{"id":40061,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/limited-guaranty-worldcom-inc-bernard-j-ebbers-and-bank-of.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"limited-guaranty-worldcom-inc-bernard-j-ebbers-and-bank-of","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/limited-guaranty-worldcom-inc-bernard-j-ebbers-and-bank-of.html","title":{"rendered":"Limited Guaranty &#8211; WorldCom Inc., Bernard J. Ebbers and Bank of America NA"},"content":{"rendered":"<pre>                      FIRST MODIFICATION AND REAFFIRMATION\n                               OF LIMITED GUARANTY\n\n      THIS FIRST MODIFICATON AND REAFFIRMATION OF LIMITED GUARANTY (this\n\"Agreement\"), dated as of January 25, 2002, is by and between WORLDCOM, INC., a\nGeorgia corporation (\"Guarantor\"), and BANK OF AMERICA, N.A., a national banking\nassociation (\"Bank of America\").\n\n                                   WITNESSETH:\n\n      WHEREAS, Bank of America has made certain loans and other credit\naccommodations to BERNARD J. EBBERS (\"Ebbers\"); and\n\n      WHEREAS, such loans and other credit accommodations from Bank of America\nto Ebbers were modified and amended pursuant to that certain Omnibus Amendment\nto Loan Documents dated as of February 12, 2001 among Ebbers, certain entities\nowned and controlled by Ebbers (each, a \"Company Borrower\"), and Bank of America\n(the \"First Amendment\"); and\n\n      WHEREAS, as a condition precedent to Bank of America's agreement to enter\ninto the First Amendment, Bank of America requested that Guarantor execute and\ndeliver, and Guarantor did execute and deliver, that certain Limited Guaranty in\nfavor of Bank of America dated as of February 12, 2001 (the \"Guaranty\"); and\n\n      WHEREAS, Ebbers and the Company Borrowers have requested that Bank of\nAmerica further modify and amend the terms and conditions of its loans and other\ncredit accommodations to Ebbers and the Company Borrowers pursuant to that\ncertain Second Omnibus Amendment to Loan Documents of even date herewith among\nBank of America, Ebbers and the Company Borrowers (the \"Second Amendment\"); and\n\n      WHEREAS, as a condition precedent to entering into the Second Amendment,\nBank of America has requested that Guarantor enter into this Agreement; and\n\n      WHEREAS, contemporaneously with the execution and delivery of the Second\nAmendment, Ebbers and Bank of America are entering into that certain\nReimbursement Agreement of even date herewith (the \"Reimbursement Agreement\")\nwith respect to that certain Letter of Credit Number 934190 issued by Bank of\nAmerica in favor of Wells Fargo Bank Minnesota, National Association, formerly\nknown as Norwest Bank Minnesota, National Association, as trustee (the \"Letter\nof Credit\"); and\n\n      WHEREAS, Ebbers is the President and Chief Executive Officer of Guarantor;\nand\n\n      WHEREAS, in consideration of Ebbers' services as an officer of Guarantor,\nand in order to facilitate the modifications contemplated by the Second\nAmendment and to avoid demand for\n\n\npayment under the Guaranty or other actions by Bank of America, Guarantor has\nagreed to enter into this Agreement.\n\n      NOW, THEREFORE, in consideration of the foregoing premises, and for other\ngood and valuable consideration, the receipt and legal sufficiency of which are\nhereby acknowledged, Guarantor and Bank of America hereby agree as follows:\n\n      1. ACKNOWLEDGMENT OF SECOND AMENDMENT; REAFFIRMATION OF GUARANTY.\nGuarantor acknowledges that (a) Guarantor has received and reviewed the Second\nAmendment, (b) on or about the date hereof, Bank of America will release\nMississippi College from its reimbursement obligations under the Letter of\nCredit and substitute Ebbers as the primary obligor for such reimbursement\nobligations pursuant to the Reimbursement Agreement, and (c) such Reimbursement\nAgreement creates additional Obligations (as defined in the Guaranty). Although\nthe Guaranty states that it continues to apply even if the underlying documents\nare amended, Guarantor nevertheless reaffirms the Guaranty and acknowledges and\nagrees that, subject to the modifications hereinafter set forth, the Guaranty\nremains in full force and effect and currently is subject to no right of offset,\nclaim or counterclaim by Guarantor. Guarantor further acknowledges and agrees\nthat the monetary limit on the Guaranteed Obligations (as defined in the\nGuaranty), as such limit is modified below, has not been decreased by any\nrepayment of or any other decrease in the amount of any of the Obligations\nreceived by Bank of America prior to the date hereof. Guarantor and Bank of\nAmerica further acknowledge that the Guaranty shall continue in full force and\neffect until the first to occur of (y) subject to the next sentence, receipt by\nBank of America of notice of termination thereof by Guarantor, or (z) payment in\nfull of all of the Guaranteed Obligations (including any Guaranteed Obligations,\nabsolute or contingent, under any guaranty by Ebbers of the Obligations of any\nCompany Borrower or, as provided in Section 3(b)(iii) below, under the\nReimbursement Agreement) and the termination of the Loan Documents under which\nthe Guaranteed Obligations arose (including the Letter of Credit and the\nReimbursement Agreement) and any obligation of Bank of America to make loans or\nextend other financial accommodations thereunder to the extent such Loan\nDocuments and obligations could create additional Guaranteed Obligations. No\nnotice of termination of the Guaranty shall affect in any manner rights arising\nunder the Guaranty with respect to Guaranteed Obligations that shall have been\ncommitted, created, contracted, assumed or incurred prior to receipt of such\nwritten notice pursuant to any agreement entered into by Bank of America prior\nto receipt of such notice.\n\n      2. REPRESENTATIONS AND WARRANTIES. Guarantor hereby restates, ratifies,\nand reaffirms the representations and warranties made by it in the Guaranty as\nfully as though such representations and warranties had been made on the date\nhereof and with specific reference to this Agreement.\n\n      3. MODIFICATIONS TO GUARANTY.\n\n      (a) The Guaranty is hereby modified such that all references therein to\nthe \"Amendment\" (as defined in the Guaranty) shall be deemed to include both the\nFirst Amendment and the Second Amendment. Without limiting the generality of the\nforegoing, it is understood\n\n\n                                       2\n\n\nand agreed that the term \"Obligations\" (as defined in the Guaranty) shall\ninclude all Obligations of Ebbers and each Company Borrower as defined in the\nSecond Amendment.\n\n      (b) The Guaranty is hereby modified by deleting Section 11 thereof, and\nGuarantor and Bank of America hereby agree that, notwithstanding anything to the\ncontrary contained in the Guaranty or this Agreement:\n\n            (i) Guarantor's liability under the Guaranty and this Agreement\n      shall be limited to the following, to the extent the same constitute\n      Guaranteed Obligations (as defined in the Guaranty):\n\n                  (A) $150,000,000 of Guaranteed Obligations, plus\n\n                  (B) all Additional Payments (as defined in the Second\n      Amendment), plus\n\n                  (C) all costs (including reasonable attorneys' fees) of\n      collecting and enforcing this Guaranty.\n\n            (ii) The $150,000,000 limitation set forth in clause (i)(A) above\n      shall be decreased by the amount of any decrease in the principal amount\n      of the Obligations (other than Obligations with respect to the Letter of\n      Credit and the Reimbursement Agreement) from and after the date hereof but\n      shall be reinstated (but shall not in any event exceed $150,000,000) to\n      the extent of any increase in such principal amount prior to receipt of\n      written notice of termination of the Guaranty as provided in the Guaranty,\n      whether as a result of a loan to Ebbers or any Company Borrower or any\n      protective advance or other cost or expense incurred by Bank of America,\n      whether or not Guarantor has knowledge thereof or consents thereto.\n\n            (iii) Ebbers' Obligations with respect to the Reimbursement\n      Agreement, the Letter of Credit and any Margin Call (as defined in the\n      Second Amendment) shall only constitute Guaranteed Obligations to the\n      extent that Additional Payments are triggered by decreases in the closing\n      price of WCOM Stock (as defined in the Second Amendment) as described in\n      Section 10(a)(iii) of the Second Amendment.\n\n      4. NOTICES. All notices, demands and requests that any party is required\nor elects to give to any other in connection with this Agreement or the Guaranty\nshall be in writing, or by a telecommunications device capable of creating a\nwritten record, and any such notice shall become effective (a) upon personal\ndelivery thereof, including, but not limited to, delivery by overnight mail and\ncourier service, (b) four (4) business days after it shall have been mailed by\nUnited States mail, first class, certified or registered, with postage prepaid,\nor (c) in the case of notice by such a telecommunications device, when properly\ntransmitted, in each case addressed to the party to be notified at the address\nor facsimile number set forth below or as may be changed by notice to the other\nparty:\n\n\n                                       3\n\n\n      If to Guarantor:\n\n      WorldCom, Inc.\n      500 Clinton Center Drive\n      Clinton, Mississippi  39056\n      Attention:  Chief Financial Officer\n      Facsimile No.:  601-460-8246\n\n      If to Bank of America:\n\n      Bank of America, N.A.\n      600 Peachtree Street, N.E., 6th Floor\n      Atlanta, Georgia  30308\n      Attention:  Penn Wells, Senior Vice President\n      Facsimile No.:  404-607-6484\n\n      5. MISCELLANEOUS. This Agreement shall be governed by, and construed in\naccordance with, the laws of the State of Georgia. Except as expressly set forth\nherein, the Guaranty shall remain in full force and effect in accordance with\nits terms. This Agreement shall be binding upon and inure to the benefit of the\nsuccessors and permitted assigns of the parties hereto. This Agreement may be\nexecuted in any number of counterparts, all of which, taken together, shall\nconstitute one and the same instrument, and any of the parties hereto may\nexecute this Agreement by signing any such counterpart.\n\n                  [Remainder of Page Intentionally Left Blank]\n\n\n                                       4\n\n\n      IN WITNESS WHEREOF, Guarantor and Bank of America have caused this\nAgreement to be executed by their respective duly authorized officers as of the\nday and year first above written.\n\n\n                                        WORLDCOM, INC.\n\n\n                                        By: \/s\/ Scott D. Sullivan\n                                           -------------------------------------\n                                        Name:  Scott D. Sullivan\n                                        Title: Chief Financial Officer\n\n\n                                        BANK OF AMERICA, N.A.\n\n\n                                        By: \/s\/ Penn Wells\n                                           -------------------------------------\n                                        Name:  Penn Wells\n                                        Title: Senior Vice President\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,9361],"corporate_contracts_industries":[9415,9519],"corporate_contracts_types":[9539,9544],"class_list":["post-40061","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-worldcom-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40061","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40061"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40061"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40061"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40061"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}