET WORTH
----------------------------------------
a. Consolidated Net Worth*** $
----------------
b. To the extent deducted in the calculation of
Consolidated Net Worth, non-recurring cash and
non-cash charges made by the Restricted Companies
in connection with any mergers or corporate
restructurings relating solely to Acquisitions
occurring on or after the Closing Date
(maximum of $100,000,000 for all periods
following the Closing Date) $
----------------
c. Consolidated Net Worth (adjusted) - Line a plus Line b $
----------------
d. Consolidated Net Worth at 12/31/96 $
----------------
e. 75% of Line (d) $
----------------
f. Consolidated Net Income of the Restricted $
----------------
Companies for each fiscal quarter of the Restricted
Companies ending after 12/31/96
g. 50% of Line (f) $
----------------
h. Net Cash Proceeds from Equity Issuance occurring on or $
----------------
after the Closing Date
i. 75% of Item h $
----------------
j. Minimum Consolidated Net Worth (sum of Items (e), (g), $
----------------
and (i)
k. Consolidated Net Worth equals or exceeds Minimum Yes /No
Consolidated Net Worth (Item (c) equals or exceeds ------ -----
Item (j)
</TABLE>
* As of the last day of the Subject Period.
** For the three month period ending on the last day of the
Subject Period.
*** At the end of the fiscal quarter.
4
EXHIBIT D-1
<PAGE> 96
ANNEX II TO COMPLIANCE CERTIFICATE
[ATTACH REVISED OR SUPPLEMENTAL SCHEDULES 6.2 AND 6.3 (AS APPLICABLE)
IN CONNECTION WITH PERMITTED ACQUISITIONS
DESCRIBED IN ITEM (g) OF COMPLIANCE CERTIFICATE]
5
EXHIBIT D-1
<PAGE> 97
EXHIBIT D-2
FORM OF PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
ADMINISTRATIVE AGENT: NationsBank of Texas, N.A. DATE:_______________
BORROWER: WorldCom, Inc.
________________________________________________________________________________
This certificate is delivered under SECTION 5.2(b) of the 364-Day
Revolving Credit and Term Loan Agreement dated as of February _____, 1998 (as
amended, modified, supplemented, or restated from time to time, the "CREDIT
AGREEMENT") among Borrower, the Lenders named therein, and the Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings given to such terms in the Credit Agreement.
_________________ [name of Company] intends to acquire _____________
(the "SUBJECT ACQUISITION"), on ________ __, ____ (the "ACQUISITION DATE"). In
connection with such Subject Acquisition, Borrower hereby confirms the
following:
(a) all of the representations and warranties under the Loan
Papers are true and correct immediately prior to and after giving effect to the
Subject Acquisition;
(b) the Subject Acquisition meets all of the requirements to
qualify as a Permitted Acquisition under SECTION 5.2(b) of the Credit
Agreement, including, without limitation, that (i) as of the Acquisition Date,
the Subject Acquisition has been approved and recommended by the board of
directors or other similar governing body of the Person to be acquired or from
which such business is to be acquired, (ii) not later than the Acquisition
Date, Borrower has delivered to Administrative Agent a written description of
the targeted entity to be acquired and its operations and a copy of the related
purchase agreement, (iii) as of the Acquisition Date, after giving effect to
the Subject Acquisition, the acquiring party is or will be Solvent and the
Restricted Companies, on a consolidated basis, are or will be Solvent, (iv) as
of the Acquisition Date, no Default or Potential Default exists or will occur
as a result of, and after giving effect to, the Subject Acquisition, (v) as of
the Acquisition Date, if the Subject Acquisition is structured as a merger,
Borrower or a Permitted Successor Corporation (or if such merger is with a
Restricted Company other than Borrower, then a Restricted Company) is the
surviving entity after giving effect to such merger, and (vi) if required, the
consent of Determining Lenders to the Subject Acquisition has been obtained and
Borrower has delivered to Administrative Agent all information regarding the
Acquisition requested by Administrative Agent, including, without limitation,
all of the information specifically referred to in ITEM (c) of the definition
of "Permitted Acquisition" in the Credit Agreement;
(c) after giving effect to the Subject Acquisition, any Debt (if
any) incurred or assumed by the Restricted Companies in connection with the
Subject Acquisition will be permitted by SECTION 7.12 of the Credit Agreement
(and to the extent any such Debt is permitted by SECTION 7.12(e) of the Credit
Agreement calculations supporting compliance with such Sections are set forth
on the attached Schedule) and the status of compliance by the Restricted
Companies with SECTION 7.28(a) after giving effect to the Subject Acquisition
is as set forth on the attached Schedule; and
EXHIBIT D-2
<PAGE> 98
(d) prior to the consummation of the Subject Acquisition, Borrower
has delivered to Administrative Agent all supplements to, or revisions of,
SCHEDULES 6.13, 7.12, 7.13 and 7.20 to the Credit Agreement which are required
to make the disclosures in such Schedules accurate after giving effect to the
Subject Acquisition, and has obtained the consent of Determining Lenders with
respect to such revised or supplemental Schedules ([ ] check here if no such
revised or supplemental Schedules are required as a result of the Subject
Acquisition).
WORLDCOM, INC.
*By
-----------------------------------------
(Name)
--------------------------------------
(Title)
-------------------------------------
* Must be a Responsible Officer of Borrower.
2 EXHIBIT D-2
-----------
<PAGE> 99
SCHEDULE TO PERMITTED ACQUISITION
COMPLIANCE CERTIFICATE
Status of compliance with the Credit Agreement1
1. The Purchase Price of the Subject Acquisition is $__________.
[This Permitted Acquisition Compliance Certificate only needs
to be completed with respect to Acquisitions with a Purchase
Price of $250,000,000 or more.]
2. SECTION 7.28(a) - LEVERAGE RATIO
<TABLE>
<S> <C> <C>
a. Total Debt $
----------------
b. Amount of immediately-available cash or Cash
Equivalents owned by the Restricted Companies $
----------------
c. Market value of any immediately-available Marketable
Securities owned by the Restricted Companies $
----------------
d. Total Debt (adjusted) [Line (a) less Line (b) and (c)] $
----------------
e. Pre-tax income $
----------------
f. Interest Expense $
----------------
g. Depreciation expense $
----------------
h. Amortization expense $
----------------
i. Other non-cash charges $
----------------
j. Non-recurring cash and non-cash merger and
restructuring charges related solely to Acquisitions
occurring during the Subject Period (not to exceed
$100,000,000 in the aggregate from the Closing Date
to the end of the Subject Period) $
----------------
k. Extraordinary Losses $
----------------
l. Losses accounted for on the "equity" method of
accounting (other than dividends actually received
by any Restricted Company from such Person) $
----------------
m. Extraordinary gains $
----------------
n. Gains accounted for on the "equity" method of
accounting (other than dividends actually received
by any Restricted Company from such Person) $
----------------
o. Operating Cash Flow
Sum of Lines e through l minus
Lines m and n $
----------------
p. Operating Cash Flow from Unrestricted Subsidiaries $
----------------
q. 7.5% of Line (o) $
----------------
r. If positive, the amount by which Line (p) exceeds Line (q) $
----------------
s. Operating Cash Flow (adjusted) (Line (o) minus (r)) $
----------------
t. Annualized Operating Cash Flow --
Line s multiplied by 4
</TABLE>
__________________________________
(1)All as more particularly determined in accordance with the terms of
the Credit Agreement, which control in the event of conflicts with this form.
3
EXHIBIT D-2
<PAGE> 100
<TABLE>
<S> <C> <C>
u. Actual Leverage Ratio -- The ratio of (Line d to Line t) :
----------------
v. Maximum applicable ratio 4.50 : 1.00
--------------
</TABLE>
3. If any Debt is being assumed or incurred in connection with the
Subject Acquisition, then after giving effect to such Subject
Acquisition, the aggregate Debt of the Restricted Companies incurred
pursuant to SECTIONS 7.12(e) of the Credit Agreement (including,
without limitation, amounts outstanding on the date of consummation of
the Subject Acquisition under Capital Leases, Debt assumed or created
in connection with any Permitted Acquisition, and any Existing Debt
pursuant to SECTIONS 7.12(d) of the Credit Agreement) is $_________,
which is less than or equal to 7.5% of the amount of Total Debt for
which the Restricted Companies may be obligated without violating the
Leverage Ratio requirements of SECTIONS 7.28(a) of the Credit
Agreement.
4. After giving effect to the Subject Acquisition, the aggregate Debt of
the Restricted Subsidiaries incurred pursuant to SECTIONS 7.12(e) of
the Credit Agreement, including, without limitation, the amounts
outstanding as of the date hereof under Capital Leases, Debt assumed
or created in connection with any Permitted Acquisition, and any
Existing Debt incurred pursuant to SECTION 7.12(d) of the Credit
Agreement, is $__________, which amount is equal to or less than
$100,000,000.
4
EXHIBIT D-2
<PAGE> 101
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the 364-Day Revolving Credit and Term Loan
Agreement dated as of February _____, 1998 (as amended, modified, supplemented,
or restated from time to time, the "CREDIT AGREEMENT") among WORLDCOM, INC., a
Georgia corporation ("BORROWER"), the Lenders (as defined in the Credit
Agreement), and NATIONSBANK OF TEXAS, N.A., as Administrative Agent for the
Lenders ("ADMINISTRATIVE AGENT"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The "ASSIGNOR" and the "ASSIGNEE" referred to on SCHEDULE 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's Rights and obligations under the Credit
Agreement and the related Loan Papers as of the date hereof equal to the
percentage interest specified on SCHEDULE 1 (excluding any outstanding
Competitive Borrowings owed to the Assignor [unless the Assignor is selling all
of its Rights and obligations under the Loan Papers]. After giving effect to
such sale and assignment, the Assignor's and the Assignee's Committed Sums and
the amount of the Borrowings under the Credit Agreement owing to each of them
will be as set forth on SCHEDULE 1.
2. The Assignor (i) represents and warrants that it 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; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Papers or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Papers or any other instrument or document
furnished pursuant thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any party
to any Loan Paper or the performance or observance by any such party of any of
its obligations under the Loan Papers or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Notes held by the Assignor
(to the extent the Principal Debt being assigned and owed to the Assignor is
evidenced by Notes) and requests that Administrative Agent exchange such Notes
for new Notes if so requested by either the Assignor or Assignee. Such new
Notes shall be prepared in accordance with the provisions of SECTION 3.1(b) of
the Credit Agreement and will reflect the respective Committed Sums of the
Assignee and the Assignor after giving effect to this Assignment and
Acceptance.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the Current Financials 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; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor, 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 the Credit Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes
Administrative Agent to take such action as "Administrative Agent" on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance
EXHIBIT E
<PAGE> 102
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under SECTION 10.9 of the
Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance
(the "EFFECTIVE DATE") shall be the date of acceptance hereof by Administrative
Agent, unless otherwise specified on SCHEDULE 1.
5. Upon such acceptance and recording by Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the Rights and obligations of a Lender thereunder, 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.
6. Upon such acceptance and recording by Administrative Agent,
from and after the Effective Date, Administrative Agent shall make all payments
under the Credit Agreement, the Notes (to the extent the Principal Debt owed to
the Assignee is evidenced by Notes), and loan accounts in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees and other fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the other Loan Papers for periods
prior to the Effective Date directly between themselves.
7. Unless the Assignee is a Lender or an Affiliate of a Lender
(and this sale and assignment is not made in connection with the sale of such
Affiliate), this Assignment and Acceptance is conditioned upon the consent of
Borrower and Administrative Agent pursuant to the definition of "Eligible
Assignee" in the Credit Agreement. The execution and delivery of this
Assignment and Acceptance by Borrower and Administrative Agent is evidence of
this consent.
8. As contemplated by SECTION 11.14(b)(v) of the Credit
Agreement, the Assignor or the Assignee (as determined between the Assignor and
the Assignee) agrees to pay to Administrative Agent for its account on the
Effective Date in federal funds a processing fee of $3,500 (unless otherwise
specified by Administrative Agent).
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
10. This Assignment and Acceptance 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 all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of SCHEDULE 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
2
EXHIBIT E
<PAGE> 103
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE AGREEMENT
<TABLE>
<S> <C> <C>
1. Assigned Interest:
(a) Assignor's Committed Sum prior
to giving effect to the Assignment to Assignee $
-----------------------------------
(b) Aggregate Borrowings owed to Assignor,
immediately prior to giving effect to the
assignment to Assignee $
-----------------------------------
(c) Percentage Interest in Commitment
and Borrowings being assigned to Assignee by
Assignor %
-----------------------------------
2. Adjustments after giving effect to Assignment between
Assignor and Assignee:
(a) Assignor's Committed Sum $
-----------------------------------
(b) Assignee's Committed Sum acquired
from Assignor pursuant to this Assignment $
-----------------------------------
(c) Assignor's aggregate Borrowings $
-----------------------------------
(d) Assignee's Borrowings acquired
from Assignor pursuant to this Assignment $
-----------------------------------
3. Effective Date (if other than date of acceptance
by Administrative Agent): *______________ ___, ______
</TABLE>
3
<PAGE> 104
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE AGREEMENT
(PAGE 2 OF 2)
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------------------
Title:
--------------------------------------
Dated: ,
------------------- ---- ------
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------------------
Title:
--------------------------------------
Dated: ,
------------------- ---- ------
4 EXHIBIT E
<PAGE> 105
If SECTION 11.14(b) and CLAUSE (c) of the definition of "Eligible
Assignee" of the Credit Agreement so require, Borrower and Administrative Agent
consent to this Assignment and Acceptance.
WORLDCOM, INC., as Borrower
By:
-----------------------------------------
Title:
--------------------------------------
Dated: ,
------------------- ---- ------
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent
By:
-----------------------------------------
Title:
--------------------------------------
Dated: ,
------------------- ---- ------
* This date should be no earlier than five Business Days after
the delivery of this Assignment and Acceptance to
Administrative Agent.
5 EXHIBIT E
<PAGE> 106
EXHIBIT F-1
FORM OF OPINION OF GENERAL COUNSEL OF BORROWER
February ___, 1998
NationsBank of Texas, N.A., in its capacity as
Administrative Agent
Each of the Lenders named in SCHEDULES 2.1 to the Credit Agreement referred to
below
RE: CREDIT FACILITY OF WORLDCOM, INC.
Ladies and Gentlemen:
I am the General Counsel of WorldCom, Inc., a Georgia corporation
("BORROWER"), and have acted as counsel to Borrower and its Restricted
Subsidiaries in connection with the 364-Day Revolving Credit and Term Loan
Agreement dated as of February __, 1998 (the "CREDIT AGREEMENT"), among
Borrower, the lenders named on SCHEDULE 2.1 to the Credit Agreement
("LENDERS"), and NationsBank of Texas, N.A., as the "Administrative Agent"
under the Credit Agreement (in such capacity, the "ADMINISTRATIVE AGENT").
This opinion is delivered pursuant to SECTIONS 5.1 of the Credit
Agreement and PARAGRAPH 8 of SCHEDULE 5.1 to the Credit Agreement. Unless
otherwise defined, each capitalized term used herein has the meaning given to
such term in the Credit Agreement.
In arriving at the opinions expressed below, I or attorneys employed
by Borrower and acting under my supervision have examined such corporate
documents and records of the Consolidated Companies (as listed on SCHEDULE 6.2
to the Credit Agreement) and such certificates of public officials and of
officers of the Consolidated Companies, other documents, and matters of law as
I deemed necessary or appropriate, including, without limitation, originals or
copies (or, with respect to the Notes under the Credit Agreement (collectively,
the "NOTES") only, the forms of Notes attached as Exhibits to the Credit
Agreement) of (i) the Credit Agreement, and (ii) to the extent any Notes are
executed and delivered on the Closing Date or immediately subsequent thereto,
such Notes (all of the foregoing, collectively, the "TRANSACTION DOCUMENTS").
In rendering the opinions expressed below, I have assumed with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to me as originals, (b) the genuineness of all
signatures on all documents that I have examined (other than those of any
officer of any Consolidated Company who signed in my presence and Bernard J.
Ebbers, Charles T. Cannada, Scott D. Sullivan, and any other officer signing
the incumbency provisions of officers' certificates delivered in connection
with the Loan Papers), (c) the conformity to authentic originals of documents
submitted to me as certified, conformed, or photostatic copies, and (d)
compliance by the Administrative Agent and the Lenders with their respective
covenants and undertakings contained in the Transaction Documents.
EXHIBIT F-1
<PAGE> 107
With respect to matters involving the Federal Communications
Commission (the "FCC") and state public utility commissions or analogous
regulatory or governmental authorities, the Communications Act of 1934, as
amended, and the rules and regulations of the FCC and such other state public
utility commission or analogous regulatory or governmental authorities, I refer
to the separate opinions of Kelley Drye & Warren, L.L.P., regulatory counsel to
the Consolidated Companies, and I understand that you will rely solely upon the
opinions of such counsels with respect to such matters. I express no opinion
herein with respect to any of the matters opined on by such regulatory counsel.
Based upon the foregoing, and subject to the qualifications and
limitations herein contained, it is my opinion that:
1. Borrower (a) is a corporation validly existing and in good
standing under the Laws of its state of incorporation (based solely upon my
review of good standing certificates [or comparable documents] issued by such
state with respect to such corporation), and (b) possesses all requisite
corporate authority and power to conduct its business and execute, deliver, and
comply with the terms of the Transaction Documents, which have been duly
authorized and approved by all necessary corporate action and for which, to the
best of my knowledge, no approval or consent of any Person or Governmental
Authority is required which has not been obtained, except where the failure to
obtain would not be a Material Adverse Event.
2. Each of the Transaction Documents have been duly executed and
delivered by Borrower.
3. The Transaction Documents evidence the valid and legally
binding obligations of Borrower, enforceable against Borrower in accordance
with their terms, except as the enforcement may be limited by Debtor Relief
Laws and except that the remedies available with respect thereto may be subject
to general principles of equity (regardless of whether such remedies are sought
in a proceeding in equity or at law).
4. The execution, delivery, and performance of and compliance
with the terms of the Transaction Documents will not cause any Borrower to be
in violation of its Second Amended and Restated Articles or Certificates of
Incorporation or Bylaws.
5. The execution, delivery, and the performance of and compliance
with the terms of the Transaction Documents will not cause Borrower to be in
violation of any Laws, other than such violations which will not, individually
or collectively, be a Material Adverse Event.
6. No Restricted Company is involved in, nor am I aware of the
threat of, any Litigation which is reasonably likely to be determined adversely
to any Restricted Company that would be a Material Adverse Event. There are no
outstanding orders or judgments for the payment of money in excess of
$100,000,000 (individually or collectively) or any warrant of attachment,
acquisition, or similar proceeding against any Restricted Company's assets
having a value (individually or collectively) of $100,000,000 or more.
7. To the best of my knowledge, after reasonable investigation,
the execution, delivery, and the performance of and compliance with the terms
of the Transaction Documents will not cause Borrower to be in default under any
material, written, or oral agreements, contracts, commitments, or
understandings to which any Restricted Company is a party, other than such
defaults or potential defaults which will not, individually or collectively, be
a Material Adverse Event.
2
EXHIBIT F-1
<PAGE> 108
8. (a) No Employee Plan has incurred an accumulated funding
deficiency (as defined in the Code and ERISA), (b) neither Borrower nor any
ERISA Affiliate has incurred material liability which is currently due and
remains unpaid to the PBGC or to an Employee Plan in connection with any such
Employee Plan, (c) neither Borrower nor any ERISA Affiliate has withdrawn in
whole or in part from participation in a Multiemployer Plan, (d) Borrower has
not engaged in any prohibited transaction (as such term is defined in ERISA or
the Code) which would be a Material Adverse Event, and (e) to the best of my
knowledge, after reasonable investigation, no Reportable Event has occurred
which is likely to result in the termination of any Employee Plan.
9. No Restricted Company is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
10. No Restricted Company is a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
11. The application of the proceeds of the Borrowings under the
Credit Agreement by the Borrower in accordance with the terms of the Credit
Agreement will not violate Regulation U.
This opinion is limited in all respect to the laws of the State of
Georgia and the federal laws of the United States of America.
I note that the Transaction Documents are to be governed by the laws
of the State of Texas. Accordingly, for purposes of rendering this opinion as
to the enforceability of the Transaction Documents, I have assumed that the
substantive laws of the State of Texas are identical to the substantive laws of
the State of Georgia.
The foregoing opinions are also subject to the following exceptions
and qualifications: I express no opinion
(a) with respect to the availability of the remedies of
specific performance or injunction, or other remedies requiring the
exercise of judicial discretion;
(b) as to the effect of the compliance or noncompliance
of Lenders with any state or federal laws or regulations applicable to
any Lender's legal or regulatory status or the nature of such Lender's
business;
(c) as to the enforceability of any provisions contained
in the Transaction Documents that (i) purport to make void any act in
contravention thereof, (ii) purport to authorize a party to act in its
sole discretion, (iii) relate to the effect of laws or regulations
that may be enacted in the future, (iv) require waivers or amendments
to be made only in writing or (v) purport to effect waivers of
constitutional, statutory or equitable rights or the effect of
applicable laws;
(d) regarding the enforceability of the waivers in the
Transaction Documents of the right to demand a trial by jury and with
respect to selection of a venue;
(e) as to the enforceability of any provisions in the
Transaction Documents to the effect that the acceptance of a past due
installment or other performance by Borrower shall not be deemed a
waiver of the right to accelerate the indebtedness;
3
EXHIBIT F-1
<PAGE> 109
(f) as to the enforceability of any provisions in the
Transaction Documents relating to (i) set off, (ii) self help or (iii)
evidentiary standards or other standards by which the Transaction
Documents are to be construed; and
(g) with regard to any provisions of the Transaction
Documents whereby a party purports to indemnify another party against
its own negligence or misconduct.
This opinion is addressed to you solely for your use in connection
with the transactions contemplated by the Transaction Documents, and no person
other than the Administrative Agent, each Lender, and each assignee which
hereafter becomes a Lender as permitted by the Credit Agreement and the law
firm of Haynes and Boone, LLP is entitled to rely hereon without my prior
written consent. This opinion is given as of the date hereof, and I have no
obligation to revise or update this opinion subsequent to the date hereof or to
advise you or any other person of any matter subsequent to the date hereof
which would cause me to modify this opinion in whole or in part.
Very truly yours,
William E. Anderson,
General Counsel
4
EXHIBIT F-1
<PAGE> 110
EXHIBIT F-2
FORM OF OPINION OF SPECIAL COMMUNICATIONS COUNSEL
[KELLEY DRYE & WARREN, L.L.P.]
February ___, 1998
NationsBank of Texas, N.A.
as Administrative Agent
Each of the Lenders named on SCHEDULE 2.1 to the Credit Agreement referred to
below
Ladies and Gentlemen:
We have acted as special communications regulatory counsel to
WorldCom, Inc. (the "BORROWER"), a Georgia corporation, and each of its
Restricted Subsidiaries (Borrower and its Restricted Subsidiaries are
collectively referred to herein as the "RESTRICTED COMPANIES"), in connection
with the 364-Day Revolving Credit and Term Loan Agreement (the "CREDIT
AGREEMENT"), dated as of February ___, 1998, and the related Loan Papers by an
among Borrower, the Lenders referred to on SCHEDULE 2.1 of the Credit Agreement
("LENDERS"), and NationsBank of Texas, N.A., as the "Administrative Agent"
under the Credit Agreement (the "ADMINISTRATIVE AGENT").
Except as otherwise defined herein, capitalized terms defined in the
Credit Agreement are used herein as defined therein. This opinion is being
delivered pursuant to SECTION 5.1 and PARAGRAPH 8 of SCHEDULE 5.1 of the Credit
Agreement.
As special communications regulatory counsel for the Restricted
Companies, we address only matters within the jurisdiction of the Federal
Communications Commission ("FCC") and each state public utility commission
("PUC") that, on the date of this opinion, exercises jurisdiction over the
Restricted Companies. We express no opinion as to matters of local, municipal,
or county regulation and their applicability to or effect upon the transactions
or the Restricted Companies.
In rendering the opinions expressed herein, we have examined the
execution form of the Credit Agreement and all Schedules and Exhibits thereto.
We assume that the documents will be executed and delivered in the same form
provided to us. We also have assumed, with your permission and without
independent investigation, that: (a) the signatures on all documents examined
by us are genuine and that, where any such signature purports to have been made
in a corporate, governmental, fiduciary, or other capacity, the person who
affixed such signature to such documents had authority to do so; (b) the
documents submitted to us as originals are authentic, and that all documents
submitted to us as certified, conformed, or photostatic copies conform to
authentic original documents; and (c) public files, records and certificates
of, or furnished by, governmental or regulatory agencies or authorities are
correct. In addition, we have assumed the due execution and delivery, pursuant
to due authorization, of each of the Loan Papers by Borrower.
As to matters of fact relevant to the opinions expressed herein, we
have relied upon information supplied to us by the Restricted Companies,
examination of our own files and records, appropriate
EXHIBIT F-2
<PAGE> 111
examination of public records, files, and certificates on file with the FCC and
PUCs as of the date of this opinion, and as to the Restricted Companies'
ownership and operations, review of documents, records, and instruments,
provided by the Restricted Companies and pertinent disclosures of appropriate
representatives of the Companies. The following opinions are based upon and
expressly limited to the Communications Act of 1934, as amended, the rules,
regulations, and published policies of the FCC (the "COMMUNICATIONS ACT"), and
all laws administered by, and all rules, regulations, and published policies
of, each PUC (the "PUC LAWS") in effect on the date hereof. Subject to the
limitations set forth herein, we have reviewed such materials and law as we
have deemed necessary for purposes of this opinion.
When, in this opinion, we use the phrase "of which we have knowledge"
or "to the best of our knowledge," we have not made any independent
investigation of the applicable facts, but have relied upon the representations
made in the documents referred to in this opinion, in the certificates of the
Restricted Companies and their respective officers or representatives and are
not aware of any facts inconsistent therewith. Opinions expressed herein as
being "to the best of our knowledge" or incorporating the phrase "of which we
have knowledge" refer to present actual knowledge of the attorneys who are
presently with this firm and who our records indicate have worked on matters
for the Restricted Companies during the past two years.
Based upon the foregoing and subject to the qualifications,
assumptions and limitations set forth herein, we are of the opinion that:
1. No authorization of the FCC is required for the
execution, delivery, or performance by the Borrower
of the Credit Agreement, or for the legality,
validity, or enforceability thereof against the
Borrower. Similarly, no authorization of any PUC is
required for the execution, delivery, or performance
by the Borrower of the Credit Agreement, or for the
legality, validity or enforceability thereof.
2. The execution and delivery, and the performance and
compliance with the terms and provisions by Borrower,
of the Credit Agreement: (a) will not result in a
violation of the Communications Act or any PUC Laws,
except where such violation would not have a material
adverse effect on the Borrower and its affiliates
taken as a whole or the Lenders; (b) will not cause
any cancellation, termination, revocation,
forfeiture, or material impairment of any FCC or PUC
authorization, certificate, or license, except where
such cancellation, termination, revocation, or
forfeiture would not have a material adverse effect
on the Borrower and its affiliates taken as a whole;
and (c) will not require further notice to or the
approval of the FCC or any PUC, except where the
failure to provide such notice would not result in
any material adverse effect on the Borrower and its
affiliates taken as a whole or the Lenders.
3. To the best of our knowledge based solely upon
inquiry to the Restricted Companies and review of
records in our possession and the publicly-available
files and records of the FCC and each PUC: (a) there
is no outstanding decree or order that has been
issued by the FCC or any PUC against any Restricted
Company and no pending or threatened litigation,
proceedings, notice of violation, order to show
cause, complaint, inquiry, or investigation before
the FCC or any PUC relating to any Restricted Company
or relating to its Network Facilities or business
operations that might result in cancellation,
termination, revocation, forfeiture, or any material
impairment of any of their FCC or PUC authorizations,
certificates, or licenses, or have any material
adverse effect upon, or
2
EXHIBIT F-2
<PAGE> 112
cause material disruption to, any Restricted Company
or the ownership or operation of such Network
Facilities or business operations; and (b) no action
has been taken by the FCC or any PUC which might now,
or after notice or lapse of time or both, result in a
cancellation, termination, revocation, forfeiture, or
any material impairment of any of their FCC or PUC
authorizations, certificates, or licenses, or have
any material adverse effect upon, or material
disruption to, any Restricted Company or the
ownership or operation of their Network Facilities or
business operations.
The opinions expressed in this letter are subject in all respects to
the following qualifications: (a) no opinion is rendered as to matters not
specifically referred to herein or to events which have not yet occurred and
under no circumstances are you to infer from anything stated or not stated
herein any opinion with respect thereto; and (b) except as expressly provided
herein, all opinions expressed in this letter are limited solely to the effect
on the Loan Papers of the rules and regulations of the FCC and PUCs, and we
express no opinion as to the effect of any other federal or state statute or
equitable doctrine or of the regulations of any other agencies or
administrative body, or to the effect of any laws, rules, or regulations
imposed by any foreign nation (including, without limitation, the laws of
Canada). We are admitted to the District of Columbia Bar and, with respect to
any matters concerning the laws of any other State, we draw your attention to
the fact that the members of the firm involved in the preparation of this
opinion letter are not admitted to the Bars of those States and are not experts
in the laws of those jurisdictions, and that any such opinions concerning the
laws of such States are based upon our reasonable familiarity with the common
carrier telecommunications laws of such States as a result of our prior
involvement in matters concerning such laws as they pertain to compliance with
common carrier telecommunications regulatory requirements concerning the
approvals and notices required for borrowing by common carriers of
telecommunications services. This opinion is given as of the date hereof, and
we assume no obligation to assess the likelihood of, or to update or supplement
this opinion to reflect, any facts or circumstances that may hereafter occur or
come to our attention.
At the request of our clients, this opinion letter is provided to the
Administrative Agent and the Lenders by us in our capacity as special
communications regulatory counsel to the Restricted Companies and may not be
relied upon by any Person for any purpose other than in connection with the
transactions contemplated by the Loan Papers without, in each instance, our
prior written consent, except that it may be relied upon as of the date hereof
by any successor or permitted assignee or participant of the Lenders as
provided in the Loan Papers.
Very truly yours,
KELLEY DRYE & WARREN LLP
By:
-----------------------------------
Brad E. Mutschelknaus
Member of the Firm
3
EXHIBIT F-2
<PAGE> 1
Exhibit 12.1
WORLDCOM, INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends
(In Thousands of Dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------------------
1993 1994 1995 1996 1997
-------- -------- -------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Earnings:
Pretax income (loss) from continuing operations $198,237 $(78,463) $404,538 $(2,060,276) $ 799,273
Fixed charges, net of capitalized interest 58,999 87,455 300,248 242,257 394,448
-------- -------- -------- ----------- ----------
Earnings $257,236 $ 8,992 $704,786 $(1,818,019) $1,193,721
======== ======== ======== =========== ==========
Fixed charges:
Interest cost $ 38,657 $ 49,203 $254,099 $ 229,376 $ 403,950
Amortization of financing costs 1,792 2,086 2,811 1,742 4,673
Interest factor of rent expense 9,967 10,300 15,030 17,854 43,592
Preferred dividend requirements 11,683 27,766 33,191 860 26,433
-------- -------- -------- ----------- ----------
Fixed charges $ 62,099 $ 89,355 $305,131 $ 249,832 $ 478,648
======== ======== ======== =========== ==========
Deficiency of earnings to combined fixed charges and
preferred stock dividends $ -- $(80,363) $ -- $(2,067,851) --
======== ======== ======== =========== ==========
Ratio of earnings to combined fixed charges and
preferred stock dividends 4.14:1 0.10:1 2.31:1 N/A 2.49:1
======== ======== ======== =========== ==========
</TABLE>
See Notes to Computation of Ratio Earnings to Combined Fixed Charges and
Preferred Stock Dividends
<PAGE> 2
NOTES TO COMPUTATION OF RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(1) Results for 1996 include a $2.14 billion charge for in-process research
and development related to the MFS Merger. The charge is based upon an
independent appraisal, which valued the technologies of MFS' worldwide
information system, the Internet network expansion system of UUNET, and
certain other identified research and development projects purchased in
the Merger. The expense includes $1.6 billion associated with UUNET and
$0.54 billion related to MFS.
Additionally, 1996 results include other after-tax charges of $121.0
million for employee severance, employee compensation charges,
alignment charges, and costs to exit unfavorable telecommunications
contracts and $343.5 million after-tax write-down of operating assets
within its core and non-core business. On a pre-tax basis, these
charges totaled $600.1 million.
(2) In 1995, Metromedia converted its Series 1 Preferred Stock into Common
Stock, exercised warrants to acquire Common Stock and immediately sold
its position of 61,699,096 shares of Common Stock in a public offering.
In connection with the preferred stock conversion, WorldCom made a
non-recurring payment of $15.0 million to Metromedia, representing a
discount to the minimum nominal dividends that would have been payable
on the Series 1 Preferred Stock prior to the September 15, 1996
optional call date of approximately $26.6 million (which amount
included an annual dividend requirement of $24.5 million plus accrued
dividends to such call date).
(3) As a result of the IDB Merger, the Company initiated plans to
reorganize and restructure its management and operational organization
and facilities to eliminate duplicate personnel, physical facilities
and service capacity, to abandon certain products and marketing
activities, and to take further advantage of the synergies available to
the combined entities. Also, during the fourth quarter of 1993, plans
were approved to reduce IDB's cost structure and to improve
productivity. Accordingly, in 1994 and 1993, the Company charged to
operations the estimated costs of such reorganization and restructuring
activities, including employee severance, physical facility abandonment
and duplicate service capacity.
These costs totaled $43.7 million in 1994 and $5.9 million in 1993.
Also, during 1994, the Company incurred direct merger costs of $15.0
million related to the IDB Merger. These costs include professional
fees, proxy solicitation costs, travel and related expenses and certain
other direct costs attributable to the IDB Merger.
(4) In connection with certain debt refinancing, the Company recognized in
1996 and 1993 extraordinary items of approximately $4.2 million and
$7.9 million, respectively, net of income taxes, consisting of
unamortized debt discount, unamortized issuance cost and prepayment
fees. Additionally, in 1996 the Company recorded an extraordinary item
of $20.2 million, net of income taxes, related to a write-off of
deferred international costs.
<PAGE> 1
Exhibit 21.1
SUBSIDIARIES OF WORLDCOM, INC.
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
WorldCom, Inc. Georgia
Biz-Tel Corporation Florida
Com Systems, Inc. California
Healan Communications, Inc. Georgia
ITC Tele-Services, Inc. Washington
Military Communications Center, Inc. Delaware
Touch 1 Long Distance, Inc. Alabama
TransCall America, Inc. Georgia
WorldCom Network Services, Inc. Delaware
Virginia WorldCom, Inc. Virginia
IDB WorldCom, Inc. Delaware
WorldCom Federal Systems, Inc. Delaware
IDB Media Group, Inc. Delaware
IDB WorldCom Services, Inc a/k/a TRT/FTC Communications Delaware
TC WorldCom AG Switzerland
WorldCom Caribbean, Inc. New York
WorldCom Network Services Asia, Inc. Korea
WorldCom International, Inc. Delaware
WorldCom Telecommunications Services, GmbH Germany
WorldCom Telecommunications Services, SARL Switzerland
GridNet International, Inc. Delaware
WorldCom Telecommunications Services, France S.A. France
IDB Communications Group Limited N/A
WorldCom Wireless, Inc. Arizona
TTI National, Inc. Delaware
</TABLE>
1
<PAGE> 2
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- --------------- ----------------
<S> <C>
BLT Technologies, Inc. Washington
CS Network Services, Inc. California
TMC Communications, Inc. California
Western Business Network, Inc. California
TMC Communications, L.P. California
TRT/FTC Communications, Ltd. United Kingdom
MFS Communications Company, Inc. Delaware
MFS Network Technologies, Inc. Delaware
Centex Telemanagement, Inc. Delaware
Centex Telemanagement of California, Inc. Delaware
MFS Domestic Personnel, Inc. Delaware
MFS Foreign Personnel, Inc. California
MFS Global Network Services, Inc. Delaware
MFS Network Technologies of the District of Columbia, Inc. District of Columbia
MFS Transportation Systems, Inc. Delaware
MFS TransTech, Inc. Delaware
MFS Telecom, Inc. Delaware
Chicago Fiber Optic Corporation Illinois
Fibernet, Inc. Delaware
FiberNet Rochester, Inc. Delaware
Institutional Communications Company - Virginia Virginia
Northeast Networks, Inc. Delaware
MFS Telephone, Inc. Delaware
MFS Telephone of Missouri, Inc. Missouri
MFS Telephone of New Hampshire, Inc. New Hampshire
MFS Telephone of Virginia, Inc. Virginia
MFSA Holding, Inc. Delaware
Metrex Corporation Georgia
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
Metropolitan Fiber Systems/McCourt, Inc. Delaware
Metropolitan Fiber Systems of Alabama, Inc. Delaware
Metropolitan Fiber Systems of Arizona, Inc. Delaware
Metropolitan Fiber Systems of Baltimore, Inc. Delaware
Metropolitan Fiber Systems of California, Inc. Delaware
Metropolitan Fiber Systems of Columbus, Inc. Delaware
Metropolitan Fiber Systems of Connecticut, Inc. Delaware
Metropolitan Fiber Systems of Dallas, Inc. Delaware
Metropolitan Fiber Systems of Delaware, Inc. Delaware
Metropolitan Fiber Systems of Denver, Inc. Delaware
Jones Lightwave of Denver, Inc. Colorado
Metropolitan Fiber Systems of Detroit, Inc. Delaware
Metropolitan Fiber Systems of Florida, Inc. Delaware
Metropolitan Fiber Systems of Hawaii, Inc. Delaware
Metropolitan Fiber Systems of Houston, Inc. Delaware
Metropolitan Fiber Systems of Indianapolis, Inc. Delaware
Metropolitan Fiber Systems of Iowa, Inc. Delaware
Metropolitan Fiber Systems of Kansas, Inc. Delaware
Metropolitan Fiber Systems of Kentucky, Inc. Delaware
Metropolitan Fiber Systems of Massachusetts, Inc. Delaware
Metropolitan Fiber Systems of Minneapolis/St. Paul, Inc. Delaware
Metropolitan Fiber Systems of Kansas City, Missouri, Inc. Missouri
Metropolitan Fiber Systems of Nebraska, Inc. Delaware
Metropolitan Fiber Systems of Nevada, Inc. Delaware
Metropolitan Fiber Systems of New Hampshire, Inc. New Hampshire
Metropolitan Fiber Systems of New Jersey, Inc. Delaware
Metropolitan Fiber Systems of New Orleans, Inc. Delaware
Metropolitan Fiber Systems of New York, Inc. Delaware
</TABLE>
3
<PAGE> 4
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
Metropolitan Fiber Systems of North Carolina, Inc. Delaware
Metropolitan Fiber Systems of Ohio, Inc. Delaware
Metropolitan Fiber Systems of Oklahoma, Inc. Delaware
Metropolitan Fiber Systems of Oregon, Inc. Delaware
Metropolitan Fiber Systems of Philadelphia, Inc. Delaware
Metropolitan Fiber Systems of Pittsburgh, Inc. Delaware
Metropolitan Fiber Systems of Rhode Island, Inc. Delaware
Metropolitan Fiber Systems of Seattle, Inc. Delaware
Metropolitan Fiber Systems of St. Louis, Inc. Missouri
Metropolitan Fiber Systems of Tennessee, Inc. Delaware
Metropolitan Fiber Systems of Virginia, Inc. Delaware
Virginia Metrotel, Inc. Virginia
Metropolitan Fiber Systems of Wisconsin, Inc. Delaware
WorldCom Technologies, Inc. (formerly MFS Intelenet, Inc.) Delaware
MFS Intelenet of Virginia, Inc. Virginia
MFS Datanet, Inc. Delaware
Cylix Communications Corporation Tennessee
Eagle Uplink Corporation Tennessee
MFS International, Inc. Delaware
MFS Globenet, Inc. Delaware
MFS CableCo U.S., Inc. Delaware
MFS CableCo (Bermuda) Ltd. Bermuda
Gemini Submarine Cable System Limited Bermuda
Gemini Submarine Cable System (UK) United Kingdom
WorldCom International Limited (formerly MFS Communications England & Wales
Limited)
MK International Limited England & Wales
</TABLE>
4
<PAGE> 5
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
McCourt Cable and Communications Limited England & Wales
WorldCom Asia Pacific Limited (formerly MFS Far East Corporation Cayman Islands
Limited)
WorldCom Development S.A. (formerly MFS Development S.A.) Belgium
N.V. WorldCom Belgium
MFS Communications of Canada, Inc. Canada
WorldCom A/S Denmark
WorldCom S.A. France
WorldCom Telecommunication Services GmbH Germany
MFS Communications GmbH Germany
MKI Konstruktionsgesellschaft fur Telecommunikationsanlagen mbH Germany
WorldCom Communications B.V. The Netherlands
WorldCom S.p.A. Italy
WorldCom Japan Ltd. Japan
WorldCom East, Inc. Delaware
WorldCom Telecommunications, S.A. Spain
WorldCom A.B. Sweden
WorldCom A.G. Switzerland
MFS/C-TEC (New Jersey Partnership) Delaware
UUNET Technologies, Inc. Delaware
UUNET Deutschland GmbH Germany
UUNET Holdings Corp. Delaware
UUNET International, Ltd. Delaware
UUNET Hong Kong Limited Hong Kong
UUNET Australia, Ltd. Delaware
UUNET Japan, Ltd. Delaware
UUNET Canada, Inc. Ontario, Canada
Metrix Interlink Corp. Ontario, Canada
UUNET Pipex B.V. Netherlands
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
UUNET Holdings GmbH Germany
Unipalm Group plc United Kingdom
Computer College Ltd. United Kingdom
XTech Limited United Kingdom
Unipalm Pipex Limited United Kingdom
Leaf Distribution Limited United Kingdom
Unipalm Limited United Kingdom
The Public IP Exchange Limited United Kingdom
Pipex International Limited United Kingdom
UUNET PIPEX BELGIUM, N.V. Belgium
INnet International Belgium
WorldCom ICC, Inc. Delaware
McCourt Fiber Network, Inc. Massachusetts
NLnet Holding B.V. Netherlands
NLnet Development B.V. Netherlands
NLnet services Amsterdam B.V. Netherlands
NLnet Services B.V. Netherlands
TC Investments Corp. Delaware
Telatlantic Corporation Limited Ireland
Internet-Way S.A. France
InterNLnet B.V. (jv.) Netherlands
WorldCom Pacific, L.L.C. Delaware
WorldCom Management Company, Inc. Delaware
WorldCom Purchasing LLC Delaware
WorldCom Overseas Holding, Inc. Delaware
CompuServe Network Services Corporation (f/k/a CompuServe Delaware
Corporation)
CompuServe Network Services Inc. (f/k/a CompuServe Incorporated) Ohio
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
JURISDICTION
NAME OF COMPANY(1) OF INCORPORATION
- ------------------ ----------------
<S> <C>
CompuServe Network Services Systems Integration Group Southwest, Texas
Inc. (f/k/a CompuServe Systems Integration Group Southwest, Inc.)
CompuPlex Incorporated Ohio
CompuServe Canada Limited Canada
CompuServe Information Services AG Switzerland
CompuServe Information Services S.A.R.L. France
CompuServe Information Services B.V. Netherlands
CompuServe Consulting Services (UK) Ltd. United Kingdom
CompuServe Information Services (UK) Ltd. United Kingdom
CompuServe GmbH Germany
CompuServe AB Sweden
CNS Information (S) Pte Ltd Singapore
CompuServe International Pty Limited Australia
CompuServe HK Limited Hong Kong
ANS Communications, Inc. Delaware
ANS (UK) Limited United Kingdom
ANS Japan, Inc. Japan
A.N.S. France S.A.R.L. France
</TABLE>
7
<PAGE> 8
<TABLE>
<CAPTION>
JURISDICTION OF
NAME OF UNRESTRICTED SUBSIDIARY INCORPORATION
- ------------------------------- -------------
<S> <C>
WorldCom Funding Corporation (Receivables Subsidiary) Delaware
ALD Communications, Inc. California
Bittel Telecommunications Corporation California
Brooks Fiber Properties, Inc. Delaware
BFC Communications, Inc. Nevada
Brooks Fiber Communications-LD, Inc. Nevada
Brooks Fiber Communications-Midwest, Inc. Delaware
Brooks Fiber Communications-Northeast, Inc. Delaware
Brooks Fiber Communications of Arkansas, Inc. Delaware
Brooks Fiber Communications of Bakersfield, Inc. Delaware
Brooks Fiber Communications of California, Inc. Delaware
Brooks Fiber Communications of Connecticut, Inc. Delaware
Brooks Fiber Communications of Fresno, Inc. Delaware
Brooks Fiber Communications of Idaho, Inc. Delaware
Brooks Fiber Communications of Massachusetts, Inc. Delaware
Brooks Fiber Communications of Michigan, Inc. Michigan
Brooks Fiber Communications of Minnesota, Inc. Delaware
Brooks Fiber Communications of Mississippi, Inc. Delaware
Brooks Fiber Communications of Missouri, Inc. Delaware
Brooks Fiber Communications of Nevada, Inc. Delaware
Brooks Fiber Communications of New England, Inc. Delaware
Brooks Fiber Communications of New Mexico, Inc. Delaware
Brooks Fiber Communications of New York, Inc. Delaware
Brooks Fiber Communications of Ohio, Inc. Delaware
Brooks Fiber Communications of Oklahoma, Inc. Delaware
Brooks Fiber Communications of Rhode Island, Inc. Delaware
Brooks Fiber Communications of Sacramento, Inc. Nevada
Brooks Fiber Communications of San Jose, Inc. Nevada
</TABLE>
8
<PAGE> 9
<TABLE>
<CAPTION>
JURISDICTION OF
NAME OF UNRESTRICTED SUBSIDIARY INCORPORATION
- ------------------------------- -------------
<S> <C>
Brooks Fiber Communications of Stockton, Inc. Delaware
Brooks Fiber Communications of Tennessee, Inc. Delaware
Brooks Fiber Communications of Texas, Inc. Delaware
Brooks Fiber Communications of Tucson, Inc. Delaware
Brooks Fiber Communications of Tulsa, Inc. Delaware
Brooks Fiber Communications of Utah, Inc. Delaware
B.T.C. Real Estate Investments, Inc. Missouri
BTC Transportation Corporation Delaware
Fibercom of Missouri, Inc. Missouri
GLA International, Inc. Missouri
J.B. Telecom, Inc. Missouri
Tenant Network Services, Inc. California
BTC Finance Corp. Delaware
New England Fiber Communications L.L.C. Delaware
</TABLE>
- --------------------------------------
(1)Certain of the subsidiaries of the Company conduct business under portions
of their full name or acronyms of their full name.
9
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report included in the Form 10-K, into the Company's previously filed
Registration Statements on Form S-8 (File Nos. 33-52168, 33-69322, 33-71450,
33-89072, 333-02115, 333-10349, 333-16015, 333-16531, 333-30279, 333-30281,
333-45079, 333-45095 and 333-45083) and Form S-3 (File Nos. 33-63810, 33-87514,
33-77964, 33-87516, 33-58719, 333-10455, 333-10459, 333-20911, 333-45067,
333-71510 and 333-45127).
ARTHUR ANDERSEN LLP
Jackson, Mississippi,
March 26, 1998.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FINANCIAL
STATEMENTS OF WORLDCOM, INC. AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 66,904
<SECURITIES> 746
<RECEIVABLES> 1,399,380
<ALLOWANCES> 200,211
<INVENTORY> 0
<CURRENT-ASSETS> 1,682,632
<PP&E> 6,786,675
<DEPRECIATION> 793,689
<TOTAL-ASSETS> 22,389,553
<CURRENT-LIABILITIES> 2,047,856
<BONDS> 6,527,207
125
0
<COMMON> 9,092
<OTHER-SE> 13,500,648
<TOTAL-LIABILITY-AND-EQUITY> 22,389,553
<SALES> 7,351,354
<TOTAL-REVENUES> 7,351,354
<CGS> 3,791,599
<TOTAL-COSTS> 6,252,748
<OTHER-EXPENSES> (20,415)
<LOSS-PROVISION> 107,327
<INTEREST-EXPENSE> 319,748
<INCOME-PRETAX> 799,273
<INCOME-TAX> 415,621
<INCOME-CONTINUING> 383,652
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 357,219
<EPS-PRIMARY> 0.40
<EPS-DILUTED> 0.40
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF WORLDCOM, INC. AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 222,729
<SECURITIES> 772,510
<RECEIVABLES> 1,334,865
<ALLOWANCES> 135,696
<INVENTORY> 0
<CURRENT-ASSETS> 2,217,889
<PP&E> 4,282,575
<DEPRECIATION> (385,451)
<TOTAL-ASSETS> 19,963,197
<CURRENT-LIABILITIES> 1,941,489
<BONDS> 4,803,581
0
128
<COMMON> 8,851
<OTHER-SE> 12,950,997
<TOTAL-LIABILITY-AND-EQUITY> 19,963,197
<SALES> 4,485,130
<TOTAL-REVENUES> 4,485,130
<CGS> 2,457,102
<TOTAL-COSTS> 6,329,224
<OTHER-EXPENSES> (6,479)
<LOSS-PROVISION> 57,678
<INTEREST-EXPENSE> 221,801
<INCOME-PRETAX> (2,059,416)
<INCOME-TAX> 129,528
<INCOME-CONTINUING> (2,188,944)
<DISCONTINUED> 0
<EXTRAORDINARY> (24,434)
<CHANGES> 0
<NET-INCOME> (2,214,238)
<EPS-PRIMARY> (5.56)
<EPS-DILUTED> (5.56)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF WORLDCOM, INC. AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 41,679
<SECURITIES> 0
<RECEIVABLES> 586,743
<ALLOWANCES> 57,980
<INVENTORY> 0
<CURRENT-ASSETS> 654,832
<PP&E> 2,056,412
<DEPRECIATION> (487,080)
<TOTAL-ASSETS> 6,634,571
<CURRENT-LIABILITIES> 1,978,812
<BONDS> 2,278,428
0
12
<COMMON> 1,932
<OTHER-SE> 2,185,342
<TOTAL-LIABILITY-AND-EQUITY> 6,634,571
<SALES> 3,639,875
<TOTAL-REVENUES> 3,639,875
<CGS> 1,992,413
<TOTAL-COSTS> 2,963,827
<OTHER-EXPENSES> (11,801)
<LOSS-PROVISION> 39,175
<INTEREST-EXPENSE> 249,062
<INCOME-PRETAX> 438,787
<INCOME-TAX> 171,127
<INCOME-CONTINUING> 267,660
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 234,469
<EPS-PRIMARY> 0.67
<EPS-DILUTED> 0.64
</TABLE>
