<PAGE> 1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
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
-------------------------------
MCI WORLDCOM, INC.
(Exact name of registrant as specified in its charter)
-------------------------------
<TABLE>
<CAPTION>
Georgia 58-1521612
<S> <C>
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
500 Clinton Center Drive, Clinton, Mississippi 39056
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code : (601) 460-5600
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
--- ---
The number of outstanding shares of the registrant's Common Stock, par
value $.01 per share, was 1,873,110,367, net of treasury shares, on July 30,
1999.
- --------------------------------------------------------------------------------
<PAGE> 2
QUARTERLY REPORT ON FORM 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
Number
------
PART I. FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of
June 30, 1999 and December 31, 1998............................................3
Consolidated Statements of Operations
for the three and six months ended June 30, 1999
and June 30, 1998...............................................................4
Consolidated Statements of Cash Flows for
the six months ended June 30, 1999 and
June 30, 1998...................................................................5
Notes to Consolidated Financial Statements......................................6
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations..................................16
Item 3. Quantitative and Qualitative Disclosure About Market Risk......................28
PART II. OTHER INFORMATION
Item 1. Legal Proceedings..............................................................29
Item 2. Changes in Securities and Use of Proceeds......................................29
Item 3. Defaults Upon Senior Securities................................................29
Item 4. Submission of Matters to a Vote
of Securities Holders....................................... ..................29
Item 5. Other Information .............................................................30
Item 6. Exhibits and Reports on Form 8-K...............................................30
Signature ...............................................................................31
Exhibit Index ...............................................................................32
</TABLE>
Page 2
<PAGE> 3
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
MCI WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited. In Millions, Except Share Data)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
---------- ----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 599 $ 1,710
Accounts receivable, net of allowance for bad debts of $952 in 1999
and $897 in 1998 5,761 5,226
Deferred tax asset 2,353 2,523
Other current assets 1,383 1,180
---------- ----------
Total current assets 10,096 10,639
---------- ----------
Property and equipment:
Transmission equipment 12,126 12,052
Communications equipment 5,642 5,256
Furniture, fixtures and other 6,281 5,986
Construction in progress 3,695 3,080
---------- ----------
27,744 26,374
Accumulated depreciation (3,180) (2,067)
---------- ----------
24,564 24,307
---------- ----------
Goodwill and other intangible assets, net 46,200 47,018
Other assets 5,713 4,437
---------- ----------
$ 86,573 $ 86,401
========== ==========
LIABILITIES AND SHAREHOLDERS' INVESTMENT
Current liabilities:
Short-term debt and current maturities of long-term debt $ 5,217 $ 4,756
Accounts payable 1,999 1,737
Accrued line costs 4,186 3,903
Accrued interest 508 505
Other current liabilities 4,929 5,128
---------- ----------
Total current liabilities 16,839 16,029
---------- ----------
Long-term liabilities, less current portion:
Long-term debt 13,550 16,083
Deferred tax liability 3,210 2,960
Other liabilities 1,492 1,852
---------- ----------
Total long-term liabilities 18,252 20,895
---------- ----------
Commitments and contingencies
Minority interests 2,435 3,676
Company obligated mandatorily redeemable preferred securities of subsidiary
trust holding solely junior subordinated deferrable interest debentures
of the Company and other mandatorily redeemable preferred securities 798 798
Shareholders' investment:
Series B preferred stock, par value $.01 per share; authorized, issued and
outstanding: 11,360,334 shares in 1999 and 11,643,002 shares in 1998 (liquidation
preference of $1.00 per share plus unpaid dividends) -- --
Preferred stock, par value $.01 per share; authorized: 34,905,008 shares
in 1999 and 1998; none issued -- --
Common stock, par value $.01 per share; authorized: 5,000,000,000 shares; issued
and outstanding: 1,871,453,800 shares in 1999 and 1,840,280,479 shares in 1998 19 18
Additional paid-in capital 51,197 49,544
Retained earnings (deficit) (2,901) (4,473)
Unrealized holding gain on marketable equity securities 447 122
Cumulative foreign currency translation adjustment (328) (23)
Treasury stock, at cost, 4,510,211 shares in 1999 and 1998 (185) (185)
---------- ----------
Total shareholders' investment 48,249 45,003
---------- ----------
$ 86,573 $ 86,401
========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
Page 3
<PAGE> 4
MCI WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited. In Millions, Except Per Share Data)
<TABLE>
<CAPTION>
For the Three Months For the Six Months
Ended June 30, Ended June 30,
---------------------- ----------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues $ 8,944 $ 2,581 $ 17,945 $ 4,901
-------- -------- -------- --------
Operating expenses:
Line costs 3,937 1,230 8,053 2,347
Selling, general and administrative 2,179 524 4,490 1,002
Depreciation and amortization 1,064 332 2,143 631
In-process research and development and other charges -- -- -- 498
-------- -------- -------- --------
Total 7,180 2,086 14,686 4,478
-------- -------- -------- --------
Operating income 1,764 495 3,259 423
Other income (expense):
Interest expense (236) (108) (496) (210)
Miscellaneous 48 10 16 22
-------- -------- -------- --------
Income before income taxes, minority interests and extraordinary items 1,576 397 2,779 235
Provision for income taxes 652 170 1,195 288
-------- -------- -------- --------
Income (loss) before minority interests and extraordinary items 924 227 1,584 (53)
Minority interests (45) -- 20 --
-------- -------- -------- --------
Income (loss) before extraordinary items 879 227 1,604 (53)
Extraordinary items (net of income taxes of $78 in 1998) -- -- -- (129)
-------- -------- -------- --------
Net income (loss) 879 227 1,604 (182)
Distributions on subsidiary trust and other mandatorily
redeemable preferred securities 16 -- 32 --
Preferred dividend requirement -- 6 -- 13
-------- -------- -------- --------
Net income (loss) applicable to common shareholders $ 863 $ 221 $ 1,572 $ (195)
======== ======== ======== ========
Earnings (loss) per common share:
Net income (loss) applicable to common shareholders before
extraordinary items:
Basic $ 0.46 $ 0.21 $ 0.85 $ (0.06)
======== ======== ======== ========
Diluted $ 0.45 $ 0.21 $ 0.81 $ (0.06)
======== ======== ======== ========
Extraordinary items $ -- $ -- $ -- $ (0.13)
======== ======== ======== ========
Net income (loss) applicable to common shareholders:
Basic $ 0.46 $ 0.21 $ 0.85 $ (0.19)
======== ======== ======== ========
Diluted $ 0.45 $ 0.21 $ 0.81 $ (0.19)
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
Page 4
<PAGE> 5
MCI WORLDCOM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited. In Millions)
<TABLE>
<CAPTION>
For the Six Months
Ended June 30,
--------------------
1999 1998
------- -------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 1,604 $ (182)
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Minority interests (20) --
Extraordinary items -- 129
In-process research and development and other charges -- 498
Depreciation and amortization 2,143 631
Provision for losses on accounts receivable 447 53
Provision for deferred income taxes 953 270
Change in assets and liabilities, net of effect of
business combinations:
Accounts receivable (1,219) (676)
Other current assets (207) (109)
Accrued line costs 238 114
Accounts payable and other current liabilities 444 (57)
Other 123 (52)
------- -------
Net cash provided by operating activities 4,506 619
------- -------
Cash flows from investing activities:
Capital expenditures (3,674) (1,931)
Sale of short-term investments, net -- 53
Acquisitions and related costs (450) (195)
Increase in intangible assets (297) (87)
Proceeds from sale of SHL 1,390 --
Proceeds from disposition of long-term assets 93 105
Increase in other assets (1,345) (158)
Decrease in other liabilities (118) (12)
------- -------
Net cash used in investing activities (4,401) (2,225)
------- -------
Cash flows from financing activities:
Net borrowings -- 1,354
Principal payments on debt (1,692) --
Common stock issuance 722 194
Distributions on subsidiary trust and other mandatorily
redeemable preferred securities (32) --
Dividends paid on preferred stock -- (13)
------- -------
Net cash provided by (used in) financing activities (1,002) 1,535
Effect of exchange rate changes on cash (214) --
------- -------
Net decrease in cash and cash equivalents (1,111) (71)
Cash and cash equivalents at beginning of period 1,710 155
------- -------
Cash and cash equivalents at end of period $ 599 $ 84
======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
Page 5
<PAGE> 6
MCI WORLDCOM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(A) GENERAL
References herein to the "Company" or "MCI WorldCom" refer to MCI WORLDCOM,
Inc., a Georgia corporation, and its subsidiaries, which prior to September 15,
1998, was named WorldCom, Inc. ("WorldCom").
The financial statements included herein, are unaudited and have been prepared
in accordance with generally accepted accounting principles for interim
financial reporting and Securities and Exchange Commission ("SEC") regulations.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. In the
opinion of management, the financial statements reflect all adjustments (of a
normal and recurring nature) which are necessary to present fairly the financial
position, results of operations and cash flows for the interim periods. These
financial statements should be read in conjunction with the Annual Report of the
Company on Form 10-K for the year ended December 31, 1998 (the "Form 10-K"). The
results for the three and six month periods ended June 30, 1999 are not
necessarily indicative of the results that may be expected for the year ending
December 31, 1999.
(B) BUSINESS COMBINATIONS
On September 14, 1998, the Company acquired MCI Communications Corporation
("MCI") for approximately $40 billion, pursuant to the merger (the "MCI Merger")
of MCI with and into a wholly owned subsidiary of the Company. Through the MCI
Merger, the Company acquired one of the world's largest and most advanced
digital networks, connecting local markets in the United States to more than 280
countries and locations worldwide.
As a result of the MCI Merger, each outstanding share of MCI common stock was
converted into the right to receive 1.2439 shares of MCI WorldCom common stock,
par value $.01 per share (the "MCI WorldCom Common Stock"), or approximately 755
million MCI WorldCom common shares in the aggregate, and each share of MCI Class
A common stock outstanding (all of which were held by British Telecommunications
plc ("BT")) was converted into the right to receive $51.00 in cash or
approximately $7 billion in the aggregate. The funds paid to BT were obtained by
the Company from (i) available cash as a result of the Company's $6.1 billion
public debt offering in August 1998; (ii) the sale of MCI's Internet backbone
facilities and wholesale and retail Internet business (the "iMCI Business") to
Cable and Wireless plc ("Cable & Wireless") for $1.75 billion in cash on
September 14, 1998; (iii) the sale of MCI's 24.9% equity stake in Concert
Communications Services ("Concert") to BT for $1 billion in cash on September
14, 1998; and (iv) availability under the Company's commercial paper program and
credit facilities.
Upon effectiveness of the MCI Merger, the then outstanding and unexercised
options exercisable for shares of MCI common stock were converted into options
exercisable for an aggregate of approximately 83 million shares of MCI WorldCom
Common Stock having the same terms and conditions as the MCI options, except
that the exercise price and the number of shares issuable upon exercise were
divided and multiplied, respectively, by 1.2439. The MCI Merger was accounted
for as a purchase; accordingly, operating results for MCI have been included
from the date of acquisition.
The purchase price in the MCI Merger was allocated based on estimated fair
values at the date of acquisition. This resulted in an excess of purchase price
over net assets acquired of which $3.1 billion was allocated to in-process
research and development ("IPR&D") and $1.7 billion to developed technology,
which is being depreciated over 10 years on a straight-line basis. The remaining
excess has been allocated to goodwill and tradename, which are being amortized
over 40 years on a straight-line basis.
Page 6
<PAGE> 7
On August 4, 1998, MCI acquired a 51.79% voting interest and a 19.26% economic
interest in Embratel Participacoes S.A. ("Embratel"), Brazil's only
facilities-based national communications provider, for approximately R$2.65
billion (US$2.3 billion). The purchase price will be paid in local currency
installments, of which R$1.06 billion (US$916 million) was paid on August 4,
1998, R$795 million (US$442 million) was paid on August 4, 1999 and the
remaining R$795 million (US$443 million at June 30, 1999) will be paid August 4,
2000. Embratel provides interstate long distance and international
telecommunications services in Brazil, as well as over 40 other communications
services, including leased high-speed data, satellite, Internet, frame relay and
packet-switched services. Operating results for Embratel are consolidated in the
accompanying consolidated financial statements and are included from the date of
the MCI Merger.
On January 31, 1998, MCI WorldCom acquired CompuServe Corporation
("CompuServe"), for approximately $1.3 billion, pursuant to the merger (the
"CompuServe Merger") of a wholly owned subsidiary of the Company with and into
CompuServe. Upon consummation of the CompuServe Merger, CompuServe became a
wholly owned subsidiary of MCI WorldCom.
As a result of the CompuServe Merger, each share of CompuServe common stock was
converted into the right to receive 0.40625 shares of MCI WorldCom Common Stock,
or approximately 37.6 million MCI 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 was accounted for as a
purchase; accordingly, operating results for CompuServe have been included from
the date of acquisition.
On January 31, 1998, the Company also acquired ANS Communications, Inc. ("ANS"),
from America Online, Inc. ("AOL"), for approximately $500 million, and has
entered into five year contracts with AOL under which MCI WorldCom and its
subsidiaries 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 MCI
WorldCom. MCI 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. The AOL Transaction was accounted
for as a purchase; accordingly, operating results for ANS have been included
from the date of acquisition.
The purchase price in the CompuServe Merger and AOL Transaction was allocated
based on estimated fair values at the date of acquisition. This resulted in an
excess of purchase price over net assets acquired of which $429 million was
allocated to IPR&D. The remaining excess has been recorded as goodwill, which is
being amortized over 10 years on a straight-line basis.
On January 29, 1998, MCI WorldCom acquired Brooks Fiber Properties, Inc.
("BFP"), pursuant to the merger (the "BFP Merger") of a wholly owned subsidiary
of MCI WorldCom, with and into BFP. Upon consummation of the BFP Merger, BFP
became a wholly owned subsidiary of MCI 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 its own state-of-the-art
fiber optic networks and facilities and leases network capacity from others to
provide long distance carriers ("IXCs"), Internet service providers ("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.
Page 7
<PAGE> 8
As a result of the BFP Merger, each share of BFP common stock was converted into
the right to receive 1.85 shares of MCI WorldCom Common Stock or approximately
72.6 million MCI WorldCom common shares in the aggregate. The BFP Merger was
accounted for as a pooling-of-interests; and accordingly, the Company's
financial statements for periods prior to the BFP Merger have been restated to
include the results of BFP for all periods presented.
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 MCI 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.
The following unaudited pro forma combined results of operations for the Company
for the six months ended June 30, 1998 assumes that the MCI Merger was completed
on January 1, 1998 (in millions, except per share data):
<TABLE>
<S> <C>
Revenues $ 14,650
Loss before extraordinary items (3,228)
Net loss (3,357)
Loss per common share:
Loss before extraordinary items $ (1.84)
Net loss $ (1.91)
</TABLE>
These pro forma amounts represent the historical operating results of MCI
combined with those of the Company with appropriate preliminary adjustments
which give effect to an IPR&D charge of $3.1 billion in 1998, depreciation,
amortization, interest and the common shares issued. These pro forma amounts do
not include amounts with respect to Embratel because it is not material to MCI
WorldCom. These pro forma amounts are not necessarily indicative of operating
results which would have occurred if MCI had been operated by current management
during the periods presented because these amounts do not reflect cost savings
related to full network optimization and the redundant effect on operating,
selling, general and administrative expenses.
(C) EARNINGS PER SHARE
The following is a reconciliation of the numerators and the denominators of the
basic and diluted per share computations for the three and six months ended June
30, 1999 and 1998 (in millions, except per share data):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
---------------------- ---------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Basic
Income (loss) before extraordinary items $ 879 $ 227 $ 1,604 $ (53)
Distributions on subsidiary trust and other mandatorily
redeemable preferred securities 16 -- 32 --
Preferred stock dividends -- 6 -- 13
-------- -------- -------- --------
Net income (loss) applicable to common shareholders
before extraordinary items $ 863 $ 221 $ 1,572 $ (66)
======== ======== ======== ========
Weighted average shares outstanding 1,862 1,045 1,855 1,028
===== ===== ===== =====
Basic earnings (loss) per share before extraordinary items $ 0.46 $ 0.21 $ .85 $ (0.06)
======== ======== ======== ========
</TABLE>
Page 8
<PAGE> 9
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
---------------------- ---------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Diluted
Net income (loss) applicable to common shareholders
before extraordinary items $ 863 $ 221 $ 1,572 $ (66)
Add back:
Preferred stock dividends -- 6 -- --
--------- --------- --------- ---------
Net income (loss) applicable to common shareholders
before extraordinary items $ 863 $ 227 $ 1,572 $ (66)
========= ========= ========= =========
Weighted average shares outstanding 1,862 1,045 1,855 1,028
Common stock equivalents 75 34 74 --
Common stock issuable upon conversion of
preferred stock 1 22 1 --
--------- --------- --------- ---------
Diluted shares outstanding 1,938 1,101 1,930 1,028
========= ========= ========= =========
Diluted earnings (loss) per share before
extraordinary items $ 0.45 $ 0.21 $ 0.81 $ (0.06)
========= ========= ========= =========
</TABLE>
(D) SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Interest paid by the Company during the six months ended June 30, 1999 and 1998
amounted to $554 million and $316 million, respectively. Income taxes paid
during the six months ended June 30, 1999 and 1998 were $51 million and $7
million, respectively. In conjunction with business combinations during the six
months ended June 30, 1999 and 1998, assumed assets and liabilities were as
follows (in millions):
<TABLE>
<CAPTION>
1999 1998
------- -------
<S> <C> <C>
Fair value of assets acquired $ 64 $ 335
Excess of cost over net tangible assets acquired 912 1,542
Liabilities assumed (298) (384)
Common stock issued (228) (1,298)
------- -------
Net cash paid $ 450 $ 195
======= =======
</TABLE>
Acquisition and related costs for the six months ended June 30, 1999 reflect
additional costs related to the acquisitions that occurred in 1998 and smaller
acquisitions completed during 1999.
(E) COMPREHENSIVE INCOME
The following table reflects the calculation of comprehensive income (loss) for
MCI WorldCom for the three and six months ended June 30, 1999 and 1998 (in
millions):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------- --------------------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Net income (loss) applicable to common shareholders $ 863 $ 221 $ 1,572 $ (195)
------- ------- ------- -------
Other comprehensive income (loss):
Foreign currency translation losses (23) (1) (305) (9)
Unrealized holding gains (losses):
</TABLE>
Page 9
<PAGE> 10
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------- --------------------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Unrealized holding gains (losses) during the period 291 (44) 536 (18)
Reclassification adjustment for gains included in
net income (15) (13) (15) (13)
------- ------- ------- -------
Other comprehensive income (loss) before tax 253 (58) 216 (40)
Income tax expense (104) 21 (196) 11
------- ------- ------- -------
Other comprehensive income (loss) 149 (37) 20 (29)
------- ------- ------- -------
Comprehensive income (loss) applicable to
common shareholders $ 1,012 $ 184 $ 1,592 $ (224)
======= ======= ======= =======
</TABLE>
(F) SEGMENT INFORMATION
Based on its organizational structure, the Company operates in five reportable
segments: MCI WorldCom Communications, MCI WorldCom International Operations,
Embratel, Operations and technology and Other. The Company's reportable segments
represent business units that primarily offer similar products and services;
however, the business units are managed separately due to the geographic
dispersion of their operations. MCI WorldCom Communications provides voice, data
and other types of domestic communications services including Internet services.
MCI WorldCom International Operations provides voice, data, Internet and other
similar types of communications services to customers primarily in Europe.
Embratel provides communications services in Brazil. Operations and technology
includes network operations, information services, engineering and technology,
and customer service. Other includes primarily the operations of MCI Systemhouse
Corp. and SHL Systemhouse Co., wholly owned subsidiaries of the Company
(collectively, "SHL"), and other non-communications services. In April 1999, the
Company completed the previously announced sale of SHL to Electronic Data
Systems Corporation ("EDS").
The Company's chief operating decision maker utilizes revenue information in
assessing performance and making overall operating decisions and resource
allocations. Communications services are generally provided utilizing the
Company's fiber optic networks, which do not make a distinction between the
types of services. As a result, the Company does not allocate line costs or
assets by segment. Profit and loss information is reported only on a
consolidated basis to the chief operating decision maker and the Company's board
of directors.
Information about the Company's segments for the three and six months ended June
30, 1999 and 1998 is as follows (in millions):
<TABLE>
<CAPTION>
REVENUES FROM EXTERNAL CUSTOMERS
-------------------------------------------------------
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
------------------------- -------------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
MCI WorldCom Communications $ 7,717 $ 2,269 $ 15,272 $ 4,319
MCI WorldCom International Operations 420 270 777 500
Operations and technology -- -- -- --
Other 120 42 523 82
Corporate -- -- -- --
---------- ---------- ---------- ----------
Total before Embratel 8,257 2,581 16,572 4,901
</TABLE>
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<PAGE> 11
<TABLE>
<CAPTION>
REVENUES FROM EXTERNAL CUSTOMERS
----------------------------------------------------
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
---------------------- ----------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Embratel 716 -- 1,402 --
Elimination of intersegment revenues (29) -- (29) --
-------- -------- -------- --------
Total $ 8,944 $ 2,581 $ 17,945 $ 4,901
======== ======== ======== ========
</TABLE>
The following is a reconciliation of the segment information to income before
income taxes, minority interests and extraordinary items for the three and six
months ended June 30, 1999 and 1998 (in millions):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------- --------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues $ 8,944 $ 2,581 $ 17,945 $ 4,901
Operating expenses 7,180 2,086 14,686 4,478
-------- -------- -------- --------
Operating income 1,764 495 3,259 423
Other income (expense):
Interest expense (236) (108) (496) (210)
Miscellaneous 48 10 16 22
-------- -------- -------- --------
Income before income taxes, minority interests
and extraordinary items $ 1,576 $ 397 $ 2,779 $ 235
======== ======== ======== ========
</TABLE>
(G) CONTINGENCIES
The Company is involved in legal and regulatory proceedings generally incidental
to its business and has included loss contingencies in other current liabilities
and other liabilities for certain of these matters. In some instances, rulings
by federal and some state regulatory authorities may result in increased
operating costs to the Company. Except as described herein, and while the
results of these various legal and regulatory matters contain an element of
uncertainty, MCI WorldCom 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.
GENERAL. MCI WorldCom is subject to varying degrees of federal, state, local and
international regulation. In the United States, the Company's subsidiaries are
most heavily regulated by the states, especially for the provision of local
exchange services. The Company must be certified separately in each state to
offer local exchange and intrastate long distance services. No state, however,
subjects MCI WorldCom to price cap or rate of return regulation, nor is the
Company currently required to obtain Federal Communications Commission ("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 that utilize radio frequency spectrum. FCC
approval is required, however, for the installation and operation of its
international facilities and services. MCI 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 MCI WorldCom.
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In implementing the Telecommunications Act of 1996 (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
ILECs' retail services and use of individual and combinations of unbundled
network elements. Appeals of the FCC order adopting those rules were
consolidated before the United States Court of Appeals for the Eighth Circuit
(the "Eighth Circuit"). Thereafter, the Eighth Circuit held that constitutional
challenges to various practices implementing cost provisions of the Telecom Act
that were ordered by certain Public Utility Commissions ("PUCs") were premature;
it vacated, however, significant portions of the FCC's nationwide pricing rules
and an FCC rule requiring that unbundled network elements be provided on a
combined basis. The United States Supreme Court (the "Supreme Court") reviewed
the decision of the Eighth Circuit and on January 25, 1999, reversed the Eighth
Circuit in part and reinstated, with one exception, all of the FCC local
competition rules. The Court vacated and remanded to the FCC for reconsideration
the rule determining which unbundled network elements must be provided by ILECs
to new entrants. The Eighth Circuit is now considering the ILECs' challenges to
the substance of pricing rules which it previously had found to be premature.
Access charges, both interstate and intrastate, are a principal component of MCI
WorldCom's telecommunications expense. Regulators have historically permitted
access charges to be set at levels that are well above ILECs' costs. As a
result, access charges have been a source of universal service subsidies that
enable local exchange rates to be set at levels that are affordable. MCI
WorldCom has actively participated in a variety of state and federal regulatory
proceedings with the goal of bringing access charges to cost-based levels and to
fund universal service using explicit subsidies funded in a competitively-
neutral manner.
On May 21, 1999, the United States Court of Appeals for the District of Columbia
Circuit remanded to the FCC its recent decision to adjust its price cap
regulation of ILECs to require access charges to fall 6.5% per year adjusted for
inflation. On June 22, 1999, that Court stayed the effect of its decision
pending a further order by the FCC justifying or modifying its decision in
response to the Court's opinion. On August 5, 1999, the FCC adopted a decision
that will give price cap regulated ILECs the ability to request permission to
offer customer-specific pricing in the form of contract tariffs. Once
implemented, this decision will allow price cap ILECs to compete against long
distance carriers who have previously been able to offer contract type pricing
for access arrangements. FCC officials stated that they expect price cap ILECs
to be able to obtain pricing flexibility quickly for most of their dedicated
transport and special access services. Some price cap ILECs serving the nation's
largest cities are expected to qualify for additional pricing flexibility for
all dedicated transport and special access services. The FCC has also opened a
proceeding to consider additional pricing flexibility for all switched access
services.
On May 27, 1999, the FCC amended its prior universal service decisions in two
significant respects. First, the FCC raised the funding level for universal
service support to schools and libraries to $2.25 billion per year, the current
maximum that FCC rules allow. This brings the total amount of federal universal
service funds collected from telecommunications carriers to $4.2 billion in the
current year. Second, the FCC modified its approach to subsidizing non-rural
high cost areas by rejecting its prior approach of sizing the subsidy based on
forward-looking cost models, and instead adopted a more complex approach that
the FCC said it hoped would produce a small high cost fund. A final decision
regarding the amount to be collected to support non-rural high cost areas is
expected later this year. On July 30, 1999, the United States Court of Appeals
for the Fifth Circuit issued a decision reversing and vacating in part portions
of a June 1997 FCC universal service decision. Among other things, the Court
held that the FCC may collect universal service subsidies from interstate
carriers based only on interstate revenues, and that the FCC could not force the
ILECs to recover their universal service contributions through interstate access
charges. While access charges are likely to decrease as a result of this
decision, direct assessments on interstate carriers such as MCI WorldCom are
likely to increase.
In August 1998, in response to petitions filed by several ILECs under the guise
of Section 706 of the Telecom Act, the FCC issued its Advanced Services Order.
This order clarifies that the interconnection, unbundling, and resale
requirements of Section 251(c) of the Telecom Act, and the interLATA
restrictions of Section 271 of this Act, apply fully to so-called "advanced
telecommunications services," such as Digital Subscriber Line ("DSL"). An appeal
of this
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order by US WEST Communications Group is currently pending before the U.S. Court
of Appeals for the District of Columbia Circuit. The FCC has asked the court to
remand the case for further proceedings. In a companion notice, the FCC sought
comment on how to implement Section 706 of the Telecom Act, which directs the
FCC to (1) encourage the deployment of advanced telecommunications capability to
Americans on a reasonable and timely basis, and (2) complete an inquiry
concerning the availability of such services no later than February 8, 1999. The
Commission's rulemaking notice included a proposal that, if adopted, would allow
the ILECs the option of providing advanced services via a separate subsidiary
free from the unbundling and resale obligations of Section 251(c), as well as
other dominant carrier regulatory requirements.
In early February 1999, the FCC issued its report to Congress, concluding that
the deployment of advanced services is proceeding at a reasonable and timely
pace. The FCC has not yet issued its Section 706 rulemaking order.
On February 26, 1999, the FCC issued a Declaratory Ruling and Notice of Proposed
Rulemaking regarding the regulatory treatment of calls to ISPs. Prior to the
FCC's order, approximately thirty PUCs issued orders unanimously finding that
carriers, including MCI WorldCom, are entitled to collect reciprocal
compensation for completing calls to ISPs under the terms of their
interconnection agreements with ILECs. Many of these PUC decisions have been
appealed by the ILECs and, since the FCC's order, many have filed new cases at
the PUCs or in court. Moreover, MCI WorldCom has appealed the FCC's order to the
Court of Appeals for the District of Columbia Circuit. MCI WorldCom cannot
predict either the outcome of these appeals and the FCC's rulemaking proceeding
or whether or not the result(s) will have a material adverse impact upon its
consolidated financial position or results of operations.
On July 22, 1999, the Senate amended the Commerce, Justice, State and the
Judiciary Fiscal Year 2000 appropriations bill to include language that
prohibits the FCC from requiring entities it regulates to use any form or method
of accounting that does not conform to Generally Accepted Accounting Principles
established by the Financial Accounting Standards Board. On August 5, 1999, the
House of Representatives adopted a similar amendment on its version of the
Commerce, Justice, State, and the Judiciary appropriations bill. If agreed to in
conference and enacted into law, such a provision may make it more difficult for
the FCC and state regulatory commissions to detect and prevent inappropriate
accounting practices by ILECs and thereby permit ILECs to engage in
anti-competitive practices.
Several bills have been introduced during the 106th Congress that would exclude
the transmission of data services or high-speed Internet access from the Telecom
Act's bar on the transmission of in-region interLATA services by the Bell
Operating Companies. These bills also would make it more difficult for
competitors to resell the high-speed Internet access services of the ILECs or to
lease some of the network components used for the provision of such services.
In 1996 and in 1997, the FCC issued decisions that would require nondominant
telecommunications carriers to eliminate interstate service tariffs, except in
limited circumstances. MCI WorldCom has challenged this decision in the U.S.
Court of Appeals for the District of Columbia Circuit, and has successfully
obtained a stay of the FCC's decision. MCI WorldCom's appeal has been held in
abeyance pending FCC action with respect to petitions for reconsideration. The
FCC recently issued an order addressing those petitions for reconsideration, and
the U.S. Court of Appeals for the District of Columbia Circuit has approved a
briefing schedule. No argument date has been set. MCI WorldCom cannot predict
the ultimate outcome of its appeal. Should the FCC prevail, MCI WorldCom could
no longer rely on its federal tariff to limit liability or to establish its
interstate rates for customers. Per the FCC's decision, MCI WorldCom would need
to develop a means to contract individually with its millions of customers in
order to establish lawfully enforceable rates.
In 1997 and 1998, the FCC rejected five applications filed by Bell Operating
Companies ("BOCs") to provide in-region long distance service in competition
with long distance carriers. Pursuant to the Telecom Act, BOCs must file, in
each state in their service area, an application conforming to the requirements
of section 271 of the Telecom Act if they wish to offer in-region long distance
service. Among other things, the applications must demonstrate that the BOC has
met a 14-point competitive checklist to open its local network to competition
and demonstrate that the application is in the public interest. As of August
1999, no applications were on file with the FCC. However, BOCs in two states -
Bell Atlantic Corporation in New York and SBC Corporation in Texas - have
announced their intent to file applications
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during 1999 after concluding extensive state regulatory proceedings to assess
their compliance with checklist requirements. If filed, these would be the first
applications to have been subjected to rigorous operational testing of readiness
to meet the section 271 requirements. It is not known if the BOCs will meet
their publicly-stated filing goals. The FCC must reach its decision on
applications within 90 days from the date they are filed.
INTERNATIONAL. In February 1997, the United States entered into a World Trade
Organization Agreement (the "WTO Agreement") that is designed to 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 light of the
United States commitments to the WTO Agreement, the FCC implemented new rules in
February 1998 that liberalize existing policies regarding (1) 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 (2) the provision of
alternative traffic routing. 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 at or below 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. These rules allow 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. On January 12, 1999, the FCC's
benchmark rules were upheld in their entirety by the U.S. Court of Appeals for
the District of Columbia Circuit. On March 11, 1999 the D. C. Circuit denied
petitions for rehearing of the case.
In April 1999, the FCC modified its rules to permit United States international
carriers to exchange international public switched voice traffic on many routes
to and from the United States outside of the traditional settlement rate and
proportionate return regimes.
Although the FCC's new policies and implementation of the WTO Agreement may
result in lower settlement payments by MCI WorldCom to terminate international
traffic, there is a risk that the payments that MCI 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 MCI WorldCom. The Company
meanwhile, 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.
EMBRATEL. The 1996 General Telecommunications Law (the "General Law") provides a
framework for telecommunications regulation for Embratel. Article 8 of the
General Law created Agencia Nacional de Telecomunicacoes ("Anatel") to implement
the General Law through development of regulations and to enforce such
regulations. According to the General Law, companies wishing to offer
telecommunications services to consumers are required to apply to Anatel for a
concession or an authorization. Concessions are granted for the provision of
services under the public regime (the "Public Regime") and authorizations are
granted for the provision of services under the private regime (the "Private
Regime"). The Public Regime is differentiated from the Private Regime primarily
by the obligations imposed on the companies rather than the type of services
offered by those companies. Service providers subject to the Public Regime
(concessionaires) are subject to obligations concerning network expansion and
continuity of service provision and are subject to rate regulation. These
obligations and the tariff conditions are provided in the General Law and in
each company's concession contract. The network expansion obligations (called
universal service obligations) are also provided in the Plano Geral de
Universalizacao ("General Plan on Universal Service").
The only services provided under the Public Regime are the switched fixed
telephone services (local and national and international long distance) provided
by Embratel and the three regional holding companies ("Teles"). All other
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telecommunications companies, including other companies providing switched fixed
telephone services ("SFTS"), operate in the Private Regime and, although they
are not subject to the Public Regime, individual authorizations may contain
certain specific expansion and continuity obligations.
Therefore, when providing SFTS, Embratel and the Teles are subject to the Public
Regime obligations provided in the General Law, in their concession contracts
and in the General Plan on Universal Service, among other regulations.
The main restriction imposed on these companies by the General Plan on Universal
Service, is that, until December 31, 2003, the three Teles are prohibited from
offering inter-regional and international long distance service, while Embratel
is prohibited from offering local services. These companies can start providing
the mentioned services two years sooner if they meet their network expansion
obligations by December 31, 2001.
Embratel and the three Teles were granted their concessions at no fee, until
2005. After 2005, the concessions may be renewed for a period of 20 years, upon
the payment, every two years, of a fee equal to 2% of annual net revenues
calculated based on the provision of SFTS in the prior year, excluding taxes and
social contributions.
Embratel also offers a number of ancillary telecommunications services pursuant
to authorizations granted in the Private Regime. Such services include the
provision of dedicated analog and digital lines, packet switched network
services, circuit switched network services, mobile marine telecommunications,
telex and telegraph, radio signal satellite retransmission and television signal
satellite retransmission. Some of these services are subject to specific
continuity obligations and rate conditions.
All providers of telecommunications services are subject to quality and
modernization obligations provided in the Plano Geral de Qualidade ("General
Plan on Quality").
LITIGATION. On November 4, 1996, and thereafter, and on August 25, 1997, and
thereafter, MCI and all of its directors were named as defendants in a total of
15 complaints filed in the Court of Chancery in the State of Delaware. BT was
named as a defendant in 13 of the complaints. The complaints were brought by
alleged stockholders of MCI, individually and purportedly as class actions on
behalf of all other stockholders of MCI. In general, the complaints allege that
MCI's directors breached their fiduciary duty in connection with the MCI BT
Merger Agreement, dated November 3, 1996 (the "MCI BT Merger Agreement"), that
BT aided and abetted those breaches of duty, that BT owes fiduciary duties to
the other stockholders of MCI and that BT breached those duties in connection
with the MCI BT Merger Agreement. The complaints seek damages and injunctive and
other relief.
One of the purported stockholder class actions pending in Delaware Chancery
Court has been amended, one of the purported class actions has been dismissed
with prejudice, and plaintiffs in four of the other purported stockholder class
actions have moved to amend their complaints to name MCI WorldCom and TC
Investments Corp., a wholly owned subsidiary of the Company, as additional
defendants. These plaintiffs generally allege that the defendants breached their
fiduciary duties to stockholders in connection with the MCI Merger and the
agreement to pay a termination fee to WorldCom. They further allege
discrimination in favor of BT in connection with the MCI Merger. The plaintiffs
seek, inter alia, damages and injunctive relief prohibiting the consummation of
the MCI Merger and the payment of the inducement fee to BT.
Three complaints were filed in the U.S. District Court for the District of
Columbia, as class actions on behalf of purchasers of MCI shares. The three
cases were consolidated on April 1, 1998. On or about May 8, 1998, the
plaintiffs in all three cases filed a consolidated amended complaint alleging,
on behalf of purchasers of MCI's shares between July 11, 1997 and August 21,
1997, inclusive, that MCI and certain of its officers and directors failed to
disclose material information about MCI, including that MCI was renegotiating
the terms of the MCI BT Merger Agreement. The consolidated amended complaint
seeks damages and other relief. The Company and the other defendants have moved
to dismiss the consolidated amended complaint.
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At least nine class action complaints have been filed that arise out of the
FCC's decision in Halprin, Temple, Goodman and Sugrue v. MCI Telecommunications
Corp., and allege that MCI WorldCom has improperly charged "Pre-Subscribed"
customers "Non-Subscriber" or so-called "casual" rates for certain direct-dialed
calls. Plaintiffs assert that this conduct violates the Communications Act and
various state laws; they seek rebates to all affected customers and punitive
damages. In response to a motion filed by MCI WorldCom, the Judicial Panel on
Multi-District Litigation has consolidated these matters in the U.S. District
Court for the Southern District of Illinois. The Company has moved to dismiss
the state law claims and for an order staying the Communications Act claims
pending the FCC's resolution of MCI WorldCom's outstanding motion for
reconsideration and any subsequent appeal of the FCC decision.
On September 3, 1998, WorldCom and MCI entered into a Stock Purchase Agreement
("SPA") with Cable & Wireless plc and Cable & Wireless Internet Holdings, Inc.
(collectively, "C&W"), pursuant to which MCI sold the iMCI business to C&W. That
transaction closed on September 14, 1998, simultaneously with the closing of the
MCI Merger.
On February 18, 1999, pursuant to the indemnity provisions of the SPA, C&W
notified MCI WorldCom that it was claiming that MCI WorldCom had breached
representations and warranties in, and had failed to comply with other
provisions of, the SPA. C&W alleged that it had suffered damages of
approximately $1.16 billion. As MCI WorldCom advised C&W on March 19, 1999, the
Company denies these allegations.
On March 31, 1999, C&W filed a complaint against MCI WorldCom in the United
States District Court for the District of Delaware, alleging that MCI WorldCom
had breached the SPA. In the lawsuit, C&W seeks unspecified damages and specific
performance. On May 11, 1999, MCI WorldCom filed a motion to stay the litigation
and to compel compliance with the dispute resolution/arbitration provisions in
the SPA and affiliated agreements. On July 12, 1999, the district court entered
an order compelling C&W to comply with the dispute resolution/arbitration
provisions of the SPA and affiliated agreements with respect to five of the 11
claims in its complaint and denying a stay of the action. On July 29, the
district court set a trial date of September 12, 2000.
The Company believes that all of the complaints are without merit, and based on
information currently available, MCI WorldCom presently does not expect that the
above actions will have a material adverse effect on the Company's consolidated
results of operations or financial position.
Item 2. 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,
estimated costs to complete or possible future revenues from IPR&D programs, the
likelihood of successful completion of such programs, and the outcome of year
2000 or Euro conversion efforts, as well as any statements preceded by, followed
by, or that include the words "intends," "estimates," "believes," "expects,"
"anticipates," "should," "could," or similar expressions; and other statements
contained herein regarding matters that are not historical facts.
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: (1) uncertainties associated with the success of
acquisitions and the integration thereof; (2) risks of international business;
(3) the impact of technological change on the Company's business and dependence
on availability of transmission facilities; (4) regulation risks including the
impact of the Telecom Act; (5) contingent liabilities; (6) the impact of
competitive services and pricing; (7) risks associated with year 2000
uncertainties and Euro conversion efforts; (8) risks associated with debt
service requirements and interest rate fluctuations; (9) the Company's degree of
financial leverage; and (10) other risks referenced from time to time in the
Company's filings with the SEC, including the Form 10-K. All subsequent written
and oral forward-looking statements attributable to the Company or persons
acting on its behalf are
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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 and six month periods ended
June 30, 1999 and 1998, after giving effect to the BFP Merger, which was
accounted for as a pooling-of-interests. The information should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and consolidated financial statements and notes
thereto contained herein and in the Form 10-K.
Unless otherwise defined, capitalized terms used herein have the meanings
assigned to them in the Notes to Consolidated Financial Statements contained
herein.
GENERAL
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's operations have grown significantly in each year
of its operations as a result of internal growth, the selective acquisition of
other telecommunications companies and international expansion.
On September 14, 1998, the Company, through a wholly owned subsidiary, merged
with MCI. Through the MCI Merger, the Company acquired one of the world's
largest and most advanced digital networks, connecting local markets in the
United States to more than 280 countries and locations worldwide.
As a result of the MCI Merger, each share of MCI common stock was converted into
the right to receive 1.2439 shares of MCI WorldCom Common Stock or approximately
755 million MCI WorldCom common shares in the aggregate, and each share of MCI
Class A common stock outstanding (all of which were held by BT) was converted
into the right to receive $51.00 in cash or approximately $7 billion in the
aggregate. The funds paid to BT were obtained by the Company from (i) available
cash as a result of the Company's $6.1 billion public debt offering in August
1998; (ii) the sale of MCI's iMCI Business to Cable & Wireless for $1.75 billion
in cash on September 14, 1998; (iii) the sale of MCI's 24.9% equity stake in
Concert to BT for $1 billion in cash on September 14, 1998; and (iv)
availability under the Company's credit facilities and commercial paper program.
The MCI Merger was accounted for as a purchase; accordingly, operating results
for MCI have been included from the date of acquisition.
On August 4, 1998, MCI acquired a 51.79% voting interest and a 19.26% economic
interest in Embratel, Brazil's only facilities-based national communications
provider, for approximately R$2.65 billion (US$2.3 billion). The purchase price
will be paid in local currency installments of which R$1.06 billion (US$916
million) was paid on August 4, 1998, R$795 million (US$442 million) was paid
August 4, 1999 and the remaining R$795 million (US$443 million at June 30, 1999)
will be paid August 4, 2000. Embratel provides interstate long distance and
international telecommunications services, as well as over 40 other
communications services, including leased high-speed data, satellite, Internet,
frame relay and packet-switched services. Operating results for Embratel are
included from the date of the MCI Merger.
On January 31, 1998, MCI WorldCom, through a wholly owned subsidiary, merged
with CompuServe. As a result of the CompuServe Merger, each share of CompuServe
common stock was converted into the right to receive 0.40625 shares of MCI
WorldCom Common Stock, or approximately 37.6 million MCI 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 services to business. The CompuServe Merger was
accounted for as a purchase; accordingly, operating results for CompuServe have
been included from the date of acquisition.
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On January 31, 1998, MCI WorldCom also acquired ANS from AOL, and has entered
into five year contracts with AOL under which MCI WorldCom and its subsidiaries
will provide network services to AOL. As part of the AOL Transaction, AOL
acquired CompuServe's Interactive Services Division and received a $175 million
cash payment from MCI WorldCom. MCI 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. The AOL
Transaction was accounted for as a purchase, accordingly, operating results for
ANS have been included from the date of acquisition.
In connection with the above business combinations, the Company made allocations
of the purchase price to acquired IPR&D totaling $429 million in the first
quarter of 1998 related to the CompuServe Merger and AOL Transaction and $3.1
billion in the third quarter of 1998 related to the MCI Merger.
Management expects to continue supporting these research and development ("R&D")
efforts and believes the Company has a reasonable chance of successfully
completing the R&D programs. However, there is risk associated with the
completion of the R&D projects and the Company cannot give any assurance that
any will meet with either technological or commercial success.
If none of these R&D projects are successfully developed, the sales and
profitability of the Company may be adversely affected in future periods. The
failure of any particular individual project in-process would not materially
impact the Company's financial condition, results of operations or the
attractiveness of the overall investment in MCI, CompuServe Network Services or
ANS. Operating results are subject to uncertain market events and risks which
are beyond the Company's control, such as trends in technology, government
regulations, market size and growth, and product introduction or other actions
by competitors.
The integration and consolidation of MCI, CompuServe Network Services and ANS
requires substantial management and financial resources. While the Company
believes the early results of these efforts are encouraging, the MCI Merger,
CompuServe Merger and AOL Transaction necessarily involve a number of
significant risks, including potential difficulties in assimilating the
technologies and services of these companies and in achieving the expected
synergies and cost reduction.
On January 29, 1998, MCI WorldCom, through a wholly owned subsidiary, merged
with BFP in a transaction accounted for as a pooling-of-interests. 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 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.
The Company's strategy is to further develop as a fully integrated
telecommunications company positioned to take advantage of growth opportunities
in global telecommunications. Consistent with this strategy, the Company
believes that transactions such as the MCI Merger, the CompuServe Merger and the
AOL Transaction enhance the combined entity's opportunities for future growth,
create a stronger competitor in the changing telecommunications industry and
allow provision of end-to-end bundled service over global networks, which will
provide new or enhanced capabilities for the Company's customers.
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. Regulators have
historically permitted access charges to be set at levels that are well above
ILECs' costs. As a result, access charges have been a source of universal
service subsidies that enable local exchange rates to be set at levels that are
affordable. MCI WorldCom has actively participated in a variety of state and
federal regulatory proceedings with the goal of bringing access charges to
cost-based levels and to fund universal service using explicit subsidies funded
in a competitively-neutral manner.
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On May 21, 1999, the United States Court of Appeals for the District of Columbia
Circuit remanded to the FCC its recent decision to adjust its price cap
regulation of ILECs to require access charges to fall 6.5% per year adjusted for
inflation. On June 22, 1999, that Court stayed the effect of its decision
pending a further order by the FCC justifying or modifying its decision in
response to the Court's opinion. On August 5, 1999, the FCC adopted a decision
that will give price cap regulated ILECs the ability to request permission to
offer customer-specific pricing in the form of contract tariffs. Once
implemented, this decision will allow price cap ILECs to compete against long
distance carriers who have previously been able to offer contract type pricing
for access arrangements. FCC officials stated that they expect price cap ILECs
to be able to obtain pricing flexibility quickly for most of their dedicated
transport and special access services. Some price cap ILECs serving the nation's
largest cities are expected to qualify for additional pricing flexibility for
all dedicated transport and special access services. The FCC has also opened a
proceeding to consider additional pricing flexibility for all switched access
services.
On May 27, 1999, the FCC amended its prior universal service decisions in two
significant respects. First, the FCC raised the funding level for universal
service support to schools and libraries to $2.25 billion per year, the current
maximum that FCC rules allow. This brings the total amount of federal universal
service funds collected from telecommunications carriers to $4.2 billion in the
current year. Second, the FCC modified its approach to subsidizing non-rural
high cost areas by rejecting its prior approach of sizing the subsidy based on
forward-looking cost models, and instead adopted a more complex approach that
the FCC said it hoped would produce a small high cost fund. A final decision
regarding the amount to be collected to support non-rural high cost areas is
expected later this year. On July 30, 1999, the United States Court of Appeals
for the Fifth Circuit issued a decision reversing and vacating in part portions
of a June 1997 FCC universal service decision. Among other things, the Court
held that the FCC may collect universal service subsidies from interstate
carriers based only on interstate revenues, and that the FCC could not force the
ILECs to recover their universal service contributions through interstate access
charges. While access charges are likely to decrease as a result of this
decision, direct assessments on interstate carriers such as MCI WorldCom are
likely to increase. The Company will continue to seek to manage transport costs
through effective utilization of its networks, favorable contracts with carriers
and network efficiencies made possible as a result of expansion of the Company's
customer base through acquisitions and internal growth.
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated the Company's
statements of operations as a percentage of its revenues for the three and six
months ended June 30, 1999 and 1998:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------- --------------------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenues .............................................. 100% 100% 100% 100%
Line costs ............................................ 44.0 47.6 44.9 47.9
Selling, general and administrative ................... 24.4 20.3 25.0 20.4
Depreciation and amortization ......................... 11.9 12.9 11.9 12.9
In-process research and development and other charges . -- -- -- 10.2
------- ------- ------- -------
Operating income ...................................... 19.7 19.2 18.2 8.6
Other income (expense):
Interest expense ................................... (2.6) (4.2) (2.8) (4.3)
Miscellaneous ...................................... 0.5 0.4 0.1 0.5
------- ------- ------- -------
Income before income taxes, minority interests, and
extraordinary items ................................ 17.6 15.4 15.5 4.8
</TABLE>
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<PAGE> 20
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------- ---------------------
1999 1998 1999 1998
------- -------- -------- --------
<S> <C> <C> <C> <C>
Provision for income taxes ................................. 7.3 6.6 6.6 5.9
------- ------- -------- --------
Income (loss) before minority interests and extraordinary
items ................................................... 10.3 8.8 8.9 (1.1)
Minority interests ......................................... (0.5) -- 0.1 --
Extraordinary items ........................................ -- -- -- (2.6)
Distributions on subsidiary trust and other mandatorily
redeemable preferred securities ......................... 0.2 -- 0.2 --
Preferred dividend requirement ............................. -- 0.2 -- 0.3
------- ------- -------- --------
Net income (loss) applicable to common shareholders ........ 9.6% 8.6% 8.8% (4.0)%
======= ======= ======== ========
</TABLE>
THREE AND SIX MONTHS ENDED JUNE 30, 1999 VS.
THREE AND SIX MONTHS ENDED JUNE 30, 1998
Revenues for the three months ended June 30, 1999 increased 247% to $8.9 billion
as compared to $2.6 billion for the three months ended June 30, 1998. For the
six months ended June 30, 1999, revenues increased 266% to $17.9 billion versus
$4.9 billion for the same period in the prior year. The increase in total
revenues is attributable to the MCI Merger and Embratel transaction as well as
internal growth. Results include MCI and Embratel operations from September 14,
1998 and CompuServe Network Services and ANS from February 1, 1998.
Actual reported revenues by category for the three and six months ended June 30,
1999 and 1998 reflect the following changes by category (dollars in millions):
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
----------------------------------- ----------------------------------
ACTUAL ACTUAL PERCENT ACTUAL ACTUAL PERCENT
1999 1998 CHANGE 1999 1998 CHANGE
-------- -------- ------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
REVENUES
Voice $ 5,090 $ 1,208 321 $ 10,185 $ 2,370 330
Data 1,791 536 234 3,493 1,032 238
Internet 836 525 59 1,594 917 74
International 420 270 56 777 500 55
-------- -------- -------- --------
COMMUNICATIONS SERVICES 8,137 2,539 220 16,049 4,819 233
Other 120 42 186 523 82 538
-------- -------- -------- --------
TOTAL REVENUES BEFORE EMBRATEL 8,257 2,581 220 16,572 4,901 238
Embratel 716 -- -- 1,402 -- --
Elimination of intersegment revenues (29) -- -- (29) -- --
-------- -------- -------- --------
TOTAL REPORTED REVENUES $ 8,944 $ 2,581 247 $ 17,945 $ 4,901 266
======== ======== ======== ========
</TABLE>
The following table provides supplemental pro forma detail for MCI WorldCom
revenues. Since actual results for the six months ended June 30, 1998 do not
reflect the operations of MCI and only five months of CompuServe Network
Services and ANS, the pro forma results are more indicative of internal growth
for the combined company. The pro forma revenues, excluding Embratel, for the
three and six months ended June 30, 1999 and 1998 reflect the following changes
by category (dollars in millions):
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<PAGE> 21
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------------------- ---------------------------------------
ACTUAL PRO FORMA PERCENT ACTUAL PRO FORMA PERCENT
1999 1998 CHANGE 1999 1998 CHANGE
--------- --------- ------- --------- --------- -------
<S> <C> <C> <C> <C> <C> <C>
REVENUES
Voice $ 5,090 $ 4,822 6 $ 10,185 $ 9,576 6
Data 1,791 1,387 29 3,493 2,691 30
Internet 836 525 59 1,594 999 60
International 420 270 56 777 500 55
--------- --------- --------- ---------
COMMUNICATIONS SERVICES 8,137 7,004 16 16,049 13,766 17
Other 120 477 (75) 523 967 (46)
--------- --------- --------- ---------
TOTAL REVENUES $ 8,257 $ 7,481 10 $ 16,572 $ 14,733 12
========= ========= ========= =========
</TABLE>
The following discusses the revenue increases for the three and six month
periods ended June 30, 1999 as compared to pro forma results for the comparable
prior year period. The pro forma revenues assume that the MCI Merger, CompuServe
Merger and the AOL Transaction occurred at the beginning of 1998. These pro
forma revenues do not include Embratel or the iMCI Business that was sold.
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 MCI Merger, Embratel transaction and internal growth of the Company.
Voice revenues for the second quarter and the six month period ended June 30,
1999, experienced 6% increases over the prior year pro forma amounts, driven by
a gain of 10% in traffic for both periods, respectively. Voice revenues include
both long distance and local domestic switched revenues. Strong long distance
volume gains in domestic commercial sales channels, combined with an increasing
mix of local services, were the primary contributors to this increase. Local
voice revenues grew approximately 82% in the second quarter of 1999 and
approximately 88% for the six months ended June 30, 1999 versus the same periods
of the prior year. While the Company continued to show significant percentage
gains in switched local, it was still a relatively small component of total
Company revenues.
Data revenues for the three and six month periods ended June 30, 1999 increased
29% and 30%, respectively, over the same pro forma period of the prior year.
Data includes both long distance and local dedicated bandwidth sales. The
revenue growth for data services continued to be driven by significant
commercial end-user demand for high-speed data and by Internet-related growth on
both a local and long-haul basis. This growth was not only being fueled by
connectivity demands, but also by applications that are becoming more strategic,
far reaching and complex; additionally, bandwidth consumption is driving an
acceleration in growth for higher capacity circuits. Rapidly growing demand for
high-speed data access has contributed to a 36% pro forma year over year local
data revenue growth for the second quarter of 1999 and 38% for the six months
ended June 30, 1999. As of June 30, 1999, the Company had approximately 23.6
million domestic local voice grade equivalents and over 36,000 buildings in the
United States connected over its high-capacity circuits. Domestic local route
miles of connected fiber exceed 8,000 and domestic long distance route miles
exceed 47,000.
Internet revenues for the three and six month periods ended June 30, 1999
increased 59% and 60%, respectively, over the prior year pro forma amounts.
Growth was driven by both dial up and dedicated connectivity to the Internet as
more and more business customers migrate their data networks and applications to
Internet-based technologies. The Company has increased the capacity of its
global Internet network to OC-48 in response to the increasing backbone
transport requirements of both its commercial and wholesale accounts. The
Company's dial access network has grown over 70% to 1.2 million modems, compared
with the same period in the prior year. MCI's Internet revenues for 1998 have
been excluded from the above table, due to the divestiture of MCI's Internet
business on September 14, 1998.
International revenues - those revenues originating outside of the United
States, excluding Embratel - for the second quarter of 1999 were $420 million,
an increase of 56% as compared with $270 million for the same pro forma period
of the prior year. For the six month period ended June 30, 1999, international
revenues increased 55% to $777 million
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versus $500 million for the same period of the prior year. In July 1998, the
pan-European network was commissioned for service and, along with the Gemini
undersea cable, now provides MCI WorldCom the capability to connect from
end-to-end over 7,500 buildings in Europe all over its own high-capacity
circuits.
The Pan-European networks and newly constructed national networks in the U.K.,
France, Germany and Belgium drove higher growth of enhanced data sales
internationally. The resulting revenue mix shift is expected to contribute to
improved margins in spite of the competitive pricing environment.
Other revenues, which consist of the operations of SHL, for the second quarter
of 1999 were $120 million, down 75% as compared with the pro forma second
quarter of 1998. For the six month period ended June 30, 1999, other revenues
decreased 46% to $523 million versus $967 million for the same period of the
prior year. In April 1999, the Company completed the sale of SHL to EDS and
received $1.39 billion in cash. Additionally, in February 1999, both companies
agreed, in principal, to significant outsourcing contracts and a marketing
relationship to explore opportunities in electronic business and networking
solutions which are expected to capitalize on the individual strengths of each
company. The definitive agreements for the outsourcing contracts and marketing
relationship are currently being negotiated.
The following discusses the actual results of operations for the three and six
months ended June 30, 1999 as compared to the three and six months ended June
30, 1998.
LINE COSTS. Line costs as a percentage of revenues for the second quarter of
1999 were 44.0% as compared to 47.6% reported for the same period of the prior
year. On a year-to-date basis, line costs as a percentage of revenues decreased
to 44.9% as compared to 47.9% reported for the same period of the prior year.
Overall decreases are attributable to changes in the product mix and synergies
and economies of scale resulting from network efficiencies achieved from the
assimilation of MCI, CompuServe Network Services and ANS into the Company's
operations. Additionally, access charge reductions that occurred in July 1998
and January 1999 reduced total line cost expense by approximately $81 million
for the second quarter of 1999 and $166 million for the six months ended June
30, 1999. While access charge reductions were primarily passed through to
customers, line costs as a percentage of revenues were positively affected by
approximately half a percentage point for both the second quarter of 1999 and
the six month period ended June 30, 1999. The Company anticipates that line
costs as a percentage of revenues may continue to decline as a result of
synergies and economies of scale resulting from network efficiencies achieved
from the continued assimilation of the former MCI and WorldCom networks.
Additionally, local revenues have increased rapidly to date and line costs
related to local are primarily fixed in nature - leading to lower line costs as
a percentage of revenues.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses for the second quarter of 1999 were $2.18 billion or 24.4% of revenues
as compared to $524 million or 20.3% of revenues for the second quarter of 1998.
On a year-to-date basis, these expenses increased to $4.49 billion or 25.0% of
revenues from $1.0 billion or 20.4% of revenues reported for the six months
ended June 30, 1998. The increase in selling, general and administrative
expenses as a percentage of revenues for the three and six month periods ended
June 30, 1999 reflects the Company's expanding operations, primarily through the
MCI Merger. The Company expects to achieve additional selling, general and
administrative synergies in connection with the MCI Merger through the
assimilation of MCI into the Company's strategy of cost control.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expense for the
second quarter of 1999 increased to $1.06 billion or 11.9% of revenues from $332
million or 12.9% of revenues for the second quarter of 1998. On a year-to-date
basis, this expense increased to $2.14 billion or 11.9% of revenues from $631
million or 12.9% of revenues for the comparable 1998 period. These increases
reflect increased amortization and depreciation associated with the MCI Merger,
CompuServe Merger and AOL Transaction as well as additional depreciation related
to capital expenditures. As a percentage of revenues, these costs decreased due
to the higher revenue base.
IN-PROCESS RESEARCH AND DEVELOPMENT AND OTHER CHARGES. In the first quarter of
1998, the Company recorded a pre-tax
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<PAGE> 23
charge of $38 million for employee severance, alignment charges, loss
contingencies and direct merger costs associated with the BFP Merger and $31
million for the write-down of a permanently impaired asset.
In connection with the CompuServe Merger and the AOL Transaction, the Company
made allocations of the purchase price to acquired IPR&D totaling $429 million
in the first quarter of 1998. The in-process technology acquired in the
CompuServe Merger and the AOL Transaction consisted of three main R&D efforts
underway at CompuServe Network Services and two main R&D efforts underway at
ANS. These projects included next generation network technologies and new
value-added networking applications, such as applications hosting, multimedia
technologies and virtual private data networks.
INTEREST EXPENSE. Interest expense in the second quarter of 1999 was $236
million or 2.6% of revenues, as compared to $108 million or 4.2% of revenues
reported in the second quarter of 1998. For the six months ended June 30, 1999,
interest expense was $496 million or 2.8% of revenues as compared to $210
million or 4.3% of revenues for the first six months of 1998. The increase in
interest expense is attributable to higher debt levels as a result of the MCI
Merger, higher capital expenditures and the 1998 fixed rate debt financings,
offset by lower interest rates as a result of certain tender offers for
outstanding debt in the first quarter of 1998 and slightly lower rates in effect
on the Company's variable rate debt. Interest expense was favorably impacted in
the second quarter of 1999 as a result of the $1.39 billion SHL sale proceeds
being utilized to repay indebtedness under the Company's credit facilities and
commercial paper program. For the three and six months ended June 30, 1999 and
1998, weighted average annual interest rates on the Company's long-term debt
were 6.97% and 7.10%, respectively, while weighted average annual levels of
borrowings were $19.82 billion and $8.27 billion, respectively.
MISCELLANEOUS INCOME AND EXPENSE. Miscellaneous income for the second quarter of
1999 was $48 million or 0.5% of revenues. For the six months ended June 30,
1999, miscellaneous income was $16 million or 0.1% of revenues. Miscellaneous
income includes investment income, equity in income and losses of affiliated
companies, the effects of fluctuations in exchange rates for transactions
denominated in foreign currencies, gains and losses on the sale of assets and
other nonoperating items. Miscellaneous income and expense for the six months
ended June 30, 1999, includes $169 million of foreign currency translation
losses related to the impact of the local currency devaluation in Brazil and its
effect on Embratel's holdings of U.S. dollar and other foreign currency
denominated debt. Also included was a $28 million charge related to the
redemption of certain outstanding senior notes of the Company. These amounts
were somewhat offset by an $81 million gain on the sale of an equity investment,
interest income of $67 million (including Embratel) and preferred dividends on
News Corporation Limited ("News Corp") preferred stock of $30 million.
EXTRAORDINARY ITEMS. In the first quarter of 1998, the Company recorded an
extraordinary item totaling $129 million, net of income tax benefit of $78
million. The charge was recorded in connection with the tender offers and
certain related refinancings of the Company's outstanding debt from the BFP
Merger.
NET INCOME (LOSS) APPLICABLE TO COMMON SHAREHOLDERS. For the quarter ended June
30, 1999, the Company reported net income of $863 million as compared to net
income of $221 million reported in the second quarter of 1998. Diluted income
per common share was $0.45 compared to $0.21 for the comparable 1998 period.
For the six months ended June 30, 1999, the Company reported net income of $1.57
billion as compared to a net loss of $66 million before extraordinary items
reported for the comparable prior year period. Diluted income per common share
was $0.81 compared to loss per common share before extraordinary items of $0.06
for the comparable 1998 period.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1999, the Company's total debt was $18.77 billion, a decrease of
$2.07 billion from December 31, 1998. Additionally, at June 30, 1999, the
Company had available liquidity of $7.07 billion under its credit facilities and
commercial paper program (which is described below) and from available cash.
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<PAGE> 24
On August 5, 1999, MCI WorldCom extended its existing $7 billion 364-Day
Revolving Credit and Term Loan Agreement for a successive 364-day term pursuant
to an Amended and Restated 364-Day Revolving Credit and Term Loan Agreement
("Facility C Loans"). The Facility C Loans together with the $3.75 billion
Amended and Restated Facility A Revolving Credit Agreement dated August 6, 1998
("Facility A Loans") provide MCI WorldCom with aggregate credit facilities of
$10.75 billion (the "Credit Facilities"). The Credit Facilities provide
liquidity support for the Company's commercial paper program and will be used
for other general corporate purposes. The Facility A Loans mature on June 30,
2002. The Facility C Loans have a 364-day term, which may be extended for a
second successive 364-day term thereafter to the extent of the committed amounts
from those lenders consenting thereto, with a requirement that lenders holding
at least 51% of the committed amounts consent. Additionally, effective as of the
end of such 364-day term, the Company may elect to convert up to $4 billion of
the principal debt outstanding under the Facility C Loans from revolving loans
to term loans with a maturity date no later than one year after the conversion.
The Credit Facilities bear interest payable in varying periods, depending on the
interest period, not to exceed six months, or with respect to any Eurodollar
Rate borrowing, 12 months if available to all lenders, at rates selected by the
Company under the terms of the Credit Facilities, including a Base Rate or
Eurodollar Rate, plus the applicable margin. The applicable margin for the
Eurodollar Rate borrowing varies from 0.35% to 0.75% as to Facility A Loans and
from 0.225% to 0.45% as to Facility C Loans, in each case based upon the better
of certain debt ratings. The Credit Facilities are unsecured but include a
negative pledge of the assets of the Company and its subsidiaries (subject to
certain exceptions). The Credit Facilities require compliance with a financial
covenant based on the ratio of total debt to total capitalization, calculated on
a consolidated basis. The Credit Facilities require compliance with certain
operating covenants which limit, among other things, the incurrence of
additional indebtedness by the Company and its subsidiaries, sales of assets and
mergers and dissolutions, and which covenants do not restrict distributions to
shareholders, provided the Company is not in default under the Credit
Facilities. At June 30, 1999, the Company was in compliance with these
covenants. The Facility A Loans and the Facility C Loans are subject to annual
commitment fees not to exceed 0.25% and 0.15%, respectively, of any unborrowed
portion of the facilities.
In January 1999, the Company and one of its wholly owned subsidiaries redeemed
all of its outstanding 9.375% Senior Notes due January 15, 2004 (the "Senior
Notes"). Holders of the Senior Notes received 103.52% of the principal amount
plus accrued and unpaid interest to January 15, 1999 of $46.875 per $1,000
aggregate principal amount of such Senior Notes. The total redemption cost of
$743 million was obtained from available liquidity under the Company's credit
facilities and commercial paper program. The Company recorded a $28 million
charge related to the redemption.
In March 1999, $300 million and $200 million of MCI senior notes, with interest
rates of 6.25% and 6.37%, respectively, matured. The funds utilized to repay the
maturing MCI senior notes were obtained from available liquidity under the
Company's credit facilities and commercial paper program.
As noted below, the Brazilian real has experienced significant devaluation
against the U.S. dollar since MCI invested in Embratel in August 1998. The
Company previously designated the note payable in local currency installments,
resulting from the Embratel investment, as a hedge of its investment in
Embratel. As of June 30, 1999, the Company recorded the change in value of the
note as a reduction of the note payable with the offset through foreign currency
translation adjustment in shareholders' investment.
As of June 30, 1999, Embratel had $609 million of long-term debt outstanding, of
which approximately $517 million was denominated in U.S. dollars and $92 million
denominated in other currencies including the French Franc, Deutsche Mark,
Japanese Yen and Brazilian real. The effective cost to Embratel of borrowing in
foreign currencies, such as the U.S. dollar, depends principally on the exchange
rate between the Brazilian real and the currencies in which its borrowings are
denominated. As of June 30, 1999, the Brazilian real devalued over 30% against
the U.S. dollar since December 31, 1998. As a result, the Company recorded a
$169 million foreign currency loss to miscellaneous expense during the six
months ended June 30, 1999. After the elimination of minority interests, this
charge totaled approximately $33 million on a pretax basis. If this devaluation
is sustained, or worsens, Embratel would record a similar charge to its future
earnings equal to the increase in the U.S. dollar liability resulting from such
devaluation. The net effect to the Company's operations would be approximately
19% of such charge after elimination of minority interests.
For the six months ended June 30, 1999, the Company's cash flow from operations
increased $3.89 billion to $4.51 billion from the comparable period for 1998.
The increase in cash flow from operations was primarily attributable to the MCI
Merger,
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<PAGE> 25
internal growth and synergies and economies of scale resulting from network
efficiencies and selling, general and administrative cost savings achieved from
the assimilation of recent acquisitions into the Company's operations.
Cash used in investing activities for the six months ended June 30, 1999 totaled
$4.40 billion and included capital expenditures of $3.67 billion. Primary
capital expenditures include purchases of switching, transmission,
communications and other equipment. The Company anticipates that approximately
$4.2 billion to $4.7 billion will be spent during the remainder of 1999 for
transmission and communications equipment, construction and other capital
expenditures without regard to Embratel and including the redeployment of SHL
sales proceeds. These capital expenditures also reflect the planned $1.4 billion
increase for strategic initiatives. Acquisitions and related costs includes the
costs associated with the MCI Merger, CompuServe Merger, AOL Transaction and
smaller acquisitions completed during 1999.
In July 1999, the Company received $1.4 billion in cash from the sale of the
Company's interest in News Corp preferred stock. The proceeds were used to repay
existing indebtedness under the Company's credit facilities and commercial paper
program. This debt reduction is expected to reduce quarterly interest expense by
approximately $17 million. Additionally, miscellaneous income will be reduced by
$15 million per quarter due to preferred dividends which will no longer be
received.
Increases in interest rates on MCI WorldCom's variable rate debt would have an
adverse effect upon MCI WorldCom's reported net income and cash flow. The
Company believes that it will generate sufficient cash flow to service MCI
WorldCom's debt and capital requirements; however, economic downturns, increased
interest rates and other adverse developments, including factors beyond MCI
WorldCom's control, could impair its ability to service its indebtedness. In
addition, the cash flow required to service MCI WorldCom's debt may reduce its
ability to fund internal growth, additional acquisitions and capital
improvements.
The development of the businesses of MCI WorldCom 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 MCI WorldCom to delay or abandon some of its
plans, which could have a material adverse effect on the success of MCI
WorldCom. The Company has historically utilized a combination of cash flow from
operations and debt to finance capital expenditures and a mixture of cash flow,
debt and stock to finance acquisitions.
Absent significant capital requirements for other acquisitions, the Company
believes that cash flow from operations and available liquidity, including the
Company's credit facilities and commercial paper program and available cash,
will be sufficient to meet the Company's capital needs for the remainder of
1999. However, the Company continues to diversify its funding sources and
believes that funding needs in excess of internally generated cash flow and
availability under the Company's credit facilities and commercial paper program
could be met by accessing favorable debt markets.
RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." This statement
establishes accounting and reporting standards requiring that every derivative
instrument (including certain derivative instruments embedded in other
contracts) be recorded in the balance sheet as either an asset or liability
measured at its fair value. This statement requires that changes in the
derivative's fair value be recognized currently in earnings unless specific
hedge accounting criteria are met. Special accounting for qualifying hedges
allows a derivative's gains and losses to offset related results on the hedged
item in the income statement, and requires a company to formally document,
designate and assess the effectiveness of transactions that receive hedge
accounting. This statement is effective for fiscal years beginning after June
15, 1999 and cannot be applied retroactively. SFAS No. 133 must be applied to
(a) derivative instruments and (b) certain derivative instruments embedded in
hybrid contracts that were issued, acquired, or substantively modified after
December 31, 1997 (and, at the Company's election, before January 1, 1998). The
Company believes that the adoption of this standard will not have a material
effect on the Company's consolidated results of operations or financial
position.
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<PAGE> 26
YEAR 2000 READINESS DISCLOSURE
Due to extensive use of computer technology, both MCI and WorldCom began
developing strategic plans in 1996 to address their respective year 2000 issues.
Since the MCI Merger, the Company has consolidated these strategies into a
single program. The Company's year 2000 compliance plan is an ongoing program in
which remediation strategies are being implemented by the Company's business
organizations to address noncompliant computer and network systems and
technology. The Company has a central project management organization that has
overall responsibility for coordinating the implementation of this strategy.
The remediation strategies followed by the Company's business organizations
generally involve a sequence of steps that include (i) identifying computer
hardware, software and network components and equipment potentially impacted by
year 2000 problems; (ii) analyzing the date sensitivity of those elements; (iii)
developing plans for remediation where necessary; (iv) converting non-compliant
code or equipment (or, in some cases, replacing or decommissioning systems); (v)
testing; and (vi) deploying and monitoring remediation solutions. These steps
will vary to meet the particular needs of a business organization and, in some
cases, will overlap. Testing, for example, may be performed at several stages of
the remediation process.
The Company's systems and network equipment that support customer voice and data
traffic have been remediated and tested. Additionally, the application
components that comprise the Company's major revenue products and services are
year 2000 ready. This highlights the fact that the Company has met its June 30,
1999 year 2000 compliance milestone, and the Company is now focusing on the next
phase of this effort. MCI WorldCom has also recently achieved several successful
interoperability tests with both domestic and international carriers.
In the third quarter of 1999, the Company will be primarily focused on continued
integration and interoperability testing, testing of contingency plans,
independent verification and validation of the work already completed and change
management to achieve ongoing compliance. Finally, the Company plans to complete
decommissioning projects, customer specific migrations/upgrades and selected
internal and international systems.
As part of its year 2000 plan, the Company is seeking confirmation from its
domestic and foreign interconnecting carriers (collectively, the
"Interconnecting Carriers") and major communications equipment vendors (the
"Primary Vendors") that they are developing and implementing plans to become
year 2000 compliant. The Company has contacted these carriers and vendors, and
will continue to do so, but has not yet received enough information from certain
domestic and foreign carriers to assess their year 2000 readiness. The Company
has received information from its Primary Vendors regarding their year 2000
readiness. This information indicates the Primary Vendors have documented plans
to become year 2000 compliant. Like all major telecommunications carriers, the
Company's ability to provide service is dependent on its Interconnecting
Carriers and Primary Vendors.
The Company is participating in industry efforts to test interoperability of
networks for industry segments as well as multiple carriers. The ATIS and
Network Reliability and Interoperability Council ("NRIC") testing are examples
of this effort to assess the readiness of Interconnecting Carriers for both data
and voice services.
The Company has completed contingency plans to address potential year 2000
related business interruptions that may occur on January 1, 2000 or thereafter.
Additional detailed documentation was completed before the end of the second
quarter 1999. The Company anticipates that these contingency plans will
primarily address potential year 2000 problems due to unanticipated failures in
systems or equipment, or potential failure of the Company's Interconnecting
Carriers' and Primary Vendors' year 2000 compliance efforts. The Company is
incorporating many of the recommendations of the NRIC into the contingency
planning process. The Company plans to complete testing and implementation of
its contingency plans by December 31, 1999. Failure to meet this target could
materially impact the Company's operations.
To achieve its year 2000 compliance plan, the Company is utilizing both internal
and external resources to identify, correct or reprogram, and test its systems
for year 2000 compliance. The Company expects to incur internal labor as well as
consulting and other expenses related to infrastructure and facilities
enhancements necessary to prepare its
Page 26
<PAGE> 27
systems for the year 2000. The Company's use of internal resources to achieve
its year 2000 compliance plan has not had a material adverse effect on its
ability to develop new products and services or to maintain and upgrade, if
necessary, its existing products and services.
The year 2000 costs incurred by MCI and WorldCom over the past six quarters were
approximately $348 million. This level of expenditures is consistent with the
planned expenditures for the related periods. The Company expects to incur
approximately $190 million in costs during the remainder of 1999 to support its
year 2000 compliance initiatives. The costs of the Company's year 2000
remediation efforts are based upon management's best estimates, which require
assumptions about future events, availability of resources and personnel,
third-party remediation actions, and other factors. There are no assurances that
these estimates will be accurate, and actual amounts may differ materially based
on a number of factors, including the availability and cost of resources to
undertake remediation activities and the scope and nature of the work required
to complete remediation.
The Company is unable to determine at this time whether the consequences of year
2000 failures will have a material impact on the Company's results of
operations, liquidity or financial condition due to the general uncertainty
inherent in the year 2000 problem, resulting in part from the uncertainty of the
year 2000 readiness of its Interconnecting Carriers and Primary Vendors, and
other suppliers, as well as uncertainties related to the Company's ongoing
remediation program. The Company's year 2000 compliance plan is expected to
reduce significantly the Company's level of uncertainty about the year 2000
problem and, in particular, about the year 2000 compliance and readiness of its
Interconnecting Carriers and Primary Vendors. The Company believes that, with
the implementation of new business systems, its Interconnecting Carriers and
Primary Vendors year 2000 readiness, and completion of the year 2000 compliance
plan as scheduled, it will maintain normal operations.
Embratel's year 2000 program began in 1997 and is managed separately from the
other MCI WorldCom year 2000 programs. The Embratel year 2000 program is
intended to address all its systems, infrastructure, networks and applications.
Critical corporate systems and equipment are expected to complete remediation by
August 31, 1999. The process is now beginning to focus on integrated testing and
completion of the remaining noncritical systems.
Embratel has spent approximately R$13 million of an estimated R$14 million on
the year 2000 program and expects to come within the estimated costs. Embratel
may, however, be affected by year 2000 problems to the extent that other
entities are unsuccessful in achieving compliance. Despite preventive measures
taken by Embratel, no assurances can be given that the year 2000 issue will not
have an effect on the financial condition and results of operations of Embratel.
Embratel is active in developing contingency plans and working with the
International Telecommunications Union on interoperability testing.
Statements concerning year 2000 issues which contain more than historical
information may be considered forward-looking statements (as that term is
defined in the Private Securities Litigation Reform Act of 1995), which are
subject to risks and uncertainties. Actual results may differ materially from
those expressed in the forward-looking statements, and readers are cautioned
that the Company's year 2000 discussion should be read in conjunction with the
Company's statement on forward-looking statements which appears at the beginning
of this Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Page 27
<PAGE> 28
EURO CONVERSION
On January 1, 1999, certain member countries of the European Union established
fixed conversion rates between their existing currencies and the European
Union's common currency ("Euro"). The transition period for the introduction of
the Euro will be between January 1, 1999 to July 1, 2002. All of the final rules
and regulations have not yet been identified by the European Commission with
regard to the Euro. The Company is currently evaluating methods to address the
many issues involved with the introduction of the Euro, including the conversion
of information technology systems, recalculating currency risk, recalibrating
derivatives and other financial instruments, strategies concerning continuity of
contracts, and impacts on the processes for preparing taxation and accounting
records. At this time, the Company has not yet determined the cost related to
addressing this issue and there can be no assurance as to the effect of the Euro
on the consolidated financial statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company is exposed to the impact of interest rate changes, foreign currency
fluctuations and changes in market values of investments.
The Company's policy is to manage interest rates through the 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 minimal cash flow exposure due to general interest rate changes for its
fixed rate, long-term debt obligations. The Company does not believe a
hypothetical 10% adverse rate change in the Company's variable rate debt
obligations would be material to the Company's results of operations.
The Company is exposed to foreign exchange rate risk primarily due to Embratel's
holding of approximately $517 million in U.S. dollar denominated debt, and
approximately $92 million of indebtedness indexed in other currencies including
the French Franc, Deutsche Mark, Japanese Yen and Brazilian real. The potential
immediate loss to the Company that would result from a hypothetical 10% change
in foreign currency exchange rates based on this position would be approximately
$12 million (after elimination of minority interests). During January 1999, the
Brazilian government allowed its currency to trade freely against other
currencies, resulting in an immediate devaluation of the Brazilian real. As of
June 30, 1999, the Brazilian real had devalued over 30% against the U.S. dollar
since December 31, 1998. As a result, the Company recorded a $169 million
foreign currency loss to miscellaneous expense during the six months ended June
30, 1999. After the elimination of minority interests, this charge totaled
approximately $33 million on a pretax basis. If this devaluation is sustained,
or worsens, the future net impact to the Company's results of operations could
be significant.
The Company is also subject to risk from changes in foreign exchange rates for
its other international operations which use a foreign currency as their
functional currency and are translated into U.S. dollars. Additionally, the
Company has designated the note payable in local currency installments,
resulting from the Embratel investment, as a hedge of its investment in
Embratel. As of June 30, 1999, the Company recorded the change in value of the
note as a reduction to the note payable with the offset through foreign currency
translation adjustment in shareholders' investment.
The Company believes its market risk exposure with regard to its marketable
equity securities is limited to changes in quoted market prices for such
securities. Based upon the composition of the Company's marketable equity
securities at June 30, 1999, the Company does not believe a hypothetical 10%
adverse change in quoted market prices would be material to net income.
Page 28
<PAGE> 29
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
There have been no material changes in the legal proceedings reported in
the Company's Annual Report on Form 10-K for the year ended December 31,
1998, except as may be reflected in the discussion under Note G of the
Notes to Consolidated Financial Statements in Part I, Item 1, above,
which is hereby incorporated by reference herein.
Item 2. Changes in Securities and Use of Proceeds
On June 30, 1999, MCI WorldCom completed the acquisition of E. L.
Acquisition, Inc., pursuant to an Agreement and Plan of Merger dated as
of May 20, 1999 by and among MCI WorldCom, Purple Acquisition
Subsidiary, Inc., E. L. Acquisition, Inc., and Prime One, L. P. In
connection with the acquisition, MCI WorldCom made an approximate $33
million cash payment and issued a total of 2,656,151 shares of its
common stock to a limited number of sophisticated investors in reliance
on Section 4(2) and Regulation D under the Securities Act of 1933, as
amended.
Item 3. Defaults upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Securities Holders
On May 20, 1999, the Company held the 1999 Annual Meeting of
Shareholders for the purposes of:
1. electing a Board of seventeen (17) directors;
2. considering and acting upon a proposal to amend the Company's
Second Amended and Restated Articles of Incorporation, as amended,
to increase the number of authorized shares of common stock, par
value $.01 per share, from 2,500,000,000 to 5,000,000,000; and
3. considering and acting upon a proposal to approve the Company's
1999 Stock Option Plan;
The tabulation of the voting, which includes the Company's Series B
Preferred Stock, is as follows:
Page 29
<PAGE> 30
<TABLE>
<CAPTION>
Against or Abstentions or
Election of Directors: For Withheld Broker Non-Votes
------------------------------------- ------------------ -------------------- ----------------------
<S> <C> <C> <C>
Clifford L. Alexander, Jr. 1,370,251,846 170,137,069 0
James C. Allen 1,257,139,138 13,249,777 0
Judith Areen 1,527,117,778 13,271,137 0
Carl J. Aycock 1,527,211,011 13,177,904 0
Max E. Bobbitt 1,531,286,962 9,101,953 0
Stephen M. Case (1) 1,287,252,512 253,136,403 0
Bernard J. Ebbers 1,526,332,237 14,056,678 0
Francesco Galesi 1,530,986,406 9,402,509 0
Stiles A. Kellett, Jr. 1,531,219,675 9,169,240 0
Gordon S. Macklin 1,526,648,176 13,740,739 0
John A. Porter 1,526,969,001 13,419,914 0
Timothy F. Price 1,526,902,817 13,486,098 0
Bert C. Roberts, Jr. 1,527,017,779 13,371,136 0
John W. Sidgmore 1,527,190,016 13,198,899 0
Scott D. Sullivan 1,527,176,247 13,212,668 0
Lawrence C. Tucker 1,531,245,116 9,143,799 0
Juan Villalonga 1,526,772,718 13,616,197 0
Increase the number of authorized
shares of common stock from
2,500,000,000 to 5,000,000,000 1,448,416,755 87,221,773 4,750,387
1999 Stock Option Plan 945,545,541 587,261,366 7,582,008
(1) Subsequent to May 20, 1999, Mr. Case resigned from the Company's Board of
Directors.
</TABLE>
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
A. Exhibits
See Exhibit Index.
B. Reports on Form 8-K
None.
Page 30
<PAGE> 31
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report on Form 10-Q to be signed on its behalf
by Scott D. Sullivan, thereunto duly authorized to sign on behalf of the
registrant and as the principal financial officer thereof.
MCI WORLDCOM, Inc.
By: /s/ Scott D. Sullivan
-------------------------------------
Scott D. Sullivan
Chief Financial Officer
Dated: August 16, 1999.
Page 31
<PAGE> 32
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 Second Amended and Restated Articles of Incorporation of the
Company (including preferred stock designations), as amended
as of May 20, 1999
4.2 Restated Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Current Report on Form 8-K dated
September 14, 1998) (filed September 29, 1998)) (File No.
0-11258)
4.3 Rights Agreement dated as of August 25, 1996 between MCI
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 Company's Current Report on Form 8-K dated August 26, 1996
(as amended) (filed August 26, 1996 (File No. 0-011258))
4.4 Amendment No. 1 to Rights Agreement dated as of May 22, 1997
by and between MCI WorldCom 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))
10.1 Amended and Restated 364-Day Revolving Credit and Term Loan
Agreement among the Company and Bank of America, N.A.,
Administrative Agent; Bank of America Securities, LLC, Sole
Lead Arranger and Book Manager; Barclays Bank PLC, The Chase
Manhattan Bank, Citibank, N.A., Morgan Guaranty Trust Company
of New York, and Royal Bank of Canada, Co-Syndication Agents;
and the lenders named therein dated as of August 5, 1999.*
10.2 MCI WORLDCOM, Inc. 1999 Stock Option Plan (incorporated herein
by reference to Exhibit A to the Company's Proxy Statement
dated April 23, 1999 (File No. 0-11258)) (compensatory plan)
**
27.1 Financial Data Schedule
* The registrant hereby agrees to furnish supplementally a copy
of any omitted schedules to this Agreement to the Commission
upon request.
** No other long-term debt securities entered into during the
period covered by this report, are filed since the total
amount of securities authorized under any such instrument does
not exceed 10% of the total assets of the Company and its
subsidiaries on a consolidated basis. The Company agrees to
furnish a copy of such instruments to the Commission upon
request.
</TABLE>
Page 32
<PAGE> 1
Exhibit 4.1
ARTICLES OF AMENDMENT TO THE SECOND AMENDED AND
RESTATED ARTICLES OF INCORPORATION OF MCI WORLDCOM, INC.
1.
The name of the corporation is MCI WORLDCOM, Inc. (the "Corporation").
2.
Effective the date hereof, Section A of Article Four of the
Corporation's Second Amended and Restated Articles of Incorporation is amended,
in its entirety, to read as follows:
A. Common Stock. The authorized voting common stock of the
Corporation is five billion (5,000,000,000) shares, par value $.01 per
share.
3.
Effective the date hereof, Section 1 of Exhibit C of the
Second Amended and Restated Articles of Incorporation is amended, in its
entirety, to read as follows:
Section 1. Designation and Amount.
There shall be a series of the Preferred Stock which shall be
designated as the "Series 3 Junior Participating Preferred Stock," par value
$.01 per share, and the number of shares constituting such series shall be
5,000,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series 3 Junior Participating Preferred Stock to a number less than
that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Company.
4.
All other provisions of the Second Amended and Restated
Articles of Incorporation, as previously amended, shall remain in full force and
effect.
5.
The amendment in Article 2, above, was duly approved by the
shareholders of the Corporation in accordance with the provisions of Section
14-2-1003 of the Georgia business Corporation Code and adopted on May 20, 1999.
6.
The amendment in Article 3, above, was approved and adopted by
the Board of Directors of the Corporation in accordance with the provisions of
Section 14-2-1002 of the Georgia Business Corporation Code. Shareholder action
was not required.
<PAGE> 2
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed by its duly authorized officer this 20th day of May,
1999.
MCI WORLDCOM, INC.
By: /s/ Bernard J. Ebbers
-------------------------------
Bernard J. Ebbers, President
<PAGE> 3
ARTICLES OF AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF WORLDCOM, INC.
1.
The name of the corporation is "WorldCom, Inc. (the "Corporation").
2.
Effective the date hereof, Article One of the Corporation's
Second Amended and Restated Articles of Incorporation is amended, in its
entirety, to read as follows:
ONE
The name of this corporation is MCI WORLDCOM, Inc. This
corporation is referred to hereinafter as the "Corporation."
3.
All other provisions of the Second Amended and Restated
Articles of Incorporation shall remain in full force and effect.
4.
The foregoing amendment was approved and adopted by the Board
of Directors of the Corporation in accordance with the provisions of Section
14-2-1002 of the Georgia Business Corporation Code. Shareholder action was no
required.
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed by its duly authorized officer this 14th day of
September, 1998.
WORLDCOM, INC.
/s/ Bernard J. Ebbers
-----------------------------------
Bernard J. Ebbers, President
<PAGE> 4
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
WORLDCOM, INC.
ONE
The name of this corporation is WORLDCOM, INC. This
corporation is referred to hereinafter as the "Corporation."
TWO
The Corporation shall have perpetual duration.
THREE
The Corporation has been organized as a corporation for profit
pursuant to the Georgia Business Corporation Code, for the purpose of engaging
in any lawful activities whatsoever.
FOUR
A. Common Stock. The authorized voting common stock of the Corporation
is two billion five hundred million (2,500,000,000) shares, par value $.01 per
share.
B. Preferred Stock. The authorized preferred stock of the Corporation
is fifty million (50,000,000) shares, par value $.01 per share. The Corporation,
acting by its board of directors, without action by the shareholders, may, from
time to time by resolution and upon the filing of such certificate or articles
of amendment as may be required by the Georgia Business Corporation Code as then
in effect, authorize the issuance of shares of preferred stock in one or more
series, determine the preferences, limitations and relative rights of the class
or of any series within the class, and designate the number of shares within
that series.
FIVE
A series of the class of authorized preferred stock, par value
$.01 per share, of the Corporation is hereby created having the designation and
number of shares thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, as are set forth
on Exhibit A.
SIX
A series of the class of authorized preferred stock, par value
$.01 per share, of the Corporation is hereby created having the designation and
number of shares thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, as are set forth
on Exhibit B.
SEVEN
A series of the class of authorized preferred stock, par value
$.01 per share, of the Corporation is hereby created having the designation and
number of shares thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, as are set forth
on Exhibit C.
<PAGE> 5
EIGHT
Subject to the provisions of Article THIRTEEN, each share of
common stock of the Corporation shall have unlimited voting rights and shall be
entitled to receive the net assets of the Corporation upon dissolution, except
as expressly provided herein. The preferred stock of the Corporation shall have
such voting rights as are set forth in Exhibits A, B or C hereto or in the
certificate or articles of amendment filed to authorize the issuance of shares
of preferred stock in one of more series and as are provided by law.
NINE
Shareholders shall not have the preemptive right to acquire
unissued shares of the Corporation.
TEN
No director of the Corporation shall be liable to the
Corporation or to its shareholders for monetary damages for breach of duty of
care or other duty as a director, except for liability (i) for any
appropriation, in violation of his duties, of any business opportunity of the
Corporation; (ii) for acts or omissions which involve intentional misconduct or
a knowing violation of the law; (iii) for the types of liability set forth in
section 14-2-832 of the Revised Georgia Business Corporation Code; or (iv) for
any transaction from which the director received an improper personal benefit.
If the Georgia Business Corporation Code is amended to authorize corporate
action further limiting the personal liability of directors, then the liability
of a director of the Corporation shall be limited to the fullest extent
permitted by the Georgia Business Corporation Code, as so amended. Any repeal or
modification of the foregoing paragraph by the shareholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing immediately prior to the time of such repeal or
modification.
ELEVEN
(a) In addition to the requirements of the provisions of any
series of preferred stock which may be outstanding, and whether or not a vote of
the shareholders is otherwise required, the affirmative vote of the holders of
not less than seventy percent (70%) of the Voting Stock shall be required for
the approval or authorization of any Business Transaction with a Related Person,
or any Business Transaction in which a Related Person has an interest (other
than only a proportionate interest as a shareholder of the corporation);
provided, however, that the seventy percent (70%) voting requirement shall not
be applicable if (i) the Business Transaction is Duly Approved by the Continuing
Directors, or (ii) all of the following conditions are satisfied:
(i) the aggregate amount of cash and the fair market
value of the property, securities or other consideration to be received
per share (on the date of effectiveness of such Business Transaction)
by holders of capital stock of the corporation (other than such Related
Person) in connection with such Business Transaction is at least equal
in value to such Related Person's Highest Stock Price;
(ii) the consideration to be received by holders of
capital stock of the Corporation in connection with such Business
Transaction is in (a) cash, or (b) if the majority of the shares of any
particular class or series of stock of the Corporation as to which the
Related Person is the Beneficial Owner shall have been acquired for a
consideration in a form other than cash, in the same form of
Consideration used by the Related Person to acquire the largest number
of shares of such class or series of stock;
(iii) after such Related Person has become a Related
Person and prior to the consummation of such Business Transaction, such
Related Person shall not have become the Beneficial Owner of any
additional shares of capital stock of the Corporation or securities
convertible into capital stock of the Corporation, except (i) as a part
of the transaction which resulted in such Related Person becoming a
Related Person or (ii) as a result of a pro rata stock dividend or
stock split;
(iv) prior to the consummation of such Business
Transaction, such Related Person shall not have, directly or
indirectly, except as Duly Approved by the Continuing Directors (i)
received the benefit (other than only a proportionate benefit as a
shareholder of the corporation) of any loans, advances, guarantees,
pledges or other financial assistance or tax credits or tax advantages
provided by the Corporation or any of its subsidiaries, (ii) caused any
material change in the Corporation's business or equity capital
structure, including, without limitation, the issuance of shares of
capital stock of the Corporation, or
<PAGE> 6
other securities convertible into or exercisable for such shares, or
(iii) caused the Corporation to fail to declare and pay at the regular
date therefor quarterly cash dividends on the outstanding capital stock
of the Corporation entitled to receive dividends, on a per share basis
at least equal to the cash dividends being paid thereon by the
corporation immediately prior to the date on which the Related Person
became a Related Person; and
(v) a proxy or information statement describing the
proposed Business Transaction and complying with the requirements of
the Securities Exchange Act of 1934, as amended (the "Act"), and the
rules and regulations thereunder (or any subsequent provisions
replacing the Act or such rules or regulations) shall be mailed to
shareholders of the Corporation at least thirty (30) days prior to the
consummation of such Business Transaction (whether or not such proxy or
information statement is required to be mailed pursuant to the Act and
such rules and regulations or subsequent provisions).
(b) For the purpose of this Article ELEVEN:
(i) The term "Affiliate", used to indicate a
relationship to a specified person, shall mean a person that directly,
or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified person.
(ii) The term "Associate", used to indicate a
relationship with a specified person, shall mean (A) any corporation,
partnership or other organization of which such specified person is an
officer or partner, (B) any trust or other estate in which such
specified person has a substantial beneficial interest or as to which
such specified person serves as trustee or in a similar fiduciary
capacity, (C) any relative or spouse of such specified person who has
the same home as such specified person or who is a director or officer
of the corporation or any of its subsidiaries, and (D) any person who
is a director, officer or partner of such specified person or of any
corporation (other than the corporation or any wholly-owned subsidiary
of the corporation), partnership or other entity which is an Affiliate
of such Specified person.
(iii) The term "Beneficial Owner" shall be defined by
reference to Rule 13d-3 under the Act as in effect on September 15,
1993; provided, however, that any individual, corporation, partnership,
group, association or other person or entity which has the right to
acquire any capital stock of the corporation having voting power at any
time in the future, whether such right is contingent or absolute,
pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrants or options, or otherwise, shall
be deemed the Beneficial Owner of such capital stock.
(iv) The term "Business Transaction" shall mean: (A)
any merger, share exchange or consolidation involving the Corporation
or a subsidiary of the Corporation; (B) any sale, lease, exchange,
transfer or other disposition (in one transaction or a series of
related transactions), including, without limitation, a mortgage,
pledge or any other security device of all or any Substantial Part of
the assets either of the Corporation or of a subsidiary of the
Corporation; (C) any sale, lease, exchange, transfer or other
disposition (in one transaction or a series of related transactions) of
all or any Substantial Part of the assets of any entity to the
Corporation or a subsidiary of the Corporation; (D) the issuance, sale,
exchange, transfer or other disposition (in one transaction or a series
of related transactions) by the Corporation or a subsidiary of the
Corporation of any securities of the Corporation or any subsidiary of
the Corporation in exchange for cash, securities or other property, or
a combination thereof, having an aggregate fair market value of $15
million or more; (E) any merger, share exchange or consolidation of the
Corporation with any of its subsidiaries or any similar transaction in
which the Corporation is not the survivor and the charter or
certificate or articles of incorporation of the consolidated or
surviving Corporation do not contain provisions substantially similar
to those in this Article ELEVEN; (F) any recapitalization or
reorganization of the Corporation or any reclassification of the
securities of the Corporation (including, without limitation, any
reverse stock split) or other transaction that would have the effect of
increasing the voting power of a Related Person or reducing the number
of shares of each class of voting securities outstanding; (G) any
liquidation, spin-off, split-off, split-up or dissolution of the
Corporation; and (H) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Transaction or having a similar purpose or effect.
<PAGE> 7
(v) The term "Continuing Director" shall mean a
director who either was a member of the Board of Directors of the
Corporation on September 15, 1993, or who became a director of the
Corporation subsequent to such date and whose election or nomination
for election by the Corporation's shareholders was Duly Approved by the
Continuing Directors then on the Board, either by a specific vote or by
approval of the proxy statement issued by the Corporation on behalf of
the Board of Directors in which such person is named as nominee for
director; provided, however, that in no event shall a director be
considered a "Continuing Director" if such director is a Related Person
and the Business Transaction to be voted upon is with such Related
Person or is one in which such Related Person has an interest (other
than only a proportionate interest as a shareholder of the
Corporation).
(vi) The term "Duly Approved by the Continuing
Directors" shall mean an action approved by the vote of at least a
majority of the Continuing Directors then on the Board; provided,
however, that if the votes of such Continuing Directors in favor of
such action would be insufficient to constitute an act of the Board of
Directors (if a vote by the entire Board of Directors were to have been
taken), then such term shall mean an action approved by the unanimous
vote of the Continuing Directors so long as there are at least three
(3) Continuing Directors on the Board of Directors at the time of such
unanimous vote.
(vii) The term "Fair Market Value", in the case of
stock, means the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the Composite Tape for New York Stock Exchange-Listed Stocks, or, if
such stock is not on such Exchange, on the principal United States
securities exchange registered under the Act on which such stock is
listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith.
(viii) The term "Highest Stock Purchase Price" shall
mean the greatest of the following:
(A) the highest amount of consideration paid
by a Related Person for a share of capital stock of the
Corporation (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) in the transaction which
resulted in such Related Person becoming a Related Person or
within two years prior to the first public announcement of the
Business Transaction (the "Announcement Date"), whichever is
higher; provided, however, that the Highest Stock Purchase
Price calculated under this subsection (A) shall be
appropriately adjusted to reflect the occurrence of any
reclassification, recapitalization, stock-split, reverse
stock-split or other similar corporate readjustment in the
number of outstanding shares of capital stock of the
Corporation between the last date upon which such Related
Person paid the Highest Stock Purchase Price up to the
effective date of the merger, share exchange or consolidation
or the date of distribution to shareholders of the Corporation
of the proceeds from the sale of substantially all of the
assets of the Corporation referred to in subparagraph (i) of
Section (a)(ii) of this Article ELEVEN;
(B) the Fair Market Value per share of the
respective classes and series of stock of the Corporation on
the Announcement Date;
(C) the Fair Market Value per share of the
respective classes and series of stock of the Corporation on
the date that the Related Person becomes a Related Person;
(D) if applicable, the Fair Market Value per
share determined pursuant to subsection (b)(viii)(B) or (C) of
this Article ELEVEN, whichever is higher, multiplied by the
ratio of (i) the highest price per share (including any
brokerage commissions, transfer taxes or soliciting dealers'
fees and adjusted for any subsequent stock dividends, splits,
combinations, recapitalizations, reclassifications or other
such reorganizations) paid to acquire any shares of such
<PAGE> 8
respective classes and series Beneficially Owned by the
Related Person within the two years prior to the Announcement
Date, to (ii) the Fair Market Value per share (adjusted for
any subsequent stock dividends, splits, combinations,
recapitalizations, reclassifications or other such
reorganizations) of shares of such respective classes and
series on the first day in the two-year period ending on the
Announcement Date on which such shares Beneficially Owned by
the Related Person were acquired; or
(E) the amount per share of any preferential
payment to which holders of shares of such respective classes
and series are entitled in the event of a liquidation,
dissolution or winding up of the Corporation.
(ix) The term "Preferred Stock" shall mean each class
or series of capital stock which may from time to time be authorized in
or by these Second Amended and Restated Articles of Incorporation (as
amended from time to time) which is not designated as "Common Stock."
(x) The phrase "property, securities or other
consideration to be received", for the purpose of subparagraph (i) of
Section (a)(ii) of this Article ELEVEN and in the event of a merger in
which the corporation is the surviving corporation, shall include,
without limitation, common stock of the Corporation retained by its
shareholders (other than such Related Person).
(xi) The term "Related Person" shall mean and include
(A) any individual, corporation, partnership, group, association or
other person or entity which, together with its Affiliates and
Associates, is the Beneficial Owner of not less than ten percent (10%)
of the voting power of the issued and outstanding capital stock of the
Corporation entitled to vote or was the Beneficial Owner of not less
than ten percent (10%) of the voting power of the issued and
outstanding capital stock of the Corporation entitled to vote (x) at
the time the definitive agreement providing for the Business
Transaction (including any amendment thereof) was entered into, (y) at
the time a resolution approving the Business Transaction was adopted by
the Board of Directors of the Corporation, or (z) as of the record date
for the determination of shareholders entitled to notice of and to vote
on or consent to the Business Transaction, and (B) any Affiliate or
Associate of any such individual, Corporation, partnership, group,
association or other person or entity; provided, however, and
notwithstanding any thing in the foregoing to the contrary, that the
term "Related Person" shall not include the Corporation, a more than
90% owned subsidiary of the Corporation, any employee stock ownership
or other employee benefit plan of either the Corporation or any more
than 90% owned subsidiary of the Corporation, or any trustee of or
fiduciary with respect to any such plan when acting in such capacity.
(xii) The term "Substantial Part" shall mean more
than twenty percent (20%) of the total assets of the entity in
question, as reflected on the most recent consolidated balance sheet of
such entity existing at the time the shareholders of the Corporation
would be required to approve or authorize the Business Transaction
involving the assets constituting any such Substantial Part.
(xiii) The term "Voting Stock" shall mean all
outstanding shares of capital stock of the Corporation whose holders
are present at a meeting of shareholders, in person or by proxy, and
which entitle their holders to vote generally in the election of
directors, and considered for the purpose of this Article ELEVEN as one
class.
(c) For the purpose of this Article ELEVEN, so long as
Continuing Directors constitute at least two-thirds (2/3) of the entire Board of
Directors or the Corporation, the Board of Directors shall have the power to
make a good faith determination, on the basis of information known to them, of
(i) the number of shares of Voting Stock of which any person is the Beneficial
Owner, (ii) whether a person is a Related Person or is an Affiliate or Associate
of another, (iii) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in the definition of
Beneficial Owner herein, (iv) whether the assets subject to any Business
Transaction constitute a Substantial Part, (v) whether any Business Transaction
is with a Related Person or is one in which a Related Person has an interest
(other than only a proportionate interest as a shareholder of the corporation),
(vi) whether a Related Person has, directly or indirectly, received the benefits
or caused any of the changes referred to in subparagraph (iv) of clause (ii) of
Section (a) of this Article ELEVEN, (vii) the fair market value of any
<PAGE> 9
consideration to be received in a Business Transaction and (viii) such other
matters with respect to which a determination is required under this Article
ELEVEN; and such determination by the Board of Directors shall be conclusive and
binding for all purposes of this Article ELEVEN.
(d) Nothing contained in this Article ELEVEN shall be
construed to relieve any Related Person of any fiduciary obligation imposed by
law.
(e) The fact that any Business Transaction complies with the
provisions of Section (a) of this Article ELEVEN shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Transaction or
recommend its adoption of approval to the shareholders of the corporation.
(f) Notwithstanding any other provisions of these Second
Amended and Restated Articles of Incorporation or the Bylaws of the corporation
(and notwithstanding that a lesser percentage may be permitted by law), the
provisions of this Article ELEVEN may not be repealed or amended, directly or
indirectly in any respect, unless such action is approved by the affirmative
vote of the holders of not less than seventy percent (70%) of the Voting Stock.
TWELVE
The Corporation shall indemnify a director against reasonable
expenses and liability incurred by him, and shall advance expenses upon receipt
from the director of the written affirmation and repayment authorization
required by section 14-2-853 of the Georgia Business Corporation Code, provided,
however, that the Corporation shall not indemnify a director for any liability
incurred by a director if he failed to act in a manner he believed in good faith
to be in or not opposed to the best interests of the Corporation, or to have
improperly received a personal benefit or, in the case of any criminal
proceeding, if he had reasonable cause to believe his conduct was unlawful, or
in the case of a proceeding by or in the right of the Corporation, in which he
was adjudged liable to the Corporation, unless a court shall determine that the
director is fairly and reasonably entitled to indemnification in view of all the
circumstances, in which case the director shall be indemnified for reasonable
expenses incurred.
THIRTEEN
(a) For purposes of this Article THIRTEEN, the following terms
shall have the respective meanings specified below:
(i) "Act" shall have the meaning set forth in
paragraph (a)(ii)(v) of Article ELEVEN of these Second Amended and
Restated Articles of Incorporation.
(ii) "Beneficial Owner" shall have the meaning set
forth in paragraph (b)(iii) of Article ELEVEN of these Second Amended
and Restated Articles of Incorporation.
(iii) "Closing Price" of a share of stock on any day
means the highest closing sales price or bid quotation on the National
Association of Securities Dealers, Inc. Automated Quotation System
(including the National Market System) or any comparable system then in
use, or if the class or series in question is quoted on a United States
securities exchange registered under the Act, the reported closing
sales price or, in case no such sale takes place, the average of the
reported closing bid and asked price on such exchange, or, if no such
prices or quotations are available, the fair market value on the day in
question as determined by the Board of Directors in good faith.
(iv) "Communications Act" shall mean the
Communications Act of 1934, 47 U.S.C. SECTIONS 151 et seq., as amended.
(v) "Communications Laws" shall mean the
Communications Act and the regulations promulgated by the Federal
Communications Commission pursuant thereto, including any amendments
thereof or successor or replacement provisions thereto.
<PAGE> 10
(vi) "Fair Market Value" of a share of stock shall
mean the average Closing Price for such share for each of the
forty-five (45) most recent days during which shares of stock of such
class or series shall have been traded preceding the day on which
notice of redemption shall have been given pursuant to paragraph (iv)
of Section (e) of this Article THIRTEEN; provided, however, that if
shares of stock of such class or series are not traded on any
securities exchange or in the over-the-counter market, "Fair Market
Value" shall be determined by the Board of Directors in good faith; and
provided, further, however, that "Fair Market Value" as to any
stockholder who purchases any stock subject to redemption within one
hundred twenty (120) days prior to a Redemption Date shall not (unless
otherwise determined by the Board of Directors) exceed the purchase
price paid for such shares.
(vii) "Foreign Citizen" shall mean any of the
following:
(A) any alien;
(B) any foreign government;
(C) any representative of an alien or a
foreign government; or
(D) any corporation organized under the laws
of any country other than the United States; and
(E) any other Person falling within a class
of Persons identified from time to time in the Communications
Laws, including without limitation Section 310 of the
Communications Act, as being within a class of Persons whose
ownership of stock of a corporation holding station licenses
referenced in Title III of the Communications Act is limited
to a maximum percentage.
(viii) "Permitted Percentage" shall mean twenty
percent (20%), or such other percentage as may from time to time be
specified by the Communications Laws as the maximum percentage of
capital stock of a corporation holding licenses referenced in Section
310 of the Communications Act that may be owned by Foreign Citizens.
(ix) "Person" shall mean an individual, partnership,
corporation, trust or other entity.
(x) "Redemption Date" shall mean the date fixed by
the Board of Directors for the redemption of any shares of stock of the
Corporation pursuant to Section (e) of this Article THIRTEEN.
(xi) "Redemption Securities" shall mean any debt or
equity securities of the Corporation, any Subsidiary or any other
corporation, or any combination thereof, having such terms and
conditions as shall be approved by the Board of Directors and which,
together with any cash to be paid as part of the redemption price, in
the opinion of any nationally recognized investment banking firm
selected by the Board of Directors (which may be a firm which provides
other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given
pursuant to paragraph (d) of Section 5 of this Article THIRTEEN, at
least equal to the Fair Market Value of the shares to be redeemed
pursuant to this Article THIRTEEN (assuming, in the case of Redemption
Securities to be publicly traded, such Redemption Securities were fully
distributed and subject only to normal trading activity).
(b) It is the policy of the Corporation that Foreign Citizens
should own of record or Beneficially Own, directly or indirectly, individually
or in the aggregate, no more than the Permitted Percentage of its from time to
time outstanding shares of capital stock. If at any time Foreign Citizens,
directly or indirectly, individually or in the aggregate, become the record
owners or the Beneficial Owners of more than the Permitted Percentage of the
capital stock of the Corporation, then the Corporation shall have the power to
take the actions prescribed in this Section (b) through Section (f) of this
Article THIRTEEN. The provisions of this Article THIRTEEN are intended to assure
that the Corporation remains in continuous compliance with the citizenship
requirements of the Communications Laws. Any amendments to the Communications
Laws relating to the citizenship of station license
<PAGE> 11
holders or their shareholders are deemed to be incorporated herein by reference.
To the extent necessary to enable the Corporation to submit any proof of direct
or indirect citizenship required by law or by contract with the United States
government (or any agency thereof), the Corporation may require the record
holders and the Beneficial Owners of capital stock to confirm their direct or
indirect citizenship status from time to time, and dividends payable with
respect to stock held by such record holder or owner by such Beneficial Owner
may, in the discretion of the Board of Directors, be withheld until confirmation
of such citizenship status is received. The Board of Directors is authorized to
take such actions or make such interpretations as it may deem necessary or
advisable in order to implement the policy set forth in this Section (b)
including, without limitation, causing any transfer, or attempted transfer, of
any shares of stock of the Corporation, the effect of which would be to cause
one or more Foreign Citizens to own of record or Beneficially Own more than the
Permitted Percentage of the Corporation's capital stock, to be ineffective as
against the Corporation, and not registering (or permitting its transfer agent
to register) such transfer or purported transfer on the stock transfer records
of the Corporation. In addition, neither the Corporation (even if the transfer
agent shall have recognized such transfer) nor its transfer agent shall be
required to recognize the transferee or purported transferee thereof as a
shareholder of the Corporation for any purpose whatsoever except to the extent
necessary to effect any remedy available to the Corporation under this Article
THIRTEEN. A citizenship certificate may be required from all transferees (and
from any recipient upon original issuance) of capital stock of the Corporation
and, if such transferee (or recipient) is acting as a fiduciary or nominee for a
record owner or a Beneficial Owner, such Beneficial Owner or record owner, and
registration of transfer (or original issuance) may be denied upon refusal to
furnish such certificate.
(a) If on any date (including any record date) the number of
shares of capital stock that is owned of record or Beneficially Owned, directly
or indirectly, by Foreign Citizens is in excess of the Permitted Percentage of
all outstanding capital stock of the Corporation (such number of shares herein
referred to as the "Excess Shares"), the Corporation shall identify a number of
shares owned of record or Beneficially Owned, directly or indirectly, by Foreign
Citizens equal to the number of Excess Shares. The determination of the
Corporation as to those shares that constitute the Excess Shares shall be
conclusive. Shares deemed to constitute such Excess Shares (so long as such
excess exists) shall not be accorded any voting rights and shall not be deemed
to be outstanding for purposes of determining the vote required on any matter
properly brought before the shareholders of the Corporation for a vote thereon.
The Corporation shall (so long as such excess exists) withhold the payment of
dividends and the sharing in any other distribution (upon liquidation or
otherwise) in respect of the Excess Shares. At such time as the Permitted
Percentage is no longer exceeded, full voting rights shall be restored to any
shares previously deemed to be Excess Shares and any dividends or distribution
with respect thereto that have been withheld, without interest thereon, shall be
due and paid solely to the record holders of such shares at the time the
Permitted Percentage is no longer exceeded.
(b) Subject to the provisions of any resolution of the Board
of Directors creating any series of preferred stock or any other class of stock
which has a preference over common stock with regard to dividends or upon
liquidation, and subject to the procedures in the series of preferred stock of
the Corporation referenced in Articles FIVE, SIX and SEVEN hereof, the Excess
Shares shall be subject to redemption at any time by the Corporation by action
of the Board of Directors. The terms and conditions of such redemption shall be
as follows:
(i) the redemption price of the shares to be redeemed
pursuant to this Article THIRTEEN shall be equal to the Fair Market
Value of such shares or such other redemption price as required by
pertinent state or federal law pursuant to which the redemption is
required;
(ii) the redemption price of such shares may be paid
in cash, Redemption Securities or any combination thereof;
(iii) if less than all the Excess Shares are to be
redeemed, the shares to be redeemed shall be selected in such manner as
set forth in Section (c) of this Article THIRTEEN or as otherwise
determined by the Board of Directors;
(iv) at least thirty (30) days' written notice of the
Redemption Date shall be given to the record holders of the Excess
Shares selected to be redeemed (unless waived in writing by any such
holder) provided that the Redemption Date may be the date on which
written notice shall be given to record holders if the cash or
Redemption Securities necessary to effect the redemption shall have
been deposited in trust
<PAGE> 12
for the benefit of such record holders and subject to immediate
withdrawal by them upon surrender of the stock certificates for Excess
Shares to be redeemed;
(v) from and after the Redemption Date or such
earlier date as mandated by pertinent state or federal law, any and all
rights of whatever nature, which may be held by the record holder of
Excess Shares selected for redemption (including without limitation any
rights to vote or participate in dividends declared on stock of the
same class or series as such shares), shall cease and terminate and
they shall thenceforth be entitled only to receive the cash or
Redemption Securities payable upon redemption; and
(vi) such redemption shall be upon such other terms
and conditions as the Board of Directors shall determine.
(e) In determining the direct or indirect citizenship of
owners of record or Beneficial Owners or their transferees of its capital stock,
the Corporation may rely on the stock transfer records of the Corporation and
the citizenship certificates given by Beneficial Owners or owners of record or
their transferees or any recipients (in the case of original issuance) (in each
case whether such certificates have been given on their own behalf or on behalf
of others) to prove the citizenship of such owners of record, Beneficial Owners,
transferees or recipients of such capital stock. The determination of the direct
or indirect citizenship of owners of record, Beneficial Owners and their
transferees of such capital stock may also be subject to proof in such other way
or ways as the Corporation may deem reasonable. The Corporation may at any time
require proof of citizenship, in addition to the citizenship certificates, of
the record owner or Beneficial Owner or proposed transferees of shares of the
Corporation's capital stock, and the payment of dividends may be withheld, and
any application for transfer of ownership on the stock transfer records of the
Corporation may be refused, until such additional proof is submitted.
(f) Each provision of this Article THIRTEEN is intended to be
severable from every other provision. If any provision contained in this Article
THIRTEEN is held to be invalid, illegal or unenforceable, the validity, legality
or enforceability of any other provision of this Article THIRTEEN shall not be
affected, and this Article THIRTEEN shall be construed as if the provision held
to be invalid, illegal or unenforceable had never been contained therein.
********************************************************************************
The provisions of Article FOUR, Section A of these Second
Amended and Restated Articles of Incorporation were duly approved by the
shareholders of the Corporation in accordance with the provisions of Sections
14-2-1007 and 14-2-1003 of the Georgia Business Corporation Code on the 20th day
of December, 1996.
These Second Amended and Restated Articles of Incorporation
were duly adopted and authorized by the Board of Directors of the Company on
November 20, 1996.
<PAGE> 13
IN WITNESS WHEREOF, WORLDCOM, INC. has caused its duly
authorized officer to execute these Second Amended and Restated Articles of
Incorporation as of this 30th day of December, 1996.
WORLDCOM, INC.
By: /s/ Bernard J. Ebbers
--------------------------
Name: Bernard J. Ebbers
Title: President and Chief Executive
Officer
ATTEST:
/s/ Scott D. Sullivan
- -----------------------------
Name: Scott D. Sullivan
Title: Secretary
STATE OF MISSISSIPPI )
) SS.
CITY OF JACKSON )
I, Deborah A. Blackwell, a notary public, do hereby certify
that on this 30th day of December, 1996, personally appeared before me Bernard
J. Ebbers who, being by me first duly sworn, declared that he is the President
of WorldCom, Inc., that he signed the foregoing document as President of the
corporation, and that the statements therein contained are true.
[SEAL] /s/ Deborah A. Blackwell
-----------------------------
Notary Public
My Commission Expires:
10-4-97
<PAGE> 14
EXHIBIT A
Series A 8% Cumulative Convertible Preferred Stock
1. Designation. The designation of this Series shall be Series A 8%
Cumulative Convertible Preferred Stock. The number of shares of this Series
shall be 94,992. The liquidation value of shares of this Series shall be
$3,350.00 per share.
2. Dividends.
(a) The holders of shares of this Series shall be entitled
to receive, when, as and if declared by the Board of Directors of WorldCom, Inc.
(the "Company") out of funds legally available therefor, cumulative preferential
dividends from the issue date of such shares, at the rate per share of $268.00
per annum or $67.00 per quarter, and no more, payable quarterly for each share
of this Series, payable in arrears on each February 28, May 31, August 31 and
November 30, respectively (each such date being hereinafter referred to as a
"Dividend Payment Date") or, if any Dividend Payment Date is not a business day,
then the Dividend Payment Date shall be the next succeeding business day;
provided, however, that with respect to any dividend period during which a
redemption occurs, the Company may, at its option, declare accrued dividends to,
and pay such dividends on, the redemption date, in which case such dividends
would be payable on the redemption date in shares of the Common Stock of the
Company, par value $.01 per share (the "Common Stock"), to the holders of the
shares of this Series as of the record date for such dividend payment and such
accrued dividends would not be included in the calculation of the related Call
Price (as hereinafter defined). Each dividend on the shares of this Series shall
be payable to holders of record as they appear on the stock books of the Company
on such record dates as shall be fixed by the Board of Directors. The first
dividend payment of $67.00 shall be for the period from the date of issuance of
shares of this Series to and including February 27, 1997 and shall be payable on
February 28, 1997. Dividends (or amounts equal to accrued and unpaid dividends)
payable on the shares of this Series for any period other than a quarterly
dividend period shall be computed on the basis of a 360-day year of twelve
30-day months. At the election of the Board of Directors of the Company,
dividends may be paid in cash or in shares of Common Stock. In the event the
Board of Directors of the Company elects to pay a dividend in shares of Common
Stock, the number of shares of Common Stock to be issued on the Dividend Payment
Date will be determined by dividing the total dividend to be paid on each share
of this Series by 90% of the average of the average of the high and low sales
prices of the Common Stock as reported on the Nasdaq National Market for each of
the ten consecutive Trading Days (as hereinafter defined) immediately preceding
the fifth business day preceding the record date for such dividend.
Dividends on the shares of this Series shall accrue (whether or not
the Company has earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends are declared) on
a daily basis from the previous Dividend Payment Date, except that the first
dividend shall accrue from the date of issuance of the shares of this Series.
Dividends accumulate to the extent they are not paid on the Dividend Payment
Date for the quarter for which they accrue ("Accumulated Unpaid Dividends").
Accumulated Unpaid Dividends shall not bear interest.
(b) No dividend whatsoever shall be declared or paid upon,
or any sum set apart for the payment of dividends upon, any shares of this
Series or Parity Stock (as hereinafter defined) for any dividend period unless
all dividends for all past dividend periods have been declared and paid upon, or
declared and a sufficient sum set apart for the payment of such dividends upon,
all shares of this Series and Parity Stock outstanding other than the Exchange
Preferred (as hereinafter defined).
(c) Unless full cumulative dividends on all outstanding
shares of this Series and (to the extent that the amount thereof shall have
become determinable) any outstanding shares of Parity Stock due for all past
dividend periods shall have been declared and paid, or declared and a sufficient
sum for the payment thereof set apart, then, subject to the rights of holders of
shares of previously issued series of Preferred Stock: (i) no dividend (other
than a dividend payable solely in Junior Stock (as hereinafter defined)) shall
be declared or paid upon, or any sum set apart for the payment of dividends
upon, any shares of Junior Stock; (ii) no other distribution shall be made upon
any shares of Junior Stock; (iii) no shares of Junior Stock or any other series
of Preferred Stock shall be purchased, redeemed or otherwise acquired for cash
or other property of the Company (excluding shares of Junior Stock or Exchange
Preferred) by the Company or by any Subsidiary; and (iv) no monies shall be paid
into or set
<PAGE> 15
apart or made available for a sinking or other like fund for the purchase,
redemption or other acquisition for value of any shares of Junior Stock by the
Company or any Subsidiary.
(d) Any dividend payment made on shares of this Series
shall be distributed pro rata to the holders entitled thereto and be credited
first against the earliest accrued but unpaid dividend due with respect to
shares of this Series.
3. Voting Rights.
(a) The holders of shares of this Series shall have the
right with the holders of Common Stock to vote in the election of directors of
the Company and upon each other matter coming before any meeting of the
shareholders of the Company on the basis of ten votes for each such share held.
The holders of shares of this Series and the holders of Common Stock shall vote
together as a single class except as otherwise set forth herein or as otherwise
provided by law or by the Second Amended and Restated Articles of Incorporation
of the Company.
(b) The approval of more than two-thirds of the votes
entitled to be cast by the holders of the outstanding shares of this Series
(voting separately as a class), shall be required for the adoption of any
amendment to the Second Amended and Restated Articles of Incorporation that
materially adversely changes the rights, preferences or privileges of the shares
of this Series.
(c) The holders of the outstanding shares of this Series
shall also have the right, voting together with the holders of any other
outstanding shares of Voting Preferred Stock (as hereinafter defined) as a
separate voting group, to elect two members of the Board of Directors of the
Company at any time six or more quarterly dividends on any shares of Voting
Preferred Stock shall be in arrears and unpaid, in whole or in part, whether or
not declared and whether or not any funds shall be or have been legally
available for payment thereof. For this purpose, "Voting Preferred Stock" shall
mean the shares of this Series and each other series of Preferred Stock which
shall have substantially similar voting rights (including voting as one voting
group with other shares of Voting Preferred Stock) with respect to the election
of directors upon substantially similar arrearages of dividends. In such event,
the number of Directors of the Company shall be increased by two, and, unless a
regular meeting of the shareholders of the Company is to be held within 60 days
thereof for the purpose of electing Directors, within 30 days thereafter, the
Company shall call a special meeting of the holders of the outstanding shares of
Voting Preferred Stock for the purpose of electing such Directors to take place
at the time specified in the notice of the meeting, to be not more than 60 days
after such holders become so entitled to elect two Directors and not less than
10 days nor more than 50 days after the date on which such notice is mailed. If
such special meeting shall not have been so called by the Company, or such
regular meeting shall not be so held, a special meeting may be called for such
purpose at the expense of the Company by the holders of not less than 10% of the
outstanding shares of any series of Voting Preferred Stock; and notice of any
such special meeting shall be given by the person or persons calling the same to
the holders of the outstanding shares of the Voting Preferred Stock by
first-class mail, postage prepaid, at their last address as shall appear on the
stock transfer records of the Company. At any such special meeting the holders
of the outstanding shares of Voting Preferred Stock (voting separately as a
class with each share having one vote) shall elect two members of the Board of
Directors of the Company. If a regular meeting of the shareholders of the
Company for the purpose of electing Directors is to be held within 60 days after
the time the holders of the outstanding shares of Voting Preferred Stock become
so entitled to elect two Directors, then the holders of the outstanding shares
of Voting Preferred Stock shall be given notice thereof in the same manner as
other shareholders of the Company entitled to vote thereat; and at such regular
meeting, the holders of the outstanding shares of Voting Preferred Stock (voting
separately as a class with each share having one vote) shall elect two members
of the Board of Directors. The right of the holders of the Voting Preferred
Stock (voting separately as a class) to elect two members of the Board of
Directors of the Company shall continue until such time as no dividends on any
outstanding shares of Voting Preferred Stock are in arrears and unpaid, in whole
or in part, at which time (i) the voting power of the holders of the outstanding
shares of Voting Preferred Stock so to elect two Directors shall cease, but
always subject to the same provisions of this subparagraph (c) for the vesting
of such voting power upon the occurrence of each and every like arrearage of
dividends, and (ii) the term of office of each member of the Board of Directors
who was elected pursuant to this subparagraph (c) shall automatically expire.
<PAGE> 16
4. Redemptions and Conversions.
(a) Mandatory Conversion. On May 31, 1999 (the "Mandatory
Conversion Date"), each outstanding share of this Series shall convert
automatically (the "Mandatory Conversion") into shares of Common Stock at the
Common Equivalent Rate (as hereinafter defined) in effect on the Mandatory
Conversion Date and the right to receive, out of funds legally available
therefor, an amount equal to all accrued and unpaid dividends on such share of
this Series to the Mandatory Conversion Date, whether or not declared (payable
in cash or in shares of Common Stock on the same basis as that used to determine
dividends), subject to the right of the Company to redeem the shares of this
Series on or after the Initial Redemption Date (as hereinafter defined) and
prior to the Mandatory Conversion Date, as described below, and subject to the
conversion of the shares of this Series at the option of the holder at any time
prior to the Mandatory Conversion Date. Notwithstanding the forgoing, if the
Mandatory Conversion Date occurs after a record date for a quarterly dividend
and before the corresponding Dividend Payment Date, such dividend shall be paid,
out of funds legally available therefor, on the Dividend Payment Date rather
than on the Mandatory Conversion Date. The Common Equivalent Rate is initially
four-hundred and twenty shares of Common Stock for each share of this Series.
Dividends on the shares of this Series shall cease to accrue and such shares
shall cease to be outstanding on the Mandatory Conversion Date. The Company
shall make such arrangements as it deems appropriate for the issuance of
certificates representing shares of Common Stock and for the payment (in cash or
in shares of Common Stock, at the election of the Board of Directors of the
Company) in respect of such accrued and unpaid dividends, if any, or cash in
lieu of fractional shares, if any, in exchange for and contingent upon surrender
of certificates representing the shares of this Series, provided that the
Company shall give the holders of the shares of this Series such notice of any
such actions as the Company deems appropriate and upon such surrender such
holders shall be entitled to receive such dividends declared and paid on such
shares of Common Stock subsequent to the Mandatory Conversion Date. Amounts
payable in cash in respect of the shares of this series or in respect of such
shares of Common Stock shall not bear interest.
(b) Redemption by the Company.
(i) Right to Redeem. Shares of this Series are not
redeemable by the Company prior to May 31, 1998 (the "Initial Redemption Date").
At any time and from time to time on or after the Initial Redemption Date and
prior to the Mandatory Conversion Date, the Company shall have the right to
redeem, in whole or in part, the outstanding shares of this Series. Upon any
such redemption, the Company shall deliver to the holders of shares of this
Series, in accordance with the provisions of these Articles of Amendment in
exchange for each share so redeemed, a number of shares of Common Stock equal to
(A) the Call Price (as hereinafter defined) in effect on the date of redemption,
divided by (B) the Current Market Price (as hereinafter defined) of the Common
Stock determined as of the date which is one trading day prior to the public
announcement of the redemption. The Call Price of each share of this Series is
an amount equal to the sum of (X) $3,417.00 on and after the Initial Redemption
Date through August 30, 1998, $3,400.25 on and after August 31, 1998 through
November 29, 1998, $3,383.50 on and after November 30, 1998 through February 27,
1999, $3,366.75 on and after February 28, 1999 through April 29, 1999 and
$3,350.00 on and after April 30, 1999 until the Mandatory Conversion Date plus
(Y) all accrued and unpaid dividends thereon to the date fixed for redemption.
Notwithstanding the forgoing, if the date fixed for redemption occurs after a
record date for a quarterly dividend and prior to the corresponding Dividend
Payment Date, such dividend shall be paid, out of funds legally available
therefor, on the Dividend Payment Date and the Call Price shall not include the
amount of the dividend to be so paid. Dividends on the shares of this Series
shall cease to accrue and such shares shall cease to be outstanding on the date
fixed for redemption. A public announcement of any call for redemption shall be
made prior to the mailing of the notice of such call to holders of shares of
this Series as described below. If fewer than all the outstanding shares of this
Series are to be redeemed, shares to be redeemed shall be selected by the
Company from outstanding shares of this Series not previously redeemed by lot or
pro rata (as nearly as may be practicable) or by any other method determined by
the Board of Directors of the Company in its sole discretion to be fair and
proper.
(ii) Current Market Price. As used in this subparagraph
(b), the term "Current Market Price" per share of the Common Stock on any date
of determination means the lesser of (X) the average of the average of the high
and low sales prices of the Common Stock as reported on the Nasdaq National
Market or any national securities exchange upon which the Common Stock is then
listed, for each of the ten consecutive Trading Dates ending on and including
such date of determination and (Y) the Closing Price (as hereinafter defined) of
the Common Stock for such date of determination; provided, however, that, with
respect to any redemption of shares of
<PAGE> 17
this Series, if any event that results in an adjustment of the Common Equivalent
Rate occurs during the period beginning on the first day of such ten-day period
and ending on the applicable redemption date, the Current Market Price as
determined pursuant to the foregoing shall be appropriately adjusted to reflect
the occurrence of such event.
(iii) Notice of Redemption. The Company shall provide
notice of any redemption of the shares of this Series to holders of record of
the shares of this Series to be called for redemption not less than 15 nor more
than 60 days prior to the date fixed for such redemption. Such notice shall be
provided by mailing notice of such redemption first class postage prepaid, to
each holder of record of shares of this Series to be redeemed, at such holder's
address as it appears on the stock register of the Company; provided, however,
that neither failure to give such notice nor any defect therein shall affect the
validity of the proceeding for the redemption of any shares of this Series to be
redeemed.
Each such notice shall state, as appropriate, the following and may
contain such other information as the Company deems advisable:
(A) the redemption date;
(B) that all outstanding shares of this Series are to be
redeemed or, in the case of a call for redemption of
fewer than all outstanding shares of this Series, the
number of such shares held by such holder to be
redeemed;
(C) the Call Price, the number of shares of Common Stock
deliverable upon redemption of each share of this
Series to be redeemed and the Current Market Price
used to calculate such number of shares of Common
Stock;
(D) the place or places where certificates for such shares
are to be surrendered for redemption; and
(E) that dividends on the shares of this Series to be
redeemed shall cease to accrue on such redemption date
(except as otherwise provided herein).
(iv) Deposit of Shares and Funds. The Company's obligation
to deliver shares of Common Stock and provide funds upon redemption in
accordance with this paragraph 4 shall be deemed fulfilled if, on or before a
redemption date, the Company shall irrevocably deposit, with a bank or trust
company, or an affiliate of a bank or trust company, having an office or agency
in New York City and having a capital and surplus of at least $50,000,000, or
shall set aside or make other reasonable provision for the issuance of, such
number of shares of Common Stock as are required to be delivered by the Company
pursuant to this paragraph 4 upon the occurrence of the related redemption (and
for the payment of cash in lieu of the issuance of fractional share amounts and
accrued and unpaid dividends payable in cash, if any, on the shares to be
redeemed as and to the extent provided by this paragraph 4). Any interest
accrued on such funds shall be paid to the Company from time to time. Any shares
of Common Stock or funds so deposited and unclaimed at the end of two years from
such redemption date shall be repaid and released to the Company, after which
the holder or holders of such shares of this Series so called for redemption
shall look only to the Company for delivery of such shares of Common Stock or
funds.
(v) Surrender of Certificates; Status. Each holder of
shares of this Series to be redeemed shall surrender the certificates evidencing
such shares (properly endorsed or assigned for transfer, if the Board of
Directors of the Company shall so require and the notice shall so state) to the
Company at the place designated in the notice of such redemption and shall
thereupon be entitled to receive certificates evidencing shares of Common Stock
and to receive any funds or shares of Common Stock payable pursuant to this
paragraph (4) following such surrender and following the date of such
redemption. In case fewer than all the shares represented by any such
surrendered certificate are called for redemption, a new certificate shall be
issued at the expense of the Company representing the unredeemed shares. If such
notice of redemption shall have been given, and if on the date fixed for
redemption shares of Common Stock and funds necessary for the redemption shall
have been irrevocably either set aside by the Company separate and apart from
its other funds or assets in trust for the account of the holders of the shares
to be redeemed or converted (and so as to be and continue to be available
therefor) or deposited with a bank or a trust company or an affiliate thereof as
provided herein or the Company shall have made other
<PAGE> 18
reasonable provision therefor, then, notwithstanding that the certificates
evidencing any shares of this Series so called for redemption or subject to
conversion shall not have been surrendered, the shares represented thereby so
called for redemption shall be deemed no longer outstanding, dividends with
respect to the shares so called for redemption shall cease to accrue on the date
fixed for redemption (except that holders of shares of this Series at the close
of business on a record date for any payment of dividends shall be entitled to
receive the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares following such record
date and prior to such Dividend Payment Date) and all rights with respect to the
shares so called for redemption shall forthwith after such date cease and
terminate, except for the rights of the holders to receive the shares of Common
Stock and funds, if any, payable pursuant to this paragraph (4) without interest
upon surrender of their certificates therefor. Holders of shares of this Series
that are redeemed shall not be entitled to receive dividends declared and paid
on such shares of Common Stock, and such shares of Common Stock shall not be
entitled to vote, until such shares of Common Stock are issued upon the
surrender of the certificates representing such shares of this Series and upon
such surrender such holders shall be entitled to receive such dividends declared
and paid on such shares of Common Stock subsequent to such redemption date.
(c) Conversion at Option of Holder. Shares of this Series
are convertible, in whole or in part, at the option of the holder thereof, at
any time prior to the Mandatory Conversion Date, unless previously redeemed,
into shares of Common Stock at a rate of 344.274 shares of Common Stock for each
share of this Series (the "Optional Conversion Rate") (equivalent to a
conversion price of $9.73 per share of Common Stock). The right to convert
shares of this Series called for redemption shall terminate at the close of
business on the redemption date.
Conversion of shares of this Series may be effected by delivering
certificates evidencing such shares, together with written notice of conversion
and a proper assignment of such certificates to the Company or in blank, to the
office or agency to be maintained by the Company for that purpose (and, if
applicable, payment by the Company of an amount, out of funds legally available
therefor (in cash or in shares of Common Stock, at the election of the Company),
equal to the dividend payable on such shares), and otherwise in accordance with
conversion procedures established by the Company. Each conversion shall be
deemed to have been effected immediately prior to the close of business on the
date on which the foregoing requirements shall have been satisfied. The
conversion shall be at the Optional Conversion Rate in effect at such time and
on such date.
Holders of shares of this Series at the close of business on a record
date for any payment of dividends shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion of such shares following such record date and
prior to such Dividend Payment Date. The Company shall make no other payment or
allowance for unpaid dividends, whether or not in arrears, on converted shares
of this Series or for dividends or distributions on the shares of Common Stock
issued upon such conversion.
(d) Common Equivalent Rate and Optional Conversion Rate
Adjustments. The Common Equivalent Rate and the Optional Conversion Rate also
shall be subject to adjustment from time to time as provided below in this
paragraph.
(i) If the Company shall:
(A) pay a dividend or make a distribution with respect to
its Common Stock in shares of such stock,
(B) subdivide or split its outstanding shares of Common
Stock into a greater number of shares,
(C) combine its outstanding shares of Common Stock into a
smaller number of shares, or
(D) issue by reclassification of its shares of Common Stock
any shares of Common Stock of the Company,
<PAGE> 19
then, in any such event, the Common Equivalent Rate and the Optional Conversion
Rate in effect immediately prior to such event shall each be adjusted so that
the holder of any shares of this Series shall thereafter be entitled to receive,
upon Mandatory Conversion or upon conversion at the option of the holder, the
number of shares of Common Stock of the Company which such holder would have
owned or been entitled to receive immediately following any event described
above had such shares of this Series been converted immediately prior to such
event or any record date with respect thereto. Such adjustment shall become
effective at the opening of business on the business day next following the
record date for determination of shareholders entitled to receive such dividend
or distribution in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
split, combination or reclassification. Such adjustment shall be made
successively.
(ii) If the Company shall, after the date hereof, issue
rights or warrants to all holders of its Common
Stock entitling them (for a period not exceeding
forty-five days from the date of such issuance) to
subscribe for or purchase shares of Common Stock at
a price per share less than the current market
price of the Common Stock, then in each case the
Common Equivalent Rate and Optional Conversion Rate
shall each be adjusted by multiplying the Common
Equivalent Rate and the Optional Conversion Rate,
in effect immediately prior to the date of issuance
of such rights or warrants, by a fraction, of which
the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of
Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and of which
the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of
Common Stock which the aggregate offering price of
the total number of shares of Common Stock so
offered for subscription or purchase pursuant to
such rights or warrants would purchase at such
current market price (determined by multiplying
such total number of shares by the exercise price
of such rights or warrants and dividing the product
so obtained by such current market price). Such
adjustment shall become effective at the opening of
business on the business day next following the
record date for the determination of shareholders
entitled to receive such rights or warrants. To the
extent that shares of Common Stock are not
delivered after the expiration of such rights or
warrants, the Common Equivalent Rate shall be
readjusted to the Common Equivalent Rate which
would then be in effect had the adjustments been
made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the
number of shares of Common Stock actually
delivered. Such adjustment shall be made
successively.
(iii) If the Company shall pay a dividend or make a
distribution to all holders of its Common Stock of
evidences of its indebtedness, securities of a
Subsidiary or other assets (excluding any dividends
or distributions referred to in clause (i) above or
any cash dividends other than Extraordinary Cash
Distributions (as hereinafter defined)) or shall
issue to all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its
securities (other than those referred to in clause
(ii) above), then in each such case, the Common
Equivalent Rate and the Optional Conversion Rate
shall each be adjusted by multiplying the Common
Equivalent Rate and the Optional Conversion Rate in
effect on the record date mentioned below, by a
fraction of which the numerator shall be the
current market price per share of the Common Stock
on the record date for the determination of
shareholders entitled to receive such dividend or
distribution, and of which the denominator shall be
such current market price per share of Common Stock
less the fair market value (as determined by the
Board of Directors of the Company, whose good faith
determination shall be conclusive, and described in
a resolution adopted with respect thereto) as of
such record date of the portion of the assets or
evidences of indebtedness so distributed or of such
<PAGE> 20
subscription rights or warrants applicable to one
share of Common Stock. Such adjustment shall become
effective on the opening of business on the
business day next following the record date for the
determination of shareholders entitled to receive
such dividend or distribution. Such adjustment
shall be made successively.
(iv) Any shares of Common Stock issuable in payment of a
dividend shall be deemed to have been issued
immediately prior to the close of business on the
record date for such dividend for purposes of
calculating the number of outstanding shares of
Common Stock under clause (ii) above. For purposes
of any computation under clause (ii) and (iii)
above, the current market price per share of Common
Stock at any date shall be deemed to be the average
of the daily Closing Prices for the thirty
consecutive Trading Dates preceding the date in
question; provided, however, if any event that
results in an adjustment of the Common Equivalent
Rate occurs during such thirty-day period, the
current market price as determined pursuant to the
foregoing shall be appropriately adjusted to
reflect the occurrence of such event.
(v) The Company shall also be entitled to make upward
adjustments in the Common Equivalent Rate, the
Optional Conversion Rate and the Call Price, as the
Board of Directors in its good faith discretion
shall determine to be advisable, in order that any
stock dividends, subdivisions of shares,
distribution of rights to purchase stock or
securities, or distribution of securities
convertible into or exchangeable for stock (or any
transaction which could be treated as any of the
foregoing transactions pursuant to Section 305 of
the Internal Revenue Code of 1986, as amended)
hereafter made by the Company to its shareholders
shall not be taxable.
(vi) In any case in which clause (iii) above shall
require that an adjustment as a result of any event
become effective at the opening of business on the
business day next following a record date and the
date fixed for conversion pursuant to subparagraph
(4)(c) or redemption pursuant to subparagraph
(4)(b) occurs after such record date, but before
the occurrence of such event, the Company may in
its sole discretion, elect to defer, until after
the occurrence of such event, issuing to the holder
of any converted or redeemed shares of this Series
the additional shares of Common Stock issuable upon
such conversion or redemption over the shares of
Common Stock issuable before giving effect to such
adjustment.
(vii) All adjustments to the Common Equivalent Rate and
the Optional Conversion Rate shall be calculated to
the nearest 1/1000th of a share of Common Stock (or
if there is not a nearest 1/1000th of a share to
the next lower 1/1000th of a share). No adjustment
in the Common Equivalent Rate and the Optional
Conversion Rate shall be required unless such
adjustment would require an increase or decrease of
at least one percent therein; provided, however,
that any adjustments which by reason of this
subparagraph are not required to be made shall be
carried forward and taken into account in any
subsequent adjustments.
(e) Adjustment for Consolidation or Merger. In case of any
consolidation or merger to which the Company is a party (other than a merger or
consolidation in which the Company is the continuing corporation and in which
the Common Stock outstanding immediately prior to the merger or consolidation
remains unchanged), or in case of any sale or transfer to another corporation of
the property of the Company as an entirety or substantially as an entirety, or
in case of any statutory exchange of securities with another corporation (other
than in connection with a merger or acquisition), proper provision shall be made
so that each share of this Series shall, after consummation of such transaction,
be subject to (i) conversion at the option of the holder into the kind and
amount of securities, cash or other property receivable upon consummation of
such transaction by a holder of the number of shares of Common Stock into which
such share of this Series might have been converted immediately prior to
consummation of such transaction, (ii) conversion on the Mandatory Conversion
Date into the kind and amount of
<PAGE> 21
securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which such
share of this Series would have been converted if the conversion on the
Mandatory Conversion Date had occurred immediately prior to the date of
consummation of such transaction, and (iii) redemption on any redemption date in
exchange for the kind and amount of securities, cash or other property
receivable upon consummation of such transaction by a holder of the number of
shares of Common Stock that would have been issuable at the Call Price in effect
on such redemption date upon a redemption of such shares immediately prior to
the consummation of such transaction, assuming that the public announcement of
such redemption had been made on the last possible date permitted by the terms
of this Series and applicable law; assuming in each case that such holder of
shares of this Series failed to exercise rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon
consummation of such transaction (provided that if the kind or amount of
securities, cash or other property receivable upon consummation of such
transaction is not the same for each non-electing share, then the kind and
amount of securities, cash or other property receivable upon consummation of
such transaction for each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares). The
kind and amount of securities into which the shares of this Series shall be
convertible after the consummation of such transaction shall be subject to
adjustment as described in the immediately preceding subparagraph 4(d) following
the date of consummation of such transaction. The Company shall not, without the
affirmative vote of more than the holders of two-thirds of all the outstanding
shares of this Series, become a party to any such transaction unless the terms
thereof are consistent with the foregoing.
(f) Notice of Adjustments. Whenever the Common Equivalent
Rate and Optional Conversion Rate are adjusted as herein provided, the Company
shall:
(i) forthwith compute the adjusted Common Equivalent
Rate and Optional Conversion Rate in accordance
herewith and prepare a certificate signed by an
officer of the Company setting forth the adjusted
Common Equivalent Rate and the Optional Conversion
Rate, the method of calculation thereof in
reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based,
which certificate shall be conclusive, final and
binding evidence of the correctness of the
adjustment, and file such certificate forthwith
with the transfer agent for the shares of this
Series and the Common Stock; and
(ii) mail a notice to the holders of the outstanding
shares of this Series stating that the Common
Equivalent Rate and the Optional Conversion Rate
have been adjusted, the facts requiring such
adjustment and upon which such adjustment is based
and setting forth the adjusted Common Equivalent
Rate and Optional Conversion Rate, such notice to
be mailed at or prior to the time the Company mails
an interim statement to its shareholders covering
the fiscal quarter during which the facts requiring
such adjustment occurred, but in any event within
45 days of the end of such fiscal quarter.
(g) Notices. In case, at any time while any of the shares
of this Series are outstanding,
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock, excluding any
cash dividends; or
(ii) the Company shall authorize the issuance to all
holders of its Common Stock of rights or warrants
to subscribe for or purchase shares of its Common
Stock or of any other subscription rights or
warrants; or
(iii) the Company shall authorize any reclassification of
the Common Stock of the Company (other than a
subdivision or combination thereof) or of any
consolidation or merger to which the Company is a
party and for which approval of any shareholders of
the Company is required (except for a merger of the
Company into a Subsidiary solely for the purpose of
changing the corporate domicile of the Company to
another state of the United States and in
connection with which there is no
<PAGE> 22
substantive change in the rights or privileges of
any securities of the Company other than changes
resulting from differences in the corporate
statutes of the then existing and the new state of
domicile), or of the sale or transfer of all or
substantially all of the assets of the Company; or
(iv) there shall be commenced the voluntary or
involuntary dissolution, liquidation or winding up
of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of the shares of this Series, and shall cause to be
mailed to the holders of shares of this Series at their last addresses as they
shall appear on the stock register, at least 10 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event that
more than one date is specified), a notice stating (A) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (B) the date on which any such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property (including cash),
if any, deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. The failure to give or receive
the notice required by this subparagraph (g) or any defect therein shall not
affect the legality or validity of any such dividend, distribution, right or
warrant or other action.
(h) Effective Date of Conversions and Redemptions. The
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon any conversion or redemption shall
be deemed to have become on the date of any such conversion or redemption the
holder or holders of record of the shares represented thereby; provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the person or persons in whose name
or names the certificate or certificates for such shares are to be issued as the
record holder or holders thereof for all purposes at the opening of business on
the next succeeding business day on which such stock transfer books are open.
(i) No Fractional Shares. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued upon the
redemption or conversion of any shares of this Series or in respect of any
dividend paid in shares of Common Stock. In lieu of any fractional share
otherwise issuable in respect of all the shares of this Series of any holder
which are redeemed or converted on any redemption date or upon Mandatory
Conversion or any optional conversion or in respect of any dividend paid in
shares of Common Stock, the Company shall, at the election of the Company,
either (i) sell such fractional share, as agent for the person entitled thereto,
and distribute the proceeds of such sale, net of any discounts, commissions,
fees or expenses associated with such sale, to such person, all in accordance
with applicable rules under the Securities Act of 1933, as amended, or (ii) pay
to the person entitled thereto an amount in cash equal to the current value of
such fraction, calculated to the nearest one-hundredth (1/100) of a share, to be
computed (x) if the shares of this Series are listed on any national securities
exchange or the Nasdaq National Market, on the basis of the last sales price (or
the quoted closing bid price if there shall have been no sales) of the shares of
this Series on such exchange or the Nasdaq National Market (as the case may be)
on the date of any such conversion or redemption or the date of payment of any
such dividend, or (y) if the shares of this Series are not so listed, on the
basis of the mean between the closing bid and asked prices for the shares of
this Series on the date of any such conversion or redemption or the date of
payment of any such dividend, as reported by Nasdaq, or its successor, or (z) if
the shares of this Series are not so listed and if there are no such closing bid
and asked prices, on the basis of the fair market value per share as determined
in good faith by the Board of Directors.
(j) Reissuance. Shares of this Series that have been issued
and reacquired in any manner, including shares purchased, exchanged, redeemed or
converted, shall not be reissued as part of this Series and shall (upon
compliance with any applicable provisions of the laws of the State of Georgia)
have the status of authorized and unissued shares of the Preferred Stock
undesignated as to series and may be redesignated and reissued as part of any
series of Preferred Stock.
<PAGE> 23
(k) Definitions. As used herein:
(i) the term "business day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions
in the State of New York are authorized or obligated by
law or executive order to close or are closed because of a
banking moratorium or otherwise;
(ii) the term "Capital Stock" means any capital stock of any
class or series (however designated) of the Company;
(iii) the term "Closing Price" on any day shall mean the closing
sale price regular way on such day or, in case no such
sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in each case on
the Nasdaq National Market or, if the Common Stock is not
listed or admitted to trading on the Nasdaq National
Market then on the principal national securities exchange
on which the Common Stock is listed or admitted to trading
(which shall be the national securities exchange on which
the greatest number of shares of Common Stock has been
traded during the five consecutive Trading Dates ending on
and including the date of determination), or, if not
quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of
the closing bid and asked prices of the Common Stock on
the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or
a similar generally accepted reporting service, or if not
so available as determined in good faith by the Board of
Directors, on the basis of such relevant factors as it in
good faith considers appropriate;
(iv) the term "Exchange Preferred" means the Series B
Convertible Preferred Stock of the Company.
(v) the term "Extraordinary Cash Distributions" means, with
respect to any cash dividend or distribution paid on any
date, the amount, if any, by which all cash dividends and
cash distributions on the Common Stock paid during the
consecutive 12-month period ending on and including such
date (other than cash dividends and cash distributions for
which an adjustment to the Common Equivalent Rate and the
Optional Conversion Rate was previously made) exceeds, on
a per share of Common Stock basis, 10% of the average
daily Closing Price of the Common Stock over such 12-month
period;
(vi) the term "Junior Stock" means any Capital Stock ranking as
to dividends or as to rights in liquidation, dissolution
or winding up of the affairs of the Company junior to the
shares of this Series;
(vii) the term "Parity Stock" means any Capital Stock ranking as
to dividends or as to rights in liquidation, dissolution
or winding up the affairs of the Company equally with the
shares of this Series;
(viii) the term "Subsidiary" means any corporation a majority of
the outstanding Voting Stock of which is owned, directly
or indirectly, by the Company or by one or more
Subsidiaries or by the Company and one or more
Subsidiaries. For this purpose, the term "Voting Stock"
means stock of any class or classes (however designated)
having ordinary voting power for the election of a
majority of the members of the board of directors (or
other governing body) of such corporation, other than
stock having such powers only by reason of the happening
of a contingency;
<PAGE> 24
(ix) the term "Trading Date" shall mean a date on which the
Nasdaq National Market (or any successor thereto) is open
for the transaction of business.
(l) Payment of Taxes. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on the redemption or conversion of
shares of this Series pursuant to this paragraph 4; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any registration of transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of shares of
this Series redeemed or converted or to be redeemed or converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax or has established, to
the satisfaction of the Company, that such tax has been paid.
(m) Reservation of Common Stock. The Company shall at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock and/or its issued Common
Stock held in its treasury, for the purpose of effecting any Mandatory
Conversion of the shares of this Series or any conversion of the shares of this
Series at the option of the holder, the full number of shares of Common Stock
then deliverable upon any such conversion of all outstanding shares of this
Series.
5. Liquidation Rights.
(a) In the event of the liquidation, dissolution, or
winding up of the Company, whether voluntary or involuntary, the holders of
shares of this Series then outstanding, after payment or provision for payment
of the debts and other liabilities of the Company and the payment or provision
for payment of any distribution on any shares of the Company having a preference
and a priority over the shares of this Series on liquidation, and before any
distribution to the holders of the Common Stock, or any other stock ranking
junior to the shares of this Series with respect to distributions upon
liquidation, dissolution or winding up, shall be entitled to be paid out of the
assets of the Company available for distribution to its shareholders, an amount
per share of this Series equal to the greater of (i) the sum of (a) the
liquidation value set forth in paragraph (1) above and (b) all accrued and
unpaid dividends thereon to the date of liquidation, dissolution or winding up
and (ii) the value of the shares of Common Stock into which such shares of this
Series are convertible on the date of such liquidation, dissolution or winding
up, before any payment shall be made or any assets distributed to the holders of
any shares of the Company ranking junior to the shares of this Series upon
liquidation. In the event the assets of the Company available for distribution
to the holders of the shares of this Series upon any dissolution, liquidation or
winding up of the Company shall be insufficient to pay in full the liquidation
payments payable to the holders of outstanding shares of this Series and any
shares of Parity Stock, then the holders of all such shares of this Series shall
share ratably in such distribution of assets in accordance with the amount which
would be payable on such distribution if the amounts to which the holders of
outstanding shares of this Series and the holders of outstanding shares of such
shares of Parity Stock are entitled were paid in full. Except as provided in
this paragraph 5, holders of this Series shall not be entitled to any
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Company.
(b) For the purposes of this paragraph 5, none of the
following shall be deemed to be a voluntary or involuntary liquidation,
dissolution or winding up of the Company:
(i) the voluntary sale, conveyance, lease, exchange or
transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of
the property or assets of the Company;
(ii) the consolidation or merger of the Company with or
into one or more other corporations, or other
associations;
(iii) the consolidation or merger of one or more
corporations or other associations with or into the
Company; or
(iv) the participation by the Company in a share exchange.
<PAGE> 25
6. Definition. As used herein, the term "Common Stock" shall mean any
stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject
to redemption by the Company. However, shares of Common Stock issuable upon
conversion of shares of this Series shall include only shares of the class
designated as Common Stock as of the original date of issuance of shares of this
Series, or shares of the Company of any class or classes resulting from any
reclassification or reclassification thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from such reclassification bears to the total
number of shares of all classes resulting from all such reclassification.
7. No Preemptive Rights. The holders of shares of this Series shall
have no preemptive rights, including preemptive rights with respect to any
shares of Capital Stock or other securities of the Company convertible into or
carrying rights or options to purchase any such shares.
<PAGE> 26
EXHIBIT B
Series B Convertible Preferred Stock
1. Designation and Amount. The shares of such series shall be
designated "Series B Convertible Preferred Stock" (the "Series B Preferred
Stock"), and the number of shares constituting such series shall be 15,000,000.
2. Dividends.
(a) The holders of Series B Preferred Stock shall be entitled
to receive, when and as declared, out of the funds legally available for that
purpose, dividends per share of Series B Preferred Stock at the rate of 7.75
cents per annum, payable when and as the Board of Directors (the "Board of
Directors") of WorldCom, Inc. (the "Company") may determine, in cash, before any
dividends shall be set apart for or paid upon the common stock of the Company,
par value $.01 per share (the "Common Stock"), or any stock ranking as to
dividends junior to the Series B Preferred Stock (such stock being referred to
hereinafter collectively as "Junior Stock") in any year. All dividends declared
upon Series B Preferred Stock shall be declared pro rata per share and shall be
payable to holders of record as they appear on the stock books of the Company on
such record dates as shall be fixed by the Board of Directors. Notwithstanding
the foregoing, the Company may declare, set apart and pay dividends on shares of
the Company's Series A 8% Cumulative Convertible Preferred Stock (the "Series A
Preferred Stock") whether or not dividends have been declared, set apart or paid
on the shares of Series B Preferred Stock. The Board of Directors shall not be
required to declare any dividends on the Series B Preferred Stock and the
failure to declare any such dividends shall not constitute a default or
otherwise vest the holders of Series B Preferred Stock with any right, other
than the right to receive amounts in respect of accrued but unpaid dividends
pursuant to Sections 3, 5 and 7 hereof.
(b) Dividends on the Series B Preferred Stock shall be
cumulative and shall accrue on a daily basis, whether or not in any fiscal year
there shall be net profits or surplus available for the payment of dividends in
such fiscal year, so that if in any fiscal year or years, dividends in whole or
in part are not paid upon the Series B Preferred Stock, unpaid dividends shall
accumulate as against the holders of the Junior Stock. Accrued but unpaid
dividends shall not bear interest.
(c) Dividends (or amounts equal to accrued and unpaid
dividends) payable on the shares of Series B Preferred Stock shall be computed
on the basis of a 360-day year of twelve 30-day months.
(d) The Company shall not set apart for or pay upon the Common
Stock any Extraordinary Cash Dividend unless, at the same time, the Company
shall have set apart for or paid upon all shares of Series B Preferred Stock an
amount of cash per share of Series B Preferred Stock equal to the Extraordinary
Cash Dividend that would have been paid in respect of such share if the holder
of such share had converted such share into shares of Common Stock pursuant to
Section 5 immediately prior to the record date for such Extraordinary Cash
Dividend. For purposes of this paragraph 2(d), "Extraordinary Cash Dividend"
shall mean, with respect to any cash dividend or distribution paid on any date,
the amount, if any, by which all cash dividends and cash distributions on the
Common Stock paid during the consecutive 12-month period ending on and including
such date exceeds, on a per share of Common Stock basis, 10% of the average
daily closing price of the Common Stock over such 12-month period.
3. Liquidation, Dissolution or Winding Up.
(a) Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Company, no distribution shall be made (i) to the holders
of Junior Stock unless, prior thereto, the holders of the Series B Preferred
Stock shall have received $1.00 per share, plus an amount equal to unpaid
dividends thereon, including accrued dividends, whether or not declared, to the
date of such payment and subject to the payment in full of all amounts required
to be distributed to the holders of any other Preferred Stock of the Company
ranking on liquidation prior and in preference to the Series B Preferred Stock
(such Preferred Stock being referred to hereinafter as "Senior Preferred Stock")
or (ii) to the holders of stock ranking on a parity, either as to dividends or
upon liquidation with the Series B Preferred Stock, except distributions made
ratably on the Series B Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such
<PAGE> 27
liquidation. In the event the assets of the Company available for distribution
to the holders of the shares of the Series B Preferred Stock upon any
dissolution, liquidation or winding up of the Company shall be insufficient to
pay in full the liquidation payments payable to the holders of outstanding
shares of the Series B Preferred Stock and the holders of any shares of stock
ranking on a parity with the Series B Preferred Stock, then the holders of all
such shares of the Series B Preferred Stock shall share ratably in such
distribution of assets in accordance with the amount which would be payable on
such distribution if the amounts to which the holders of outstanding shares of
the Series B Preferred Stock and the holders of outstanding shares of such
shares of parity stock are entitled were paid in full. The Series A Preferred
Stock shall rank on a parity with the Series B Preferred Stock for purposes of
this paragraph 3(a).
(b) The merger or consolidation of the Company into or with
another company, the merger or consolidation of any other company into or with
the Company, or the sale, conveyance, mortgage, pledge or lease of all or
substantially all the assets of the Company shall not be deemed to be a
liquidation, dissolution or winding up of the Company for purposes of this
Section 3.
4. Voting.
(a) Each issued and outstanding share of Series B Preferred
Stock shall be entitled to one vote per share with respect to any and all
matters presented to the shareholders of the Company for their action or
consideration. Except as provided by law and by the provisions of paragraph 4(b)
below, holders of Series B Preferred Stock shall vote together with the holders
of Common Stock as a single class.
(b) The Company shall not amend, alter or repeal the
preferences, special rights or other powers or terms of the Series B Preferred
Stock so as to affect adversely the Series B Preferred Stock, without the
written consent or affirmative vote of the holders of at least a majority of the
then outstanding aggregate number of shares of Series B Preferred Stock, given
in writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class. For this purpose, the authorization or issuance of any
series of preferred stock with preference or priority over, or being on a parity
with the Series B Preferred Stock as to the right to receive either dividends or
amounts distributable upon liquidation, dissolution or winding up of the Company
shall not be deemed to affect adversely the Series B Preferred Stock.
5. Optional Conversion.
(a) Each share of Series B Preferred Stock may be converted at
any time, unless previously redeemed, at the option of the holder thereof, in
the manner hereinafter provided, into fully paid and nonassessable shares of
Common Stock at the rate of 0.0973912 shares (or an effective initial conversion
price of $10.268 per share of Common Stock) of Common Stock for each one share
of Series B Preferred Stock surrendered for conversion, or at such other rate as
may then be effective following adjustment pursuant to Section 6 hereof (the
"Conversion Rate").
(b) The Company shall not issue fractions of shares of Common
Stock upon conversion of Series B Preferred Stock or scrip in lieu thereof. If
any fraction of a share of Common Stock would, except for the provisions of this
paragraph 5(b), be issuable upon conversion of any Series B Preferred Stock, the
Company shall in lieu thereof at the election of the Company, either (i) sell
such fractional share, as agent for the person entitled thereto, and distribute
the proceeds of such sale, net of any discounts, commissions, fees or expenses
associated with such sale, to such person, all in accordance with all applicable
rules under the Securities Act of 1933, as amended, or (ii) pay to the person
entitled thereto an amount in cash equal to the current value of such fraction,
calculated to the nearest one-hundredth (1/100) of a share, to be computed (x)
if the Common Stock is listed on any national securities exchange or the Nasdaq
National Market, on the basis of the last sales price (or the quoted closing bid
price if there shall have been no sales) of the Common Stock on such exchange or
the Nasdaq National Market (as the case may be) on the date of conversion, or
(y) if the Common Stock is not so listed, on the basis of the mean between the
closing bid and asked prices for the Common Stock on the date of conversion as
reported by Nasdaq, or its successor, or (z) if the Common Stock is not so
listed and if there are no such closing bid and asked prices, on the basis of
the fair market value per share as determined by the Board of Directors.
(c) In order to exercise the conversion privilege, the holder
of any Series B Preferred Stock to be converted shall surrender his, her or its
certificate or certificates therefore to the principal office of the transfer
<PAGE> 28
agent for the Series B Preferred Stock (or if no transfer agent be at the time
appointed, then the Company at its principal office), and shall give written
notice to the Company at such office that the holder elects to convert the
Series B Preferred Stock represented by such certificates, or any number
thereof. Such notice shall also state the name or names (with address) in which
the certificate or certificates for shares of Common Stock that shall be
issuable on such conversion shall be issued. If so required by the Company,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Company. The date of receipt by the transfer agent (or by the Company if the
Company serves as its own transfer agent) of the certificates and notice shall
be the conversion date (the "Conversion Date"). As soon as practicable after
receipt of such notice and the surrender of the certificate or certificates for
Series B Preferred Stock as aforesaid, the Company shall cause to be issued and
delivered at such office to such holder, or on such holder's written order, a
certificate or certificates for the number of full shares of Common Stock
issuable on such conversion in accordance with the provisions hereof and cash as
provided in paragraph 5(b) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(d) The Company shall at all times when the Series B Preferred
Stock shall be outstanding reserve and keep available out of its authorized but
unissued stock, for the purposes of effecting the conversion of the Series B
Preferred Stock, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding Series B Preferred Stock.
(e) Shares of Series B Preferred Stock may not be converted
after the close of business on the business day preceding the date fixed for
redemption of such shares pursuant to Section 7.
(f) Upon any such conversion, the Company shall pay, out of
funds legally available therefor, to the person entitled thereto an amount equal
to all accrued but unpaid dividends to, but not including, the Conversion Date
in respect of the shares of Series B Preferred Stock surrendered for conversion,
which amount shall be payable, at the election of the Company, in cash or shares
of Common Stock. In the event the Company elects to pay such amount in shares of
Common Stock, the number of shares of Common Stock to be issued in respect of
unpaid dividends on each share of Series B Preferred Stock surrendered for
conversion shall, subject to paragraph 5(b), be determined by dividing (x) the
total amount of accrued but unpaid dividends to be paid on each such share of
Series B Preferred Stock by (y) the Fair Market Value of a share of Common
Stock. For purposes hereof, the term "Fair Market Value" shall mean (i) if the
Common Stock is listed on any national securities exchange or the Nasdaq
National Market, the average of the last sales price (or the quoted closing bid
price if there shall have been no sales) of the Common Stock on such exchange or
the Nasdaq National Market (as the case may be) for a period of 30 trading days
prior to the Conversion Date, or (ii) if the Common Stock is not so listed, on
the basis of the average of the mean between the closing bid and asked prices
for the Common Stock for each day in the 30 trading day period prior to the
Conversion Date, as reported by Nasdaq, or its successor, or (iii) if the Common
Stock is not so listed and if there are no such closing bid and asked prices, on
the basis of the fair market value per share as determined by the Board of
Directors.
(g) All shares of Series B Preferred Stock which shall have
been surrendered for conversion as herein provided shall no longer be deemed to
be outstanding and all rights with respect to such shares, including the rights,
if any, to receive notices and to vote, shall forthwith cease and terminate
except only the right of the holder thereof to receive shares of Common Stock in
exchange therefor and payment of any accrued and unpaid dividends thereon. Any
shares of Series B Preferred Stock so converted shall be retired and canceled
and shall not be reissued, and the Company may from time to time take such
appropriate action as may be necessary to reduce the authorized Series B
Preferred Stock accordingly.
6. Adjustment Provisions.
(a) In case the Company shall at any time (x) subdivide
(whether by stock dividend, stock split or otherwise) its outstanding shares of
Common Stock into a greater number of shares or (y) combine its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Rate in
effect immediately prior thereto shall be proportionately adjusted so that the
holder of any shares of Series B Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of capital stock of
the Company which the holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such shares of
Series B Preferred Stock been converted immediately prior to the happening of
such event.
<PAGE> 29
In case the Company shall at any time prior to March 23, 1999 subdivide (whether
by stock dividend, stock split or otherwise) its outstanding shares of Common
Stock into a greater number of shares (each a "Subdivision"), the voting rights
of each share of Series B Preferred Stock shall be adjusted to provide that the
percentage of the aggregate voting power of the Common Stock represented by the
Series B Preferred Stock, shall be the same as such percentage immediately prior
to such Subdivision, with the holder of each share of Series B Preferred Stock
being entitled to the number of votes proportionate to such adjustment. The
adjustment made pursuant to this paragraph 4(a) shall become effective
immediately after the effective date of the event requiring such adjustment and
shall be made by the Board of Directors of the Company, whose judgment shall be
final, binding and conclusive absent manifest error. Such adjustment made
pursuant to this paragraph 6(a) shall become effective immediately after the
effective date of the event requiring such adjustment.
(b) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another company, or the sale of all or substantially all of its assets to
another company shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, cash or other property with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the holders of the Series B Preferred
Stock shall have the right to acquire and receive upon conversion of the Series
B Preferred Stock, which right shall be prior to the rights of the holders of
Junior Stock (but after and subject to the rights of holders of Senior Preferred
Stock, if any, and on parity with the rights of holders of Series A Preferred
Stock), such shares of stock, securities, cash or other property issuable or
payable (as part of the reorganization, reclassification, consolidation, merger
or sale) with respect to or in exchange for such number of outstanding shares of
the Company's Common Stock as would have been received upon conversion of the
Series B Preferred Stock at the Conversion Rate then in effect. The Company will
not effect any such consolidation, merger or sale, unless prior to the
consummation thereof the successor company (if other than the Company) resulting
from such consolidation or merger or the company purchasing such assets shall
assume by written instrument mailed or delivered to the holders of the Series B
Preferred Stock at the last address of each such holder appearing on the books
of the Company, the obligation to deliver to each such holder such shares of
stock, securities, cash or other property as, in accordance with the foregoing
provisions, such holder may be entitled to purchase.
(c) In the event that:
(1) the Company shall declare any dividend upon its
Common Stock payable in stock or make any special dividend or
other distribution to the holders of its Common Stock, or
(2) there shall be any capital reorganization or
reclassification of the capital stock of the Company,
including any subdivision or combination of its outstanding
shares of Common Stock, or consolidation or merger of the
Company with, or sale of all or substantially all of its
assets to, another company, or
(3) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in accordance with such event, the Company shall give to the holders of
the Series B Preferred Stock:
(i) at least twenty (20) days prior written
notice of the date on which the books of the
Company shall close or a record shall be
taken for such dividend or distribution or
for determining rights to vote in respect of
any such reorganization, reclassification,
consolidation, merger, sale, dissolution,
liquidation or winding up; and
(ii) in the case of any such reorganization,
reclassification, consolidation, merger,
sale, dissolution, liquidation or winding
up, at least twenty (20) days prior written
notice of the date when the same shall take
place.
A notice in accordance with the foregoing clause (i) shall also specify, in the
case of any such dividend or distribution, the date on which the holders of
Common Stock shall be entitled thereto, and a notice in accordance
<PAGE> 30
with the foregoing clause (ii) shall also specify the date on which the holders
of Common Stock shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reorganization, reclassification
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Each such written notice shall be sent by mail, first class, postage
prepaid, addressed to the holders of the Series B Preferred Stock at the address
of each such holder as shown on the books of the Company.
(d) If any event occurs as to which, in the opinion of the
Board of Directors of the Company, the provisions of this Section 6 are not
strictly applicable or if strictly applicable would not fairly protect the
rights of the holders of the Series B Preferred Stock in accordance with the
essential intent and principles of such provisions, then the Board of Directors
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect such rights as
aforesaid, but in no event shall any adjustment have the effect of decreasing
the Conversion Rate as otherwise determined pursuant to any of the provisions of
this Section 6 except in the case of a combination of shares of a type
contemplated in paragraph 6(a) and then in no event to a rate less than the
Conversion Rate as adjusted pursuant to paragraph 6(a).
(e) Whenever the Conversion Rate shall be adjusted pursuant to
this Section 6, the Company shall forthwith file at each office designated for
the conversion of Series B Preferred Stock, a statement, signed by the Chairman
of the Board, the President, any Vice President or Treasurer of the Company,
showing in reasonable detail the facts requiring such adjustment and the
Conversion Rate that will be effective after such adjustment. The Company shall
also cause a notice setting forth any such adjustments to be sent by mail, first
class, postage prepaid, to each record holder of Series B Preferred Stock at his
or its address appearing on the stock register. If such notice relates to an
adjustment resulting from an event referred to in paragraph 6(c), such notice
shall be included as part of the notice required to be mailed and published
under the provisions of paragraph 6(c) hereof.
7. Redemption.
The Company shall have the right to redeem shares of Series B
Preferred Stock pursuant to the following provisions:
(a) The Company shall not have any right to redeem shares of
the Series B Preferred Stock prior to September 30, 2001. Thereafter, the
Company shall have the right, at its sole option and election, out of funds
legally available therefor, to redeem the shares of Series B Preferred Stock, in
whole or in part, at any time and from time to time at a redemption price of
$1.00 per share plus an amount equal to all accrued and unpaid dividends thereon
(the "Redemption Price"), whether or not declared, to the redemption date;
provided, that any amount due in respect of all or any portion of the Redemption
Price, including accrued dividends, may be paid in cash or shares of Common
Stock as determined by the Board of Directors. In the event the Board of
Directors elects to pay any portion of the Redemption Price in shares of Common
Stock, the number of shares of Common Stock to be issued shall be determined in
accordance with the provisions of paragraph 5(f).
(b) If less than all of the Series B Preferred Stock at the
time outstanding is to be redeemed, the shares so to be redeemed shall be
selected by lot, pro-rata or in such other manner as the Board of Directors may
determine to be fair and proper.
(c) Notice of any redemption of the Series B Preferred Stock
(including notice of whether such redemption shall be paid in cash or shares of
Common Stock) shall be mailed at least 30 days, but not more than 60 days prior
to the date fixed for redemption to each holder of Series B Preferred Stock to
be redeemed, at such holder's address as it appears on the books of the Company.
In order to facilitate the redemption of the Series B Preferred Stock, the Board
of Directors may fix a record date for the determination of holders of Series B
Preferred Stock to be redeemed, or may cause the transfer books of the Company
to be closed for the transfer of the Series B Preferred Stock, not more than 60
days prior to the date fixed for such redemption.
(d) On the redemption date specified in the notice given
pursuant to paragraph 7(c), the Company shall, and at any time after such notice
shall have been mailed and before such redemption date the Company may, deposit
for the pro-rata benefit of the holders of the shares of the Series B Preferred
Stock so called for redemption, funds in an amount equal to the portion of the
Redemption Price, if any, to be paid in cash with a bank or trust company in the
Borough of Manhattan, The City of New York, having a capital and surplus of at
least
<PAGE> 31
$50,000,000. Any monies so deposited by the Company and unclaimed at the end of
one (1) year from the date designated for such redemption shall revert to the
general funds of the Company. After such reversion, any such bank or trust
company shall, upon demand, pay over to the Company such unclaimed amounts and
thereupon such bank or trust company shall be relieved of all responsibility in
respect thereof to such holder and such holder shall look only to the Company
for the payment of the redemption price. Any interest accrued on funds so
deposited pursuant to this paragraph 7(d) shall be paid from time to time to the
Company for its own account.
(e) Upon the deposit of funds pursuant to paragraph 7(d) in
respect of shares of the Series B Preferred Stock called for redemption, or, in
the event that the Board of Directors elects to pay all or part of the
Redemption Price in shares of Common Stock, on the date fixed for redemption,
notwithstanding that any certificates for such shares shall not have been
surrendered for cancellation, the shares represented thereby shall no longer be
deemed outstanding, the rights to receive dividends thereon shall cease to
accrue from and after the date of redemption designated in the notice of
redemption and all rights of the holders of the shares of the Series B Preferred
Stock called for redemption shall cease and terminate, excepting only the right
to receive the Redemption Price therefor and the right to convert such shares
into shares of Common Stock until the close of business on the business day
preceding the redemption date, as provided in Section 5.
8. Reissuance. Shares of this Series that have been issued and
reacquired in any manner including shares purchased, exchanged, redeemed or
converted shall not be reissued as part of this Series and shall upon compliance
with any applicable provisions of the laws of the State of Georgia have the
status of authorized and unissued shares of the Preferred Stock undesignated as
to series and may be redesignated and reissued as part of any series of
Preferred Stock.
<PAGE> 32
EXHIBIT C
Series 3 Junior Participating Preferred Stock
Section 1. Designation and Amount.
There shall be a series of the Preferred Stock which shall be
designated as the "Series 3 Junior Participating Preferred Stock," par value
$.01 per share, and the number of shares constituting such series shall be
2,500,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series 3 Junior Participating Preferred Stock to a number less than
that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of preferred stock of the Company ranking prior and superior to the
Series 3 Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series 3 Junior Participating Preferred Stock, in
preference to the holders of shares of Common Stock, par value $.01 per share of
the Company (the "Common Stock"), and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
any regular quarterly dividend payment date as shall be established by the Board
of Directors (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series 3 Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series 3 Junior Participating Preferred Stock.
In the event the Company shall at any time after August 25, 1996 (the "Rights
Declaration Date") declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series 3 Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on
the Series 3 Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share on
the Series 3 Junior Participating Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series 3 Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series 3 Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be
<PAGE> 33
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series 3
Junior Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may, in accordance with applicable law, fix
a record date for the determination of holders of shares of Series 3 Junior
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than such
number of days prior to the date fixed for the payment thereof as may be allowed
by applicable law.
Section 3. Voting Rights.
The holders of shares of Series 3 Junior Participating
Preferred Stock shall have the following voting rights:
(A) Each share of Series 3 Junior Participating Preferred
Stock shall entitle the holder thereof to 1,000 votes on all matters submitted
to a vote of the stockholders of the Company. In the event the Company shall at
any time after the Rights Declaration Date declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes to which holders of shares of Series 3 Junior
Participating Preferred Stock were entitled immediately prior to such event
under the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in the Company's
Second Amended and Restated Articles of Incorporation, as amended, or by law,
the holders of shares of Series 3 Junior Participating Preferred Stock, the
holders of shares of Common Stock, and the holders of shares of any other
capital stock of the Company having general voting rights, shall vote together
as one class on all matters submitted to a vote of stockholders of the Company.
(C) Except as otherwise set forth herein or in the Company's
Second Amended and Restated Articles of Incorporation, as amended, and except as
otherwise provided by law, holders of Series 3 Junior Participating Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions payable on the Series
3 Junior Participating Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series 3 Junior Participating Preferred Stock
outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
3 Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series 3 Junior Participating Preferred Stock, except dividends paid
ratably on the Series 3 Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) except as permitted in Section 4(A)(iv) below,
redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series 3 Junior Participating
Preferred Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
<PAGE> 34
exchange for shares of any stock of the Company ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the
Series 3 Junior Participating Preferred Stock; and
(iv) purchase or otherwise acquire for consideration
any shares of Series 3 Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the Series 3 Junior
Participating Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares.
Any shares of Series 3 Junior Participating Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. The Company shall
cause all such shares upon their cancellation to be authorized but unissued
shares of Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on issuance set
forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock of the Company ranking prior and superior to the
Series 3 Junior Participating Preferred Stock with respect to liquidation, upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Company, no distribution shall be made to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series 3 Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Series 3 Junior Participating Preferred Stock shall have
received $1,000.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series 3 Liquidation Preference"). Following the payment of
the full amount of the Series 3 Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series 3 Junior
Participating Preferred Stock, unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series 3 Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph
C below to reflect such events as stock dividends, and subdivisions,
combinations and consolidations with respect to the Common Stock) (such number
in clause (ii) being referred to as the "Adjustment Number"). Following the
payment of the full amount of the Series 3 Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series 3 Junior Participating
Preferred Stock and Common Stock, respectively, holders of Series 3 Junior
Participating Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Series 3 Junior Participating Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event there are not sufficient assets available to
permit payment in full of the Series 3 Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Series 3 Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event
there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such
<PAGE> 35
case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series 3 Junior Participating
Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Company
shall at any time after the Rights Declaration Date declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series 3 Junior Participating Preferred Stock
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
are outstanding immediately prior to such event.
Section 8. Redemption.
The shares of Series 3 Junior Participating Preferred Stock
shall not be redeemable.
Section 9. Ranking.
The Series 3 Junior Participating Preferred Stock shall rank
junior to all other series of the Company's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. Fractional Shares.
Series 3 Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series 3 Junior Participating Preferred Stock.
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
MCI WORLDCOM, INC.,
Borrower
BANK OF AMERICA, N.A.
Administrative Agent
BANC OF AMERICA SECURITIES, LLC,
Sole Lead Arranger and Book Manager
BARCLAYS BANK PLC,
THE CHASE MANHATTAN BANK,
CITIBANK, N.A.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, and
ROYAL BANK OF CANADA,
Co-Syndication Agents
and
THE LENDERS NAMED HEREIN,
Lenders
$7,000,000,000
DATED AS OF AUGUST 5, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1 DEFINITIONS AND TERMS...........................................................................1
1.1 Definitions.....................................................................................1
1.2 Number and Gender of Words; Other References...................................................15
1.3 Accounting Principles..........................................................................15
SECTION 2 BORROWING PROVISIONS...........................................................................15
2.1 The Facility...................................................................................15
2.2 Swing Line Subfacility.........................................................................16
2.3 Competitive Bid Subfacility....................................................................19
2.4 Optional Renewal of Commitments................................................................21
2.5 Conversion to Term Loans.......................................................................23
2.6 Termination of Commitments.....................................................................24
2.7 Borrowing Procedure............................................................................24
SECTION 3 TERMS OF PAYMENT...............................................................................25
3.1 Loan Accounts, Notes, and Payments.............................................................25
3.2 Interest and Principal Payments................................................................25
3.3 Interest Options...............................................................................26
3.4 Quotation of Rates.............................................................................26
3.5 Default Rate...................................................................................27
3.6 Interest Recapture.............................................................................27
3.7 Interest Calculations..........................................................................27
3.8 Maximum Rate...................................................................................27
3.9 Interest Periods...............................................................................28
3.10 Conversions....................................................................................28
3.11 Order of Application...........................................................................28
3.12 Sharing of Payments, Etc.......................................................................29
3.13 Offset.........................................................................................29
3.14 Booking Borrowings.............................................................................29
3.15 Increased Cost and Reduced Return..............................................................29
3.16 Limitation on Types of Loans...................................................................31
3.17 Illegality.....................................................................................31
3.18 Treatment of Affected Loans....................................................................31
3.19 Compensation; Replacement of Lenders...........................................................32
3.20 Taxes..........................................................................................32
SECTION 4 FEES...........................................................................................34
4.1 Treatment of Fees..............................................................................34
4.2 Fees of Administrative Agent and Arranger......................................................34
4.3 Commitment Fees................................................................................34
SECTION 5 CONDITIONS PRECEDENT...........................................................................34
5.1 Conditions Precedent to Closing................................................................34
5.2 Conditions Precedent to Each Borrowing.........................................................34
SECTION 6 REPRESENTATIONS AND WARRANTIES.................................................................35
6.1 Purpose of Credit Facility.....................................................................35
6.2 Existence, Good Standing, Authority, and Authorizations........................................35
6.3 Authorization and Contravention................................................................36
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
6.4 Binding Effect.................................................................................36
6.5 Financial Statements..........................................................................36
6.6 Litigation, Claims, Investigations.............................................................36
6.7 Taxes..........................................................................................36
6.8 Environmental Matters.........................................................................36
6.9 ERISA Compliance...............................................................................37
6.10 Properties; Liens..............................................................................37
6.11 Government Regulations.........................................................................37
6.12 No Default.....................................................................................37
6.13 Senior Indebtedness............................................................................37
6.14 Year 2000 Compliance...........................................................................37
SECTION 7 COVENANTS......................................................................................38
7.1 Use of Proceeds................................................................................38
7.2 Books and Records..............................................................................38
7.3 Items to be Furnished..........................................................................38
7.4 Inspections....................................................................................39
7.5 Taxes..........................................................................................39
7.6 Payment of Obligations.........................................................................39
7.7 Maintenance of Existence, Assets, and Business.................................................40
7.8 Insurance......................................................................................40
7.9 Preservation and Protection of Rights..........................................................40
7.10 Employee Benefit Plans.........................................................................40
7.11 Environmental Laws.............................................................................40
7.12 Debt...........................................................................................40
7.13 Liens..........................................................................................41
7.14 Transactions with Affiliates...................................................................42
7.15 Compliance with Laws and Documents.............................................................42
7.16 Assignment.....................................................................................42
7.17 Permitted Distributions........................................................................42
7.18 Restrictions on Subsidiaries...................................................................43
7.19 Sale of Assets.................................................................................43
7.20 Mergers and Dissolutions; Sale of Capital Stock................................................43
7.21 Designation of Unrestricted Companies..........................................................43
7.22 Financial Covenant.............................................................................43
7.23 Year 2000 Compliance...........................................................................44
SECTION 8 DEFAULT........................................................................................44
8.1 Payment of Obligation..........................................................................44
8.2 Covenants......................................................................................44
8.3 Debtor Relief..................................................................................44
8.4 Judgments and Attachments......................................................................44
8.5 Misrepresentation..............................................................................44
8.6 Change of Control..............................................................................44
8.7 Default Under Other Agreements.................................................................45
8.8 Employee Benefit Plans.........................................................................45
8.9 Default Under Facility A.......................................................................45
8.10 Validity and Enforceability of Loan Papers.....................................................46
SECTION 9 RIGHTS AND REMEDIES............................................................................46
9.1 Remedies Upon Default..........................................................................46
9.2 Company Waivers................................................................................46
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
9.3 Performance by Administrative Agent............................................................46
9.4 Delegation of Duties and Rights................................................................47
9.5 Not in Control.................................................................................47
9.6 Course of Dealing..............................................................................47
9.7 Cumulative Rights..............................................................................47
9.8 Application of Proceeds........................................................................47
9.9 Certain Proceedings............................................................................47
9.10 Limitation of Rights...........................................................................48
9.11 Expenditures by Lenders........................................................................48
9.12 INDEMNIFICATION................................................................................48
SECTION 10 AGREEMENT AMONG LENDERS........................................................................49
10.1 Administrative Agent...........................................................................49
10.2 Expenses.......................................................................................51
10.3 Proportionate Absorption of Losses.............................................................51
10.4 Delegation of Duties; Reliance.................................................................51
10.5 Limitation of Liability........................................................................51
10.6 Default; Collateral............................................................................52
10.7 Limitation of Liability........................................................................52
10.8 Relationship of Lenders........................................................................52
10.9 Benefits of Agreement..........................................................................53
10.10 Co-Syndication Agents..........................................................................53
SECTION 11 MISCELLANEOUS..................................................................................53
11.1 Headings.......................................................................................53
11.2 Nonbusiness Days...............................................................................53
11.3 Communications.................................................................................53
11.4 Form and Number of Documents...................................................................53
11.5 Exceptions to Covenants........................................................................53
11.6 Survival.......................................................................................54
11.7 Governing Law..................................................................................54
11.8 Invalid Provisions.............................................................................54
11.9 Entirety.......................................................................................54
11.10 Jurisdiction; Venue; Service of Process; Jury Trial............................................54
11.11 Amendments, Consents, Conflicts, and Waivers...................................................55
11.12 Multiple Counterparts..........................................................................56
11.13 Successors and Assigns; Assignments and Participations.........................................56
11.14 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances....................58
11.15 Confidentiality................................................................................59
11.16 Restatement of Existing Agreement..............................................................59
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
</TABLE>
iii
<PAGE> 5
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Committed Sums
Schedule 2.2 - Swing Line Lenders and Swing Line Committed Sums
Schedule 5.1 - Conditions Precedent to Closing
Schedule 7.12 - Existing Debt
Schedule 7.14 - Transactions with Affiliates
Exhibit A-1 - Form of Amended and Restated Revolving Note
Exhibit A-2 - Form of Amended and Restated Competitive Bid Note
Exhibit A-3 - Form of Amended and Restated Swing Line Note
Exhibit A-4 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit B-3 - Form of Term Conversion Request
Exhibit B-4 - Form of Competitive Bid Request
Exhibit B-5 - Form of Notice to Lenders of Competitive Bid Request
Exhibit B-6 - Form of Competitive Bid
Exhibit B-7 - Form of Swing Line Borrowing Request
Exhibit C - Form of Administrative Questionnaire
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Acceptance Agreement
Exhibit F-1 - Form of Opinion of General Counsel of Borrower
Exhibit F-2 - Form of Opinion of Special New York Counsel
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
iv
<PAGE> 6
AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AGREEMENT is entered into as of August 5, 1999, among MCI
WORLDCOM, INC. (formerly known as WORLDCOM, INC.), a Georgia corporation
("BORROWER"), certain Lenders (hereinafter defined), the Co-Syndication Agents
(hereinafter defined), and BANK OF AMERICA, N.A., as a Lender and as
Administrative Agent (hereinafter defined) for itself and the other Lenders.
RECITALS
A. Borrower has entered into the 364-Day Revolving Credit and Term Loan
Agreement (as renewed, extended, or amended to date, the "EXISTING AGREEMENT")
dated as of August 6, 1998, with Bank of America, N.A., formerly known as Bank
of America National Trust and Savings Association, successor by merger to Bank
of America, N.A., formerly known as NationsBank, N.A.(in its capacity as
"Administrative Agent" thereunder and as a lender) and certain other lenders
party thereto (together with Bank of America, N.A., the "EXISTING 364-DAY
FACILITY LENDERS"), providing for, among other things, a revolving credit and
term loan facility in the aggregate principal amount of $7,000,000,000.
B. Subject to the terms and conditions set forth below, Borrower and
Lenders desire to entirely amend, modify, and restate the Existing Agreement in
order, among other things, to (i) extend the Termination Date to August 3, 2000
and (ii) provide for an increase in the Commitment Fee and Utilization Fee
(hereinafter defined).
C. The amendment and restatement of the Existing Agreement hereunder is
not intended by the parties to constitute either a novation or a discharge or
satisfaction of the indebtedness and obligations under the Existing Agreement,
which indebtedness and obligations under the Existing Agreement shall remain
outstanding hereunder on the terms and conditions hereinafter provided.
In consideration of the foregoing and the mutual covenants contained
herein, Borrower, Bank of America, N.A. (in its capacity as Administrative Agent
under this Agreement and the Existing Agreement), and Lenders agree that,
effective upon the Closing Date, the Existing Agreement is amended and restated
in its entirety, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
364-DAY FACILITY means the revolving credit and term loan facility
(including any extension of the facility as permitted herein) described in and
subject to the limitations of this Agreement.
ACCOUNTS RECEIVABLE FINANCING means any transaction or series of
transactions that may be entered into by any Consolidated Company pursuant to
which such Consolidated Company may sell, convey, grant a security interest in,
or otherwise transfer, undivided percentage interests in the Receivables Program
Assets; provided that, for purposes of determinations made pursuant to SECTIONS
7.13(G) and 7.19(D), any Accounts Receivable Financing involving a sale of
Receivables Program Assets to the Receivables Subsidiary by any Restricted
Company and a subsequent substantially concurrent resale of such Receivables
Program Assets, or an interest therein, to a third party shall be treated as a
single Accounts Receivable Financing transaction.
ACCOUNTS RECEIVABLE FINANCING AMOUNT means, with respect to any
Accounts Receivable Financing and without duplication, the aggregate outstanding
principal amount of the undivided percentage interests in the Receivables
Program Assets, representing Rights to be paid a specified principal amount from
such Receivables Program Assets.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
<PAGE> 7
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal
to the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Rate Borrowing for such Interest Period by (b) 1 minus the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means Bank of America, N.A. and its permitted
successor or successors as administrative agent and arranging agent for Lenders
under this Agreement.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire
substantially in the form of EXHIBIT C hereto, which each Lender shall complete
and provide to Administrative Agent.
AFFILIATE of any Person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "control,"
"controlled by," and "under common control with" mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, Administrative Agent and Co-Syndication
Agents under this Agreement.
AGREEMENT means this Amended and Restated 364-Day Revolving Credit and
Term Loan Agreement and all Exhibits and Schedules hereto, as each may be
amended, modified, supplemented, or restated from time to time.
ALTERNATE RATE means on any date of determination, for any Swing Line
Borrowing, the sum of (i) the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for 30-day deposits in
Dollars at approximately 11:00 a.m. Dallas, Texas time on the date of such Swing
Line Borrowing plus (ii) the Applicable Margin for Eurodollar Rate Borrowings in
effect on such date of determination. If for any reason such rate is not
available, the term "Alternate Rate" shall mean for any Swing Line Borrowing,
the sum of (i) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for 30-day deposits in Dollars at approximately 11:00 a.m., Dallas,
Texas time, on the date of such Swing Line Borrowing; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100 of 1%) plus (ii) the Applicable Margin for Eurodollar Rate
Borrowings in effect on such date of determination.
ALTERNATE RATE SWING LINE BORROWING has the meaning as defined in
SECTION 2.2(A).
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an Affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means the lowest percentage set forth in the table
below for the Type of Borrowing or Commitment Fees (as the case may be) which
corresponds to Borrower's conformity, on any date of determination, with the
ratings (or implied ratings) established by both S&P and Moody's applicable to
Borrower's senior, unsecured, non-credit-enhanced, long term indebtedness for
borrowed money ("INDEX DEBT"):
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
2
<PAGE> 8
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
APPLICABLE MARGIN
=============================================================
EURODOLLAR
RATINGS BASE RATE RATE COMMITMENT
BORROWINGS BORROWINGS FEES
============================================ ==================== ==================== ===================
<S> <C> <C> <C>
Category 1
A or higher by S&P; 0.0000% 0.2250% 0.0600%
A2 or higher by Moody's
- -------------------------------------------- -------------------- -------------------- -------------------
Category 2
A- by S&P; 0.0000% 0.2500% 0.0700%
A3 by Moody's
- -------------------------------------------- -------------------- -------------------- -------------------
Category 3
BBB+ by S&P; 0.0000% 0.3500% 0.1000%
Baa1 by Moody's
- -------------------------------------------- -------------------- -------------------- -------------------
Category 4
BBB by S&P; 0.0000% 0.4000% 0.1250%
Baa2 by Moody's
- -------------------------------------------- -------------------- -------------------- -------------------
Category 5 0.0000% 0.4500% 0.1500%
BBB- or lower by S&P;
Baa3 or lower by Moody's
- -------------------------------------------- -------------------- -------------------- -------------------
</TABLE>
(a) For purposes of determining the Applicable Margin, (i) if neither
Moody's nor S&P shall have in effect a rating for Index Debt
(other than by reason of the circumstances referred to in the
last sentence of this paragraph), then both such rating agencies
will be deemed to have established ratings for Index Debt in
Category 5; (ii) if only one of Moody's or S&P shall have in
effect a rating for Index Debt, Borrower and the Lenders will
negotiate in good faith to agree upon another rating agency to be
substituted by an agreement for the rating agency which shall not
have a rating in effect, and in the absence of such agreement the
Applicable Margin will be determined by reference to the
available rating; (iii) if the ratings established by Moody's and
S&P shall differ by one Category, the Applicable Margin shall be
determined by reference to the numerically lower Category: (for
example, if the rating from S&P is in Category 1 and the rating
from Moody's is in Category 2, the Applicable Margin shall be
determined by reference to Category 1); (iv) if the ratings
established by Moody's and S&P shall differ by more than one
Category, the Applicable Margin shall be determined by reference
to the Category that is one numerical Category lower than the
numerically higher of the two Categories corresponding to the
ratings established by the two rating agencies: (for example, if
the rating from S&P is in Category 2 and the rating from Moody's
is in Category 5, the Applicable Margin shall be determined by
reference to Category 4); and (v) if any rating established by
Moody's or S&P shall be changed (other than as a result of a
change in the rating system of either Moody's or S&P), such
change shall be effective as of the date on which such change is
first announced by the rating agency making such change. If the
rating system of either Moody's or S&P shall change prior to the
payment in full of the Obligation and the cancellation of all
commitments to lend hereunder, Borrower and the Lenders shall
negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system.
If both Moody's and S&P shall cease to be in the business of
rating corporate debt obligations, Borrower and the Lenders shall
negotiate in good faith to agree upon a substitute rating agency
and to amend the references to specific ratings in this
definition to reflect the ratings used by such substitute rating
agency.
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(b) On any date of determination of the Applicable Margin for
Eurodollar Rate Borrowings, if the sum of the "Facility A
Commitment Usage" (as such term is defined in the Facility A
Agreement) and the Principal Debt exceeds an amount equal to
331/3% (but less than 662/3%) of the Total Commitment, then the
Applicable Margin for Eurodollar Rate Borrowings shall be
increased by 0.100% (the "UTILIZATION FEE"); provided that, if
the sum of the "Facility A Commitment Usage" (as such term is
defined in the Facility A Agreement) and the Principal Debt
equals or exceeds an amount equal to 662/3% of the Total
Commitment, then such Utilization Fee shall be increased to
0.200%.
ARRANGER means Banc of America Securities LLC, and its successors and
assigns in its capacity as "Sole Lead Arranger" under the Loan Papers.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental Authority
(including, without limitation, the FCC and applicable PUCs), including without
limitation, any of the foregoing authorizing or permitting the acquisition,
construction, or operation of network facilities or any other telecommunications
system.
BANK OF AMERICA means Bank of America, N.A., in its individual capacity
as a Lender and its successors and assigns.
BASE RATE means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
(b) the Prime Rate for such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to
Borrower under the Loan Papers (whether under the Competitive Bid Subfacility,
the Swing Line Subfacility, or otherwise), whether such amount constitutes an
original disbursement of funds or the continuation of an amount outstanding, or
(b) by any Lender in accordance with, and to satisfy the obligations of any
Restricted Company under, any Loan Paper.
BORROWING DATE is defined in SECTION 2.7(A).
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, or New York, New York and
(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been executed
by Borrower, Lenders, and Administrative Agent, and all conditions precedent
specified in SECTION 5.1 have been satisfied or waived.
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CO-SYNDICATION AGENTS means Barclays Bank PLC, The Chase Manhattan
Bank, Citibank, N.A., Morgan Guaranty Trust Company of New York, and Royal Bank
of Canada.
CODE means the Internal Revenue Code of 1986, as amended, together with
rules and regulations promulgated thereunder.
COMMITMENT means an amount (subject to availability, reduction, or
cancellation as provided in this Agreement) equal to $7,000,000,000.
COMMITMENT FEE is defined in SECTION 4.3.
COMMITTED SUM means, on any date of determination for any Lender, the
amount stated beside its name on the most recently amended SCHEDULE 2.1 to the
Agreement (which amount is subject to availability, increase, reduction, or
cancellation in accordance with this Agreement.)
COMPETITIVE BID means an offer by a Lender to fund a Borrowing under
the Competitive Bid Subfacility pursuant to SECTION 2.3.
COMPETITIVE BID NOTE means a promissory note in substantially the form
of EXHIBIT A-2 and all renewals and extensions of all or any part thereof.
COMPETITIVE BID RATE means, as to any Competitive Bid made by a Lender
pursuant to SECTION 2.3, (a) in the case of a Eurodollar Rate Borrowing, the
margin which shall be added to or subtracted from the Adjusted Eurodollar Rate,
and (b) in the case of a Fixed Rate Borrowing, the fixed rate of interest, in
each case offered by the Lender making such Competitive Bid.
COMPETITIVE BID REQUEST means a request for Competitive Bids made
pursuant to SECTION 2.3(B) substantially in the form of EXHIBIT B-4.
COMPETITIVE BID SUBFACILITY means a subfacility of this 364-Day
Facility as described in and subject to the limitations of SECTION 2.3.
COMPETITIVE BORROWING means any Borrowing under the Competitive Bid
Subfacility.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D.
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing or a Fixed Rate
Borrowing as a consequence of (a) any failure or refusal of Borrower (for any
reasons whatsoever other than a default by Administrative Agent or a Lender) to
accept or utilize such Borrowing after Borrower shall have requested it under
this Agreement, or (b) any prepayment or payment of such Borrowing or conversion
of such Borrowing to a Borrowing of another Type, in each case, prior to the
last day of the Interest Period therefor.
CONSOLIDATED COMPANIES means, at any date of determination thereof,
Borrower and each of its Subsidiaries (including the Unrestricted Subsidiaries).
CONSOLIDATED NET WORTH means, for any period, the consolidated
stockholders' equity of the Restricted Companies as determined in accordance
with GAAP.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of (a) the Financial Statements of Borrower
for the fiscal year ended December 31, 1998, and the
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three-month period ended March 31, 1999, calculated on a consolidated basis for
Borrower and the Consolidated Companies; or (b) the Financial Statements
required to be delivered under SECTION 7.3(A) or 7.3(B), as the case may be,
calculated on a consolidated basis for the Consolidated Companies.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in CLAUSES (A)(I) through (A)(III) preceding of other Persons for
the payment of which such Person is responsible or liable as obligor, guarantor,
or otherwise; (c) all obligations of the type referred to in CLAUSES (A)(I)
through CLAUSE (A)(III) and CLAUSE (B) preceding of other Persons secured by any
Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; (d) the face amount of all letters of credit and banker's
acceptances issued for the account of such Person, and without duplication, all
drafts drawn and unpaid thereunder; and (e) obligations arising under any
Accounts Receivable Financing which in accordance with GAAP should be classified
upon such Person's balance sheet as liabilities; provided, however, that Debt
shall not include obligations of Borrower which are owed to a trust or other
special purpose entity, all of whose common equity is beneficially owned by
Borrower, so long as such obligations are held by such trusts or their
representatives and are subordinate in right of payment to the Obligation.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments or similar Laws from time to time
in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 8.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus the Applicable Margin for
Base Rate Borrowings plus 2% and (b) the Maximum Rate.
DETERMINING LENDERS means for all purposes under the Loan Papers (i) on
any date of determination occurring prior to the earlier of the Term Conversion
Date or the Termination Date, those Lenders who collectively hold at least 51%
of the Commitment; and (ii) on any date of determination occurring on or after
the earlier of the Termination Date or the Term Conversion Date, those Lenders
who collectively hold at least 51% of the Principal Debt.
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any
such securities, (b) the declaration or payment of any dividend on or with
respect to any such securities, and (c) any other payment by such Person with
respect to such securities.
DOLLARS and the symbol $ shall mean lawful money of the United States
of America.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); and (c) any other Person approved by Administrative Agent (which
approval will not be unreasonably withheld or delayed by Administrative Agent)
and, unless a Default has occurred and is continuing at the time any assignment
is effected in accordance with SECTION 11.13, Borrower, such approval not to be
unreasonably withheld or delayed by Borrower and such approval to be deemed
given by Borrower if no objection is received by the assigning Lender and the
Administrative Agent
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from Borrower within five Business Days after notice of such proposed assignment
has been provided by the assigning Lender to Borrower; provided, however, that
neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
but not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. ss. 9601 et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 et seq.) ("RCRA"), the Clean Water Act (33
U.S.C. ss. 1251 et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.), the Safe
Drinking Water Act (42 U.S.C. ss. 201 and ss. 300f et seq.) and the Rivers and
Harbors Act (33 U.S.C. ss. 401 et seq.), the Oil Pollution Act (33 U.S.C. ss.
2701 et seq.) and analogous state and local Laws, as any of the foregoing may
have been and may be amended or supplemented from time to time, and any
analogous future enacted or adopted Law, or (d) the Release or threatened
Release of Hazardous Substances.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means, with respect to Borrower or any of its
Subsidiaries, any company, trade, or business (whether or not incorporated)
which, for purposes of Title IV of ERISA, is a member of Borrower's controlled
group or which is under common control with Borrower within the meaning of
Section 414(b), (c) or (m) of the Code.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means, as the case may be, either (a) a
Borrowing (other than a Competitive Borrowing) bearing interest at the sum of
the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings or (b) a Competitive Borrowing bearing interest at the sum of the
Adjusted Eurodollar Rate plus or minus the margin indicated for such Competitive
Borrowing in the related Competitive Bid.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
EXISTING AGREEMENT is defined in the Recitals to this Agreement.
EXISTING 364-DAY LENDERS is defined in the Recitals of this Agreement.
AMENDED AND RESTATED 364-DAY REVOLVING
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EXISTING DEBT means on any date of determination, (a) the secured and
unsecured Debt of Borrower and its Restricted Subsidiaries existing on August 6,
1998 and described in PART A of SCHEDULE 7.12, (b) on and after September 14,
1998 (the "MCI Merger Date" under the Existing Agreement), the secured and
unsecured Debt of MCI and its Subsidiaries existing on that date and described
in PART B of SCHEDULE 7.12, and (c) renewals, extensions, and refinancings of
any of the Existing Debt described in CLAUSES (A) and (B) to the extent that the
principal amount under (or the maximum principal amount that may be borrowed
under) such Existing Debt is not increased on or after the Closing Date.
FACILITY A means the credit facility described in and subject to the
limitations of the Facility A Agreement.
FACILITY A AGREEMENT means the Amended and Restated Facility A
Revolving Credit Agreement dated August 6, 1998, among Borrower, NationsBank,
N.A., predecessor in interest to Bank of America, N.A., as "Administrative
Agent" thereunder, and the lenders party thereto (as the same may be amended,
modified, supplemented, or restated from time to time).
FACILITY A COMMITMENT means an amount (subject to availability,
reduction, or cancellation as provided in the Facility A Agreement) equal to
$3,750,000,000.
FCC means the Federal Communications Commission and any successor
regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to the Administrative Agent (in its
individual capacity) on such day on such transactions as determined by the
Administrative Agent (which determination shall be conclusive and binding,
absent manifest error).
FINANCIAL HEDGE means either (a) a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk of fluctuations in
interest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
or other contract which is intended to reduce or eliminate the market risk of
holding currency or a commodity in either the cash or futures markets, which
Financial Hedge under either CLAUSE (A) or CLAUSE (B) is entered into by any
Restricted Company with any Lender or an Affiliate of any Lender or any other
Person under the Laws of a jurisdiction in which such contracts are legal and
enforceable (except as enforceability may be limited by applicable Debtor Relief
Laws and general principles of equity).
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures.
FIXED RATE BORROWING means any Competitive Borrowing made from a Lender
pursuant to SECTION 2.3 based upon an actual percentage rate per annum offered
by such Lender, expressed as a decimal (to no more than four decimal places) and
accepted by Borrower.
AMENDED AND RESTATED 364-DAY REVOLVING
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GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which (a) with respect to the covenant
contained in SECTION 7.22 (and, to the extent used in or relating to such
covenant, any defined terms), are in effect on the date hereof, and (b) for all
other purposes hereunder, are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or
federal judicial, executive, or legislative instrumentality, (b) private
arbitration board or panel, or (c) central bank.
GRANTING BANK has the meaning specified in SECTION 11.13(H).
HAZARDOUS SUBSTANCE means (a) any substance that is designated, defined
or classified as a hazardous waste, hazardous material, pollutant, contaminant
or toxic or hazardous substance under any Environmental Law, including without
limitation, any hazardous substance within the meaning of Section 101(14) of
CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste
oil, diesel fuel, jet fuel, and other petroleum hydrocarbons, (c) regulated
asbestos and asbestos-containing materials in any form, (d) polychlorinated
biphenyls, or (e) urea formaldehyde foam.
INDENTURES means any indentures or other agreements pursuant to which
notes, debentures, bonds, or debt securities are issued by any Restricted
Company, including, without limitation, the following: Indenture dated as of
March 1, 1997, between Borrower and The Chase Manhattan Trust Company, N.A., as
successor trustee; Indenture dated as of January 23, 1996 between MFS
Communications Company, Inc. and IBJ Schroder Bank & Trust Co., as trustee;
Indenture dated as of February 26, 1996, between Brooks Fiber Properties, Inc.
and The Bank of New York, as trustee; and Indenture dated as of May 29, 1997,
between Brooks Fiber Properties, Inc. and The Bank of New York, as trustee,
Indenture dated as of October 15, 1989, between MCI and Citibank, N.A., as
trustee; Indenture dated as of February 17, 1995, between MCI and Citibank,
N.A., as trustee; and Junior Subordinated Indenture dated as of May 29, 1996,
between MCI and Wilmington Trust Company, as trustee, in each case as the same
have been or may be amended, modified, supplemented or restated from time to
time.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the assignments made in accordance with SECTION
11.13(C) of this Agreement), and subject to the terms and conditions of this
Agreement, their respective successors and assigns, but not any Participant who
is not otherwise a party to this Agreement.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Agreement, certificates delivered pursuant
to this Agreement, and Exhibits and Schedules hereto, (b) all agreements,
documents, or instruments in favor of Agents or Lenders (or Administrative Agent
on behalf of Lenders) delivered pursuant to this Agreement or otherwise
delivered in
AMENDED AND RESTATED 364-DAY REVOLVING
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connection with all or any part of the Obligation, and (c) all renewals,
extensions, or restatements of, or amendments or supplements to, any of the
foregoing.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Restricted Company
to perform any of its payment or other material obligations under the Loan
Papers or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers, (b)
material and adverse effect on the business, properties, condition (financial or
otherwise) or results of operations of the Restricted Companies, in each case
considered as a whole, or (c) material and adverse effect on the business,
properties, condition (financial or otherwise) or results of operations of the
Consolidated Companies, in each case considered as a whole. The phrase "could be
a Material Adverse Event" (and any similar phrase herein) means that there is a
material probability of such Material Adverse Event occurring, and the phrase
"could not be a Material Adverse Event" (and any similar phrase herein) means
that there is not a material probability of such Material Adverse Event
occurring.
MATERIAL SUBSIDIARY means, for purposes of SECTION 8.3, any Subsidiary
of Borrower (or any group of Subsidiaries of Borrower) that individually or
collectively own 10% or more of the book value of the consolidated assets of the
Restricted Companies determined as of the date of, and with respect to, the
Current Financials and the related Compliance Certificate.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MCI means MCI Communications Corporation.
MOODY'S means Moody's Investors Service, Inc. or any successor thereto.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any
Restricted Company or any ERISA Affiliate is making, or has made, or is
accruing, or has accrued, an obligation to make contributions.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Revolving Notes, Competitive Bid Notes, Term Notes, and the Swing
Line Notes.
NOTICE OF BORROWING is defined in SECTION 2.7(A).
NOTICE OF CONVERSION is defined in SECTION 3.10.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to any Agent, or any Lender by any Restricted Company arising
from, by virtue of, or pursuant to any Loan Paper, together with all interest
accruing thereon, fees, costs, and expenses (including, without limitation, all
reasonable attorneys' fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Papers.
PARTICIPANT is defined in SECTION 11.13(E).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERCENTAGE PART means, at the time of any determination, the proportion
which any Swing Line Lender's Swing Line Committed Sum bears to the Swing Line
Commitment then in effect.
AMENDED AND RESTATED 364-DAY REVOLVING
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PERMITTED SUCCESSOR CORPORATION means any corporation into which
Borrower is merged or consolidated, so long as:
(a) immediately after giving effect to such merger or
consolidation, the surviving corporation shall have then-effective
ratings (or implied ratings) published by Moody's and S&P applicable to
such surviving corporation's senior, unsecured, non-credit-enhanced,
long term Debt, equal to or higher than BBB- by S&P, and Baa3 by
Moody's;
(b) such surviving corporation shall be a corporation
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia, and shall expressly
assume all of Borrower's obligations for the due and punctual payment
of the Obligation and the performance or observance of the Loan Papers;
(c) immediately after giving effect to such merger or
consolidation, no Default or Potential Default shall have occurred and
be continuing;
(d) Borrower shall have delivered to Administrative Agent a
certificate signed by a Responsible Officer of Borrower and a written
opinion of counsel satisfactory to the Administrative Agent (and its
counsel), each stating that such merger or consolidation complies with
the requirements for a Permitted Successor Corporation and that all
conditions precedent herein provided for relating to such merger or
consolidation have been satisfied;
(e) No "Change of Control" (as described in SECTION 8.6) has
occurred as a result of such merger or consolidation; and
(f) on and prior to the closing of any such merger or
consolidation, such merger and consolidation shall have been approved
and recommended by the Board of Directors of Borrower.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
PRIME RATE means the per annum rate of interest established from time
to time by Bank of America, N.A. as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the aggregate
unpaid principal balance of all Borrowings under this Agreement.
PRO RATA or PRO RATA PART means on any date of determination for any
Lender, (a) at any time prior to the earlier of the Termination Date or the Term
Conversion Date, the proportion that such Lender's Committed Sum bears to the
Commitment, or (b) at any time on or after the earlier of the Termination Date
or the Term Conversion Date, the proportion that the Principal Debt owed to such
Lender bears to the Principal Debt owed to all Lenders; provided that with
respect to any principal or interest payments on any Competitive Borrowing, Pro
Rata or Pro Rata Part means the proportion that the outstanding principal amount
or accrued and unpaid interest (as the case may be) owed to any Lender
participating in such Competitive Borrowing bears to the total principal amount
outstanding or accrued and unpaid interest (as the case may be) owed to all
Lenders participating in such Competitive Borrowing.
PUC means any state or local regulatory agency or Governmental
Authority that exercises jurisdiction over the rates or services or the
ownership, construction, or operation of network facilities or
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telecommunications systems or over Persons who own, construct, or operate
network facilities or telecommunications systems.
QUOTED SWING LINE BORROWINGS has the meaning as defined in SECTION
2.2(A).
QUOTED SWING LINE RATE has the meaning as defined in SECTION 2.2(A).
RECEIVABLES means all Rights of any Consolidated Company (as a "Seller"
under Receivables Documents) to payments (whether constituting accounts, chattel
paper, instruments, general intangibles, or otherwise, and including the Right
to payment of any interest or finance charges) with respect to dedicated
telecommunications services provided by any such Consolidated Company to its
customers between designated customer premises.
RECEIVABLES DOCUMENTS means one or more receivables purchase agreements
entered into by one or more Consolidated Companies and each other instrument,
agreement, and document entered into by such Consolidated Companies evidencing
Accounts Receivable Financings.
RECEIVABLES PROGRAM ASSETS means (a) all Receivables in which undivided
percentage interests are transferred by any Consolidated Company pursuant to the
Receivables Documents, (b) all Receivables Related Assets with respect to the
Receivables described in CLAUSE (A) of this definition, and (c) all collections
(including recoveries) and other proceeds of the assets described in the
foregoing clauses.
RECEIVABLES RELATED ASSETS means (a) any Rights arising under the
documentation governing or relating to Receivables (including Rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables), (b) any proceeds of such Receivables and any lockboxes or accounts
in which such proceeds are deposited, and (c) spread accounts and other similar
accounts (and any amounts on deposit therein) established in connection with an
Accounts Receivable Financing.
RECEIVABLES SUBSIDIARY means a special purpose Wholly-owned Subsidiary
created in connection with the transactions contemplated by an Accounts
Receivable Financing, which Subsidiary engages in no activities, has no material
liabilities, or owns no other assets, other than those incidental to such
Accounts Receivable Financing.
REGISTER is defined in SECTION 11.13(C).
REGULATION D means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the
Federal Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
REPORTABLE EVENT shall have the meaning specified in Section 4043 of
ERISA or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in sections 4043.21, 4043.24
and 4043.28 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
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RESERVE REQUIREMENT means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be determined,
or (b) any category of extensions of credit or other assets which include
Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive
officer, chief financial officer, senior vice president, or treasurer of
Borrower, or, for all purposes under the Loan Papers other than SECTION 8.6, any
other officer designated from time to time by the Board of Directors of
Borrower, which designated officer is acceptable to Administrative Agent.
RESTRICTED COMPANIES, at any time of determination thereof, means
Borrower and the Restricted Subsidiaries.
RESTRICTED SUBSIDIARIES means each of the Subsidiaries of Borrower
(other than the Unrestricted Subsidiaries).
REVOLVING NOTE means a promissory note in substantially the form of
EXHIBIT A-1, and all renewals and extensions of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
RIGHTS OF WAY means the easements, rights of way, and other rights
entitling the Restricted Companies to own, use, operate, and maintain the
network facilities.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
SPC has the meaning specified in SECTION 11.13(H).
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Papers.
SOLVENT means, as to a Person, that (a) the aggregate fair market value
of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such Person has
sufficient cash flow to enable it to pay its Debts as they mature, and (c) such
Person does not have unreasonably small capital to conduct such Person's
businesses.
SUBSIDIARY of any Person means any entity of which an aggregate of more
than 50% (in number of votes) of the stock (or equivalent interests) is owned of
record or beneficially, directly or indirectly, by such Person.
SWING LINE BORROWING means any Borrowing under the Swing Line
Subfacility, including Alternate Rate Swing Line Borrowings and Quoted Swing
Line Borrowings.
SWING LINE COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $175,000,000.
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SWING LINE COMMITTED SUM means, on any date of determination for any
Swing Line Lender, the amount stated beside its name on the most-recently
amended SCHEDULE 2.2 to this Agreement (which amount is subject to availability,
increase, reduction, or cancellation in accordance with this Agreement).
SWING LINE LENDERS means, collectively, Bank of America, those Lenders
listed on SCHEDULE 2.2, and any Lender designated by Borrower as a "Swing Line
Lender" pursuant to and in accordance with SECTION 2.2(G), and their respective
permitted successors and assigns.
SWING LINE NOTE means a promissory note in substantially the form of
EXHIBIT A-3, and all renewals and extensions of all or any part thereof.
SWING LINE PRINCIPAL DEBT means, on any date of determination, that
portion of the Principal Debt outstanding under the Swing Line Subfacility.
SWING LINE SUBFACILITY means the subfacility under this 364-Day
Facility described in, and subject to the limitations of, SECTION 2.2.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERM CONVERSION DATE means the date upon which the Principal Debt is
converted to a Term Loan in accordance with SECTION 2.5.
TERM CONVERSION REQUEST is defined in SECTION 2.5(A).
TERM LOAN means loans made by Lenders pursuant to SECTION 2.5.
TERM LOAN MATURITY DATE has the meaning set forth in SECTION 2.5.
TERM NOTE means a promissory note in substantially the form of EXHIBIT
A-4, and all renewals and extensions of all or any part thereof.
TERMINATION DATE means the earlier of (a) August 3, 2000, as such date
may be extended pursuant to SECTION 2.4, and (b) the effective date of any other
termination or cancellation of Lenders' Commitments to lend under, and in
accordance with, this Agreement.
TOTAL CAPITALIZATION means, on any date of determination, the sum of
Total Debt and Consolidated Net Worth.
TOTAL COMMITMENT means, on any date of determination, the sum of the
Facility A Commitment and the Commitment.
TOTAL DEBT means (without duplication) all Debt of the Restricted
Companies; provided that, in determining "Total Debt," Debt arising under the
8.00% Junior Subordinated Deferrable Interest Debentures (the "DEBENTURES")
issued by MCI pursuant to Supplemental Indenture No. 1 to the Junior
Subordinated Indenture dated as of May 29, 1996, between MCI and Wilmington
Trust Company, as Trustee (as the same have been or may be amended, modified,
supplemented, or restated, but not increased from time to time) shall not be
included, so long as no "Event of Default" under such Debentures or the related
Indenture has occurred and is continuing on any date of determination.
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TYPE means any type of Borrowing determined with respect to the
interest option applicable thereto.
UNREFUNDED SWING LINE BORROWINGS has the meaning set forth in SECTION
2.2(D).
UNRESTRICTED SUBSIDIARIES, at any time of determination thereof, shall
mean (a) the Receivables Subsidiary and (b) any Subsidiary of Borrower
designated as an "Unrestricted Subsidiary" from time to time in accordance with
SECTION 7.21. UNRESTRICTED SUBSIDIARY, at any time of determination, shall mean
any of the Unrestricted Subsidiaries.
UTILIZATION FEE has the meaning set forth in CLAUSE (B) of the
definition of "Applicable Margin" in this SECTION 1.1.
VOTING STOCK shall mean securities (as such term is defined in Section
2(1) of the Securities Act of 1933, as amended) of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or Persons performing similar
functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
1.2 Number and Gender of Words; Other References. Unless otherwise
specified, in the Loan Papers (a) where appropriate, the singular includes the
plural and vice versa, and words of any gender include each other gender, (b)
heading and caption references may not be construed in interpreting provisions,
(c) monetary references are to currency of the United States of America, (d)
section, paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Paper in which they are used, (e) references to "telecopy,"
"facsimile," "fax," or similar terms are to facsimile or telecopy transmissions,
(f) references to "including" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items that follow references to specific items are limited
to the same type or character of those specific items is not applicable in the
Loan Papers, (h) references to any Person include that Person's heirs, personal
representatives, successors, trustees, receivers, and permitted assigns, (i)
references to any Law include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for it, and (j)
references to any Loan Paper or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
1.3 Accounting Principles. All accounting and financial terms used in
the Loan Papers and the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period.
SECTION 2 BORROWING PROVISIONS.
2.1 The Facility.
(a) Subject to and in reliance upon the terms, conditions,
representations, and warranties in the Loan Papers, each Lender
severally and not jointly agrees to lend to Borrower such Lender's Pro
Rata Part of one or more Borrowings under this Agreement not to exceed
such Lender's Committed Sum under this Agreement, which, subject to the
Loan Papers, Borrower may borrow, repay, and reborrow under this
Agreement; provided that (i) each such Borrowing must occur on a
Business Day and no later than the Business Day immediately preceding
the Termination Date; (ii) each such Borrowing shall be in an amount
not less than (A) $5,000,000 or a greater integral multiple of
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$1,000,000 (if a Base Rate Borrowing), (B) $10,000,000 or a greater
integral multiple of $1,000,000 (if a Eurodollar Rate Borrowing), (C)
$5,000,000 or a greater integral multiple of $1,000,000 (if a
Competitive Borrowing), or (D) $1,000,000 or an integral multiple of
$250,000 if in excess thereof (if a Swing Line Borrowing); and (iii) on
any date of determination, the Principal Debt shall never exceed the
Commitment.
(b) On the Closing Date, this Agreement amends and restates
the Existing Agreement; provided, however, that the execution and
delivery of this Agreement and the other Loan Papers shall not in any
circumstances be deemed to have terminated, extinguished, or discharged
the Debt (if any) under the Existing Agreement all of which Debt (if
any) shall continue under and be governed by this Agreement and the
other Loan Papers. On the Effective Date, each Lender shall advance its
respective Pro Rata Share of the first Borrowing (if any), which may be
netted against its outstandings under the Existing Agreement and shall
be used to repay all outstanding Debt (if any) under the Existing
Agreement due the Existing 364-Day Lenders which are not Lenders under
this Agreement.
(c) Lenders hereby agree among themselves (and Borrower hereby
consents to such agreement) that, concurrently with the Closing Date,
there shall be deemed to have occurred assignments and assumptions with
respect to the Obligation, liens, rights, and obligations under this
Agreement and the other Loan Papers (including, without limitation, the
Commitment and the Principal Debt) such that, after giving effect to
such assignments and assumptions, the Lender's Committed Sum and the
Commitment percentage are as stated on SCHEDULE 2.1, and the Lenders
hereby make such assignments and assumptions. The Lenders shall make
all appropriate payments and adjustments among themselves to effectuate
the appropriate purchase price for and other amounts payable with
respect to such assignments and assumptions.
2.2 Swing Line Subfacility.
(a) Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Swing
Line Lender agrees, severally and not jointly, on and after the Closing
Date and until the earlier of the Business Day immediately preceding
the Termination Date or the termination of the Swing Line Committed Sum
of such Swing Line Lender, (i) to make available to Borrower requested
Swing Line Borrowings ("QUOTED SWING LINE BORROWINGS") on the basis of
quoted interest rates (each, a "QUOTED SWING LINE RATE") furnished by
such Swing Line Lender from time to time in its discretion to Borrower
(through Administrative Agent) and accepted by Borrower in its
discretion and (ii) to lend to Borrower such Swing Line Lender's
Percentage Part of any requested Swing Line Borrowing ("ALTERNATE RATE
SWING LINE BORROWINGS"), bearing interest at a rate equal to the
Alternate Rate; provided that, (A) the aggregate Swing Line Principal
Debt outstanding on any date of determination shall not exceed the
Swing Line Commitment; (B) on any date of determination, the Principal
Debt shall never exceed the Commitment; (C) at the time of such Swing
Line Borrowing, no Default or Potential Default shall have occurred and
be continuing; (D) no Swing Line Borrowing may be made on any date on
which a Borrowing under this Agreement pursuant to SECTION 2.1 is being
made; (E) no additional Swing Line Borrowings shall be made at any time
after any Lender has refused, notwithstanding the requirements of
SECTIONS 2.2(C) and (D), to either fund a Borrowing under this
Agreement or to purchase a participation in the Swing Line Principal
Debt as required in such Sections (such unavailability of the Swing
Line Subfacility shall continue until such funding or purchase shall
occur or until the Swing Line Principal Debt has been repaid); and (F)
at any time after Lenders are deemed to have purchased a participation
in any Unrefunded Swing Line Borrowing pursuant to SECTION 2.2(d), such
Unrefunded Swing Line Borrowings shall bear interest at the Default
Rate. On any date of determination, (i) as a result of Quoted Swing
Line Borrowings, the Swing Line Principal Debt owed to any Swing Line
Lender may exceed such Swing Line Lender's Swing Line Committed Sum and
(ii) as a result of Swing Line Borrowings, the Principal Debt owed to
any Swing Line Lender may exceed its Commitment. Each
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Quoted Swing Line Borrowing shall be made only by the Swing Line Lender
furnishing the relevant Quoted Swing Line Rate. Each Alternate Rate
Swing Line Borrowing shall be made by all Swing Line Lenders ratably in
accordance with their respective Percentage Parts. Swing Line
Borrowings shall be made in a minimum aggregate principal amount of
$1,000,000 or an integral multiple of $250,000 if in excess thereof (or
an aggregate principal amount equal to the remaining balance of the
available Swing Line Commitment). Each Swing Line Lender shall make the
portion of each Swing Line Borrowing to be made by it available to
Borrower by means of a credit to the general deposit account of
Borrower with Administrative Agent or by a wire transfer, at the
expense of Borrower, to an account designated in writing by Borrower,
in each case by 2:30 p.m, Dallas, Texas time, on the date such Swing
Line Borrowing is requested to be made pursuant to SECTION 2.2(B)
below, in immediately available funds. Borrower may borrow, prepay, and
reborrow Swing Line Borrowings on or after the Closing Date and prior
to the Termination Date (or such earlier date on which the Swing Line
Commitment shall terminate in accordance herewith) on the terms and
subject to the conditions and limitations set forth herein.
(b) Borrowings under the Swing Line Subfacility shall be
subject to those terms and conditions applicable to Borrowings as set
forth in SECTIONS 5.2(C), (D), (E), and (F). Borrower shall give
Administrative Agent telephonic, written, or telecopy notice
substantially in the form of EXHIBIT B-7 (provided that, in the case of
telephonic notice, such notice shall be promptly confirmed by telecopy)
no later than 1:30 p.m., Dallas, Texas time (or, in the case of a
proposed Quoted Swing Line Borrowing, 11:00 a.m., Dallas, Texas time),
on the day of a proposed Swing Line Borrowing. Such notice shall be
delivered on a Business Day, shall be irrevocable (subject, in the case
of Quoted Swing Line Borrowings, to receipt by Borrower of Quoted Swing
Line Rates acceptable to it) and shall refer to this Agreement and
shall specify the requested Borrowing Date (which shall be a Business
Day) and the amount of such requested Swing Line Borrowing.
Administrative Agent shall promptly advise the Swing Line Lenders of
any notice received from Borrower pursuant to this SECTION 2.2(B). In
the event that Borrower accepts a Quoted Swing Line Rate in respect of
a requested Quoted Swing Line Borrowing, Borrower shall notify
Administrative Agent (which shall in turn notify the relevant Swing
Line Lender) of such acceptance no later than 1:30 p.m., Dallas, Texas
time, on the relevant Borrowing Date.
(c) Upon the occurrence of a Default or in the event that any
Swing Line Borrowing shall be outstanding for more than five Business
Days, Administrative Agent shall, on behalf of Borrower (which hereby
irrevocably directs and authorizes Administrative Agent to act on its
behalf), request a Base Rate Borrowing from the Lenders, including the
Swing Line Lenders (and each Lender shall fund its Pro Rata Part of),
in an amount sufficient to repay the Swing Line Principal Debt
outstanding under such Swing Line Borrowing; provided that, such
Borrowings under this Agreement shall be made notwithstanding
Borrower's noncompliance with SECTION 5.2. Each Lender will remit its
Pro Rata Part of such Borrowing to Administrative Agent for the account
of the Swing Line Lenders at the office of Administrative Agent prior
to 12:00 Noon, Dallas, Texas time, in funds immediately available on
the Business Day next succeeding the date such notice is given. The
proceeds of such Borrowings under this Agreement shall be immediately
applied to repay such Swing Line Borrowing.
(d) If, for any reason, Borrowings under this Agreement may
not be (as determined by Administrative Agent in its sole discretion),
or are not, made pursuant to SECTION 2.2(C) to repay any Swing Line
Borrowing as required by such Section, then, effective on the date such
Borrowing under this Agreement would otherwise have been made, each
Lender severally, unconditionally, and irrevocably agrees that it shall
be deemed to have purchased an undivided participating interest in such
Swing Line Borrowings ("UNREFUNDED SWING LINE BORROWINGS") to the
extent of such Lender's Pro Rata Part thereof. Each Lender shall fund a
Borrowing under this Agreement or a participation in the Unrefunded
Swing Line Borrowings no later than the close of business on the date
notice of such funding requirement is given by Administrative Agent if
such notice was given prior to 12:00 noon,
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Dallas, Texas time, on any Business Day, or if made at any other time,
on the next Business Day following the date of such notice. All such
amounts payable by any Lender under this SECTION 2.2(D) shall include
interest thereon from the date on which such payment is payable by such
Lender to, but not including, the date such amount is paid by such
Lender to Administrative Agent, at the Federal Funds Rate. If such
Lender does not promptly pay such amount upon Administrative Agent's
demand therefor, and until such time as such Lender makes the required
payment, each Swing Line Lender shall be deemed to continue to have
outstanding its ratable portion of the Swing Line Principal Debt in the
amount of such unpaid obligation. Each payment by Borrower of all or
any part of any Swing Line Borrowings shall be paid to Administrative
Agent for the benefit of the applicable Swing Line Lender (in the case
of a Quoted Swing Line Borrowing) or (in the case of Alternate Rate
Swing Line Borrowings) for the benefit of the Swing Line Lenders and
those Lenders who hold funded participations in such Unrefunded Swing
Line Borrowings under this SECTION 2.2(D); provided that, with respect
to any such participation, all interest on the Swing Line Principal
Debt to which such participation relates, accruing prior to the date of
funding such participation, shall be payable solely to Administrative
Agent for the account of the Swing Line Lenders (and all Lenders
holding funded participations in any Unrefunded Swing Line Borrowing
prior to such date). Subject to SECTION 3.12, any Lender holding a
participation in any Unrefunded Swing Line Borrowing may exercise any
and all Rights of banker's lien, setoff, or counterclaim with respect
to any and all moneys owing by Borrower to such Lender by reason
thereof as fully as if such Lender had extended such Borrowing under
this Agreement directly to Borrower in the amount of such
participation.
(e) Whenever, at any time after any Swing Line Lender has
received from any Lender such Lender's participating interest in any
Swing Line Borrowing, such Swing Line Lender receives any payment on
account thereof, such Swing Line Lender will promptly distribute to
such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's participating interest was outstanding
and funded); provided, however, that in the event that such payment
received by such Swing Line Lender is required to be returned, such
Lender will return to such Swing Line Lender any portion thereof
previously distributed by such Swing Line Lender to it.
(f) Notwithstanding anything to the contrary in this
Agreement, each Lender's obligation to fund the Borrowings referred to
in SECTION 2.2(C) and to purchase and fund participating interests
pursuant to SECTION 2.2(D) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense, or other
right which such Lender or Borrower may have against any Swing Line
Lender, Borrower, or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Potential Default or a Default or
the failure to satisfy any of the conditions specified in SECTION 5;
(iii) any adverse change in the condition (financial or otherwise) of
Borrower or any of its Subsidiaries; (iv) any breach of this Agreement
by Borrower or any Lender; or (v) any other circumstance, happening, or
event whatsoever, whether or not similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swing Line Lenders
and to Administrative Agent, Borrower may at any time terminate, or
from time to time reduce in part or increase (with the approval of the
relevant Swing Line Lender), the Swing Line Committed Sum of any Swing
Line Lender, so long as the Swing Line Commitment is not increased. At
any time when there shall be fewer than seven Swing Line Lenders,
Borrower may appoint from among the Lenders a new Swing Line Lender,
subject to the prior consent of such new Swing Line Lender and prior
notice to Administrative Agent, so long as at no time shall there be
more than seven Swing Line Lenders. Notwithstanding anything to the
contrary in this Agreement, (i) if any Alternate Rate Swing Line
Borrowings shall be outstanding at the time of any termination,
reduction, increase, or appointment pursuant to the preceding two
sentences, Borrower shall on the date thereof prepay or borrow
Alternate Rate Swing Line Borrowings to the extent necessary to ensure
that at all times the
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outstanding Alternate Rate Swing Line Borrowings held by the Swing Line
Lenders shall be ratable according to the respective Swing Line
Committed Sums of the Swing Line Lenders and (ii) in no event may the
aggregate Swing Line Committed Sums of the Swing Line Lenders exceed
the Swing Line Commitment then in effect. On the date of any
termination or reduction of Swing Line Committed Sums pursuant to this
SECTION 2.2(G), Borrower shall pay or prepay so much of the Swing Line
Principal Debt as shall be necessary in order that, after giving effect
to such termination or reduction, (i) the aggregate outstanding
principal amount of the Alternate Rate Swing Line Borrowings of any
Swing Line Lender will not exceed the Swing Line Committed Sum of such
Swing Line Lender and (ii) the aggregate outstanding principal amount
of all Swing Line Borrowings will not exceed the Swing Line Commitment
then in effect.
(h) Borrower may prepay any Swing Line Borrowing in whole or
in part at any time without premium or penalty; provided that, Borrower
shall have given the Administrative Agent written or telecopy notice
(or telephone notice promptly confirmed in writing or by telecopy) of
such prepayment not later than 9:30 a.m., Dallas, Texas time, on the
Business Day designated by Borrower for such prepayment; and provided
further that, each partial prepayment shall be in a minimum principal
amount of $1,000,000 or an integral multiple of $250,000 if in excess
thereof. Each notice of prepayment under this SECTION 2.2(H) shall
specify the prepayment date and the principal amount of each Swing Line
Borrowing (or portion thereof) to be prepaid, shall be irrevocable, and
shall commit Borrower to prepay such Swing Line Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
accrued interest on Swing Line Borrowings is payable quarterly in
arrears. Each payment of principal of or interest on Alternate Rate
Swing Line Borrowings shall be allocated, as between the Swing Line
Lenders, ratably in accordance with their respective Swing Line
Committed Sums.
2.3 Competitive Bid Subfacility.
(a) In addition to Borrowings under this Agreement otherwise
provided for herein, but subject to the terms and conditions of the
Loan Papers, Borrower may, as set forth in this SECTION 2.3, request
Lenders to make offers to make Competitive Borrowings under this
Agreement. Lenders may, but shall have no obligation to, make any such
offers, and Borrower may, but shall have no obligation to, accept any
such offers. Any Competitive Borrowings made available to Borrower
hereunder shall be subject, however, to the conditions that (i) on any
date of determination: the aggregate principal outstanding under all
Competitive Borrowings under this Agreement made by all Lenders shall
not exceed the Commitment then in effect; (ii) on any date of
determination, the Principal Debt shall not exceed the Commitment; and
(iii) each Borrowing under the Competitive Bid Subfacility in respect
of this Agreement must occur on a Business Day and prior to the
Business Day immediately preceding the Termination Date.
(b) In order to request Competitive Bids, Borrower shall
deliver a Competitive Bid Request to Administrative Agent (i) not later
than 10:00 a.m. Dallas, Texas time on the fourth Business Day preceding
the Borrowing Date for any requested Competitive Borrowing that will be
comprised of Eurodollar Rate Borrowings, or (ii) not later than 10:00
a.m. Dallas, Texas time one Business Day before the Borrowing Date for
any requested Competitive Borrowing that will be comprised of Fixed
Rate Borrowings. A Competitive Bid Request that does not conform
substantially to the format of EXHIBIT B-4 may be rejected by
Administrative Agent, and Administrative Agent shall promptly notify
Borrower of such rejection. Each Competitive Bid Request shall refer to
this Agreement and shall specify (i) whether the Competitive Borrowing
then being requested will be comprised of Eurodollar Rate Borrowings or
Fixed Rate Borrowings, (ii) the Borrowing Date of such Competitive
Borrowing (which shall be a Business Day) and the aggregate principal
amount thereof (which shall not be less than $5,000,000 or a greater
integral multiple of $1,000,000), and (iii) the Interest Period with
respect thereto (which may not be more than six months and which may
not
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extend beyond the Termination Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid,
Administrative Agent shall notify Lenders of the Competitive Bid
Request on a form substantially similar to EXHIBIT B-5 hereto, pursuant
to which the Lenders are invited to bid, subject to the terms and
conditions of this Agreement, to make Competitive Borrowings pursuant
to such Competitive Bid Request. Notwithstanding the foregoing,
Administrative Agent shall have no obligation to invite any Lender to
make a Competitive Bid pursuant to this SECTION 2.3 until such Lender
has delivered a completed Administrative Questionnaire to
Administrative Agent.
(c) Each Lender may make one or more Competitive Bids to
Borrower responsive to each respective Competitive Bid Request. Each
Competitive Bid by a Lender must be received by Administrative Agent
substantially in the form of EXHIBIT B-6, (i) no later than 11:00 a.m.
Dallas, Texas time on the third Business Day preceding the Borrowing
Date for any requested Competitive Borrowing that will be comprised of
Eurodollar Rate Borrowings, or (ii) prior to 10:00 a.m. Dallas, Texas
time on the Borrowing Date for any requested Competitive Borrowing that
will be comprised of Fixed Rate Borrowings. Competitive Bids that do
not conform substantially to the format of EXHIBIT B-6 may be rejected
by Administrative Agent after conferring with, and upon the instruction
of, Borrower, and Administrative Agent shall notify the appropriate
Lender of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and shall (x) specify the principal
amount (which shall be in a minimum principal amount of $5,000,000 or a
greater integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by Borrower and
may exceed such Lender's Committed Sum under this Agreement, subject to
the limitations set forth in SECTION 2.3(A) hereof) of the Competitive
Borrowing such Lender is willing to make to Borrower, (y) specify the
Competitive Bid Rate at which such Lender is prepared to make its
Competitive Borrowing, and (z) confirm the Interest Period with respect
thereto specified by Borrower in its Competitive Bid Request. A
Competitive Bid submitted by a Lender pursuant to this SECTION 2.3(C)
shall be irrevocable.
(d) Administrative Agent shall promptly notify Borrower of all
Competitive Bids made and the Competitive Bid Rate and the principal
amount of each Competitive Borrowing in respect of which a Competitive
Bid was made and the identity of the Lender that made each bid.
(e) Borrower may, subject only to the provisions of this
SECTION 2.3(E), accept or reject any or all of the Competitive Bids for
this Agreement referred to in SECTION 2.3(C); provided, however, that
the aggregate amount of the Competitive Bids so accepted by Borrower
may not exceed the principal amount of the Competitive Borrowing
requested by Borrower (subject to the further limitations of SECTION
2.3(A) hereof). Borrower shall notify Administrative Agent whether and
to what extent it has decided to accept or reject any or all of the
bids referred to in SECTION 2.3(C), (i) not later than 10:45 a.m.
Dallas, Texas time three Business Days before the Borrowing Date
specified for a proposed Competitive Borrowing that is deemed a
Eurodollar Rate Borrowing or (ii) not later than 11:00 a.m., Dallas,
Texas time on the day specified for a proposed Competitive Borrowing
that is deemed a Fixed Rate Borrowing; provided, however, that (w) the
failure by Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in SECTION 2.3(C), (x) Borrower
shall not accept a bid under this Agreement in the same or lower
principal amount made at a particular Competitive Bid Rate if Borrower
has decided to reject a bid made at a lower Competitive Bid Rate, (y)
if Borrower shall accept bids made at a particular Competitive Bid Rate
but shall be restricted by other conditions hereof from borrowing the
principal amount of the Competitive Borrowing in respect of which bids
at such Competitive Bid Rate have been made, then Borrower shall accept
a ratable portion of each bid made at such Competitive Bid Rate based
as nearly as possible on the respective principal amounts of the
Competitive Borrowing for which such bids were made, and (z) no bid
shall be accepted for a Competitive Borrowing under this Agreement
unless the aggregate principal amount to be funded pursuant to all
accepted bids under this Agreement shall be in a minimum amount of
$5,000,000 or a greater integral multiple of $1,000,000 for each
respective Lender whose bid is
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accepted. Notwithstanding the foregoing, if it is necessary for
Borrower to accept a ratable allocation of the bids for this Agreement
made in response to a Competitive Bid Request (whether pursuant to the
events specified in CLAUSE (Y) above or otherwise) and the available
principal amount of the Competitive Borrowing to be allocated among the
Lenders submitting Competitive Bids is not sufficient to enable
Competitive Borrowings to be allocated to each such Lender in a minimum
principal amount of $5,000,000 or a greater integral multiple of
$1,000,000, then Borrower shall select the Lenders to be allocated such
Competitive Borrowings and shall round allocations up or down to the
next higher or lower multiple of $500,000 as it shall deem appropriate.
A notice given by Borrower pursuant to this SECTION 2.3(E) shall be
irrevocable.
(f) Administrative Agent shall promptly notify each bidding
Lender whether or not its Competitive Bid has been accepted (which
notice to those Lenders whose Competitive Bids have been accepted will
be given within one hour from the time such bid was accepted by
Borrower and shall further indicate in what amount and at what
Competitive Bid Rate), and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to advance
the Competitive Borrowing in respect of which its bid has been
accepted. After completing the notifications referred to in the
immediately preceding sentence, Administrative Agent shall notify each
bidding Lender of the aggregate principal amount of all Competitive
Bids under this Agreement accepted for and the range of Competitive Bid
Rates submitted in connection with that Competitive Borrowing.
(g) If Administrative Agent shall at any time elect to submit
a Competitive Bid in its capacity as a Lender, it shall submit such bid
directly to Borrower one-half hour earlier than the latest time at
which the other Lenders are required to submit their bids to
Administrative Agent pursuant to SECTION 2.3(C).
(h) Each Competitive Borrowing shall be due and payable on the
last day of the applicable Interest Period; provided that if Borrower
fails to repay any Competitive Borrowing on such day, Borrower shall be
deemed to have given a Notice of Borrowing requesting the Lenders to
make a Base Rate Borrowing under this Agreement in the amount of such
Competitive Borrowing, subject to satisfaction of the conditions
specified in SECTIONS 2.1 and 5.2; provided that failure to repay such
Competitive Borrowing on the last day of the applicable Interest Period
shall not constitute a failure to satisfy such conditions.
2.4 Optional Renewal of Commitments.
(a) Optional Renewal Procedures. Borrower may request that the
Termination Date be extended for all or a portion of the Commitment to
a date which is no later than the 364th day after the then-current
Termination Date; provided that, (i) any such extension request shall
be made in writing (an "EXTENSION REQUEST") by Borrower and delivered
to Administrative Agent no more than 60 days prior to (but no later
than 30 days prior to) the then-current Termination Date; (ii) no more
than one such Extension Request may be made by Borrower; and (iii) no
Extension Request may be made after the Term Conversion Date or which
would have the effect of extending the Termination Date to a date later
than the last day of the second 364-day period following the Closing
Date. Promptly upon receipt of an Extension Request, Administrative
Agent shall notify Lenders of such request.
(i) Lenders' Response to Extension Request. Lenders
may, at their option, accept or reject such Extension Request
by giving written notice to Administrative Agent delivered no
earlier than 30 days prior to (but no later than 25 days prior
to) the then-effective Termination Date (such 25th day being
the "RESPONSE DATE"). If any Lender shall fail to give such
notice to Administrative Agent by the Response Date, such
Lender shall be deemed to
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have rejected the requested extension. If the Extension
Request is not consented to by Determining Lenders by the
Response Date, the Extension Request will be rejected, and
this Commitment will terminate on the then-effective
Termination Date (unless prior to such Termination Date,
Borrower elects to convert the Principal Debt, or a portion
thereof, in accordance with SECTION 2.5 hereof). If
Determining Lenders consent to the Extension Request by the
Response Date, the Termination Date for those Lenders
consenting to the extension (for purposes of this SECTION
2.4(A), the "ACCEPTING LENDERS") shall be automatically
extended to the date which is the 364th day after the
then-current Termination Date; provided that (i) the
Termination Date may never be extended on any one date for a
period greater than 364 days; and (ii) no more than one such
364-day extension of the Termination Date may be granted by
Determining Lenders.
(ii) Additional Procedures to Extend the Rejected
Amount. If the Extension Request is consented to by
Determining Lenders, but fewer than all Lenders (any Lender
not consenting to the Extension Request being referred to in
this SECTION 2.4(A) as a "REJECTING LENDER"), then
Administrative Agent shall, within 48 hours of making such
determination, notify the Accepting Lenders and Borrower of
the aggregate Committed Sums held by the Rejecting Lenders (as
used in this SECTION 2.4(A), the "REJECTED AMOUNT"). Each
Accepting Lender shall have the Right, but not the obligation,
to elect to increase its respective Committed Sum by an amount
not to exceed the Rejected Amount, which election shall be
made by notice from each Accepting Lender to the
Administrative Agent given not later than ten days after the
date notified by Administrative Agent, specifying the amount
of such proposed increase in such Accepting Lender's Committed
Sum. If the aggregate amount of the proposed increases in the
Committed Sums of all Accepting Lenders making such an
election does not equal or exceed the Rejected Amount, then
Borrower shall have the Right to add one or more financial
institutions (which are not Rejecting Lenders and which are
Eligible Assignees) as Lenders (as used in this SECTION
2.4(A), a "PURCHASING LENDER") to replace such Rejecting
Lenders, which Purchasing Lenders shall have aggregate
Committed Sums not greater than those of the Rejecting Lenders
(less any increases in the Committed Sums of Accepting
Lenders, as described in the following CLAUSE (III)). The
transfer of Committed Sums and outstanding Borrowings from
Rejecting Lenders to Purchasing Lenders or Accepting Lenders
shall take place on the effective date of, and pursuant to the
execution, delivery, and acceptance of, Assignment and
Acceptance Agreements in accordance with the procedures set
forth in SECTION 11.13(B).
(iii) Adjustments to, and Terminations of,
Commitments.
(A) If less than 100% (but more than 51%) of
the Commitment is extended (whether by virtue of
Borrower's failure to request an extension of the
full Commitment or by virtue of any Lender not
consenting to any Extension Request), then the
Commitment shall automatically be reduced on the
Termination Date on which the applicable approved
extension is effective by an amount equal to (as the
case may be) (i) the portion of the Commitment not
requested to be extended by Borrower in its Extension
Request (which terminated portion of the Commitment
shall be allocated Pro Rata among the Lenders) or
(ii) the amount of the Rejected Amount (to the extent
not replaced by Accepting Lenders or Purchasing
Lenders pursuant to the procedures set forth in the
foregoing SECTION 2.4(A)(II)). Each Rejecting Lender
shall have no further obligation or Committed Sum
following the Termination Date on which the
applicable approved extension is effective, other
than any obligation accruing prior to such date as
provided herein.
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(B) If the aggregate amount of the proposed
increases in the Committed Sums of all Accepting
Lenders making an election to increase their
respective Committed Sums is in excess of the
Rejected Amount, then (i) the Rejected Amount shall
be allocated pro rata among such Accepting Lenders
based on the respective amounts of the proposed
increases to Committed Sums elected by such Accepting
Lenders; and (ii) the respective Committed Sums of
each such Accepting Lender shall be increased by the
respective amount allocated pursuant to CLAUSE (I) of
this SECTION 2.4(A)(III)(B), such that, after giving
effect to the approved extensions and all such
terminations and increases, no reduction will occur
in the aggregate amount of the Commitment.
(C) If the aggregate amount of the proposed
increases to the Committed Sums of all Accepting
Lenders making such an election to so increase their
respective Committed Sums equals the Rejected Amount,
then the respective Committed Sums of such Accepting
Lenders shall be increased by the respective amounts
of their proposed increases, such that, after giving
effect to the approved extensions and all such
terminations and increases, no reduction will occur
in the aggregate amount of the Commitment.
(D) If the aggregate amount of the proposed
increases to the Committed Sums of all Accepting
Lenders making such an election is less than the
Rejected Amount, then (i) the respective Committed
Sums of each such Accepting Lender shall be increased
by the respective amount of its proposed increase;
and (ii) the amount of the Commitment shall be
reduced by the amount of the Rejected Amount (to the
extent not replaced by the Accepting Lenders or the
Purchasing Lenders, if any).
(b) No Obligation to Renew. Borrower acknowledges that (i)
neither Administrative Agent nor any Lender has made any
representations to Borrower regarding its intent to agree to any
extensions set forth in this Section, (ii) neither Administrative Agent
nor any Lender shall have any obligation to extend the Commitment (or
any portion thereof), and (iii) Administrative Agent's and Lenders'
agreement to one or more extensions shall not commit Administrative
Agent or the Lenders to any additional extensions.
2.5 Conversion to Term Loans. Borrower shall have the option to convert
up to $4,000,000,000 of the Principal Debt outstanding on the Termination Date
(after giving effect to any loan repayments on or prior to the Termination Date)
to a Term Loan maturing no later than one year after the Term Conversion Date
(the "TERM LOAN MATURITY DATE"); provided, however, that no Term Loan Conversion
may be made on any date on which all or any portion of the Commitment is
available to be borrowed as revolving Borrowings under the 364-Day Facility.
Such Term Loan conversion is subject to and on the terms and conditions set
forth below:
(a) No sooner than 90 days (and not later than 10 days)
preceding the Termination Date, Borrower shall deliver to
Administrative Agent a Term Conversion Request in substantially the
form of EXHIBIT B-3 (a "TERM CONVERSION REQUEST"), which, among other
things, shall (i) specify Borrower's election to make such conversion
to a Term Loan, and (ii) specify the Type of Borrowing or Borrowings to
which the Principal Debt shall be converted and the Interest Periods
therefor (if 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.
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2.6 Termination of Commitments. (a) Without premium or penalty, and
upon giving not less than three (3) Business Days prior written and irrevocable
notice to Administrative Agent, Borrower may permanently 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 three (3) Business Days after Borrower's delivery of such notice). In
the event that the Commitment is reduced to zero at a time when there is no
outstanding Principal Debt, this Agreement shall be terminated to the extent
specified in SECTION 11.14, and all commitment fees and other fees then earned
and unpaid hereunder and all other amounts of the Obligation relating to this
Agreement then due and owing shall be immediately due and payable, without
notice or demand by Administrative Agent or any Lender. The Swing Line
Commitment shall be automatically and permanently reduced from time to time on
the date of each reduction in the Commitment such that the Swing Line Commitment
does not exceed the Commitment after giving effect to such reduction of the
Commitment. Each reduction in the Swing Line Commitment will be allocated among
Swing Line Lenders in accordance with their respective Percentage Parts.
2.7 Borrowing Procedure. The following procedures apply to Borrowings
under this Agreement (other than Competitive Borrowings, Swing Line Borrowings,
and Borrowings pursuant to SECTION 2.2(D)):
(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, Texas, in funds which are or will be available for immediate
use by Administrative Agent by 1:00 p.m. Dallas, Texas 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 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
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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) 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 under
this Agreement (and subfacilities thereunder) and the interest and
principal payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation
of Borrower under the Loan Papers to pay any amount owing with respect
to the Obligation.
(b) Upon the request of any 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 Note (with respect to Principal Debt, prior to the Term
Conversion Date, other than under the Swing Line Subfacility or the
Competitive Bid Subfacility); (ii) a Competitive Bid Note (with respect
to Principal Debt arising and outstanding under the Competitive Bid
Subfacility under this 364-Day Facility); (iii) a Swing Line Note (with
respect to Principal Debt arising under the Swing Line Subfacility);
and (iv) a Term Note (with respect to Principal Debt on and after the
Term Conversion Date).
(c) All payments of principal, interest, and other amounts to
be made by Borrower under this Agreement and the other Loan Papers
shall be made to Administrative Agent at its principal office in
Dallas, Texas in Dollars and in funds which are or will be available
for immediate use by Administrative Agent by 12:00 noon Dallas, Texas
time on the day due, without setoff, deduction, or counterclaim.
Subject to the definition of "Interest Period" herein, whenever any
payment under this Agreement or any other Loan Paper shall be stated to
be due on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time in such
case shall be included in the computation of interest and fees, as
applicable and as the case may be. Payments made after 12:00 noon,
Dallas, Texas, time shall be deemed made on the Business Day next
following. Administrative Agent shall pay to each Lender any payment of
principal, interest, or other amount to which such Lender is entitled
hereunder on the same day Administrative Agent shall have received the
same from Borrower; provided such payment is received by Administrative
Agent prior to 12:00 noon Dallas, Texas time, and otherwise before
12:00 noon Dallas, Texas time on the Business Day next following. If
and to the extent Administrative Agent shall not make such payments to
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
the Term Loan Maturity Date, as applicable; provided that if any
Interest Period is a period greater than three (3) months, then accrued
interest shall also be due and payable on each date that is
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a multiple of 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.
(b) To the extent that the Principal Debt is not converted to
a Term Loan on or prior to the Termination Date, Borrower shall pay on
such Termination Date all outstanding Principal Debt not so converted
to a Term Loan, together with all accrued and unpaid interest and fees.
(c) To the extent any portion of 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, or if the Swing Line Principal
Debt exceeds the Swing Line 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), or $250,000 or an integral
multiple thereof (if a Swing Line Borrowing); (iii) all accrued
interest on the Obligation must also be paid in full, to the date of
such prepayment; (iv) Borrower shall pay any related Consequential Loss
within ten (10) days after demand therefor; and (v) notwithstanding the
provisions of this SECTION 3.2(D), prepayments of any Swing Line
Borrowing shall be made in accordance with SECTION 2.2(H). Each notice
of prepayment shall specify the prepayment date, the facility or the
subfacility hereunder being prepaid, the Type of Borrowing(s) and
amount(s) of such Borrowing(s) to be prepaid and shall constitute a
binding obligation of Borrower to make a prepayment on the date stated
therein. Notwithstanding the foregoing, Borrower shall not voluntarily
prepay any Competitive Borrowing prior to the last day of the Interest
Period therefor.
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, the Adjusted Eurodollar Rate plus the Competitive
Bid Rate for Eurodollar Rate Borrowings under the Competitive Bid Subfacility,
the Quoted Swing Line Rate, or the Alternate Rate, as the case may be, and (b)
the Maximum Rate. Each change in the Base Rate, the Maximum Rate, the Quoted
Swing Line Rate, or the Alternate 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 employee 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.
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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; provided that the Default Rate shall automatically apply in
the case of SECTION 2.2(A) where the Default Rate is specified.
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.
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 or Swing Line Borrowings accruing interest at the
Quoted Swing Line Rate or the Alternate 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, the Quoted Swing Line
Rate, the Alternate 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.
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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 or, if available to all Lenders, nine or
twelve 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 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 ten (10) Interest Periods 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 $10,000,000 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
to each Lender in the proportion that the Principal Debt owed to such
Lender bears to the Principal Debt owed to all Lenders under the
364-Day Facility (or Subfacility thereunder) in respect of which such
payment was made.
(b) If a Default or Potential Default has occurred and is
continuing (or if Borrower fails to give directions as permitted under
SECTION 3.11(a)), any payment or prepayment (including proceeds from
the exercise of any Rights) shall be applied in the following order:
(i) to the ratable payment of all fees and reasonable
expenses for which Agents or Lenders have not been paid or
reimbursed in accordance with the Loan Papers; (as used in
this SECTION 3.11(b)(i), a "ratable payment" for any Lender
or any Agent shall be, on any date of determination, that
proportion which the portion of the total fees and indemnities
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owed to such Lender or Agent bears to the total aggregate fees
and indemnities owed to all Lenders and Agents on such date of
determination);
(ii) to the Pro Rata payment of all accrued and
unpaid interest on the Principal Debt;
(iii) to the ratable payment of the Swing Line
Principal Debt which is due and payable and which remains
unfunded by any Borrowing under this Agreement; provided that,
such payments shall be allocated among the Swing Line Lenders
and the Lenders which have funded their participation in the
Swing Line Principal Debt;
(iv) 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
(v) to the payment of the remaining Obligation in the
order and manner Determining Lenders deem appropriate.
Subject to the provisions of SECTION 10 and provided that Administrative Agent
shall in any event not be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Determining Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby, Administrative Agent shall promptly distribute
such amounts to each Lender in accordance with this 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 3.15
than the transferor Lender would have been entitled to receive with respect to
such Borrowings.
3.15 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
Law or any change in any applicable Law, or any change in the
interpretation or administration thereof by any Governmental
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Authority, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force
of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Applicable
Lending Office) to any Tax with respect to any Eurodollar Rate
Borrowing, its Notes, or its obligation to loan Eurodollar
Rate Borrowings, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending
Office) under the Loan Papers in respect of any Eurodollar
Rate Borrowings (other than with respect to Taxes imposed on
the overall net income of such Lender by any jurisdiction and
other than liabilities, interest, and penalties incurred as a
result of the gross negligence or wilful misconduct of such
Lender);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting the Loan Papers or any of such extensions
of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the actual cost
to such Lender (or its Applicable Lending Office) of making, converting
into, continuing, or maintaining any Eurodollar Rate Borrowings or to
reduce any sum received or receivable by such Lender (or its Applicable
Lending Office) under the Loan Papers with respect to any Eurodollar
Rate Borrowing, then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such increased
cost or reduction as provided in SECTION 3.15(C) below. If any Lender
requests compensation by Borrower under this SECTION 3.15(A), Borrower
may, by notice to such Lender (with a copy to Administrative Agent),
suspend the obligation of such Lender to loan or continue Borrowings of
the Type with respect to which such compensation is requested, or to
convert Borrowings of any other Type into Borrowings of such Type,
until the event or condition giving rise to such request ceases to be
in effect (in which case the provisions of SECTION 3.18 shall be
applicable); provided, that such suspension shall not affect the Right
of such Lender to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable Law regarding capital
adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority has or would have the effect of
reducing the rate of return by an amount deemed by it to be material on
the capital of such Lender or any corporation controlling such Lender
as a consequence of such Lender's obligations hereunder to a level
below that which such Lender or such corporation could have achieved
but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from
time to time upon demand Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify Borrower and
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to it. Any Lender
claiming
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compensation under this Section shall furnish to Borrower and
Administrative Agent a statement setting forth in reasonable detail the
additional amount or amounts to be paid hereunder which shall be
presumed correct in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods.
3.16 Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Borrowing:
(a) Administrative Agent determines (which determination shall
be conclusive absent manifest error) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) Determining Lenders determine (which determination shall
be conclusive absent manifest error) and notify Administrative Agent
that the Adjusted Eurodollar Rate will not adequately and fairly
reflect the cost to the Lenders of funding Eurodollar Rate Borrowings
for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof specifying
the relevant amounts or periods, and so long as such condition remains in
effect, the Lenders shall be under no obligation to fund additional Eurodollar
Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurodollar
Rate Borrowings, either prepay such Borrowings or convert such Borrowings into
Base Rate Borrowings in accordance with the terms of this Agreement.
3.17 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Borrowings hereunder, then
such Lender shall promptly notify Borrower thereof and such Lender's obligation
to make or continue Eurodollar Rate Borrowings and to convert other Base Rate
Borrowings into Eurodollar Rate Borrowings shall be suspended until such time as
such Lender may again make, maintain, and fund Eurodollar Rate Borrowings (in
which case the provisions of SECTION 3.18 shall be applicable); provided that,
such Lender will use best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office so as
to eliminate any illegality, if such change, in the reasonable judgment of such
Lender, is not otherwise disadvantageous to such Lender.
3.18 Treatment of Affected Loans. If the obligation of any Lender to
fund Eurodollar Rate Borrowings or to continue, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, shall be suspended pursuant to
SECTIONS 3.15, 3.16, or 3.17 hereof, such Lender's Eurodollar Rate Borrowings
shall be automatically converted into Base Rate Borrowings on the last day(s) of
the then current Interest Period(s) for Eurodollar Rate Borrowings (or, in the
case of a conversion required by SECTION 3.17 hereof, on such earlier date as
such Lender may specify to Borrower with a copy to Administrative Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in SECTIONS 3.15, 3.16, or 3.17 hereof that gave rise to
such conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Rate
Borrowings have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's Eurodollar
Rate Borrowings shall be applied instead to its Base Rate Borrowings;
and
(b) all Borrowings that would otherwise be made or continued
by such Lender as Eurodollar Rate Borrowings shall be made or continued
instead as Base Rate Borrowings, and all Borrowings of such Lender that
would otherwise be converted into Eurodollar Rate Borrowings shall be
converted instead into (or shall remain as) Base Rate Borrowings.
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If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTIONS 3.15, 3.16, or 3.17 hereof that
gave rise to the conversion of such Lender's Eurodollar Rate Borrowings pursuant
to this SECTION 3.18 no longer exist (which such Lender agrees to do promptly
upon such circumstances ceasing to exist) at a time when Eurodollar Rate
Borrowings made by other Lenders are outstanding, such Lender's Base Rate
Borrowings shall be automatically converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Rate Borrowings,
to the extent necessary so that, after giving effect thereto, all Eurodollar
Rate Borrowings held by the Lenders and by such Lender are held Pro Rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Commitments.
3.19 Compensation; Replacement of Lenders.
(a) Upon the request of any Lender, Borrower shall pay to such
Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any Consequential Loss;
provided that, in each case, the Person claiming such Consequential
Loss has furnished Borrower with a reasonably detailed statement of
such loss, which statement shall be conclusive in the absence of
manifest error.
(b) If any Lender requests compensation under SECTION 3.15 or
if Borrower is required to pay additional amounts to or for the account
of any Lender pursuant to SECTION 3.20 (collectively, "ADDITIONAL
AMOUNTS"), then Borrower may, at its sole expense and effort, upon
written notice to such Lender and Administrative Agent, require such
Lender to assign and delegate, without recourse, all its interests,
Rights, and obligations under this Agreement and the other Loan Papers
(other than any outstanding Competitive Borrowings held by such Lender)
to an Eligible Assignee that shall assume such obligations; provided
that, (i) Borrower shall have received the prior written consent of
Administrative Agent to any such assignment; (ii) such Lender shall
have received payment from Borrower of any Additional Amounts owed to
such Lender by Borrower for periods prior to the replacement of such
Lender and any actual costs incurred as a result of such replacement of
a Lender; (iii) such assignment will result in reduction or elimination
of the Additional Amounts; and (iv) such assignment and acceptance
shall be made in accordance with, and subject to the requirements and
restrictions contained in, SECTION 11.13(B). A Lender shall not be
required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances
entitling such Borrowing to require such assignment and delegation
cease to apply.
3.20 Taxes.
(a) Any and all payments by Borrower to or for the account of
any Lender or Administrative Agent hereunder or under any other Loan
Paper shall be made free and clear of and without deduction for any and
all present or future Taxes, excluding, in the case of each Lender and
Administrative Agent, Taxes imposed on its income and franchise Taxes
imposed on it by any jurisdiction and other liabilities, interest, and
penalties incurred as a result of the gross negligence or wilful
misconduct of such Lender or Administrative Agent (all such
Non-Excluded Taxes referred to as "NON-EXCLUDED TAXES"). If Borrower
shall be required by law to deduct any Non-Excluded Taxes from or in
respect of any sum payable under this Agreement or any other Loan Paper
to any Lender or Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 3.20) such Lender or Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been
made, (ii) Borrower shall make such deductions, (iii) Borrower shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) Borrower
shall furnish to Administrative Agent, at its address listed in
SCHEDULE 2.1, the original or a certified copy of a receipt evidencing
payment thereof.
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(b) In addition, Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property
Taxes which arise from any payment made under this Agreement or any
other Loan Paper or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Paper (hereinafter
referred to as "OTHER TAXES").
(c) BORROWER AGREES TO INDEMNIFY EACH LENDER AND
ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED TAXES THAT
SHOULD HAVE BEEN WITHHELD BY BORROWER AND OTHER TAXES (INCLUDING,
WITHOUT LIMITATION, ANY NON-EXCLUDED TAXES THAT SHOULD HAVE BEEN
WITHHELD BY BORROWER OR OTHER TAXES IMPOSED OR ASSERTED BY ANY
JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 3.20) PAID BY SUCH
LENDER OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) AND ANY LIABILITY
(INCLUDING PENALTIES, INTEREST, AND EXPENSES OTHER THAN THOSE INCURRED
AS A RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH LENDER
OR ADMINISTRATIVE AGENT) ARISING THEREFROM OR WITH RESPECT THERETO.
(d) Each Lender organized under the Laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter, including, without limitation, upon the expiration or
obsolescence of any previously delivered form or upon the written
request of Borrower or Administrative Agent (but only so long as such
Lender remains lawfully able to do so) shall provide Borrower and
Administrative Agent with (i) Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the
United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the 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.
(e) For any period with respect to which a Lender has failed
to provide Borrower and Administrative Agent with the appropriate form
pursuant to SECTION 3.20(d) (unless such failure is due to a change in
Law occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under this SECTION 3.20 with respect to Taxes imposed
by the United States; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax,
become subject to Taxes because of its failure to deliver a form
required hereunder, Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(f) If Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to this SECTION 3.20, then such
Lender will use best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender,
is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Non-Excluded Taxes or Other Taxes, Borrower shall furnish to
Administrative Agent the original or a certified copy of a receipt
evidencing such payment.
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(h) Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements and obligations of Borrower
contained in this SECTION 3.20 shall survive the termination of the
Commitment and the payment in full of the Obligation.
SECTION 4 FEES.
4.1 Treatment of Fees. Except as otherwise provided by Law, the fees
described in this SECTION 4: (a) do not constitute compensation for the use,
detention, or forbearance of money, (b) are in addition to, and not in lieu of,
interest and expenses otherwise described in this Agreement, (c) shall be
payable in accordance with SECTION 3.1, (d) shall be non-refundable, (e) shall,
to the fullest extent permitted by Law, bear interest, if not paid when due, at
the Default Rate, and (f) shall be calculated on the basis of actual number of
days (including the first day, but excluding the last day) elapsed, but computed
as if each calendar year consisted of 360 days, unless such computation would
result in interest being computed in excess of the Maximum Rate in which event
such computation shall be made on the basis of a year of 365 or 366 days, as the
case may be.
4.2 Fees of Administrative Agent and Arranger. Borrower shall pay to
Administrative Agent or Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of June 22, 1999 (as thereafter amended or modified from time
to time), among Borrower, Administrative Agent, and Arranger, which payments
shall be made on the dates specified, and in amounts calculated in accordance
with, such letter agreement.
4.3 Commitment Fees. Following the Closing Date, Borrower shall pay to
Administrative Agent, for the ratable account of Lenders, a commitment fee
("COMMITMENT FEE"), payable in installments in arrears, on each March 31, June
30, September 30, and December 31 and on the Termination Date or the Term
Conversion Date, in each case, commencing September 30, 1999. Each installment
shall be in an amount equal to the Applicable Margin designated in SECTION 1.1
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 4.3, (i) determinations of the average daily Principal Debt shall
exclude the Principal Debt of all Competitive Borrowings and Swing Line
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 and until (a) Administrative Agent has received all of the
agreements, documents, instruments, and other items described on SCHEDULE 5.1,
and (b) there has been no change in the consolidated financial condition of the
Consolidated Companies from that shown in the respective Current Financials of
such companies which could be a Material Adverse Event.
5.2 Conditions Precedent to Each Borrowing. In addition to the
conditions stated in SECTION 5.1 (except SECTION 5.1(B)), Lenders will not be
obligated to fund (as opposed to continue or convert) any Borrowing (including
any Competitive Borrowing or Swing Line Borrowing), as the case may be, unless
on the date of such Borrowing (and after giving effect thereto), as the case may
be:
(a) Administrative Agent shall have timely received therefor a
Notice of Borrowing or Notice of Competitive Borrowing as the case may
be;
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(b) Administrative Agent shall have received, as applicable,
the fees provided for in SECTION 4.3 hereof or any fees then payable as
provided for in SECTION 4.2, 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);
(d) no Default or Potential Default shall have occurred and be
continuing;
(e) the funding of such Borrowing is permitted by Law; and
(f) 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.
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) and (D) 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 all proceeds of
Borrowings for general corporate purposes of the Restricted Companies,
including, without limitation, liquidity support for commercial paper. No
Restricted 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 T, U, and X (as enacted by the Board of Governors of the Federal
Reserve System, as amended). "Margin Stock" (as defined in Regulation U)
constitutes less than 25% of those assets of the Restricted Companies which are
subject to any limitation on sale, pledge, or other similar restrictions
hereunder.
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. 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, approvals, 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
(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 those Authorizations the failure of which
to be obtained or made could
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not be a Material Adverse Event. 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 Authorization and Contravention. The execution, delivery, and
performance by Borrower of each Loan Paper and its obligations thereunder (a)
are within the corporate power of Borrower, (b) will have been duly authorized
by all necessary corporate action on the part of Borrower when such Loan Paper
is executed and delivered, (c) require no action by or in respect of, consent
of, or filing with, any Governmental Authority, which action, consent, or filing
has not been taken or made on or prior to the Closing Date, (d) will not violate
any provision of the charter or bylaws of Borrower, (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, and (g) will not result in the creation or imposition of any Lien
on any asset of any Consolidated Company that is material in relation to the
Consolidated Companies taken as a whole.
6.4 Binding Effect. Upon execution and delivery by all parties thereto,
each Loan Paper will constitute a legal, valid, and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity.
6.5 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.
6.6 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 judgments, decrees, or orders of any
Governmental Authority outstanding against any Restricted Company that could be
a Material Adverse Event.
6.7 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 Liens permitted under SECTION 7.13(F) have been
satisfied or for which nonpayment thereof could not constitute a Material
Adverse Event.
6.8 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
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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.
6.9 ERISA Compliance. (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
1997 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 1997 plan year of each such Plan, exceed the value of the assets
of all such plans.
6.10 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
Liens permitted in SECTION 7.13, 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.
6.11 Government Regulations. No Restricted 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 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.
6.12 No Default. No event has occurred and is continuing or would
result from the incurring of obligations by Borrower under this Agreement or any
other Loan Paper which constitutes a Default or a Potential Default. No
Restricted Company is in default under or with respect to any material written
or oral agreements, contracts, commitments, or understandings to which any
Restricted Company is party which could, individually or together with all such
defaults, be a Material Adverse Event.
6.13 Senior Indebtedness. All of the Obligation constitutes "senior
indebtedness" or "senior debt" (or ranks at least pari passu with other senior
and unsubordinated indebtedness) under the terms of the Indentures to which
Borrower is a party or any other unsecured senior Debt or secured or unsecured
subordinated Debt of Borrower.
6.14 Year 2000 Compliance. Borrower has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations that could be adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by the Borrower or any of its
Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (ii) developed a plan and time line for addressing the Year 2000 Problem
on a timely basis, and (iii) to date, implemented in all material respects that
plan in accordance with that timetable.
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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 under this
Agreement 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 (with such exceptions as may be noted in the Current Financials
provided to Administrative Agent).
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 110 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 (or in lieu
thereof the Form 10-K of the Consolidated Companies filed with the
Securities and Exchange Commission for such fiscal year), 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) 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; and
(iii) a Compliance Certificate with respect to such
Financial Statements.
(b) Promptly after preparation, and no later than 65 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 (or in lieu thereof the Form
10-Q of the Consolidated Companies filed with the Securities and
Exchange Commission for such fiscal quarter), accompanied by a
Compliance Certificate with respect to such Financial Statements.
(c) Notice, promptly after Borrower knows or has reason to
know of (i) the existence and status of any Litigation 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 other
Litigation affecting the Restricted Companies which Borrower would be
required to report to the Securities and Exchange Commission pursuant
to the Securities and Exchange Act of 1934, as amended, within four
Business Days after reporting the same to the Securities and Exchange
Commission; (iii) a Default or Potential Default, specifying the nature
thereof and what action Borrower or any other Consolidated Company has
taken,
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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) a default or event of default under any material
agreement of any Restricted Company which could be a Material Adverse
Event; (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 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 $100,000,000 or of the
impending termination or reorganization of such Multiemployer Plan.
(d) Promptly after the filing thereof, a true, correct, and
complete copy of each material report and registration statement filed
with the Securities and Exchange Commission, including, without
limitation, 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.
(e) Promptly upon request therefor by Administrative Agent or
Lenders holding, in the aggregate, at least 25% of the Commitment
(prior to the Term Conversion Date) or 25% of the Principal Debt (on
and after the Term Conversion Date) (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. On and after the occurrence of any Potential Default
or Default, 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, employees, other representatives, and
independent accountants, from time to time, during reasonable business hours, as
often as may be desired, and all at the expense of Borrower.
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 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 shall promptly pay (or renew and extend) all of its
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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).
7.7 Maintenance of Existence, Assets, and Business. Except as otherwise
permitted by SECTION 7.20, 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, except where the failure to
do so would not be a Material Adverse Event; 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, except where the failure to so maintain would
not be a Material Adverse Event.
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 $100,000,000.
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 any non-compliance with any
Environmental Law, except where the failure to so comply or correct would not be
a Material Adverse Event; (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, except where the failure to do so would not
be a Material Adverse Event; 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;
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(b) Existing Debt;
(c) Debt arising under Facility A;
(d) Debt incurred by any Restricted Company under any
Financial Hedge with any Lender or an Affiliate of any Lender;
(e) Debt between Restricted Companies, so long as any such
inter-company Debt owed by Borrower to any other Restricted Company is
unsecured; or Debt of any Restricted Company to the Receivables
Subsidiary; and
(f) Debt of any Restricted Company not otherwise permitted by
this SECTION 7.12, so long as (i) no Default or Potential Default
exists on the date any such Debt is created, incurred, or assumed or
arises after giving effect to such Debt incurrence; and (ii) if such
Debt is secured, on the date any such secured Debt is created,
incurred, or assumed, the principal amount of such secured Debt when
aggregated with the principal amount of all other secured Debt of the
Restricted Companies incurred in accordance with this SECTION 7.12(F)
does not exceed 10% of the book value of the consolidated assets of the
Restricted Companies determined as of the date of, and with respect to,
the Current Financials and the related Compliance Certificate.
Notwithstanding anything in this SECTION 7.12 to the contrary, the aggregate
principal amount of all Debt of the Restricted Subsidiaries may not exceed, on
any date of determination, the sum of (i) 10% of the book value of the
consolidated assets of the Restricted Companies, determined as of the date of
the most-recently delivered consolidated Financial Statements of Borrower and
the related Compliance Certificate, plus (ii) the principal amount of all
Existing Debt of MCI and its Subsidiaries on and after September 14, 1998 (the
"MCI Merger Date" under the Existing Agreement) (as renewed, refinanced, or
extended but not increased).
7.13 Liens. No Restricted Company will, directly or indirectly, create,
incur, or suffer or permit to be created or incurred or to exist any Lien upon
any of its assets, except:
(a) Liens securing Debt permitted to be incurred or
outstanding under SECTION 7.12(b) and SECTION 7.12(f), so long as (i)
with respect to Liens securing Existing Debt, such Liens are limited to
the assets securing such Existing Debt on August 6, 1998 (in the case
of Existing Debt described in PART A of SCHEDULE 7.12) or on September
14, 1998 (the "MCI Merger Date" under the Existing Agreement) (in the
case of Existing Debt described in PART B of SCHEDULE 7.12), (ii) no
Default or Potential Default exists on the date any such Lien is
granted or created, (iii) the aggregate amount of all Debt secured by
such Liens does not exceed the aggregate amount of secured Debt
permitted by SECTIONS 7.12(b) and 7.12(f)(ii); and (iv) the aggregate
amount of Debt of Restricted Subsidiaries secured by such Liens does
not exceed the amount of Restricted Subsidiary Debt permitted under
SECTION 7.12;
(b) 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 under SECTION
7.19(d);
(c) 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;
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(d) 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;
(e) If no Lien has been agreed to or filed in any
jurisdiction, (i) claims and Liens for Taxes not yet due and payable,
(ii) mechanic's Liens and materialmen's Liens for services or materials
and similar Liens incident to construction and maintenance of real
property, in each case for which payment is not yet due and payable,
(iii) landlord Liens for rental not yet due and payable, and (iv) Liens
of warehousemen and carriers and similar Liens securing obligations
that are not yet due and payable;
(f) 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;
(g) Liens on the Receivables Program Assets created pursuant
to any Receivables Documents evidencing Accounts Receivable Financing
permitted by SECTION 7.19(D); and
(h) Any attachment or judgment Lien not constituting a Default
or Potential Default.
7.14 Transactions with Affiliates. Except for those transactions listed
on SCHEDULE 7.14, no Restricted Company shall enter into any material
transaction with any of its Affiliates (excluding transactions among or between
Restricted Companies), other than (i) 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 (ii) sales
and contributions of Receivables Program Assets from Borrower or certain
Restricted Subsidiaries to the Receivables Subsidiary pursuant to an Accounts
Receivable Financing permitted by SECTION 7.19(D); provided, that, for the
purposes hereof, determinations of materiality shall be made in the good faith
judgment of Borrower with respect to the Restricted Companies taken as a whole.
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 Assignment. Without the express written consent of all Lenders,
Borrower shall not assign or transfer any of its Rights, duties, or obligations
under any of the Loan Papers.
7.17 Permitted Distributions. Borrower may not, directly or indirectly,
declare, make, or pay any Distributions if any Default or Potential Default
exists or will exist after giving effect to any such Distribution.
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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.
7.18 Restrictions on Subsidiaries. No Restricted Subsidiary shall,
directly or indirectly, 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.
7.19 Sale of Assets. No Restricted Company shall, directly or
indirectly, sell, assign, transfer, or otherwise dispose of any of its assets
except: (a) disposition of obsolete or worn-out property or real property no
longer used or useful in its business; (b) the sale, discount, or transfer of
delinquent accounts receivable in the ordinary course of business for purposes
of collection; (c) sales of inventory in the ordinary course of business; (d)
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
Receivable Financings does not exceed $2,000,000,000 on any date of
determination; (e) asset sales between Restricted Companies; and (f) if no
Default or Potential Default then exists or arises as a result thereof,
additional sales or disposition of other assets, if after giving effect to such
sales or disposition, the aggregate book value of assets sold on and after
August 6, 1998, does not exceed 20% of the book value of the consolidated assets
of the Restricted Companies determined as of the date of, and with respect to,
the Current Financials and the related Compliance Certificate.
7.20 Mergers and Dissolutions; Sale of Capital Stock. No Restricted
Company will, directly or indirectly, merge or consolidate with any other
Person, other than (a) mergers or consolidations by Borrower with another
Person; (b) mergers or consolidations by any Restricted Subsidiary with another
Person, if a Restricted Subsidiary is the surviving or resulting entity; (c)
mergers or consolidations among Restricted Companies; (d) as previously approved
by Determining Lenders; and (e) mergers or consolidations between Restricted
Companies and Unrestricted Subsidiaries; provided that, under this SECTION 7.20,
unless previously approved by Determining Lenders, (i) in any merger or
consolidation involving Borrower, Borrower or a Permitted Successor Corporation
must be the surviving or resulting entity, (ii) in any merger or consolidation
involving a wholly-owned Restricted Subsidiary, a wholly-owned Subsidiary must
be the surviving or resulting entity; and, (iii) in any merger or consolidation
involving any other Restricted Company (including any acquisition effected as a
merger), a Restricted Subsidiary must be the surviving or resulting 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 or consolidations permitted under this SECTION
7.20, or (y) liquidations, wind ups, or dissolutions of a Restricted Subsidiary
if no Default or Potential Default exists or would result therefrom and its
proportionate share of assets (if any) are transferred to a Restricted Company.
7.21 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 designate a Subsidiary as an Unrestricted Subsidiary or designate an
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, Borrower
shall (a) provide Administrative Agent written notification of such designation,
and (b) deliver to Administrative Agent a Compliance Certificate demonstrating
pro-forma compliance with SECTIONS 7.12 and 7.22 immediately prior to and after
giving effect to such designation.
7.22 Financial Covenant. As calculated on a consolidated basis for the
Restricted Companies, Borrower shall never permit the ratio of Total Debt to
Total Capitalization, on any date of determination, to exceed 0.68 to 1.00.
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7.23 Year 2000 Compliance. Borrower will promptly notify the
Administrative Agent in the event Borrower discovers or determines that any
computer application that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 compliant on a timely basis,
except to the extent that such failure is not reasonably expected to be a
Material Adverse Event.
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 (a) Borrower to
pay (i) Principal Debt within three days after the same becomes due in
accordance with the Loan Papers; (ii) interest, fees, or any other part of the
Obligation within five days after the same becomes due and payable in accordance
with the Loan Papers; or (iii) the indemnifications and reimbursements provided
for in SECTIONS 3.15, 3.19, and 3.20 within ten days after demand therefor as
required by such Sections; or (b) any 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 3.15, 3.19, and 3.20) 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, 7.12, 7.13 (other than by reason of attachment or involuntary Lien), 7.16,
7.17, and 7.19 through 7.21, (b) any covenant, agreement, or condition contained
in SECTION 7.13 (if by reason of an attachment or involuntary Lien), 7.18, 7.22,
and 7.23, which failure or refusal continues for 15 days; or (c) 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
CLAUSES (A) and (B) hereof), which failure or refusal continues for 30 days.
8.3 Debtor Relief. Borrower or any Material 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 one or more judgments
or orders for the payment of money (not paid or fully covered by insurance) in
excess of $100,000,000 (individually or collectively) or the equivalent thereof
in another currency or currencies, 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 the equivalent thereof in
another currency or currencies, which is not either (a) stayed on appeals; (b)
being diligently contested in good faith by appropriate proceedings with
adequate reserves having been set aside on the books of such Restricted Company
in accordance with GAAP, or (c) dismissed by a court of competent jurisdiction.
8.5 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.
8.6 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
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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.
8.7 Default Under Other Agreements. (a) 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 $100,000,000 (or the
equivalent thereof in another currency or currencies) to become due and payable
by any Restricted Company (whether by acceleration or by its terms); or (b) 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 (b), 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.
8.8 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 $100,000,000 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(c) 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 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 $100,000,000; 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 $100,000,000; 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 $100,000,000.
8.9 Default Under Facility A. The occurrence and continuance of a
"Default" under Facility A.
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8.10 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.
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 under this 364- Day
Facility 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 under this 364-Day
Facility Agreement has not already been accelerated under SECTION
9.1(A), declare the entire unpaid balance of the Obligation under this
364-Day Facility, 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); and (v) exercise any and all other
legal or equitable Rights afforded by the Loan Papers, the Laws of the
State of New York, 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, any 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, any Agent, or any Lender acquiesces in any non-compliance
by any Consolidated Company with any Law or document, or that Administrative
Agent, any 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 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 Agents 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 Agents 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 other 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,
EACH OTHER 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); OR
(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; (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
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,
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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 (including any Lender in its capacity as a
Swing Line Lender) hereby appoints Bank of America (and Bank of America
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 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,
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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 (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
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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.
(e) Each Lender acknowledges that, and consents to, Bank of
America's also serving as the "Administrative Agent" under the Facility
A Agreement.
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 11.13,
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 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) None of the Agents or any of their respective
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 as found in a final, non-appealable
judgment by a court of competent jurisdiction; and none of the Agents
or any of their respective 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, no Agent shall be compelled to do any act under
the Loan Papers or to take any action toward the
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execution or enforcement of the powers thereby created or to prosecute
or defend any suit in respect of the Loan Papers. If any 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, such 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 any 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 any Agent as a result of such Agent's acting or refraining from
acting hereunder in accordance with the instructions of Determining
Lenders.
(c) Agents 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 Agents 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 each 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 any Agent and its respective Representatives
are not reimbursed for such amounts by any Restricted Company (provided
that, no Agent and its respective Representatives shall have the right
to be indemnified hereunder for its or their own fraud, gross
negligence, or willful misconduct as found in a final, non-appealable
judgment by a court of competent jurisdiction).
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 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) no
Agent (acting in its respective agent capacity) shall incur any liability to any
other Lender, Agent, or Participant, except for acts or omissions resulting from
its own fraud, gross negligence or wilful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction, and (b) no 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 Agents and Lenders or among
Lenders.
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10.9 Benefits of Agreement. Except for the representations and
covenants in SECTION 10.1(C) 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 and Agents; 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 or Agent to comply
with such provisions.
10.10 Co-Syndication Agents. None of the Lenders identified in this
Agreement as a "Co-Syndication Agent" shall have any rights, powers,
obligations, liabilities, responsibilities, or duties under this Agreement,
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as a "Co-Syndication Agent" shall
have or be deemed to have any fiduciary relationship with any Lender.
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 Business Day, but interest and
fees shall continue to accrue in respect of any payment to which they are
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 other Agent and each
Lender is set forth on SCHEDULE 2.1, and for Borrower and each Restricted
Company is the address set forth below. 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 MCI
WORLDCOM, INC., 500 Clinton Center Drive, Clinton, MS 39056, Attn: Sunit S.
Patel, Fax: 601/460-8110, and to MCI WORLDCOM, INC., 10777 Sunset Office Drive,
St. Louis, MO 63127, Attn: Bruce Borghardt, Fax: 314/909-4101.
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.
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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, any
Agent, or any Lender shall survive termination of this Agreement and payment in
full of the Obligation.
11.7 Governing Law. THE LOAN PAPERS HAVE BEEN ENTERED INTO PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE LAWS (OTHER THAN
CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF NEW YORK 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.
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, ADMINISTRATIVE AGENT, OR ANY OTHER AGENT
(TOGETHER WITH ALL FEE LETTERS AS THEY RELATE TO THE PAYMENT OF FEES AFTER THE
CLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN THE RESTRICTED COMPANIES,
LENDERS, AND/OR 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,
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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) 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 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, 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
of the Obligation arising under the 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," "PRO RATA," or "PRO
RATA PART" (other than modifications to the definitions of "PRO RATA"
or "PRO RATA PART" as a result of changes in the definition of
"COMMITMENT"), or (iv) 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 (v) changes this CLAUSE (b), SECTION 2.8 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 this 364-Day Facility 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.
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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 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 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) assignments by Borrower are subject to the
restrictions of SECTION 7.16, 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 (when aggregated with the amounts
of any concurrent assignments under Facility A by the
assigning Lender to the same assignee) shall be in an amount
at least equal to $10,000,000, but in no event shall an
assigned interest in either Facility A or the 364- Day
Facility be less than $1,000,000 (except in case of an
assignment of all of such 364-Day Facility Lender's interest
in any such facility);
(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); provided, that notwithstanding the foregoing,
assignment of any Rights and obligations of any Swing Line
Lender under the Swing Line Subfacility shall be governed by
SECTION 11.13(B)(VI);
(iv) each such assignment shall exclude Competitive
Borrowings, unless the assigning Lender is selling all of its
Rights and obligations under the Loan Papers;
(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;
(vi) no Swing Line Lender may assign any portion of
its obligations under the Swing Line Subfacility and its
related portion of the Commitment, unless such assignment is
being made in connection with the sale of all such Swing Line
Lender's Rights and interests under the Loan Papers.
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
56
<PAGE> 62
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 3.20(d).
(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 11.13,
SCHEDULE 2.1 AND SCHEDULE 2.2 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) Each Lender may sell participations to one or more Persons
(each a "PARTICIPANT") in all or a portion of its Rights, obligations,
or Rights and obligations under this Agreement and related Loan Papers
(including all or a portion of its Committed Sum or its portion of
Borrowings advanced under this Agreement); provided, however, that (i)
such Lender's obligations under this Agreement shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations; (iii) the Participant
shall be entitled to the benefit of the yield protection provisions
contained in SECTIONS 3.15, 3.19, and 3.20 (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 such Sections as though no participations
have been made) and the right of set-off contained in SECTION 3.13;
(iv) Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's Rights and obligations under
this Agreement and the other Loan Papers and such Lender shall retain
the sole Right to enforce the obligations of Borrower relating to
Borrowings under this Agreement and its Notes (to the extent the
Principal Debt owed to such Lender is evidenced by Notes) and to
approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing
the amount of principal of or the rate at which interest is payable on
the Principal Debt, extending any scheduled principal payment date or
date fixed for the payment of interest on the Principal Debt, or
extending such Lender's Committed Sum); and (v) such Lender shall be
solely responsible for any withholding taxes or any filing or reporting
requirements relating to such participation and shall hold Borrower and
Administrative Agent and their respective successors, permitted
assigns, officers, directors, employees, agents, and
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
57
<PAGE> 63
representatives harmless against the same. 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 11.15 hereof.
(h) Notwithstanding anything to the contrary contained herein,
any Lender may grant (a "GRANTING BANK") to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by
the Granting Bank to Administrative Agent and Borrower, the option to
provide to Borrower all or any part of any Borrowing that such Granting
Bank would otherwise be obligated to make to Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Borrowing, (ii) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part
of such Borrowing, Granting Bank shall be obligated to make such
Borrowing pursuant to the terms hereof, (iii) such Granting Bank's
obligations under this Agreement shall remain unchanged, and (iv) such
Granting Bank shall remain solely responsible to the other parties
hereto for the performance of obligations hereunder. The making of a
Borrowing by an SPC hereunder shall utilize the Committed Sum of
Granting Bank to the same extent, and as if, such Borrowing were made
by such Granting Bank. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting
Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in
full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any state thereof. In addition, notwithstanding
anything to the contrary contained in this paragraph, any SPC may (i)
without paying any processing fee therefor, assign all or a portion of
its interests in any Borrowing to the Granting Bank (with notice to,
but without the prior written consent of Borrower and Administrative
Agent) or to any financial institutions (with notice to and the prior
written consent of Borrower and Administrative Agent), in each case
providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Borrowing and (ii)
disclose on a confidential basis any non-public information relating to
its Borrowing to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such
SPC, subject to the provisions of SECTION 11.15 hereof.
11.14 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 (and termination of all outstanding LCs with
any Lender, if any, unless such Lender shall otherwise consent) except that
SECTIONS 3.15, 3.19, 3.20, 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
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
58
<PAGE> 64
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.
11.15 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 other 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 11.15, 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 11.15,
(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 11.15 (or of
any agreement or obligation to be bound by this SECTION 11.15) by any Lender
Party, any affiliate of any Lender Party, any prospective assignee or
Participant, or their respective attorneys.
11.16 Restatement of Existing Agreement. The parties hereto agree that,
on the Closing Date, after all conditions precedent set forth in SECTION 5.1
have been satisfied or waived: (a) the Obligation (as defined herein)
represents, among other things, the restatement, renewal, amendment, extension,
consolidation, and modification of the "Obligation" (as defined in the Existing
Agreement); (b) this Agreement is intended to, and does hereby, restate,
consolidate, renew, extend, amend, modify, supersede, and replace the Existing
Agreement in its entirety; and (c) the Notes, if any, executed pursuant to this
Agreement amend, renew, extend, modify, replace, restate, consolidate,
substitute for, and supersede in their entirety (but do not extinguish, the Debt
arising under) the promissory notes issued pursuant to the Existing Agreement,
if any, which existing promissory notes shall be returned to Administrative
Agent promptly after the Closing Date, marked "canceled and replaced," and,
thereafter, delivered by Administrative Agent to Borrower.
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.]
AMENDED AND RESTATED 364-DAY REVOLVING
CREDIT AND TERM LOAN AGREEMENT
59
<PAGE> 65
EXHIBIT A-1
FORM OF AMENDED AND RESTATED REVOLVING NOTE
$ August 5, 1999
-------------
FOR VALUE RECEIVED, the undersigned, MCI WORLDCOM, INC., a Georgia
corporation ("BORROWER"), hereby promises to pay to the order of ("LENDER"), at
the offices of BANK OF AMERICA, N.A., as Administrative Agent under the Credit
Agreement (as hereinafter described), on the Termination Date, the lesser of (i)
($ ) and (ii) the aggregate Principal Debt (other than under the Competitive Bid
Subfacility or the Swing Line Subfacility) disbursed by 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 Amended and Restated 364-Day Revolving Credit and Term Loan
Agreement, dated as of August 5, 1999 (as amended, modified, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower, Lender,
other lenders named therein, Administrative Agent, and the other Agents, and is
one of the "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.
This Amended and Restated Revolving Note is an amendment, restatement,
renewal, and modification (but not a novation) of, the Revolving Note (as the
same may have been amended and replaced to the date hereof, the "Former
Revolving Note"), which Former Revolving Note was executed and delivered by the
Borrower, and payable to the order of Lender pursuant to the Existing Agreement.
This Amended and Restated Revolving Note is being issued in substitution of, and
supercedes and replaces, the Former Revolving Note.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE
OF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
DUTIES OF BORROWER AND LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION HEREOF.
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT A-1
<PAGE> 66
EXHIBIT A-2
FORM OF AMENDED AND RESTATED COMPETITIVE BID NOTE
August 5, 1999
FOR VALUE RECEIVED, the undersigned, MCI WORLDCOM, INC., a Georgia
corporation ("BORROWER"), hereby promises to pay to the order of ___________
("LENDER"), at the offices of BANK OF AMERICA, N.A., as Administrative Agent
under the Credit Agreement (as hereinafter described):
(1) on the last day of the Interest Period for any Competitive
Borrowing disbursed by Lender to Borrower under the 364-Day Facility,
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 Lender to Borrower under this
364-Day Facility 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 Amended and Restated 364-Day Revolving Credit and Term Loan
Agreement, dated as of August 5, 1999 (as amended, modified, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower, Lender,
other lenders named therein, Administrative Agent, and the other Agents, 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.
This Amended and Restated Competitive Bid Note is an amendment,
restatement, renewal, and modification (but not a novation) of, the Competitive
Bid Note (as the same may have been amended and replaced to the date hereof, the
"Former Competitive Bid Note"), which Former Competitive Bid Note was executed
and delivered by the Borrower, and payable to the order of Lender pursuant to
the Existing Agreement. This Amended and Restated Competitive Bid Note is being
issued in substitution of, and supercedes and replaces, the Former Competitive
Bid Note.
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
OF NEW YORK AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND
DUTIES OF BORROWER AND LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION HEREOF.
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT A-2
<PAGE> 67
EXHIBIT A-3
FORM OF AMENDED AND RESTATED SWING LINE NOTE
$ August 5, 1999
--------------
FOR VALUE RECEIVED, the undersigned, MCI WORLDCOM, INC., a Georgia
corporation ("BORROWER"), hereby promises to pay to the order
of ____________________ ("SWING LINE LENDER") at the offices of BANK OF AMERICA,
N.A., as Administrative Agent under the Credit Agreement (as hereinafter
described), on the Termination Date, the aggregate principal amount of
Borrowings under the Swing Line Subfacility disbursed by Swing Line Lender to
Borrower and outstanding and unpaid on the Termination Date and on such other
dates as provided in the Credit Agreement (as hereinafter described) (together
with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the
terms of, the Amended and Restated 364-Day Revolving Credit and Term Loan
Agreement, dated as of August 5, 1999 (as amended, modified, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), among Borrower, Swing Line
Lender, other lenders named therein, Administrative Agent, and the other Agents,
and is one of the "Swing Line 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, terms, and conditions of Swing Line Borrowings hereunder,
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.
This Amended and Restated Swing Line Note is an amendment, restatement,
renewal, and modification (but not a novation) of, the Swing Line Note (as the
same may have been amended and replaced to the date hereof, the "Former Swing
Line Note"), which Former Swing Line Note was executed and delivered by the
Borrower, and payable to the order of Lender pursuant to the Existing Agreement.
This Amended and Restated Swing Line Note is being issued in substitution of,
and supercedes and replaces, the Former Swing Line Note.
THE LAWS (OTHER THAN CONFLICT OF LAWS PROVISIONS THEREOF) OF THE STATE
OF NEW YORK 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.
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT A-3
<PAGE> 68
EXHIBIT A-4
FORM OF TERM NOTE
$
----------- ---------------- --, ----
FOR VALUE RECEIVED, the undersigned, MCI WORLDCOM, INC., a
Georgia corporation ("BORROWER"), hereby promises to pay to the order of
__________________________ (the "LENDER"), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent for the Lender and others as hereinafter
described, on the Term Loan Maturity Date, the amount of ____________________
($_____________) (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is
subject to the terms of, the Amended and Restated 364-Day Revolving Credit and
Term Loan Agreement, dated as of August 5, 1999 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among
Borrower, the Lender and other lenders named therein, the Administrative Agent,
and the Agents, and is a "Term Note" 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 NEW YORK 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.
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT A-4
<PAGE> 69
EXHIBIT B-1
FORM OF NOTICE OF BORROWING
(OTHER THAN COMPETITIVE BORROWING OR SWING LINE BORROWING)
Date: ,
-------------- -- ----
BANK OF AMERICA, N.A.,
as Administrative Agent
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
Reference is made to (i) the Amended and Restated 364-Day Revolving
Credit and Term Loan Agreement, dated as of August 5, 1999 (as amended,
modified, supplemented, or restated from time to time, the "CREDIT AGREEMENT"),
among the undersigned, the Lenders, Administrative Agent, and the other Agents.
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 or Swing Line Borrowing) under the Credit
Agreement, and in that connection sets forth below the terms on which such
Borrowing is requested to be made:
(A) Borrowing Date(1) (A)
-------
(B) Amount of Borrowing(2) (B)
-------
(C) Type of Borrowing(3) (C)
-------
(D) For a Eurodollar Rate Borrowing, the Interest Period (D)
and the last day thereof(4) -------
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);
(c) no Default or Potential Default has occurred and is
continuing; and
(d) the funding of such Borrowing is permitted by Law.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-1
<PAGE> 70
Very truly yours,
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
364-Day Facility Rate:
----------------------
Confirmed by:
-------------------------------
- --------------------------------------------
(1) Must be a Business Day occurring prior to the Termination Date and be
at least (i) three Business Days following receipt by Administrative
Agent of this Notice of Borrowing for any Eurodollar Rate Borrowing,
and (ii) one Business Day following receipt by Administrative Agent of
this Notice of Borrowing for any Base Rate Borrowing.
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a
Base Rate Borrowing); not less than $10,000,000 or a greater integral
multiple of $1,000,000 (if a Eurodollar Rate Borrowing).
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.
(4) Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months, or, if available to
all Lenders, 9 or 12 months. In no event may the Interest Period end
after the Termination Date.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-1
1
<PAGE> 71
EXHIBIT B-2
FORM OF NOTICE OF CONVERSION
Date: ,
-------------- -- ----
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
as defined in the Credit Agreement referred to below
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
Reference is made to the Amended and Restated 364-Day Revolving Credit
and Term Loan Agreement, dated as August 5, 1999 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders, the Administrative Agent and the other Agents under
the Credit Agreement. 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 or Swing Line Borrowing) under the applicable 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:
(A) Date of conversion or last day of applicable Interest
Period (1) (A)
-------
(B) Type and principal amount of existing Borrowing
being converted or continued (2) (B)
-------
(C) New Type of Borrowing selected (or Type of
Borrowing continued) (3) (C)
-------
(D) For conversion to, or continuation of, a Eurodollar
Rate Borrowing, Interest Period selected and the last
day thereof (4) (D)
-------
On the date the rate is set, please confirm the interest rate below and
return by facsimile transmission to___________________.
Very truly yours,
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-2
<PAGE> 72
364-Day Rate:
--------------
Confirmed by:
-----------------------
- -------------------------------------------
(1) Must be a Business Day at least (i) 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 (ii) one Business Day
following receipt by Administrative Agent (as applicable) of this Notice of
Conversion for a conversion from a Eurodollar Rate Borrowing to a Base Rate
Borrowing.
(2) Not less than $5,000,000 or an integral multiple of $1,000,000 (if a Base
Rate Borrowing); not less than $10,000,000 or a greater integral multiple
of $1,000,000 (if a Eurodollar Rate Borrowing).
(3) Eurodollar Rate Borrowing or Base Rate Borrowing.
(4) Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months, or, if available to all
Lenders 9 or 12 months. In no event may the Interest Period end after the
Termination Date or the Term Loan Maturity Date, as the case may be.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-2
2
<PAGE> 73
EXHIBIT B-3
FORM OF TERM CONVERSION REQUEST
, (1)
-------------- -- ----
Bank of America, N.A.,
as Administrative Agent for
the Lenders as defined
in the Credit Agreement referred to below
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
Reference is made to the Amended and Restated 364-Day Revolving Credit
and Term Loan Agreement, dated as of August 5, 1999 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders named therein, the Administrative Agent, and other
Agents. 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 2.5 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:
(A) Type of Borrowing(s)(2)
-------
(B) For Eurodollar Rate Borrowings, the Interest Period(s) and the
last day(s) thereof(3)
-------
(C) Term Conversion Date
-------
On the date the rate is set, please confirm the interest rate below and
return by facsimile transmission to _______________________.
Borrower hereby certifies that on the Term Conversion Date specified
herein and after giving effect to the Term Loan conversion, no Default or
Potential Default has occurred and is continuing.
Very truly yours,
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-3
<PAGE> 74
Rate:
--------
Confirmed by:
-------------------------
(1)This Term Conversion Request must be delivered by Borrower to
Administrative Agent no sooner than 90 days (and not later than 10
days) preceding the Termination Date.
(2)Eurodollar Rate Borrowing(s) or Base Rate Borrowing(s).
(3)Eurodollar Rate Borrowing -- 1, 2, 3, or 6 months, or, if available to
all Lenders, 9 or 12 months. In no event may the Interest Period(s) end
after the Term Loan Maturity Date in effect on the date of this Term
Conversion Request.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-3
2
<PAGE> 75
EXHIBIT B-4
FORM OF COMPETITIVE BID REQUEST
Date: ,
-------------- -- ----
Bank of America, N.A.,
as Administrative Agent for the Lenders as
defined in the Credit Agreement referred to below
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
Reference is made to the Amended and Restated 364-Day Revolving Credit
and Term Loan Agreement, dated as of August 5, 1999 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders, Administrative Agent, and the other Agents under the
Credit Agreement. 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(B) of the Credit
Agreement that it requests a Competitive Borrowing, and in that connection sets
forth below the terms on which such Competitive Borrowing is requested to be
made:
(A) Borrowing Date of Competitive Borrowing(1) (A)
----------
(B) Principal amount of Competitive Borrowing(2) (B)
----------
(C) Type of Borrowing(3) (C)
----------
(D) Interest Period and the last day thereof(4) (D)
----------
Accompanying this notice is payment of the competitive bid fee payable
to Administrative Agent for its own account pursuant to SECTION 4.2 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 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);
(c) no Default or Potential Default has occurred and is
continuing; and
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-4
<PAGE> 76
(d) the funding of such Borrowing is permitted by Law.
Very truly yours,
MCI WORLDCOM, INC.
By
-------------------------------------
(Name)
---------------------------------
(Title)
--------------------------------
- --------------------------------
(1) Must be a Business Day occurring prior to the Termination Date and be at
least (i) four 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 (ii) 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.
(2) Not less than $5,000,000 (and in integral multiples of $1,000,000
thereafter), and not greater than the unused and available portion of the
Commitment.
(3) Eurodollar Rate Borrowing or Fixed Rate Borrowing.
(4) Eurodollar Rate Borrowing -- 1, 2, 3 or 6 months; Fixed Rate Borrowing --
up to 6 months. But in no event may the Interest Period end after the
Termination Date.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-4
2
<PAGE> 77
EXHIBIT B-5
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
Date: ,
-------------- -- ----
[Name of Lender]
[Address of Lender]
Attention:
----------------------
Reference is made to (i) the Amended and Restated 364-Day Revolving
Credit and Term Loan Agreement, dated as of August 5, 1999 (as amended,
modified, supplemented, or restated from time to time, the "CREDIT AGREEMENT"),
among MCI WORLDCOM, Inc., the Lenders, the Administrative Agent for the Lenders,
and the other Agents under the Credit Agreement. 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 2.3(B) of the Credit Agreement, and in
that connection you are invited to submit a Competitive Bid by [Date] / [Time].
(1) Your Competitive Bid must comply with SECTION 2.3(C) of the Credit
Agreement and the terms set forth below on which the Competitive Bid Request was
made:
(A) Borrowing Date of Competitive Borrowing (a (A)
Business Day) --------------
(B) Principal amount of Competitive Borrowing (B)
--------------
(C) Type of Borrowing (C)
--------------
(D) Interest Period and the last day thereof (D)
--------------
Very truly yours,
BANK OF AMERICA, N.A., as Administrative
Agent under the Credit Agreement
By
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
- ---------------------------
(1) The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Rate Borrowings, not later than 11:00 a.m., Dallas,
Texas time, three Business Days before the Borrowing Date of the proposed
Competitive Borrowing, and (ii) 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.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-5
<PAGE> 78
EXHIBIT B-6
FORM OF COMPETITIVE BID
Date: ,
-------------- -- ----
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
under the Credit Agreement described below
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
The undersigned, [Name of Lender] , refers to the Amended and Restated
364-Day Revolving Credit and Term Loan Agreement, dated as of August 5, 1999 (as
amended, modified, supplemented, or restated from time to time, the "CREDIT
AGREEMENT"), among MCI WORLDCOM, Inc. (the "BORROWER"), Lenders, Administrative
Agent, and the other Agents under the Credit Agreement. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Agreement. The undersigned hereby makes a Competitive Bid pursuant
to SECTION 2.3(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:
(A) Principal Amount(1) (A)
-------------
(B) Competitive Bid Rate(2) (B)
-------------
(C) Interest Period and the last day thereof(3) (C)
-------------
The undersigned hereby confirms that it is prepared to extend credit to
Borrower upon acceptance by Borrower of this bid in accordance with SECTION
2.3(E) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
- --------------------------------
(1) 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
Credit Lender's Committed Sum under the Credit Agreement (subject to the
limitations set forth in SECTION 2.3(A) of the Credit Agreement). Multiple
bids will be accepted by Administrative Agent.
(2) 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).
(3) The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-6
<PAGE> 79
EXHIBIT B-7
FORM OF SWING LINE BORROWING REQUEST
Date: ,
-------------- -- ----
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
under the Credit Agreement described below
Bank of America Plaza, 13th Floor
901 Main Street
Dallas, TX 75202
Attn: Mickey McLean
Fax: (214) 209-2515
Reference is made to the Amended and Restated 364-Day Revolving Credit
and Term Loan Agreement dated as of August 5, 1999 (as amended, modified,
supplemented, or restated, from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Lenders, Administrative Agent, and the other Agents under the
Credit Agreement. 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 Swing Line Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Swing Line
Borrowing is requested to be made:
(A) Date of Swing Line Borrowing (which is a (A)
Business Day) ---------
(B) Principal Amount of Swing Line Borrowing (1) (B)
---------
(C) Interest Rate Basis (2) (C)
---------
Upon acceptance of any or all of the Swing Line Borrowings made by the
Swing Line Lenders in response to this request, the undersigned shall be deemed
to have represented and warranted that the conditions specified in SECTION
5.2(C), (D), (E), and (F) of the Credit Agreement have been satisfied.
Very truly yours,
MCI WORLDCOM, INC.
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
- -------------------------
(1) Not less than $1,000,000 (and in integral multiples of $250,000).
(2) Alternate Rate Swing Line Borrowing or Quoted Swing Line Borrowing.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT B-7
<PAGE> 80
EXHIBIT C
FORM OF ADMINISTRATIVE QUESTIONNAIRE
BORROWER: MCI 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>
NAME:
-------------------- ---------------------- ------------------
TITLE:
-------------------- ---------------------- ------------------
ADDRESS:
-------------------- ---------------------- ------------------
-------------------- ---------------------- ------------------
-------------------- ---------------------- ------------------
TELEPHONE:
-------------------- ---------------------- ------------------
FACSIMILE #:
-------------------- ---------------------- ------------------
ANSWERBACK:
-------------------- ---------------------- ------------------
</TABLE>
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT C
<PAGE> 81
PAYMENT INSTRUCTIONS
FED WIRE INSTRUCTIONS
PAY TO:
------------------------------------------------------------
(Name of Lender)
------------------------------------------------------------
(Address)
---------------------- ---------------------------------
(City) (State) (Zip)
------------------------------------------------------------
(ABA #) (Account #)
------------------------------------------------------------
(Attention)
BANK OF AMERICA PAYMENT INSTRUCTIONS
PAY TO: Bank of America
Dallas, Texas
ABA #: 111000025
ATTENTION: Commercial Loan Operations
REFERENCE: MCI WORLDCOM, Inc.
ACCOUNT #: 120-2000-883
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT C
2
<PAGE> 82
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
FOR _____ ENDED ___________, ____
Date: ,
-------------- -- ----
ADMINISTRATIVE AGENT: Bank of America, N.A.
BORROWER: MCI WORLDCOM, Inc.
This certificate is delivered under the Amended and Restated 364-Day
Revolving Credit and Term Loan Agreement, dated as of August 5, 1999 (as
amended, modified, supplemented, or restated from time to time, the "CREDIT
AGREEMENT") among Borrower, Lenders, Administrative Agent, and the other Agents
under the Credit Agreement. 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 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 Consolidated 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 SECTION 7.22 of the Credit Agreement at the end of the Subject
Period is as set forth on ANNEX I to this certificate;
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT D
<PAGE> 83
(e) as of the date hereof, to my knowledge, the aggregate secured Debt
(including, without limitation, the amounts outstanding as of the date hereof
under Capital Leases) of the Restricted Companies restricted by SECTION 7.12(F)
of the Credit Agreement is $_________ [which amount is equal to or less than
$_______ (being 10% of the book value of the consolidated assets of the
Restricted Companies as of the end of the Subject Period)]; and
(f) as of the date hereof, to my knowledge, the aggregate Debt of the
Restricted Subsidiaries is $_________, which amount does not exceed $_________
[(being (i) 10% of the book value of the consolidated assets of the Restricted
Companies as of the end of the Subject Period) plus (ii) the principal amount of
all Existing Debt of MCI and its Subsidiaries on and after September 14, 1998
(the "MCI Merger Date" under the Existing Agreement].
By
----------------------------------
(Name)
------------------------------
(Title)
-----------------------------
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT D
2
<PAGE> 84
ANNEX I TO COMPLIANCE CERTIFICATE
Status of Compliance with SECTION 7.22
of the Credit Agreement(1)
(All on consolidated basis for the Restricted Companies
at the end of Subject Period)
<TABLE>
<CAPTION>
1. SECTION 7.22 - TOTAL DEBT TO TOTAL CAPITALIZATION
<S> <C> <C>
a. Total Debt of Consolidated Companies(1) $
-------------------
b. Total Debt of Unrestricted Companies $
-------------------
c. Total Debt of Restricted Companies (Line a minus Line b) $
-------------------
d. Consolidated Net Worth of Consolidated Companies(1) $
-------------------
e. Consolidated Net Worth of Unrestricted Companies $
-------------------
f. Consolidated Net Worth of Restricted Companies
(Line d minus Line e) $
-------------------
g. Total Capitalization (1) (Sum of Line c and Line f) $
-------------------
h. Ratio of Line c to Line g :
-------------------
i. Maximum Ratio for Subject Period 0.68 : 1.0
</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.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT D
3
<PAGE> 85
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Amended and Restated 364-Day Revolving Credit
and Term Loan Agreement dated as of August 5, 1999 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT") among MCI
WORLDCOM, INC., a Georgia corporation ("BORROWER"), Lenders, the Co-Syndication
Agents (each such term as defined in the Credit Agreement), and BANK OF AMERICA,
N.A., as the Administrative Agent under the Credit Agreement ("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 or any obligations to fund any Swing
Line Borrowing in Assignor's capacity as a Swing Line Lender [unless the
Assignor is selling all of its Rights and obligations under the Loan Papers],
but including any participations by the Assignor in any Swing Line Borrowings
pursuant to SECTION 2.2 of the Credit Agreement). 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 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 with their terms all of the obligations that by
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT E
<PAGE> 86
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 3.20(D) 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 11.13(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.
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
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.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT E
2
<PAGE> 87
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE AGREEMENT
(364-DAY FACILITY)
<TABLE>
<CAPTION>
1. Assigned Interest:*
<S> <C> <C>
(a) Assignor's Committed Sum prior to giving effect to the
Assignment to Assignee $
-------------------
(b) Aggregate Borrowings owed to Assignor (inclusive of participations in
Swing Line Borrowings, if any), immediately prior to giving
effect to the assignment to Assignee $
-------------------
(c) Aggregate Borrowings owed to Assignor (exclusive of participations in
Swing Line Borrowings, if any), immediately prior to giving
effect to the assignment to Assignee $
-------------------
(d) Percentage Interest in Commitment and Borrowings being assigned to
Assignee by Assignor (not less than $10,000,000, when aggregated with
any concurrent assignments from Assignor to Assignee under Facility A
and Facility B, but in no event
less than $1,000,000) %
-------------------
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 (inclusive of
participations in Swing Line Borrowings, if any) $
-------------------
(d) Assignee's Borrowings (inclusive of Swing Line
Borrowings, if any) acquired from Assignor pursuant to this Assignment $
-------------------
(e) Assignor's aggregate Borrowings (exclusive of
participations in Swing Line Borrowings, if any) $
-------------------
(f) Assignee's Borrowings (exclusive of Swing Line Borrowings
if any) acquired from Assignor pursuant to the Assignment $
-------------------
3. Effective Date (if other than date of acceptance by Administrative
Agent): * ,
-------------- --- ------
</TABLE>
- -----------------------
* Each assignment shall exclude Competitive Borrowings and Swing Line
Borrowings unless Assignor is assigning 100% of its interest under Facility
A.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT E
3
<PAGE> 88
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE AGREEMENT
(364-DAY FACILITY)
(PAGE 2 OF 2)
[NAME OF ASSIGNOR], as Assignor
By:
----------------------------------
Title:
-------------------------------
Dated: ,
-------------------- -- --
[NAME OF ASSIGNEE], as Assignee
By:
----------------------------------
Title:
-------------------------------
Dated: ,
-------------------- -- --
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT E
4
<PAGE> 89
If SECTION 11.13(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.
MCI WORLDCOM, INC., as Borrower
By:
------------------------------------
Title:
---------------------------------
Dated: ,
-------------------- -- --
BANK OF AMERICA, 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 the Administrative Agent under the
Credit Agreement.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT E
5
<PAGE> 90
EXHIBIT F-1
FORM OF OPINION OF GENERAL COUNSEL OF BORROWER
August 5, 1999
Bank of America, N.A., in its capacity as
Administrative Agent
Each of the Agents and the Lenders named in Schedules 2.1 to the Credit
Agreement referred to below
RE: CREDIT FACILITY OF MCI WORLDCOM, INC.
Ladies and Gentlemen:
I am the General Counsel of MCI WORLDCOM, Inc., a Georgia corporation
("BORROWER"), and have acted as counsel to Borrower and its Restricted
Subsidiaries in connection with the Amended and Restated 364- Day Revolving
Credit and Term Loan Agreement dated as August 5, 1999 (the "CREDIT AGREEMENT")
among Borrower, the lenders named on SCHEDULE 2.1 to the Credit Agreement
("LENDERS"), Bank of America, N.A., as the "Administrative Agent" under the
Credit Agreement (in such capacity, the "ADMINISTRATIVE AGENT") and the other
"Agents" under the Credit Agreement.
This opinion is delivered pursuant to SECTION 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 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, the other Agents, and the Lenders with their respective
covenants and undertakings contained in the Transaction Documents.
As to certain matters of New York law, I understand you will rely
solely upon the opinions of Bryan Cave LLP.
Based upon the foregoing, and subject to the qualifications and
limitations herein contained, it is my opinion that:
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-1
<PAGE> 91
1. Borrower (a) is a corporation validly existing under the Laws of its
state of incorporation (based solely upon my review of existence certificates
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 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 applicable to it, 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 and, if so adversely determined, would be a Material Adverse
Event. There are no outstanding orders or judgments for the payment of money
(not paid or fully covered by insurance) 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 (a) stayed on
appeal, (b) being diligently contested in good faith by appropriate proceedings
with adequate reserves having been set aside on the books of such Restricted
Company in accordance with GAAP, or (c) dismissed by a court of competent
jurisdiction.
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.
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.
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.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-1
2
<PAGE> 92
I note that the Transaction Documents are to be governed by the laws of
the State of New York. 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 New York 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;
(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;
(g) with regard to any provisions of the Transaction Documents
whereby a party purports to indemnify another party against its own
negligence or misconduct; and
(h) as to matters subject to the jurisdiction of the FCC,
state public utility commissions, or any other communications or
similar regulatory authorities.
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 other Agent, each Lender, each assignee
which hereafter becomes a Lender as permitted by the Credit Agreement and the
law firm of Haynes and Boone, L.L.P. 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
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-1
3
<PAGE> 93
EXHIBIT F-2
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
[BRYAN CAVE]
August 5, 1999
Bank of America, N.A.,
as Administrative Agent
Each of the Agents and Lenders named on SCHEDULE 2.1 to the Credit Agreement
referred to below:
Ladies and Gentlemen:
We have acted as special New York counsel to MCI WORLDCOM, Inc., a
Georgia corporation (the "BORROWER"), in connection with the negotiation,
preparation, and execution of the Amended and Restated 364- Day Revolving Credit
and Term Loan Agreement (the "CREDIT AGREEMENT") dated as of August 5, 1999, by
and among the Borrower, the Lenders referred to on SCHEDULE 2.1 of the Credit
Agreement ("LENDERS"), Bank of America, N.A., as the "Administrative Agent"
under the Credit Agreement (the "CREDIT ADMINISTRATIVE AGENT") and the other
"Agents" under the Credit Agreement (collectively, "AGENTS"):
This opinion is furnished to you pursuant to SECTIONS 5.1 of the Credit
Agreement and PARAGRAPH 8 of SCHEDULE 5.1 of the Credit Agreement. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
them in the Credit Agreement.
For purposes of the opinions expressed herein, we have examined the
following documents:
(a) A copy of the Credit Agreement;
(b) A copy of the form of the Notes issuable under the Credit
Agreement;
(c) A copy of a Secretary's Certificate for the Borrower dated as
of the date hereof (the "SECRETARY'S CERTIFICATE"), including
the following exhibits appended to each such Secretary's
Certificate:
Exhibit A Second Amended and Restated Articles of
Incorporation
Exhibit B Certificate of Existence
Exhibit C By-Laws
Exhibit D Authorizing Resolutions/Unanimous Written
Consents
The documents described under Paragraphs (a) and (b) above are
sometimes collectively referred to herein as the "TRANSACTION DOCUMENTS". We
have not made any independent investigation or inquiries as to (i) the accuracy
or completeness of any factual matters contained in the exhibits or schedules to
any of the Transaction Documents, (ii) any other instruments or other documents
delivered by the Borrower in connection with any of the Transaction Documents,
or (iii) title to, or ownership of any property, real or personal, or the
compliance or non-compliance of such properties with applicable laws,
regulations, and codes.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-2
<PAGE> 94
In rendering this opinion, we have assumed the accuracy of, and we have
relied as to matters of fact upon, the representations and warranties made by
the Borrower in the Transaction Documents insofar as they relate to factual
matters and upon factual representations as to certain matters contained in the
Secretary's Certificate and other certificates signed by officers of the
Borrower and certain of the other Restricted Companies. We have assumed, and we
have relied upon, (i) the genuineness of all signatures on documents,
instruments, and certificates reviewed by us, (ii) the accuracy and authenticity
of all documents, instruments, and certificates reviewed by us, (iii) the legal
competence of all natural persons who are signatories thereto, (iv) the
conformity to authentic original documents of all documents, instruments, and
certificates submitted to us as certified, conformed or photostatic copies, and
(v) the due execution and delivery of all documents (other than the Transaction
Documents) where due execution and delivery are a prerequisite to the
effectiveness thereof. We have further assumed that the Credit Agreement have
been duly authorized, executed, and delivered by the Administrative Agent, the
Agents, and the Lenders and that the Administrative Agent, the Agents, and the
Lenders have the requisite corporate power and authority to execute, deliver,
and perform the Credit Agreement.
Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, limitations and qualifications set forth in this
opinion, we are of the opinion that:
(1) Each of the Transaction Documents constitute the valid and
legally binding obligation of the Borrower, enforceable
against Borrower in accordance with its terms.
(2) The execution, delivery, and performance by the Borrower of
each of the Transaction Documents to which it is a party will
not violate any applicable Law of the State of New York,
except for any such violations which could not reasonably be
expected to cause, either individually or in the aggregate, a
Material Adverse Event.
(3) The execution, delivery, and performance by Borrower of the
Transaction Documents do not require the consent or
authorization of, or filing with any New York Governmental
Authority.
(4) 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.
(5) 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.
(6) No Restricted Company is subject to regulation under the
Interstate Commerce Act, as amended.
(7) 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 subject to the additional exceptions, limitations and
qualifications set forth below:
Enforceability of the Transactions Documents are subject to:
(1) the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally, including:
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-2
2
<PAGE> 95
(a) the United States Bankruptcy Code of 1978, as
amended, and thus comprehends, among others, matters
of turn-over, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge,
conversion of a non-recourse obligation into a
recourse claim, limitations on ipso facto and
anti-assignment clauses and the coverage of
pre-petition security agreements applicable to
property acquired after a petition is filed.
(b) all other federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement
and assignment for the benefit of creditors laws that
affect the rights and remedies of creditors
generally.
(c) state fraudulent transfer and conveyance laws.
(d) judicially developed doctrines relevant to any of the
foregoing laws, such as substantive consolidation of
entities.
(2) the effect of general principles of equity, whether applied by
a court of law or equity, including principles:
(a) governing the availability of specific performance,
injunctive relief or other equitable remedies, which
generally place the award of such remedies, subject
to certain guidelines, in the discretion of the court
to which application for such relief is made.
(b) affording equitable defenses (e.g., waiver, laches
and estoppel) against a party seeking enforcement.
(c) requiring good faith and fair dealing in the
performance and enforcement of a contract by the
party seeking its enforcement.
(d) requiring reasonableness in the performance and
enforcement of an agreement by the party seeking
enforcement of the contract.
(e) requiring consideration of the materiality of a
breach and the consequences of the breach to the
party seeking enforcement.
(f) requiring consideration of the impracticability or
impossibility of performance at the time of attempted
enforcement.
(g) affording defenses based upon the unconscionability
of the enforcing party's conduct after the parties
have entered into the contract.
(3) the effect of generally applicable rules of law that:
(a) limit or affect the enforcement of provisions of a
contract that purport to require waiver of the
obligations of good faith, fair dealing, diligence
and reasonableness.
(b) provide that forum selection clauses in contracts are
not necessarily binding on the court(s) in the forum
selected.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-2
3
<PAGE> 96
(c) limit the availability of a remedy under certain
circumstances where another remedy has been elected.
(d) limit the right of a creditor to use force or cause a
breach of the peace in enforcing rights.
(e) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own
action or inaction, to the extent public policy
limits the enforceability of such indemnification or
the action or inaction involves gross negligence,
recklessness, willful misconduct or unlawful conduct.
(f) may, where less than all of a contract may be
unenforceable, limit the enforceability of the
balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the
agreed exchange.
(g) govern and afford judicial discretion regarding the
determination of damages and entitlement to
attorneys' fees and other costs.
(h) may permit a party who has materially failed to
render or offer performance required by the contract
to cure that failure unless (A) permitting a cure
would unreasonably hinder the aggrieved party from
making substitute arrangements for performance, or
(B) it was important in the circumstances to the
aggrieved party that performance occur by the date
stated in the contract.
(i) limit the enforceability of any clause requiring
additional interest or additional payments upon
default.
(j) limit the enforceability of any clause authorizing
the exercise of set-off rights absent prior notice
and demand.
We express no opinion as to the enforceability of (i) any waiver of
jury trial, or any waiver of any statutory or constitutional rights, or (ii) the
choice of law provisions in any of the Transaction Documents in courts sitting
in jurisdictions other than the State of New York. We express no opinion as to
any titles, estates, or interests of the Borrower in and to any properties, real
or personal, fee or leasehold. We express no opinion as to (x) the
enforceability of any waiver of any statutory right and (y) the enforceability
of the provisions found under clauses A, B, C, E, F and G of SECTION 11.10 of
the Credit Agreement. With respect to our opinions provided under numbered
paragraphs 4, 5 and 6 above, we have assumed that the business of the Restricted
Companies is limited to the provision of long distance telecommunications
services through a digital fiber optic and digital microwave network, and that
the Restricted Companies, individually and collectively, are engaged in no other
line of business.
We express no opinion on any other matters pertaining to the
transactions contemplated by or related to the Transaction Documents, except as
hereinabove specifically provided, and no further or other opinion shall be
implied. The opinion above is subject to each and every assumption, exception,
qualification and limitation, factual or legal, set forth herein. The matters
set forth herein or upon which this opinion is based are as of the date hereof,
and we hereby undertake no, and disclaim any, obligation to advise the
Administrative Agent, the Agents, or any Lender of any change in any matters set
forth herein or any matters upon which this opinion is based.
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-2
4
<PAGE> 97
We are qualified to practice law in the State of New York, and we do
not purport to be experts on, or to express any opinion concerning, any laws
other than the laws of the State of New York. The opinions above are subject to
this limitation in all respects. We express no opinion as to any matters
involving the Federal Communications Commission and state public utility
commissions or analogous regulatory or governmental authorities or the laws,
rules, or regulations relating to any regulatory matters affecting the
companies, as we understand you will rely solely on special regulatory counsel
to the Restricted Companies for such matters.
This opinion is addressed solely for your use in connection with the
transactions contemplated by the Credit Agreement, and no Person other than the
Administrative Agent, each Agent, each Lender, each assignee which hereafter
becomes a Lender in accordance with the terms of either of the Credit Agreement,
and the law firm of Haynes and Boone, L.L.P., is entitled to rely hereon without
our prior written consent.
Very truly yours,
BRYAN CAVE LLP
AMENDED AND RESTATED 364-DAY FACILITY - EXHIBIT F-2
5
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from MCI
WORLDCOM, Inc.'s financial statements for the six months ended June 30, 1999,
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 599
<SECURITIES> 0
<RECEIVABLES> 6,713
<ALLOWANCES> 952
<INVENTORY> 0
<CURRENT-ASSETS> 10,096
<PP&E> 27,744
<DEPRECIATION> (3,180)
<TOTAL-ASSETS> 86,573
<CURRENT-LIABILITIES> 16,839
<BONDS> 13,550
798
0
<COMMON> 19
<OTHER-SE> 48,230
<TOTAL-LIABILITY-AND-EQUITY> 86,573
<SALES> 0
<TOTAL-REVENUES> 17,945
<CGS> 0
<TOTAL-COSTS> 14,686
<OTHER-EXPENSES> (16)
<LOSS-PROVISION> 447
<INTEREST-EXPENSE> 496
<INCOME-PRETAX> 2,779
<INCOME-TAX> 1,195
<INCOME-CONTINUING> 1,584
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,572
<EPS-BASIC> 0.85
<EPS-DILUTED> 0.81
</TABLE>
