EXECUTION COPY
364-Day
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
Dated as of December 28, 2000
among
AT&T CORP.,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK, CREDIT SUISSE FIRST BOSTON and ▇▇▇▇▇▇▇
SACHS CREDIT PARTNERS L.P.,
as Administrative Agents,
and
THE CHASE MANHATTAN BANK,
as Paying Agent,
with
CHASE SECURITIES INC., CREDIT SUISSE FIRST BOSTON and ▇▇▇▇▇▇▇ ▇▇▇▇▇
CREDIT PARTNERS L.P.,
as Joint Lead Arrangers and Bookrunners
and with
BANK ONE, NA, THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, BANK OF
AMERICA, N.A., BARCLAYS BANK PLC, BNP PARIBAS, CITIBANK, N.A., DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR CAYMAN ISLAND BRANCH, THE INDUSTRIAL BANK OF JAPAN,
LIMITED, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Co-Arrangers
TABLE OF CONTENTS
ARTICLE I Definitions
SECTION 1.01. Defined Terms....................................................1
ARTICLE II The Credits
SECTION 2.01. Commitments.....................................................17
SECTION 2.02. Loans...........................................................17
SECTION 2.03. Competitive Bid Procedure.......................................18
SECTION 2.04. Standby Borrowing Procedure.....................................20
SECTION 2.05. Conversion and Continuation of Standby Loans....................21
SECTION 2.06. Fees............................................................22
SECTION 2.07. Repayment of Loans; Evidence of Debt............................23
SECTION 2.08. Interest on Loans...............................................23
SECTION 2.09. Default Interest................................................24
SECTION 2.10. Alternate Rate of Interest......................................24
SECTION 2.11. Termination and Reduction of Commitments........................25
SECTION 2.12. Prepayment......................................................26
SECTION 2.13. Reserve Requirements; Change in Circumstances...................27
SECTION 2.14. Change in Legality..............................................28
SECTION 2.15. Indemnity.......................................................29
SECTION 2.16. Pro Rata Treatment..............................................30
SECTION 2.17. Sharing of Setoffs..............................................30
SECTION 2.18. Payments........................................................31
SECTION 2.19. Taxes...........................................................31
SECTION 2.20. Mandatory Assignment; Commitment Termination....................33
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers............................................34
SECTION 3.02. Authorization...................................................34
SECTION 3.03. Enforceability..................................................34
SECTION 3.04. Governmental Approvals..........................................34
SECTION 3.05. Financial Statements............................................34
SECTION 3.06. Litigation; Compliance with Laws................................35
SECTION 3.07. Federal Reserve Regulations.....................................35
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act......35
SECTION 3.09. Use of Proceeds.................................................35
SECTION 3.10. No Material Misstatements.......................................35
ARTICLE IV Conditions of Lending
SECTION 4.01. All Borrowings..................................................36
SECTION 4.02. Closing Date....................................................36
ARTICLE V Covenants
SECTION 5.01. Existence.......................................................37
SECTION 5.02. Financial Statements, Reports, etc..............................37
SECTION 5.03. Maintaining Records.............................................38
SECTION 5.04. Use of Proceeds.................................................38
SECTION 5.05. Consolidations, Mergers, Sales of Assets and Separation
Transactions....................................................38
SECTION 5.06. Limitations on Liens............................................39
SECTION 5.07. Limitations on Sale and Leaseback Transactions..................39
SECTION 5.08. Total Debt to EBITDA Ratio......................................40
ARTICLE VI Events of Default
ARTICLE VII The Agents
ARTICLE VIII Miscellaneous
SECTION 8.01. Notices.........................................................43
SECTION 8.02. Survival of Agreement...........................................44
SECTION 8.03. Binding Effect..................................................44
SECTION 8.04. Successors and Assigns..........................................44
SECTION 8.05. Expenses; Indemnity.............................................47
SECTION 8.06. Applicable Law..................................................48
SECTION 8.07. Waivers; Amendment..............................................48
SECTION 8.08. Waiver Under Existing Bank Agreement............................48
SECTION 8.09. Entire Agreement................................................48
SECTION 8.10. Severability....................................................49
SECTION 8.11. Counterparts....................................................49
SECTION 8.12. Headings........................................................49
SECTION 8.13. Jurisdiction, Etc...............................................49
SECTION 8.14. Waiver of Jury Trial.............................................1
Exhibits and Schedules
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Counsel for AT&T Corp.
Exhibit E Form of Note
Exhibit F Form of AT&T Business Guaranty
Schedule 2.01 Commitments
Schedule 3.06 Litigation
364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of December 28, 2000, among AT&T CORP., a New York corporation (the
"Borrower"), the lenders listed in Schedule 2.01 (the "Lenders"), THE CHASE
MANHATTAN BANK ("Chase"), CREDIT SUISSE FIRST BOSTON and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P., as administrative agents for the Lenders (in such capacity, the
"Administrative Agents"), Chase, as paying agent for the Lenders (in such
capacity, the "Paying Agent") with CHASE SECURITIES INC., CREDIT SUISSE FIRST
BOSTON and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as joint lead arrangers and
bookrunners (the "Joint Lead Arrangers") and with Bank One, NA, The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, Bank of America, N.A., Barclays Bank
PLC, BNP Paribas, Citibank, N.A., Deutsche Bank AG New York Branch and/or Cayman
Island Branch, The Industrial Bank of Japan, Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, as Co-Arrangers.
The Borrower has requested the Lenders to extend credit to the Borrower to
enable it to borrow on a standby revolving credit basis on and after the date
hereof and at any time and from time to time prior to the Maturity Date (as
herein defined) a principal amount not in excess of $25,000,000,000 at any time
outstanding. The Borrower has also requested the Lenders to provide a procedure
pursuant to which the Borrower may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrower maturing on or prior to the
Maturity Date. The proceeds of such borrowings are to be used to refinance the
Existing Bank Agreement (as hereinafter defined) and certain other existing
Indebtedness of the Borrower and its Subsidiaries and for other general
corporate purposes of the Borrower, including the repayment of maturing
commercial paper of the Borrower. The Lenders are willing to extend such credit
to the Borrower on the terms and subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agents agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Agents" shall have the meaning specified in the recital of
parties to this Agreement.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.06(c).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or is
under common control with the person specified.
"Agents" shall mean the Administrative Agents and the Paying Agent.
"Agent Parties" shall mean the Agents and the Joint Lead Arrangers.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by the
Paying Agent as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective on the date such change
is publicly announced as effective. For purposes hereof, "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as released on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so released
for any day which is a Business Day, the arithmetic average (rounded upwards to
the next 1/100th of 1%), as determined by the Paying Agent, of the quotations
for the day of such transactions received by the Paying Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason the
Paying Agent shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Federal Funds
Effective Rate for any reason, including the inability or failure of the Paying
Agent to obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Margin" shall mean on any date, with respect to Eurodollar
Standby Loans, a percentage per annum determined by reference to the Public Debt
Ratings in effect on such date as set forth below:
--------------------------------------------------------------
Applicable Margin Pricing Grid
--------------------------------------------------------------
-------------------------------- -----------------------------
Public Debt Ratings Applicable Margin
S&P/▇▇▇▇▇'▇
-------------------------------- -----------------------------
Level 1
Greater than or equal 0.325%
to A and A2
-------------------------------- -----------------------------
Level 2
Greater than or equal to 0.415%
A- or A3 and A-1 and P-1 but
less than Level 1
-------------------------------- -----------------------------
Level 3
Greater than or equal to A- or 0.525%
A3 and A-2 and P-2 but less
than Level 2
-------------------------------- -----------------------------
Level 4
Greater than or equal to BBB+ 0.65%
or Baa1 but less
than Level 3
-------------------------------- -----------------------------
Level 5
Less than BBB+ and Baal 0.875%
-------------------------------- -----------------------------
"Applicable Facility Fee Percentage" shall mean on any date, a percentage
per annum determined by reference to the Public Debt Ratings in effect on such
date as set forth below:
--------------------------------------------------------------
Applicable Facility Fee Percentage Pricing Grid
--------------------------------------------------------------
Public Debt Ratings Applicable Facility Fee
S&P/▇▇▇▇▇'▇ Percentage
-------------------------------- -----------------------------
Level 1
Greater than or equal 0.075%
to A and A2
-------------------------------- -----------------------------
Level 2
Greater than or equal to 0.085%
A- or A3 and A-1 and P-1 but
less than Level 1
-------------------------------- -----------------------------
Level 3
Greater than or equal to A- or 0.10%
A3 and A-2 and P-2 but less
than Level 2
-------------------------------- -----------------------------
Level 4
Greater than or equal to BBB+ 0.10%
or Baa1 but less
than Level 3
-------------------------------- -----------------------------
Level 5
Less than BBB+ and Baa1 0.125%
-------------------------------- -----------------------------
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee with the consent of the Borrower, and accepted
by the Paying Agent in accordance with Section 8.04(e), in the form of Exhibit C
hereto.
"AT&T Business" means a Person engaged in the enterprise communications and
networking businesses which may be created or which may come into existence
after the date hereof.
"AT&T Latin America" means AT&T Latin America Corp., a Delaware
corporation.
"AT&T Wireless Group" means AT&T Wireless Services, Inc., a Delaware
corporation.
"At Home Corporation" means At Home Corporation, a Delaware corporation.
"Attributable Debt" shall mean, as of the date of its determination, the
present value (discounted semiannually at an interest rate implicit in the terms
of the lease) of the obligation of a lessee for rental payments pursuant to any
Sale and Leaseback Transaction (reduced by the amount of the rental obligations
of any sublessee of all or part of the same property) during the remaining term
of such Sale and Leaseback Transaction (including any period for which the lease
relating thereto has been extended), such rental payments not to include amounts
payable by the lessee for maintenance and repairs, insurance, taxes, assessments
and similar charges and for contingent rents (such as those based on sales);
provided, however, that in the case of any Sale and Leaseback Transaction in
which the lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the present value of (a) the rental
payments to be paid under such Sale and Leaseback Transaction until the first
date (after the date of such determination) upon which it may be so terminated
plus the then applicable penalty upon such termination and (b) the rental
payments required to be paid during the remaining term of such Sale and
Leaseback Transaction (assuming such termination provision is not exercised).
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Board of Directors" shall mean the Board of Directors of the Borrower or
any duly authorized committee thereof.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the Commitment of
such Lender as set forth in Schedule 2.01 hereto.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Consolidated Net Tangible Assets" shall mean, at any date, as to the
Borrower, the total assets appearing on the most recently prepared consolidated
balance sheet of the Borrower and its consolidated subsidiaries as of the end of
the most recent fiscal quarter of the Borrower for which such balance sheet is
available, prepared in accordance with GAAP, less (a) all current liabilities as
shown on such balance sheet and (b) Intangible Assets.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of America.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or Eurodollar
Standby Loan.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Bank Agreement" shall mean the $10 billion 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of February 8, 2000
among the Borrower, the lenders party thereto, Chase, as administrative agent,
and Chase Securities Inc., as sole advisor, lead arranger and book manager.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Fee Letter" shall mean the Fee Letter dated November 9, 2000 among the
Borrower, the Joint Lead Arrangers and Chase.
"Fees" shall mean the Facility Fee, the Utilization Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Assistant Treasurer of such
corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"Funded Debt" shall mean any Indebtedness maturing by its terms more than
one year from the date of the determination thereof, including any Indebtedness
renewable or extendible at the option of the obligor to a date later than one
year from the date of the determination thereof.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Indebtedness" of any Person shall mean all indebtedness representing money
borrowed which is created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is responsible or liable (whether by agreement
to purchase indebtedness of, or to supply funds to or invest in, others or
otherwise), excluding indebtedness of At Home Corporation and AT&T Latin America
and Monetized Debt; provided that for purposes of determining compliance with
Section 5.08, (a) Indebtedness in the form of guarantees entered into by the
Borrower or its Subsidiaries or for which the Borrower or any of its
Subsidiaries is responsible or liable shall exclude keep-well and other similar
agreements to advance or supply funds (i) for the purchase or payment of any
primary obligation of any other Person (the "primary obligor") or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
maintain the net worth or solvency of the primary obligor and (b) Indebtedness
shall be calculated net of cash and cash equivalents held by the Borrower and
its Consolidated Subsidiaries on the date of determination (other than cash and
cash equivalents held by At Home Corporation and AT&T Latin America).
"Intangible Assets" shall mean the value (net of any applicable reserves),
as shown on or reflected in the most recently prepared consolidated balance
sheet of the Borrower and its consolidated subsidiaries as of the end of the
most recent fiscal quarter of the Borrower of: (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organizational costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); but
in no event shall the term "Intangible Assets" include product development
costs.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable thereto and, in the case of a Eurodollar Loan
with an Interest Period of more than three months' duration or a Fixed Rate Loan
with an Interest Period of more than 90 days' duration, each day that would have
been an Interest Payment Date for such Loan had successive Interest Periods of
three months' duration or 90 days' duration, as the case may be, been applicable
to such Loan and, in addition, the date of any conversion of such Loan to a Loan
of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the Borrower may elect, (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Maturity Date, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.05 or repaid or prepaid in accordance with Section 2.07 or Section
2.12 and (c) as to any Fixed Rate Borrowing, the period commencing on the date
of such Borrowing and ending on the date specified in the Competitive Bids in
which the offer to make the Fixed Rate Loans comprising such Borrowing were
extended, which shall not be earlier than seven days after the date of such
Borrowing or later than 360 days after the date of such Borrowing; provided,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period.
"Joint Lead Arrangers" shall have the meaning specified in the recital of
parties to this Agreement.
"LIBO Rate" shall mean, with respect to each Interest Period, a rate of
interest determined on the basis of at least two offered rates for deposits in
United States dollars for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on the Reuters Screen LIBO Page
as of 11:00 a.m. (London time) on the day that is two Business Days prior to the
first day of such Interest Period. If at least two such offered rates appear on
the Reuters Screen LIBO Page, the rate with respect to each Interest Period will
be the arithmetic average (rounded upwards to the next 1/16th of 1%) of such
offered rates. If fewer than two offered rates appear, "LIBO Rate" in respect of
any Interest Period will be determined on the basis of the rates at which
deposits in United States dollars are offered by the Paying Agent at
approximately 11:00 a.m. (London time) on the day that is two Business Days
preceding the first day of such Interest Period to prime banks in the London
interbank market for a period equal to such Interest Period commencing on the
first day of such Interest Period.
"Lien" means any mortgage, pledge, security interest, lien, charge or other
encumbrance, but shall not include any of the foregoing types of encumbrances
that are incidental to the conduct of the business of the Borrower or any
Restricted Subsidiary or the ownership of the property and assets of any of them
and that were not incurred in connection with the incurrence of any
Indebtedness. Such incidental encumbrances that are to be excluded from the term
"Lien" include, without limitation: (i) pledges or deposits made to secure
obligations of the Borrower or Restricted Subsidiary under workmen's
compensation laws or similar legislation; (ii) liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, vendors', repairmen's, or other
like liens incurred in the ordinary course of business; (iii) governmental
(Federal, state or municipal) liens arising out of contracts for the purchase of
products of the Borrower or a Restricted Subsidiary, and deposits or pledges to
obtain the release of any of the foregoing liens; (iv) liens created by or
resulting from any litigation or legal proceeding that is currently being
contested in good faith by appropriate proceedings; (v) leases made or existing
on Principal Property entered into in the ordinary course of business by the
Borrower or a Restricted Subsidiary; (vi) landlords' liens under leases of
Principal Property to which the Borrower or a Restricted Subsidiary is a party;
(vii) zoning restrictions, easements, licenses or restrictions on the use of
Principal Property or minor irregularities in the title thereto; (viii) deposits
in connection with bids, tenders, contracts (other than for the payment of
money) to which the Borrower or any Restricted Subsidiary is a party; (ix)
deposits to secure public or statutory obligations of the Borrower or any
Restricted Subsidiary; (x) deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or arrangement
pertaining to unemployment insurance, old age pensions, social security or
similar matters; (xi) deposits of cash or obligations of the United States of
America to secure surety, appeal or customs bonds to which the Borrower or any
Restricted Subsidiary is a party; and (xii) liens for taxes or assessments or
governmental charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good faith
by appropriate proceedings.
"Loan" shall mean a Competitive Loan or a Standby Loan, whether made as a
Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"Long-Term Debt" shall mean, at any time, any publicly-held senior
unsecured debt obligations outstanding at such time with a maturity more than
one year after the date of any determination hereunder.
"Long Term Senior Debt" shall have the meaning specified in the definition
of "Public Debt Ratings".
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the Board as from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Margin Stock" shall have the meaning given such term under Regulation U of
the Board.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole (it being understood that neither
the proposed Separation Transactions nor any event, condition or result
reflected in reports or financial statements filed with the SEC prior to
November 9, 2000 shall be deemed to give rise to a Material Adverse Effect).
"Maturity Date" shall mean December 27, 2001.
"Monetized Debt" shall mean Indebtedness of the Borrower or a non-operating
Subsidiary of the Borrower secured by capital stock of Persons not directly or
indirectly controlled by the Borrower (collectively, the "Available Stock"), so
long as the Borrower or such non-operating Subsidiary has at all times
sufficient Available Stock so that upon maturity or exchange prior to maturity
it may satisfy substantially all of the obligations arising under such
Indebtedness (other than obligations to pay cash coupon amounts on such
Indebtedness) solely by the delivery of Available Stock.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
rating agency.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the incurrence or issuance of any Indebtedness
or the sale or issuance of any Equity Interests (including, without limitation,
in connection with any capital contribution) by any Person, the aggregate amount
of cash received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes reasonably estimated to be payable in
connection with or as a result of such transaction and the amount of any
reserves established to fund contingent liabilities reasonably estimated to be
payable, provided that such reserves are maintained in accordance with GAAP, (c)
in the case of a sale or other disposition of an asset, the amount of any
Indebtedness secured by a Lien on such asset that, by the terms of the agreement
or instrument governing such Indebtedness, is required to be repaid upon such
disposition, and (d) in the case of a Separation Transaction, the aggregate
amount of intercompany Indebtedness owed by the Borrower to the Subsidiary
subject to such Separation Transaction, to the extent that the proceeds of such
Indebtedness previously have been applied to reduce the Total Commitment
pursuant to Section 2.11, in the case of (a), (b) and (c) above to the extent,
but only to the extent, that the amounts so deducted are, at the time of receipt
of such cash (or in the case of clause (b) above at the time such taxes are
payable), actually paid to a third party (other than an Affiliate of such
Person) and are properly attributable to such transaction or to the asset that
is the subject thereof; provided that, in the case of Indebtedness incurred
pursuant to a revolving credit facility, Net Cash Proceeds received under such
facility for any calendar quarter shall be deemed to equal the average daily
outstanding balance (the "Average Balance") of such Indebtedness as determined
at the end of each calendar quarter and shall be used to reduce the Total
Commitment pursuant to Section 2.11(c) at the end of each calendar quarter in an
amount equal to (i) in the first calendar quarter following the incurrence of
such Indebtedness, the Average Balance of such Indebtedness and (ii) thereafter,
the incremental increase in the Average Balance over the previous quarter with
the highest Average Balance; provided further that any Total Commitment
reduction from Indebtedness incurred pursuant to a revolving credit facility is
permanent and the amount of reduction of the Total Commitment may not be
reinstated in the event of a decrease in the Average Balance of such
Indebtedness.
"Operational EBITDA" shall mean, for any period, net income (or net loss)
of the Borrower and its Consolidated Subsidiaries, excluding the net income (or
net loss) of Liberty Media Group, plus, to the extent deducted in determining
such net income, the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) amortization of goodwill
included in other income, (f) minority interest expense, (g) restructuring and
other charges, and (h) significant losses, minus the sum of (a) the portion of
Operational EBITDA otherwise attributable to At Home Corporation and AT&T Latin
America, (b) significant gains, (c) minority interest income, and (d)
▇▇▇▇-to-market adjustments related to SFAS Statement No. 133; provided that
Operational EBITDA shall be calculated without regard to discontinued operations
and that the calculation of Operational EBITDA shall be reasonably acceptable to
the Administrative Agents. If the Borrower acquires (whether by purchase,
merger, consolidation or otherwise) all or substantially all of the assets or
property of any other Person, or engages in any asset sale permitted by Section
5.05, during any period in respect of which Operational EBITDA is to be
determined hereunder, such Operational EBITDA will be determined on a pro forma
basis as if such acquisition or such asset sale occurred on the first day of the
relevant period if the Operational EBITDA attributable to such acquisition or
assets sold represents more than 10% of the Borrower's Operational EBITDA
calculated immediately prior to giving effect to such acquisition or such asset
sale.
"Paying Agent" shall have the meaning specified in the recital of parties
to this Agreement.
"Person" or "person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Principal Property" of the Borrower shall mean any land, land
improvements, building and associated factory, laboratory office and switching
equipment (excluding all products marketed by the Borrower or any Subsidiary)
constituting a manufacturing facility, development facility, warehouse facility,
service facility, office facility or operating facility (including any portion
thereof), which facility (a) is owned by or leased to the Borrower or any
Restricted Subsidiary, (b) is located within the United States and (c) has an
acquisition cost plus capitalized improvements in excess of 0.25% of
Consolidated Net Tangible Assets of the Borrower as of the date of such
determination, other than (i) any such facility, or portion thereof, which has
been financed by obligations issued by or on behalf of a State, a Territory or a
possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the interest on which is excludable from
gross income of the holders thereof (other than a "substantial user" of such
facility or a "related person" as those terms are used in Section 103 of the
Code) pursuant to the provisions of Section 103 of the Code (or any similar
provisions hereafter enacted) as in effect at the time of issuance of such
obligations, (ii) any such facility which the Borrower's Board of Directors may
by resolution declare is not of material importance to the Borrower and the
Restricted Subsidiaries taken as a whole and (iii) any such facility, or portion
thereof, owned or leased jointly or in common with one or more persons other
than the Borrower and any Subsidiary of the Borrower and in which the interest
of the Borrower and all Subsidiaries of the Borrower does not exceed 50%.
"Public Debt Ratings" means, as of any date, the lowest rating that has
been most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt (the "Long Term
Senior Debt") and commercial paper (the "Short Term Debt") issued by the
Borrower; provided that (i) if the Borrower has caused the credit facility
evidenced by this Agreement to be rated by S&P and Moody's, then such ratings
shall be used in lieu of the ratings applicable to Long Term Senior Debt and
Short Term Debt of the Borrower for all purposes hereunder and (ii) if the event
referred to in the preceding clause (i) has not occurred but the Borrower has
delivered to the Paying Agent a guaranty in substantially the form of Exhibit F
hereto (the "AT&T Business Guarantee"), pursuant to which AT&T Business
guarantees the obligations of the Borrower under this Agreement, the ratings
established by S&P and Moody's for Long Term Senior Debt of AT&T Business shall
be used in lieu of the ratings applicable to Long Term Senior Debt of the
Borrower for all purposes hereunder and, if higher, the ratings established by
S&P and Moody's for the Short Term Debt of AT&T Business shall be used in lieu
of the ratings applicable to Short Term Debt of the Borrower for all purposes
hereunder, in each case, for such time as the AT&T Business Guarantee remains in
effect. For purposes of the foregoing, with respect to the Borrower or AT&T
Business, as the case may be, (a) if S&P or Moody's shall have in effect a
rating for only one but not both of the Long Term Senior Debt or the Short Term
Debt, the Applicable Margin and the Applicable Facility Fee Percentage shall be
the lowest level that may be determined by reference to the available rating;
(b) if only one of S&P and Moody's shall have in effect Public Debt Ratings, the
Applicable Margin and the Applicable Facility Fee Percentage shall be determined
by reference to the available rating; (c) if neither S&P nor Moody's shall have
in effect Public Debt Ratings for either of the Long Term Senior Debt or the
Short Term Debt, the Applicable Margin and the Applicable Facility Fee
Percentage will be set in accordance with Level 5 under the definition of
"Applicable Margin" or "Applicable Facility Fee Percentage", as the case may be;
(d) if any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or Moody's
shall change the basis on which ratings are established, each reference to the
Public Debt Ratings announced by S&P or Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or Moody's, as the case may be.
"Register" shall have the meaning given such term in Section
8.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least 51% of the Total Commitment or, if the Commitments shall
have been terminated, or for purposes of acceleration pursuant to clause (ii) of
Article VI, Lenders holding Loans representing at least 51% of the aggregate
principal amount of the Loans outstanding.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restricted Securities" shall mean any shares of capital stock or
Indebtedness of any Restricted Subsidiary (but shall not include any Margin
Stock).
"Restricted Subsidiary" shall mean (a) any Subsidiary of the Borrower (i)
which has substantially all of its property within the United States of America,
(ii) which owns or is a lessee of any Principal Property, and (iii) in which the
investment of the Borrower and all other Subsidiaries of the Borrower exceeds
0.25% of Consolidated Net Tangible Assets of the Borrower as of the date of such
determination; provided, however, that the term "Restricted Subsidiary" shall
not include (A) any Subsidiary of the Borrower (x) primarily engaged in the
business of purchasing, holding, collecting, servicing or otherwise dealing in
and with installment sales contracts, leases, trust receipts, mortgages,
commercial paper or other financing instruments and any collateral or agreements
relating thereto, including in the business, individually or through
partnerships, of financing (whether through long- or short-term borrowings,
pledges, discounts or otherwise) the sales, leasing or other operations of the
Borrower and the Subsidiaries or any of them, or (y) engaged in the business of
financing the assets and operations of third parties; provided that,
notwithstanding (x) and (y) above, such Subsidiary of the Borrower shall be a
Restricted Subsidiary if it owns, leases or operates any property which would
qualify as Principal Property except as incidental to such financing business;
or (B) any Subsidiary of the Borrower acquired or organized after April 1, 1986,
for the purpose of acquiring the stock or business or assets of any person other
than the Borrower or any Restricted Subsidiary, whether by merger,
consolidation, acquisition of stock or assets or similar transaction analogous
in purpose or effect, so long as such Subsidiary of the Borrower does not
acquire by merger, consolidation, acquisition of stock or assets or similar
transactions analogous in purpose or effect all or any substantial part of the
business or assets of the Borrower or any Restricted Subsidiary of the Borrower;
and (b) any other Subsidiary of the Borrower which is hereafter designated by
the Board of Directors of the Borrower as a Restricted Subsidiary of the
Borrower.
"Sale and Leaseback Transaction" shall mean any arrangement with any person
providing for the leasing by the Borrower or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired) that has been or is to be sold or transferred by the Borrower or such
Restricted Subsidiary to such person, other than (a) temporary leases for a
term, including renewals at the option of the lessee, of not more than three
years; (b) leases between the Borrower and a Restricted Subsidiary or between
Restricted Subsidiaries; and (c) leases of Principal Property executed by the
time of, or within 180 days after the latest of, the acquisition, the completion
of construction or improvement (including any improvements on property which
will result in such property becoming Principal Property), or the commencement
of commercial operation of such Principal Property.
"SEC" shall mean the Securities and Exchange Commission.
"Secured Indebtedness" shall mean (a) Indebtedness of the Borrower or a
Restricted Subsidiary which is secured by any Lien upon any Principal Property
or Restricted Securities and (b) Indebtedness of the Borrower or a Restricted
Subsidiary in respect of any conditional sale or other title retention agreement
covering Principal Property or Restricted Securities; but "Secured Indebtedness"
shall not include any of the following:
(i) Indebtedness of the Borrower and the Restricted Subsidiaries
outstanding on April 1, 1986, secured by then existing Liens upon, or incurred
in connection with conditional sales agreements or other title retention
agreements with respect to Principal Property or Restricted Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens upon Principal
Property or Restricted Securities acquired after April 1, 1986, or (B) Liens
placed on Principal Property after April 1, 1986, during construction or
improvement thereof (including any improvements on property which will result in
such property becoming Principal Property) or placed thereon within 180 days
after the later of acquisition, completion of construction or improvement or the
commencement of commercial operation of such Principal Property or improvement,
or placed on Restricted Securities acquired after April 1, 1986, or (C)
conditional sale agreements or other title retention agreements with respect to
any Principal Property or Restricted Securities acquired after April 1, 1986, if
(in each case referred to in this subparagraph (ii)) (x) such Lien or agreement
secures all or any part of the Indebtedness incurred for the purpose of
financing all or any part of the purchase price or cost of construction of such
Principal Property or improvement or Restricted Securities and (y) such Lien or
agreement does not extend to any Principal Property or Restricted Securities
other than the Principal Property or Restricted Securities so acquired or the
Principal Property, or portion thereof, on which the property so constructed, or
such improvement, is located; provided, however, that the amount by which the
aggregate principal amount of Indebtedness secured by any such Lien or agreement
exceeds the cost to the Borrower or such Restricted Subsidiary of the related
acquisition, construction or improvement shall be considered to be "Secured
Indebtedness";
(iii) Indebtedness which is secured by Liens on Principal Property or
Restricted Securities, which Liens exist at the time of acquisition (by any
manner whatsoever) of such Principal Property or Restricted Securities by the
Borrower or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the Borrower or any
other Restricted Subsidiary and Indebtedness of the Borrower owing to any
Restricted Subsidiary;
(v) in the case of any corporation which becomes (by any manner whatsoever)
a Restricted Subsidiary after April 1, 1986, Indebtedness which is secured by
Liens upon, or conditional sale agreements or other title retention agreements
with respect to, its property which constitutes Principal Property or Restricted
Securities, which Liens exist at the time such corporation becomes a Restricted
Subsidiary;
(vi) guarantees by the Borrower of Secured Indebtedness and Attributable
Debt of any Restricted Subsidiaries and guarantees by a Restricted Subsidiary of
the Secured Indebtedness and Attributable Debt of the Borrower and any other
Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback Transaction;
(viii) Indebtedness secured by Liens on property of the Borrower or a
Restricted Subsidiary in favor of the United States of America, any State,
Territory or possession thereof, or the District of Columbia, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State, Territory or possession thereof, or the District of
Columbia, or in favor of any other country or any political subdivision thereof,
if such Indebtedness was incurred for the purpose of financing all or any part
of the purchase price or the cost of construction of the property subject to
such Liens; provided, however, that the amount by which the aggregate principal
amount of Indebtedness secured by any such Lien exceeds the cost to the Borrower
or such Restricted Subsidiary of the related acquisition or construction shall
be considered to be "Secured Indebtedness"; and
(ix) the replacement, extension or renewal (or successive replacements,
extensions or renewals) of any Indebtedness (in whole or in part) excluded from
the definition of "Secured Indebtedness" by subparagraphs (i) through (viii)
above; provided, however, that no Lien securing, or conditional sale or title
retention agreement with respect to, such Indebtedness shall extend to or cover
any Principal Property or any Restricted Securities, other than such property
which secured the Indebtedness so replaced, extended or renewed (plus
improvements on or to any such Principal Property); provided further, however,
that to the extent that such replacement, extension or renewal increases the
principal amount of Indebtedness secured by such Lien or is in a principal
amount in excess of the principal amount of Indebtedness excluded from the
definition of "Secured Indebtedness" by subparagraphs (i) through (viii) above,
the amount of such increase or excess shall be considered to be "Secured
Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Agreement.
"Separation Transaction" shall mean any disposition, spin-off or other
similar transaction (whether pursuant to a single transaction or a series of
related transactions) of any division or line of business of the Borrower or any
of its Subsidiaries as a result of which, after giving effect thereto, such
division or line of business is no longer a part of or conducted by the Borrower
or any of its Subsidiaries.
"SFAS Statement No. 133" shall mean the Statement of Financial Accounting
Standards No. 133 ("Accounting for Derivative Instruments and Hedging
Activities").
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor rating agency.
"Standby Borrowing" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.04. Each Standby Loan shall be a Eurodollar
Standby Loan or an ABR Loan.
"Subsidiary" shall mean, at any time, any Person, a majority of the Voting
Equity Interests of which are at such time owned or controlled, directly or
indirectly, by the Borrower or by one or more Subsidiaries of the Borrower. As
used herein, Voting Equity Interests are Equity Interests entitled to vote in
the election of directors (or comparable management positions).
"Total Commitment" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the LIBO
Rate, the Alternate Base Rate and the Fixed Rate.
"Utilization Fee" shall have the meaning assigned to such term in Section
2.06(b).
Terms Generally. The definitions in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Paying Agent that the Borrower wishes to amend any
covenant in Article V to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Paying Agent notifies the Borrower that
the Required Lenders wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Standby Loans to the Borrower, at any time
and from time to time on and after the date hereof and until the earlier of the
Maturity Date and the termination of the Commitment of such Lender, in an
aggregate principal amount at any time outstanding not to exceed such Lender's
Commitment minus the amount by which the Competitive Loans outstanding at such
time shall be deemed to have used such Commitment pursuant to Section 2.16,
subject, however, to the conditions that (i) at no time shall (A) the sum of (x)
the outstanding aggregate principal amount of all Standby Loans made by all
Lenders plus (y) the outstanding aggregate principal amount of all Competitive
Loans made by all Lenders exceed (B) the Total Commitment, and (ii) at all times
the outstanding aggregate principal amount of all Standby Loans made by each
Lender shall equal the product of (A) the percentage which its Commitment
represents of the Total Commitment times (B) the outstanding aggregate principal
amount of all Standby Loans made pursuant to Section 2.04. Each Lender's
Commitment is set forth opposite its name in Schedule 2.01. Such Commitments may
be terminated or reduced from time to time pursuant to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or prepay and
reborrow Standby Loans hereunder, on and after the Closing Date and prior to the
Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; provided, however, that the failure of any Lender
to make any Standby Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Standby Loans or Competitive
Loans comprising any Borrowing shall be (i) in the case of Competitive Loans, in
an aggregate principal amount which is an integral multiple of $1,000,000 and
not less than $5,000,000 and (ii) in the case of Standby Loans, in an aggregate
principal amount which is an integral multiple of $10,000,000 and not less than
$50,000,000 (or an aggregate principal amount equal to the remaining balance of
the available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of Eurodollar
Competitive Loans or Fixed Rate Loans, and each Standby Borrowing shall be
comprised entirely of Eurodollar Standby Loans or ABR Loans, as the Borrower may
request pursuant to Section 2.03 or 2.04, as applicable. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than 25 separate Standby Borrowings comprised of Eurodollar
Standby Loans being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Paying Agent in New York, New York, not later than 12:00
noon, New York City time, and the Paying Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of the
Borrower with the Paying Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders. Competitive Loans shall be
made by the Lender or Lenders whose Competitive Bids therefor are accepted
pursuant to Section 2.03 in the amounts so accepted. Standby Loans shall be made
by the Lenders pro rata in accordance with Section 2.16. Unless the Paying Agent
shall have received notice from a Lender prior to the date (or in the case of
ABR Borrowings, prior to 12:00 noon New York City time on the date of such
Borrowing) of any Borrowing that such Lender will not make available to the
Paying Agent such Lender's portion of such Borrowing, the Paying Agent may
assume that such Lender has made such portion available to the Paying Agent on
the date of such Borrowing in accordance with this paragraph (c) and the Paying
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have made such portion available to the Paying Agent, such Lender and the
Borrower severally agree to repay to the Paying Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Paying Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Paying Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver, telex or telecopy to the
Paying Agent a duly completed Competitive Bid Request in the form of Exhibit A-1
hereto, to be received by the Paying Agent (i) in the case of a Eurodollar
Competitive Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Borrowing. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Paying Agent's sole discretion, and the Paying Agent shall
promptly notify the Borrower of such rejection by telex or telecopy. Each
Competitive Bid Request shall refer to this Agreement and specify (x) whether
the Borrowing then being requested is to be a Eurodollar Borrowing or a Fixed
Rate Borrowing, (y) the date of such Borrowing (which shall be a Business Day)
and the aggregate principal amount thereof which shall be in a minimum principal
amount of $5,000,000 and in an integral multiple of $1,000,000, and (z) the
Interest Period with respect thereto (which may not end after the Maturity
Date). Promptly after its receipt of a Competitive Bid Request that is not
rejected as aforesaid, the Paying Agent shall invite by telex or telecopy (in
the form set forth in Exhibit A-2 hereto) the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request.
(b) Each Lender invited to bid may, in its sole discretion, make one or
more Competitive Bids to the Borrower responsive to the Borrower's Competitive
Bid Request. Each Competitive Bid by a Lender must be received by the Paying
Agent via telex or telecopy, in the form of Exhibit A-3 hereto, (i) in the case
of a Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing and (ii) in
the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing. Multiple bids will be
accepted by the Paying Agent. Competitive Bids that do not conform substantially
to the format of Exhibit A-3 may be rejected by the Paying Agent after
conferring with, and upon the instruction of, the Borrower, and the Paying Agent
shall notify the Lender making such nonconforming bid of such rejection as soon
as practicable. Each Competitive Bid shall refer to this Agreement and specify
(x) the principal amount (which shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by the Borrower)
of the Competitive Loan or Loans that the Lender is willing to make to the
Borrower, (y) the Competitive Bid Rate or Rates at which the Lender is prepared
to make the Competitive Loan or Loans and (z) the Interest Period and the last
day thereof. If any Lender invited to bid shall elect not to make a Competitive
Bid, such Lender shall so notify the Paying Agent via telex or telecopy (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (II)
in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the day of a proposed Competitive Borrowing; provided, however, that failure
by any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Paying Agent shall promptly notify the Borrower, by telex or
telecopy, of all the Competitive Bids made, the Competitive Bid Rate and the
principal amount of each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid. The Paying Agent
shall send a copy of all Competitive Bids to the Borrower for its records as
soon as practicable after completion of the bidding process set forth in this
Section 2.03.
(d) The Borrower may in its sole and absolute discretion, subject only to
the provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above. The Borrower shall notify the Paying Agent
by telephone, confirmed by telex or telecopy in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject any of or all the bids referred to in paragraph (c) above, (x) in the
case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (y)
in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided, however, that
(i) the failure by the Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) the Borrower
shall not accept a bid made at a particular Competitive Bid Rate if it has
decided to reject a bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a bid or bids made at a particular Competitive Bid
Rate but the amount of such bid or bids shall cause the total amount of bids to
be accepted by the Borrower to exceed the amount specified in the Competitive
Bid Request, then the Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such bid
at such Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no
bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further, however, that if a Competitive Loan must be in an amount less
than $5,000,000 because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Borrower. A notice given by the Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Paying Agent shall promptly notify each bidding Lender whether or
not its Competitive Bid has been accepted (and if so, in what amount and at what
Competitive Bid Rate) by telex or telecopy sent by the Paying Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request. No Competitive Borrowing
shall be requested or made hereunder if after giving effect thereto any of the
conditions set forth in Section 2.01 would not be met.
(g) If the Paying Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Paying Agent pursuant to paragraph (b)
above.
(h) All notices required by this Section 2.03 shall be given in accordance
with Section 8.01.
SECTION 2.04. Standby Borrowing Procedure. In order to request a Standby
Borrowing, the Borrower shall hand deliver, telex or telecopy to the Paying
Agent a duly completed Standby Borrowing Request in the form of Exhibit A-5 (a)
in the case of a Eurodollar Standby Borrowing, not later than 10:30 a.m., New
York City time, three Business Days before a proposed Borrowing and (b) in the
case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the
day of a proposed Borrowing. No Fixed Rate Loan shall be requested or made
pursuant to a Standby Borrowing Request. Such notice shall be irrevocable and
shall in each case specify (i) whether the Borrowing then being requested is to
be a Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such
Standby Borrowing (which shall be a Business Day) and the amount thereof; and
(iii) if such Borrowing is to be a Eurodollar Standby Borrowing, the Interest
Period with respect thereto, which shall not end after the Maturity Date. If no
election as to the Type of Standby Borrowing is specified in any such notice,
then the requested Standby Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Standby Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest Period of
one month's duration. Notwithstanding any other provision of this Agreement to
the contrary, the Borrower shall not be entitled to request any Standby
Borrowing if the Interest Period requested with respect to such Standby
Borrowing would end after the Maturity Date. The Paying Agent shall promptly
advise the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
SECTION 2.05. Conversion and Continuation of Standby Loans. The Borrower
shall have the right at any time upon prior irrevocable notice to the Paying
Agent (i) not later than 10:30 a.m., New York City time, on the day of the
conversion, to convert all or any part of any Eurodollar Standby Borrowing into
an ABR Borrowing, (ii) not later than 10:30 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Standby Borrowing or to continue any Eurodollar Standby
Borrowing as a Eurodollar Standby Borrowing for an additional Interest Period
and (iii) not later than 10:30 a.m., New York City time, three Business Days
prior to conversion, to convert the Interest Period, with respect to any
Eurodollar Standby Borrowing to another permissible Interest Period, subject in
each case to the following:
(a) if less than all the outstanding principal amount of any Standby
Borrowing shall be converted or continued, the aggregate principal amount of the
Standby Borrowing converted or continued shall be an integral multiple of
$10,000,000 and not less than $50,000,000;
(b) accrued interest on a Standby Borrowing (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(c) if any Eurodollar Standby Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.15;
(d) any portion of a Standby Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Standby Borrowing;
(e) any portion of a Eurodollar Standby Borrowing which cannot be continued
as a Eurodollar Standby Borrowing by reason of clause (d) above shall be
automatically converted at the end of the Interest Period in effect for such
Eurodollar Standby Borrowing into an ABR Borrowing; and
(f) no Interest Period may be selected for any Eurodollar Standby Borrowing
that would end later than the Maturity Date.
Each notice of the Borrower pursuant to this Section 2.05 shall be
irrevocable and shall refer to this Agreement and specify (i) the identity and
amount of the Standby Borrowing that the Borrower requests to be converted or
continued, (ii) whether such Standby Borrowing is to be converted to or
continued as a Eurodollar Standby Borrowing, or an ABR Borrowing, (iii) if such
notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (iv) if such Standby Borrowing is to be converted to or
continued as a Eurodollar Standby Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Standby Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.05 to convert or continue any Standby Borrowing, such Standby
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted or continued
into a new Interest Period as an ABR Borrowing.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Lender, through
the Paying Agent, on each March 31, June 30, September 30 and December 31 (with
the first payment being due on March 31, 2001) and on the date on which the
Commitment of such Lender shall be terminated or reduced as provided herein, a
facility fee (a "Facility Fee") on the average daily amount of the Commitment of
such Lender, whether used or unused, during the preceding quarter (or other
period commencing on the date of this Agreement, or ending with the Maturity
Date or any date on which the Commitment of such Lender shall be terminated or
reduced) at a rate per annum equal to the Applicable Facility Fee Percentage in
effect from time to time. All Facility Fees shall be computed on the basis of
the actual number of days elapsed in a year of 365 or 366 days, as the case may
be. The Facility Fee due to each Lender shall commence to accrue on the date of
this Agreement, and shall cease to accrue on the earlier of the Maturity Date
and the termination of the Commitment of such Lender as provided herein.
(b) The Borrower agrees to pay to each Lender, through the Paying Agent, on
each March 31, June 30, September 30 and December 31 and on each date on which
the Commitment of such Lender shall be terminated or reduced as provided herein,
a utilization fee (a "Utilization Fee") equal to a pro rata portion (based on
the ratio of such Lender's Commitment to the Total Commitment) of (i) 0.125% per
annum on the principal amount of the outstanding Loans, including Competitive
Loans, whether or not made by such Lender, for each day during the preceding
quarter (or other period commencing on the date hereof or ending with the
Maturity Date or any date on which the Commitment of such Lender shall be
terminated) on which the sum of the outstanding Standby Loans and the
outstanding Competitive Loans is more than 25% but less than or equal to 50% of
the Total Commitment and (ii) 0.25% per annum on the principal amount of the
outstanding Loans, including Competitive Loans, whether or not made by such
Lender, for each day during the preceding quarter (or other period commencing on
the date hereof or ending with the Maturity Date or any date on which the
Commitment of such Lender shall be terminated) on which the sum of the
outstanding Standby Loans and the outstanding Competitive Loans exceeds 50% of
the Total Commitment. The Utilization Fee due to each Lender shall be payable in
arrears and shall commence to accrue on the date hereof and cease to accrue on
the earlier of the Maturity Date and the termination of the Commitment of such
Lender as provided herein.
(c) The Borrower agrees to pay the Paying Agent, for its own account, the
agency and other fees referred to in the Fee Letter (the "Administrative Fees")
at the times and in the amounts agreed upon in the Fee Letter.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Paying Agent for distribution, if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
agrees that the outstanding principal balance of each Standby Loan shall be
payable on the Maturity Date, and that the outstanding principal balance of each
Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest on the outstanding principal
balance thereof as set forth in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid such lending office of such Lender from
time to time under this Agreement.
(c) The Paying Agent shall maintain the Register pursuant to Section
8.04(d), and a subaccount for each Lender, in which Register and accounts (taken
together) shall be recorded (i) the amount of each Loan made hereunder, the Type
of each Loan made and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Paying Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant to
paragraph (b) and (c) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Paying Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans made to the
Borrower by such Lender in accordance with their terms.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of Section
2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Standby
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin from time to time in effect and (ii) in the case of each
Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in effect for
such Borrowing plus the Margin offered by the Lender making such Loan and
accepted by the Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, for periods
during which the Alternate Base Rate is determined by reference to the Prime
Rate and 360 days for periods during which the Alternate Base Rate is determined
by reference to the Federal Funds Effective Rate) at a rate per annum equal to
the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined in good faith
by the Paying Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.09. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, the Borrower shall on demand from time to time from the Paying
Agent pay interest, to the extent permitted by law, on such defaulted amount up
to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the Alternate Base Rate plus 2%.
SECTION 2.10. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Paying Agent shall have
determined in good faith (i) that dollar deposits in the principal amounts of
the Eurodollar Loans comprising such Borrowing are not generally available in
the London interbank market or (ii) that reasonable means do not exist for
ascertaining the LIBO Rate, the Paying Agent shall, as soon as practicable
thereafter, give telex or telecopy notice of such determination to the Borrower
and the Lenders. In the event of any such determination under clauses (i) or
(ii) above, until the Paying Agent shall have advised the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (x)
any request by the Borrower for a Eurodollar Competitive Borrowing pursuant to
Section 2.03 shall be of no force and effect and shall be denied by the Paying
Agent and (y) any request by the Borrower for a Eurodollar Standby Borrowing
pursuant to Section 2.04 shall be deemed to be a request for an ABR Borrowing.
In the event a Lender notifies the Paying Agent that the rates at which dollar
deposits are being offered will not adequately and fairly reflect the cost to
such Lender of making or maintaining its Eurodollar Loan during such Interest
Period, the Paying Agent shall notify the Borrower of such notice and until the
Lender shall have advised the Paying Agent that the circumstances giving rise to
such notice no longer exist, any request by the Borrower for a Eurodollar
Standby Borrowing shall be deemed a request for an ABR Borrowing for the same
Interest Period with respect to such Lender. Each determination by the Paying
Agent hereunder shall be in good faith and conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a) The Commitments
shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable telex or telecopy
notice to the Paying Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $10,000,000 and in a minimum
principal amount of $50,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Competitive Loans.
(c) Subject to the following sentence, the Total Commitment shall be
automatically and permanently reduced, on a pro rata basis, on the third
Business Day after (i) the sale, lease, transfer or other disposition of any
property or assets of the Borrower or any of its Subsidiaries for gross cash
proceeds in excess of $500 million in any one transaction (or in a series of
transactions which when taken together constitute one transaction), including,
without limitation, any such transfer through a Separation Transaction (which
gross cash proceeds, in the case of a Separation Transaction with respect to
AT&T Wireless Group, shall be deemed to include the principal amount of
intercompany Indebtedness owed to the Borrower which is repaid, and the face
amount of preferred Equity Interests held by the Borrower in AT&T Wireless Group
which is redeemed, on the date of such Separation Transaction, but only to the
extent that $6 billion exceeds the Wireless Amount on such date), (ii) the
incurrence or issuance by the Borrower or any of its Subsidiaries of any new
Indebtedness with a maturity date in excess of one year, or Indebtedness
incurred pursuant to a syndicated bank credit facility available for general
corporate purposes, other than intercompany Indebtedness of the Borrower and its
Subsidiaries incurred in the ordinary course of business and Indebtedness used
to refinance any other Indebtedness that has previously given rise to a
reduction in the Total Commitment; provided that Indebtedness shall be deemed to
be incurred by AT&T Wireless Group for purposes of this clause (ii) on the
closing date of any syndicated bank credit facility available for general
corporate purposes entered into by AT&T Wireless Group in an amount equal to the
total commitment thereunder (and not on the date of any borrowing thereunder),
and (iii) the sale or issuance by the Borrower or any of its Subsidiaries of any
Equity Interests, in each case, in an amount equal to (x) 50% of the first $6
billion in aggregate Net Cash Proceeds received by the Borrower and its
Subsidiaries from all transactions specified in clauses (i), (ii) and (iii) and
(y) 100% of the aggregate Net Cash Proceeds in excess of $6 billion received by
the Borrower and its Subsidiaries from all transactions specified in clauses
(i), (ii) and (iii), until the Total Commitment has been reduced to $10 billion.
Notwithstanding the previous sentence, Net Cash Proceeds from transactions
described in clauses (i), (ii) and (iii) of such sentence shall exclude Net Cash
Proceeds received by the Borrower and its Subsidiaries from (A) asset
securitizations in an amount not to exceed $3.5 billion in aggregate, (B)
structural finance monetizations of shares of capital stock of publicly-traded
companies held by the Borrower or its Subsidiaries, (C) any strategic equity
investment into AT&T Wireless Group or any sale of Equity Interests of AT&T
Wireless Group to one or more strategic investors to the extent that within 30
days after receipt of the proceeds of such investment or sale, the Borrower has
reinvested, contributed or loaned such proceeds to AT&T Wireless Group (or has
entered into a binding agreement pursuant to which it has committed to do any of
the foregoing), either directly or through an affiliate of the Borrower, and (D)
any incurrence or issuance by AT&T Wireless Group of any Indebtedness pursuant
to a transaction specified in clause (ii) of the previous sentence, to the
extent the Wireless Amount exceeds $6 billion; provided that AT&T Latin America,
At Home Corporation and foreign Subsidiaries of the Borrower that do not pay
regularly scheduled dividends or other cash distributions to the Borrower or its
Subsidiaries in the ordinary course of business shall be excluded from the
calculations specified in this Section 2.11(c). For purposes of this Section
2.11(c), "Wireless Amount" means the sum of (x) the proceeds of all Indebtedness
incurred or issued by AT&T Wireless Group pursuant to clause (ii) of the first
sentence of this Section 2.11(c), and (y) to the extent such proceeds are used
voluntarily to reduce intercompany Indebtedness or to redeem preferred Equity
Interests of AT&T Wireless Group and the Total Commitment is voluntarily reduced
substantially simultaneously therewith, the proceeds of any strategic equity
investment or sale of Equity Interests described in clause (C) above.
(d) Each reduction in the Total Commitment hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Paying Agent for the account of the Lenders, on the date of
each termination or reduction of the Commitment, the Facility Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Standby Borrowing, in whole or in part, upon
giving telex or telecopy notice (or telephone notice promptly confirmed by telex
or telecopy notice) to the Paying Agent: (i) before 10:00 a.m., New York City
time, three Business Days prior to prepayment, in the case of Eurodollar Loans
and (ii) before 10:00 a.m., New York City time, one Business Day prior to
prepayment, in the case of ABR Loans; provided, however, that each partial
prepayment shall be in an amount which is an integral multiple of $10,000,000
and not less than $50,000,000. The Borrower shall not have the right to prepay
any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments pursuant
to Section 2.11, the Borrower shall pay or prepay so much of the Standby
Borrowings as shall be necessary in order that the aggregate principal amount of
the Competitive Loans and Standby Loans outstanding will not exceed the Total
Commitment, after giving effect to such termination or reduction.
(c) Each notice of prepayment from the Borrower shall specify the
prepayment date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section 2.12 shall be subject to Section
2.15 but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets or deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on such Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurodollar Loan or
Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
Notwithstanding the foregoing, no Lender shall be entitled to request
compensation under this paragraph with respect to any Competitive Loan if the
change giving rise to such request was applicable to such Lender at the time of
submission of the Competitive Bid pursuant to which such Competitive Loan shall
have been made.
(b) If any Lender shall have determined that the applicability of any law,
rule, regulation or guideline adopted after the date hereof pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement, such Lender's Commitment or
the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender's holding company could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time the Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered. It is acknowledged that this Agreement is being entered into
by the Lenders on the understanding that the Lenders will not be required to
maintain capital against their Commitments under currently applicable laws,
regulations and regulatory guidelines.
(c) A certificate of the Lender setting forth such amount or amounts (including
computation of such amount or amounts) as shall be necessary to compensate the
Lender or its holding company as specified in paragraph (a) or (b) above, as the
case may be, shall be delivered to the Borrower and such amount or amounts may
be reviewed by the Borrower. Unless the Borrower disagrees in good faith with
the computation of the amount or amounts in such certificate, the Borrower shall
pay to the Lender, within 10 Business Days after receipt by the Borrower of such
certificate delivered by the Lender, the amount shown as due on any such
certificate. If the Borrower, after receipt of any such certificate from the
Lender, disagrees with the Lender on the computation of the amount or amounts
owed to the Lender pursuant to paragraph (a) or (b) above, the Lender and the
Borrower shall negotiate in good faith to promptly resolve such disagreement. In
either case, however, the Lender shall have a duty to mitigate the damages that
may arise as a consequence of paragraph (a) or (b) above to the extent that such
mitigation will not, in the judgment of the Lender, entail any cost or
disadvantage to the Lender that the Lender is not reimbursed or compensated for
by the Borrower.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision
herein, if after the date hereof any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by 30 days' (or
such shorter period as shall be required in order to comply with applicable law)
written notice to the Borrower and to the Paying Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon such Lender shall not submit a Competitive Bid
in response to a request for Eurodollar Competitive Loans and any request
by the Borrower for a Eurodollar Standby Borrowing shall, as to such Lender
only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower. Before giving any such notice, such Lender shall designate a different
lending office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender against
any out-of-pocket loss or expense which such Lender may sustain or incur as a
consequence of (a) any failure by the Borrower to borrow or to refinance,
convert or continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing, conversion or continuation has been given pursuant to
Section 2.03, 2.04 or 2.05, (b) any payment, prepayment or conversion, or an
assignment required under Section 2.20, of a Eurodollar Loan by the Borrower
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default by the Borrower in payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (d) the occurrence of any Event of Default.
In the case of a Eurodollar Loan, such out-of-pocket loss or expense shall
be limited to an amount equal to the excess, if any, of (i) such Lender's cost
of obtaining the funds for the Loan being paid, prepaid, converted or not
borrowed, converted or continued (based on the LIBO Rate applicable thereto) for
the period from the date of such payment, prepayment, conversion or failure to
borrow, convert or continue to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest that would be realized by such Lender in
reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued for such period or Interest Period, as the case may be. In the case of
an ABR Loan, such out-of-pocket loss or expense shall be limited to an amount
equal to the excess, if any, of (i) such Lender's cost of obtaining the funds
for the ABR Loan being paid, prepaid, converted or not borrowed, converted or
continued for the period from the date of such payment, prepayment, conversion
or failure to borrow, convert or continue to the next Business Day for such ABR
Loan over (ii) the amount of interest that would be realized by such Lender in
reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued until the next Business Day, as the case may be.
A certificate of the Lender setting forth such amount or amounts (including
the computation of such amount or amounts) as shall be necessary to compensate
the Lender or its holding company for the out-of-pocket expenses defined herein
shall be delivered to the Borrower and such amount or amounts may be reviewed by
the Borrower. If the Borrower, after receipt of any such certificate from the
Lender, disagrees in good faith with the Lender on the computation of the amount
or amounts owed to the Lender pursuant to this Section 2.15, the Lender and the
Borrower shall negotiate in good faith to promptly resolve such disagreement.
Each Lender shall have a duty to mitigate the damages to such Lender that
may arise as a consequence of clause (a), (b), (c) or (d) above to the extent
that such mitigation will not, in the judgment of such Lender, entail any cost
or disadvantage to such Lender that such Lender is not reimbursed or compensated
for by the Borrower.
SECTION 2.16. Pro Rata Treatment. Except as required under Sections 2.10,
2.13, 2.14, 2.15, 2.19 and 2.20, each Standby Borrowing, each payment or
prepayment of principal of any Standby Borrowing, each payment of interest on
the Standby Loans, each payment of the Facility Fees and Utilization Fees, each
reduction of the Commitments and each refinancing or conversion of any Borrowing
with a Standby Borrowing of any Type, shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Standby Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with their respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Paying Agent may, in its discretion, round each Lender's
percentage of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Loans as a
result of which the unpaid principal portion of the Standby Loans of such Lender
shall be proportionately less than the unpaid principal portion of the Standby
Loans of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in the Standby Loans of such
other Lender, so that the aggregate unpaid principal amount of the Standby Loans
and participations in the Standby Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.17
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Standby Loan
directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder from an account in the United States not later than 12:00 noon, New
York City time, on the date when due in dollars to the Paying Agent at its
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, 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 shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto imposed by the
United States or any political subdivision or taxing authority thereof,
excluding taxes imposed on the Paying Agent or any Lender's (or any transferee's
or assignee's, including a participation holder's (any such entity a
"Transferee")) net income and franchise taxes imposed on the Paying Agent or any
Lender (or Transferee) by the United States or any political subdivision or
taxing authority thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to any Lender (or any Transferee) or
the Paying Agent, (i) the sum payable shall be increased by the amount necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.19) such Lender (or Transferee) or
the Paying Agent (as the case may be) shall receive an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
imposed by the United States or any political subdivision or taxing authority
thereof (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and the Paying
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes on amounts payable under this Section 2.19) paid by such Lender (or
Transferee) or the Paying Agent, as the case may be, with respect to the
Borrower and any liability (including penalties, interest and reasonable
out-of-pocket expenses) arising therefrom or with respect thereto (other than
any such liability that results from the negligence or willful misconduct of the
Lender (or Transferee) or the Paying Agent), whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant taxing authority or
other Governmental Authority. Such indemnification shall be made within 30 days
after the date any Lender (or Transferee) or the Paying Agent, as the case may
be, makes written demand therefor. If the Borrower or any Lender (or Transferee)
or the Paying Agent shall determine that Taxes or Other Taxes may not have been
correctly or legally assessed by the relevant taxing authority or other
Governmental Authority, and that a Lender (or Transferee) or the Paying Agent
may be entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the other party of the availability of such refund and such
Lender (or Transferee) or the Paying Agent shall, within 30 days after receipt
of a request by the Borrower, apply for such refund at the Borrower's expense.
If any Lender (or Transferee) or the Paying Agent receives a refund or credit or
offset against another tax liability in respect of any Taxes or Other Taxes for
which such Lender (or Transferee) or the Paying Agent has received payment from
the Borrower hereunder it shall promptly repay such refund or credit or offset
against another tax liability (including any interest received by such Lender
(or Transferee) or the Paying Agent from the taxing authority with respect to
the refund with respect to such Taxes or Other Taxes) to the Borrower, net of
all out-of-pocket expenses of such Lender; provided that the Borrower, upon the
request of such Lender (or Transferee) or the Paying Agent, agrees to return
such refund or credit or offset against another tax liability (plus penalties,
interest or other charges) to such Lender (or Transferee) or the Paying Agent in
the event such Lender (or Transferee) or the Paying Agent is required to repay
such refund or credit or offset against another tax liability. For purposes of
the preceding sentence, the Paying Agent or any Lender shall determine in good
faith and in its discretion the amount of any credit or offset against another
tax liability and shall be under no obligation to make available to the Borrower
any of its tax returns or any other information that it deems to be
confidential.
(d) As soon as practicable after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Paying Agent, the Borrower will furnish to the Paying Agent,
at its address referred to in Section 8.01, the original or a certified copy of
a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Lender (or Transferee) which is organized outside the United
States shall, prior to the due date of the first payment by the Borrower to such
Lender (or Transferee) hereunder, deliver to the Borrower such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form W-8BEN or Form
W-8ECI, or any successor or other form prescribed by the Internal Revenue
Service properly completed and duly executed by such Lender (or Transferee)
establishing that such payment is (i) not subject to withholding under the Code
because such payment is effectively connected with the conduct by such Lender
(or Transferee) of a trade or business in the United States or (ii) totally
exempt from United States tax under a provision of an applicable tax treaty.
Each such Lender (or Transferee) that changes its funding office shall promptly
notify the Borrower of such change and, upon written request from the Borrower,
shall deliver any new certificates, documents or other evidence required
pursuant to the preceding sentence prior to the immediately following due date
of any payment by the Borrower hereunder. Unless the Borrower and the Paying
Agent have received forms or other documents satisfactory to them indicating
that payments hereunder are not subject to United States withholding tax,
notwithstanding paragraph (a), the Borrower or the Paying Agent shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender (or Transferee) organized under the laws of a
jurisdiction outside the United States.
(g) The Borrower shall not be required to pay any additional amounts to any
Lender (or Transferee) in respect of Taxes and Other Taxes pursuant to
paragraphs (a), (b) and (c) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender (or Transferee)
to comply with the provisions of paragraph (f) above unless such Lender (or
Transferee) is unable to comply with paragraph (f) because of (i) a change in
applicable law, regulation or official interpretation thereof or (ii) an
amendment, modification or revocation of any applicable tax treaty or a change
in official position regarding the application or interpretation thereof, in
each case after the date hereof (and, in the case of a Transferee, after the
date of assignment or transfer).
(h) Any Lender (or Transferee) claiming any additional amounts payable
under this Section 2.19 shall (i) to the extent legally able to do so, upon
written request from the Borrower, file any certificate or document if such
filing would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue, and the Borrower shall not be obligated to
pay such additional amounts if, after the Borrower's request, any Lender (or
Transferee) could have filed such certificate or document and failed to do so;
or (ii) consistent with legal and regulatory restrictions, use reasonable
efforts to change the jurisdiction of its applicable lending office if the
making of such change would avoid the need for or reduce the amount of any
additional amounts which may thereafter accrue and would not, in the sole
determination of such Lender (or Transferee), be otherwise disadvantageous to
such Lender (or Transferee).
SECTION 2.20. Mandatory Assignment; Commitment Termination. In the event
any Lender delivers to the Paying Agent or the Borrower, as appropriate, a
certificate in accordance with Section 2.13(c) or a notice in accordance with
Section 2.10 or 2.14, or the Borrower is required to pay any additional amounts
or other payments in accordance with Section 2.19, the Borrower may, at its own
expense, and in its sole discretion (a) require such Lender to transfer and
assign in whole or in part, without recourse (in accordance with Section 8.04),
all or part of its interests, rights and obligations under this Agreement (other
than outstanding Competitive Loans) to an assignee which shall assume such
assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) such assignment shall not conflict with any
law, rule or regulation or order of any court or other Governmental Authority
and (ii) the Borrower or such assignee shall have paid to the assigning Lender
in immediately available funds the principal of and interest accrued to the date
of such payment on the Loans made by it hereunder and all other amounts owed to
it hereunder or (b) terminate the Commitment of such Lender and prepay all
outstanding Loans (other than Competitive Loans) of such Lender; provided that
(x) such termination of the Commitment of such Lender and prepayment of Loans
does not conflict with any law, rule or regulation or order of any court or
Governmental Authority and (y) the Borrower shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans (other than Competitive Loans) made by it hereunder
and all other amounts owed to it hereunder.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in every jurisdiction
where such qualification is required, except where the failure so to qualify
would not result in a Material Adverse Effect, and (d) has the corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and to borrow funds hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by the
Borrower of this Agreement and the Borrowings of the Borrower hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate actions and (b) will not (i) violate (A) any provision of
any law, statute, rule or regulation (including, without limitation, the Margin
Regulations) or of the certificate of incorporation or other constitutive
documents or by-laws of the Borrower, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
to which the Borrower is a party or by which the Borrower or any of its property
is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon any property or assets of the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Agents and the Lenders copies of (i) its consolidated financial
statements for the year ended December 31, 1999, which were included in the
annual report on Form 10-K dated March 27, 2000, of the Borrower filed with the
SEC under the Exchange Act and (ii) its consolidated financial statements for
the nine months ended September 30, 2000, which were included in the Quarterly
Report on Form 10-Q dated November 14, 2000 of the Borrower filed with the SEC
under the Exchange Act. Such financial statements present fairly, in all
material respects, the consolidated financial condition and the results of
operations of the Borrower as of such dates in accordance with GAAP.
(b) As of the date hereof, there has been no material adverse change in the
consolidated financial condition of the Borrower from the financial condition
reflected in the financial statements referred to in the first sentence of
paragraph (a) above (it being understood that neither the proposed Separation
Transactions nor any event, condition or result accurately reflected in reports
or financial statements filed with the SEC prior to November 9, 2000 shall be
deemed to give rise to a material adverse change).
SECTION 3.06. Litigation; Compliance with Laws. (a) There are no actions or
proceedings filed or (to the knowledge of the Borrower) investigations pending
or overtly threatened against the Borrower in any court or before any
Governmental Authority or arbitration board or tribunal which question the
validity or legality of or seek damages in connection with this Agreement, the
Transactions or any action taken or to be taken pursuant to this Agreement and
no order or judgment has been issued or entered restraining or enjoining the
Borrower from the execution, delivery or performance of this Agreement nor is
there any action or proceeding which involves a probable risk of an adverse
determination which would have any such effect; nor is there as of the date
hereof (other than the matters described on Schedule 3.06) any other action or
proceeding filed or (to the knowledge of the Borrower) investigation pending or
overtly threatened against the Borrower in any court or before any Governmental
Authority or arbitration board or tribunal which involves a probable risk of a
material adverse decision which would result in a Material Adverse Effect or
materially restrict the ability of the Borrower to comply with its obligations
under this Agreement.
(b) Neither the Borrower nor any of its Subsidiaries is in violation of any
law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default would result in a Material Adverse Effect.
SECTION 3.07. Federal Reserve Regulations. (a) Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent with, the provisions of
the Margin Regulations.
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.09. Use of Proceeds. All proceeds of the Loans shall be used to
refinance the Existing Bank Agreement and certain other existing Indebtedness of
the Borrower and its Subsidiaries and for other general corporate purposes of
the Borrower, including without limitation, the repayment of maturing commercial
paper of the Borrower.
SECTION 3.10. No Material Misstatements. No report, financial statement or
other written information furnished by or on behalf of the Borrower to any Agent
or any Lender pursuant to Section 3.05 or Section 5.02 hereof contains or will
contain any material misstatement of fact or omits or will omit to state any
material fact necessary to make the statements therein, taken as a whole, in the
light of the circumstances under which they were or will be made, not
misleading.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing:
(a) The Paying Agent shall have received a notice of such Borrowing as
required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an earlier
date.
(c) The Borrower shall be in compliance with all the terms and provisions
set forth herein in all material respects, and at the time of and immediately
after such Borrowing no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Borrowing as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date. On the Closing Date:
(a) The Paying Agent shall have received a favorable written opinion of the
General Attorney for Corporate Matters of the Borrower, dated the Closing Date
and addressed to the Lenders, to the effect set forth in Exhibit D hereto.
(b) The Paying Agent shall have received (i) a long form certificate as to
the certificate of incorporation, including all amendments thereto, of the
Borrower, as of a recent date by the Secretary of State of the state of
incorporation of the Borrower and a certificate as to the good standing of the
Borrower as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or an Assistant Secretary of the Borrower dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of the Borrower as in effect on the Closing Date and at all times since
a date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly adopted by
the Board of Directors of the Borrower authorizing the execution, delivery and
performance of this Agreement and the Borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate of incorporation of the Borrower has not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D) as
to the incumbency and specimen signature of each officer executing this
Agreement or any other document delivered in connection herewith on behalf of
the Borrower; and (iii) a certificate of another officer of the Borrower as to
the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above.
(c) The Paying Agent shall have received a certificate from the Borrower,
dated the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs (b)
and (c) of Section 4.01.
(d) The Paying Agent shall have received any Fees and other amounts due and
payable on or prior to the Closing Date to the extent invoiced.
(e) The commitments under the Existing Bank Agreement shall have been
terminated, and, on or prior to the date hereof, all amounts due thereunder
shall have been paid in full.
ARTICLE V
Covenants
The Borrower covenants and agrees with each Lender and each Agent that so
long as this Agreement shall remain in effect or the principal of or interest on
any Loan, any Fees or any other expenses or amounts payable hereunder shall be
unpaid, unless the Required Lenders shall otherwise consent in writing:
SECTION 5.01. Existence. The Borrower will do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 5.05.
SECTION 5.02. Financial Statements, Reports, etc. The Borrower will furnish
to the Paying Agent for distribution to the Lenders:
(a) promptly after the filing or sending thereof and in any event not later
than (i) 105 days after the end of each fiscal year, a copy of the Borrower's
report on Form 10-K which the Borrower files with the SEC for such year and (ii)
15 days after being sent to its public security holders, a copy of the
Borrower's annual report;
(b) promptly after the filing thereof, and in any event within 60 days
after the end of each of the first three fiscal quarters during each fiscal
year, the Borrower's report on Form 10-Q which the Borrower files with the SEC
for such quarter;
(c) concurrently with any delivery of information under paragraph (a)
above, a certificate of a Financial Officer certifying that no Event of Default
or Default has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of all other
reports filed by it with the SEC, or any Governmental Authority succeeding to
any of or all the functions of the SEC, or distributed to its shareholders, as
the case may be; and
(e) promptly after the same become publicly available, notice that either
or both of the Public Debt Ratings have changed from the immediately preceding
Public Debt Ratings previously reported to the Paying Agent by the Borrower.
Reports required to be delivered pursuant to subsections (a), (b) and (d)
of this Section 5.02 shall be deemed to have been delivered on the date on which
the Borrower posts such reports on the Borrower's website on the Internet at the
website address listed on the signature pages hereof or when such report is
posted on the SEC's website at ▇▇▇.▇▇▇.▇▇▇; provided that the Borrower shall
deliver paper copies of the reports referred to in subsections (a), (b) and (d)
of this Section 5.02 to any Agent or any Lender who requests the Borrower to
deliver such paper copies until written notice to cease delivering paper copies
is given by such Agent or such Lender and provided further, that in every
instance the Borrower shall provide paper copies of the certificate required by
subsection (c) and the notice required by subsection (e) to the Paying Agent and
each of the Lenders until such time as the Paying Agent shall provide the
Borrower written notice otherwise.
SECTION 5.03. Maintaining Records. The Borrower will record, summarize and
report all financial information in accordance with GAAP.
SECTION 5.04. Use of Proceeds. The Borrower will use the proceeds of the
Loans only for the purposes set forth in Section 3.09.
SECTION 5.05. Consolidations, Mergers, Sales of Assets and Separation
Transactions. (a) Nothing contained in this Agreement shall prevent any
consolidation of the Borrower with, or merger of the Borrower into, another
corporation or corporations (whether or not affiliated with the Borrower), or
successive consolidations or mergers to which the Borrower or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the property of the Borrower (including stock of Subsidiaries) as an entirety
or substantially as an entirety to any other corporation (whether or not
affiliated with the Borrower) authorized to acquire and own or operate the same;
provided, however, that the Borrower hereby covenants and agrees, that, upon any
such consolidation, merger, sale or conveyance, the due and punctual payment of
the principal of and interest on all the Loans and the due and punctual
performance and observance of all the covenants and conditions of this Agreement
to be performed or observed by the Borrower shall be expressly assumed, by one
or more agreements, reasonably satisfactory in form to the Required Lenders,
executed and delivered to the Paying Agent by the corporation formed by such
consolidation, or into which the Borrower shall have been merged, or which shall
have acquired such property. In the case of any such consolidation, merger, sale
or conveyance, and following such an assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the Borrower,
with the same effect as if it had been named herein.
(b) Notwithstanding clause (a) above, the Borrower will not effect, or
permit any Subsidiary to effect, a Separation Transaction unless, at the time
thereof and after giving effect thereto, (i) no Default or Event of Default
shall have occurred and be continuing, (ii) the Borrower's Public Debt Rating
for its Long Term Senior Debt is at least BBB+ by S&P and Baa1 by ▇▇▇▇▇'▇, (iii)
all preferred Equity Interests held by, and intercompany Indebtedness owed to,
the Borrower in or by any Subsidiary that is the subject of the Separation
Transaction are redeemed or repaid in full; provided that, in the case of a
Separation Transaction with respect to AT&T Wireless Group, the Borrower will
not forgive or otherwise cease to demand full repayment or redemption in cash of
any intercompany Indebtedness owing from AT&T Wireless Group to the Borrower, or
preferred Equity Interests in AT&T Wireless Group held by the Borrower, unless
the Wireless Amount (as defined in Section 2.11(c)) is at least $6 billion, and
(iv) the Borrower shall prepay the Facility to the extent required by, and in
the amount and at the time specified in, Section 2.12(b).
SECTION 5.06. Limitations on Liens. The Borrower will not create, assume,
incur or guarantee, and will not permit any Restricted Subsidiary to create,
assume, incur or guarantee, any Secured Indebtedness without making provision
whereby all the Loans shall be secured equally and ratably with (or prior to)
such Secured Indebtedness (together with, if the Borrower shall so determine,
any other Indebtedness of the Borrower or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Loans) so long as
such Secured Indebtedness shall be outstanding, unless such Secured
Indebtedness, when added to (a) the aggregate amount of all Secured Indebtedness
then outstanding (not including in this computation Secured Indebtedness if the
Loans are secured equally and ratably with (or prior to) such Secured
Indebtedness and further not including in this computation any Secured
Indebtedness which is concurrently being retired) and (b) the aggregate amount
of all Attributable Debt then outstanding pursuant to Sale and Leaseback
Transactions entered into by the Borrower after April 1, 1986, or entered into
by a Restricted Subsidiary after April 1, 1986, or, if later, the date on which
it became a Restricted Subsidiary (not including in this computation any
Attributable Debt which is concurrently being retired), would not exceed 10% of
Consolidated Net Tangible Assets of the Borrower.
SECTION 5.07. Limitations on Sale and Leaseback Transactions. The Borrower
will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction unless (a) the sum of (i) the Attributable Debt to be
outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt then outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Borrower after April 1, 1986, or entered into
by a Restricted Subsidiary after April 1, 1986, or, if later, the date on which
it became a Restricted Subsidiary and (iii) the aggregate of all Secured
Indebtedness then outstanding (not including in this computation Secured
Indebtedness if the Loans are secured equally and ratably with (or prior to)
such Secured Indebtedness) would not exceed 10% of Consolidated Net Tangible
Assets or (b) an amount equal to the greater of (i) the net proceeds to the
Borrower or the Restricted Subsidiary of the sale of the Principal Property sold
and leased back pursuant to such Sale and Leaseback Transaction and (ii) the
amount of Attributable Debt to be outstanding pursuant to such Sale and
Leaseback Transaction is applied to the retirement of Funded Debt of the
Borrower or any Restricted Subsidiaries (other than Funded Debt which is
subordinate to the Loans or which is owing to the Borrower or any Restricted
Subsidiaries) within 180 days after the consummation of such Sale and Leaseback
Transaction.
SECTION 5.08. Total Debt to EBITDA Ratio. As of the last day of each fiscal
quarter, the ratio of Consolidated Indebtedness of the Borrower and its
Consolidated Subsidiaries on such day to Consolidated Operational EBITDA of the
Borrower and its Consolidated Subsidiaries for the four consecutive fiscal
quarters ending on such day shall not exceed 3.00:1.00.
ARTICLE VI
Events of Default
In case of the happening of any of the following events (each an "Event of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with the execution and delivery of this Agreement or the Borrowings hereunder,
shall prove to have been false or misleading in any material respect when so
made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or any
Fee or any other amount (other than an amount referred to in paragraph (b)
above) due hereunder, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of ten days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 5.01, 5.04, 5.05 or 5.08;
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a period
of 30 days after notice thereof from the Paying Agent or any Lender to the
Borrower;
(f) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Borrower or for
any substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in effect for
a period of 30 consecutive days; and
(g) the Borrower shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law; or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Borrower or for any substantial part of its property or make any general
assignment for the benefit of creditors; or the Borrower shall admit in writing
its inability to pay its debts generally as they become due, or corporate action
shall be taken by the Borrower in furtherance of any of the aforesaid purposes;
then, and in every such event (other than an event described in paragraph (f) or
(g) above), and at any time thereafter during the continuance of such event, the
Paying Agent, at the request of the Required Lenders, shall, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding; and, in any event with respect to the Borrower
described in paragraph (f) or (g) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding.
ARTICLE VII
The Agents
In order to expedite the transactions contemplated by this Agreement, Chase
is hereby appointed to act as Paying Agent on behalf of the Lenders and Chase,
Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. are hereby
appointed to act as Administrative Agents on behalf of the Lenders. Each of the
Lenders hereby authorizes each Agent to take such actions on behalf of such
Lender and to exercise such powers as are specifically delegated to such Agent
by the terms and provisions hereof, together with such actions and powers as are
reasonably incidental thereto. The Paying Agent is hereby expressly authorized
by the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Borrower of any Event of Default specified
in this Agreement of which the Paying Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower pursuant to this Agreement as received by the Paying Agent. It is
understood that the Agent Parties shall not have any duties or obligations
except those expressly set forth herein.
Neither any Agent Party nor any of its directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of them
except for its or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrower of
any of the terms, conditions, covenants or agreements contained in this
Agreement. No Agent Party shall be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. Each Agent Party may deem and
treat the Lender which makes any Loan as the holder of the indebtedness
resulting therefrom for all purposes hereof until, in the case of the Paying
Agent, the Paying Agent shall have received notice from such Lender or, in the
case of any other Agent Party, such Agent Party shall have received notice from
the Paying Agent that it received such notice from such Lender, in each case,
given as provided herein, of the transfer thereof. Each Agent Party shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each Agent Party shall, in the absence of knowledge
to the contrary, be entitled to rely on any instrument or document believed by
it in good faith to be genuine and correct and to have been signed or sent by
the proper person or persons. Neither any Agent Party nor any of its directors,
officers, employees or agents shall have any responsibility to the Borrower on
account of the failure of or delay in performance or breach by any Lender of any
of its obligations hereunder or to any Lender on account of the failure of or
delay in performance or breach by any other Lender or the Borrower of any of
their respective obligations hereunder or in connection herewith. Each Agent
Party may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that each Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Paying Agent as
provided below, any Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation of the Paying Agent, the Required
Lenders shall have the right to appoint a successor Paying Agent acceptable to
the Borrower. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Paying Agent gives notice of its resignation, then the retiring Paying
Agent may, on behalf of the Lenders, appoint a successor Paying Agent which
shall be a bank with an office in New York, New York, having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as a Paying Agent hereunder by a successor bank,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Paying Agent and the retiring Paying Agent
shall be discharged from its duties and obligations hereunder. After any Agent's
resignation hereunder, the provisions of this Article and Section 8.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as an Agent.
With respect to the Loans made by it hereunder, any Agent in its individual
capacity and not as an Agent shall have the same rights and powers as any other
Lender and may exercise the same as though it were not an Agent, and each Agent
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not an Agent.
Each Lender agrees (i) to reimburse the Paying Agent, on demand, in the
amount of its pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Lenders by such Agent, including reasonable
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrower,
and (ii) to indemnify and hold harmless each Agent Party and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as an Agent Party or any of them in
any way relating to or arising out of this Agreement or any action taken or
omitted by it or any of them under this Agreement to the extent the same shall
not have been reimbursed by the Borrower; provided that no Lender shall be
liable to any Agent Party for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of such
Agent Party or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent Party or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent Party or any other
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any related agreement or any
document furnished hereunder or thereunder.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at AT&T Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Treasury
Manager (Facsimile No. 908-630-1965) with a copy to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
(Facsimile No. 212-450-4800);
(b) if to the Paying Agent, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Facsimile No. 212-270-4584) with a copy
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Facsimile No. 212-552-5700), Loan & Agency Services, The
Chase Manhattan Bank, ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(c) if to an Administrative Agent, to it at its address (or telecopy
number) set forth in Schedule 2.01; and
(d) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 8.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 8.01.
SECTION 8.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitments have not been terminated.
SECTION 8.03. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and each Agent and when the Paying
Agent shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of each Lender, and thereafter shall be
binding upon and inure to the benefit of the Borrower, each Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its respective rights or duties hereunder or
any interest herein without the prior consent of all the Lenders and any
attempted assignment without such consent shall be void.
SECTION 8.04. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Borrower, the Agents or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) the Borrower must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) in the case
of an assignment made by a Lender to a Person other than a Lender or an
Affiliate of a Lender, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Paying Agent)
shall not be less than $25,000,000 (or the remaining balance of its Commitment)
and the amount of the Commitment of such Lender remaining after such assignment
shall not be less than $25,000,000 or shall be zero, (iii) the parties to each
such assignment shall execute and deliver to the Paying Agent an Assignment and
Acceptance, and a processing and recordation fee of $3,000 and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Paying Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 8.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, (B) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.13,
2.15, 2.19 and 8.05, as well as to any Fees accrued for its account hereunder
and not yet paid)) and (C) Schedule 2.01 shall be deemed amended to give effect
to such assignment. Notwithstanding the foregoing, any Lender assigning its
rights and obligations under this Agreement may retain any Competitive Loans
made by it outstanding at such time, and in such case shall retain its rights
hereunder in respect of any Loans so retained until such Loans have been repaid
in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, (ii) except
as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.02 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon any Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to such Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Paying Agent shall maintain at one of its offices in the City of
New York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Borrower, the Agents and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and each Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower to
such assignment, the Paying Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.
(f) Each Lender may, without the consent of the Borrower or any of the
Agents, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); 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) each participating bank or other entity
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.13, 2.15 and 2.19 to the same extent as if it was the selling Lender,
except that all claims and petitions for payment and payments made pursuant to
such Sections shall be made through such selling Lender, and (iv) the Borrower,
the Agents and the other Lenders shall continue to deal solely and directly with
such selling Lender in connection with such Lender's rights and obligations
under this Agreement, and such Lender shall retain the sole right (and
participating banks or other entities shall have no right) to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, or extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall execute
an agreement whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of any such confidential
information relating to the Borrower.
(h) The Borrower shall not assign or delegate any of its respective rights
and duties hereunder without the prior written consent of all Lenders and any
attempted assignment without such consent shall be void.
(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; provided that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes in the form of Exhibit E hereto evidencing the Loans made to the
Borrower by the assigning Lender hereunder.
SECTION 8.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by any Agent in connection with
entering into this Agreement or by the Paying Agent in connection with any
amendments, modifications or waivers of the provisions hereof, or incurred by
any Agent or any Lender in connection with the enforcement or protection of
their rights in connection with this Agreement or in connection with the Loans
made hereunder, including the reasonable fees and disbursements of a single
counsel for the Agents or, in the case of enforcement or protection, counsel for
the Lenders.
(b) The Borrower agrees to indemnify the Agent Parties, the Lenders, their
respective Affiliates, and their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the transactions contemplated thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the negligence or willful
misconduct of such Indemnitee.
(c) The provisions of this Section 8.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any investigation made by or on behalf of any Agent Party or any
Lender. All amounts due under this Section 8.05 shall be payable on written
demand therefor.
(d) All out-of-pocket expenses that any Lender may sustain or incur as a
consequence of (a), (b), (c) or (d) of Section 2.15 but that are not included in
the calculations made pursuant to the second and third sentences of Section
2.15, shall be included in the amount or amounts payable to such Lender and in
the manner provided pursuant to this Section 8.05.
SECTION 8.06. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.07. Waivers; Amendment. (a) No failure or delay of any Agent or
any Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan, without the prior written consent of
each Lender affected thereby, (ii) increase the Commitment or decrease the
Facility Fee of any Lender without the prior written consent of such Lender, or
(iii) amend or modify the provisions of Section 2.16 or Section 8.04(h), the
provisions of this Section or the definition of the "Required Lenders", without
the prior written consent of each Lender; provided further, however, that no
such agreement shall amend, modify or otherwise affect the rights or duties of
any Agent hereunder without the prior written consent of such Agent. Each Lender
shall be bound by any waiver, amendment or modification authorized by this
Section and any consent by any Lender pursuant to this Section shall bind any
assignee of its rights and interests hereunder.
SECTION 8.08. Waiver Under Existing Bank Agreement. By its execution
hereof, each undersigned Lender that also is a party to the Existing Bank
Agreement hereby waives the provisions of such credit agreement that would
require advance notice for the termination of commitments thereunder or the
prepayment of loans thereunder; provided that (a) the foregoing waiver shall
apply only to the termination of all commitments under the Existing Bank
Agreement and repayment of all loans outstanding thereunder in connection with
the effectiveness of this Agreement and (b) the Borrower shall, in lieu of
advance notice of any such termination or prepayment, give notice thereof to the
Paying Agent on the date of such termination or prepayment.
SECTION 8.09. Entire Agreement. This Agreement, any promissory notes issued
hereunder, and the Fee Letter constitute the entire contract among the parties
relative to the subject matter hereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the Fee Letter. Nothing in this Agreement or the Fee Letter expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the Fee Letter.
SECTION 8.10. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 8.03.
SECTION 8.12. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 8.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the fullest extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the Agents and
the Lenders irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating this Agreement or the actions of any Agent or any
Lender in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the Borrower, the Agents and the Lenders have caused
this Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
AT&T CORP.,
by
Name:
Title:
Website:
THE CHASE MANHATTAN BANK, individually
and as an Agent,
by
Name:
Title:
CREDIT SUISSE FIRST BOSTON, individually
and as an Agent,
by
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
individually and as an Agent,
by
Name:
Title:
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
The Chase Manhattan Bank, as Paying Agent
for the Lenders referred to below,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: [Date]
Ladies and Gentlemen:
The undersigned, AT&T Corp. (the "Borrower"), refers to the 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of December
28, 2000 (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among the Borrower, the Lenders named therein,
The Chase Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., as Administrative Agents, and Chase, as Paying Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.03(a) of the Credit Agreement that it
requests a Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive Borrowing is
requested to be made:
(A) Date of Competitive Borrowing (which is a Business Day)
(B) Principal Amount of Competitive Borrowing 1/
(C) Interest rate basis 2/
(D) Interest Period and the last day thereof 3/
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the Credit Agreement have been satisfied.
Very truly yours,
AT&T CORP.,
by
Name:
Title: [Responsible Officer]
--------------------
1/ Not less than $5,000,000 (and in integral multiples of $1,000,000) or greater
than the Total Commitment then available.
2/ Eurodollar Loan or Fixed Rate Loan.
3/ Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention: [Date]
Ladies and Gentlemen:
Reference is made to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement dated as of December 28, 2000 (as it may be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
AT&T Corp., the Lenders named therein, The Chase Manhattan Bank ("Chase"),
Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as
Administrative Agents, and Chase, as Paying Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. AT&T Corp. (the "Borrower") made a Competitive Bid
Request on [ ], [2000][2001], pursuant to Section 2.03(a) of the Credit
Agreement, and in that connection you are invited to submit a Competitive Bid by
[Date]/[Time]. 4/ Your Competitive Bid must comply with Section 2.03(b) of the
Credit Agreement and the terms set forth below on which the Competitive Bid
Request was made:
(A) Date of Competitive Borrowing ____________________
(B) Principal amount of Competitive Borrowing ____________________
(C) Interest rate basis ____________________
(D) Interest Period and the last day thereof ____________________
Very truly yours,
THE CHASE MANHATTAN BANK, as Paying Agent,
by
Name:
Title: [Responsible Officer]
---------------
4/ The Competitive Bid must be received by the Paying Agent (i) in the case of
Eurodollar Loans, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (ii) in the case
of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Business Day of a proposed Competitive Borrowing.
EXHIBIT A-3
FORM OF COMPETITIVE BID
The Chase Manhattan Bank, as Paying Agent
for the Lenders referred to below,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the 364-Day Competitive
Advance and Revolving Credit Facility Agreement dated as of December 28, 2000
(as it may be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among AT&T Corp., the Lenders named therein, The Chase
Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Administrative Agents, and Chase, as Paying Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The undersigned hereby makes a
Competitive Bid pursuant to Section 2.03(b) of the Credit Agreement, in response
to the Competitive Bid Request made by AT&T Corp. (the "Borrower") on [ ],
[2000][2001], and in that connection sets forth below the terms on which such
Competitive Bid is made:
(A) Principal Amount 5/ ____________________
(B) Competitive Bid Rate 6/ ____________________
(C) Interest Period and last day thereof ____________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.03(d)
of the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
by
Name:
Title:
---------------
5/ Not less than $5,000,000 or greater than the requested Competitive Borrowing
and in integral multiples of $1,000,000. Multiple bids will be accepted by
the Paying Agent.
6/ i.e., LIBO Rate + or = %, in the case of Eurodollar Loans or %, in the
case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
The Chase Manhattan Bank, as Paying Agent
for the Lenders referred to below,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
The undersigned, AT&T Corp. (the "Borrower"), refers to the 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of December
28, 2000 (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among the Borrower, the Lenders named therein,
The Chase Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., as Administrative Agents, and Chase, as Paying Agent for
the Lenders.
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
___________ and in accordance with Section 2.03(d) of the Credit Agreement, we
hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- --------------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- --------------
$ [%]/[+/-. %]
$
The $ should be deposited in The Chase Manhattan Bank account number
[ ] on [date].
Very truly yours,
AT&T CORP.,
by
Name:
Title:
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
The Chase Manhattan Bank, as Paying Agent
for the Lenders referred to below,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention:[Date]
Ladies and Gentlemen:
The undersigned, AT&T Corp. (the "Borrower"), refers to the 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of December
28, 2000 (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among the Borrower, the Lenders named therein,
The Chase Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., as Administrative Agents, and Chase, as Paying Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.04 of the Credit Agreement that it
requests a Standby Borrowing under the Credit Agreement, and in that connection
sets forth below the terms on which such Standby Borrowing is requested to be
made:
(A) Date of Standby Borrowing (which is a Business Day)
(B) Principal Amount of Standby Borrowing 7/
(C) Interest rate basis 8/
(D) Interest Period and the last day thereof 9/
Upon acceptance of any or all of the Loans made by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted
that the conditions to lending specified in Section 4.01(b) and (c) of the
Credit Agreement have been satisfied.
Very truly yours,
AT&T CORP.,
by
Name:
Title: [Responsible Officer]
---------------
7/ Not less than $50,000,000 (and in integral multiples of $10,000,000) or
greater than the Total Commitment then available.
8/ Eurodollar Loan or ABR Loan.
9/ Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
EXHIBIT B
AT&T CORP.
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via FAX to the
attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇ at The Chase Manhattan Bank as soon as possible.
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
LEGAL NAME TO APPEAR IN DOCUMENTATION:
______________________________________________________________________________
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name: ____________________________________________________________
Street Address: ______________________________________________________________
City, State, Zip Code: _______________________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name: ____________________________________________________________
Street Address: ______________________________________________________________
City, State, Zip Code: _______________________________________________________
CONTRACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact: _____________________________________________________________
Street Address: ______________________________________________________________
City, State, Zip Code: _______________________________________________________
Phone Number: ________________________________________________________________
FAX Number: __________________________________________________________________
E-mail address: ______________________________________________________________
Backup Contact: ______________________________________________________________
Street Address: ______________________________________________________________
City, State, Zip Code: _______________________________________________________
Phone Number: ________________________________________________________________
FAX Number: __________________________________________________________________
E-mail address: ______________________________________________________________
TAX WITHHOLDING:
__________Non Resident Alien __________ Y* __________ N
* Form W-8BEN or W-8ECI Enclosed
Tax ID Number _____________________________________
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS--BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC. Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
E-mail Address:
BID LOAN NOTIFICATION:
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
E-mail Address:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call me at ▇▇▇-▇▇▇-▇▇▇▇.
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement dated as of December 28, 2000 (as the same may be modified,
amended, extended or restated from time to time, the "Credit Agreement"), among
AT&T Corp., (the "Borrower"), the lenders party thereto (the "Lenders"), The
Chase Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., as Administrative Agents, and Chase, as Paying Agent for
the Lenders (in such capacity, the "Paying Agent"). Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below, the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth herein in the Commitment of the Assignor on the Effective
Date and the Competitive Loans (if noted on the attached Schedule) and Standby
Loans owing to the Assignor which are outstanding on the Effective Date,
together with unpaid interest accrued on the assigned Loans to the Effective
Date. Each of the Assignor and the Assignee hereby makes and agrees to be bound
by all the representations, warranties and agreements set forth in Section
8.04(c) of the Credit Agreement, a copy of which has been received by each such
party. From and after the Effective Date (i) the Assignee shall be a party to
and be bound by the provisions of the Credit Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Paying Agent
together with (i) if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 2.19(f) of the Credit
Agreement, duly completed and executed by such Assignee, (ii) if the Assignee is
not already a Lender under the Credit Agreement, an Administrative Questionnaire
in the form of Exhibit B to the Credit Agreement and (iii) a processing and
recordation fee of $3,000.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of Facility
and Commitment thereunder
Principal Amount Assigned (set forth, to at least 8 decimals,
(and identifying information as a percentage of the Facility
as to individual Competitive and the aggregate Commitments
Loans) of all Lenders thereunder)
------ --------------------------
Commitment
Assigned: $ %
Standby
Loans:
Competitive
Loans, if any:
The terms set forth above and
on the reverse side hereof are hereby
agreed to: Accepted: as of ____________________,
______________________, as Assignor AT&T CORP.
By: ___________________________ By: _______________________________
Name: _________________________ Name: _____________________________
Title: ________________________ Title: ____________________________
_____________________, as Assignee
By: _________________________
Name: _______________________
Title: ______________________
EXHIBIT D
FORM OF
OPINION OF COUNSEL FOR AT&T CORP. 10/
1. AT&T Corp. (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, (ii) has all requisite
power and authority to own its property and assets and to carry on its business
as now conducted, (iii) is qualified to do business in every jurisdiction within
the United States where such qualification is required, except where the failure
so to qualify would not result in a Material Adverse Effect on AT&T Corp., and
(iv) has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Credit Agreement and to borrow funds
thereunder.
2. The execution, delivery and performance by AT&T Corp. of the Credit
Agreement and the Borrowings of AT&T Corp. thereunder (collectively, the
"Transactions") (i) have been duly authorized by all requisite corporate action
and (ii) will not (a) violate (1) any provision of law, statute, rule or
regulation (including without limitation, the Margin Regulations), or of the
certificate of incorporation or other constitutive documents or by-laws of AT&T
Corp., (2) any order of any governmental authority or (3) any provision of any
indenture, agreement or other instrument to which AT&T Corp. is a party or by
which it or its property is or may be bound, (b) be in conflict with, result in
a breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (c) result in
the creation or imposition of any lien upon any property or assets of AT&T Corp.
3. The Credit Agreement has been duly executed and delivered by AT&T Corp.
and constitutes a legal, valid and binding obligation of AT&T Corp. enforceable
against AT&T Corp. in accordance with its terms, subject as to the
enforceability of rights and remedies to any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditors' rights from
time to time in effect.
4. No action, consent or approval of, registration or filing with, or any
other action by, any government authority or any other third party is or will be
required in connection with the Transactions, except such as have been made or
obtained and are in full force and effect.
5. Neither AT&T Corp. nor any of its subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
---------------
10/ Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of December 28, 2000, among
AT&T Corp., the lenders listed in Schedule 2.01 thereto, The Chase
Manhattan Bank ("Chase"), Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., as Administrative Agents, and Chase, as Paying Agent
(the "Credit Agreement").
EXHIBIT E
[FORM OF]
NOTE
$ [Amount of Commitment] New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned, AT&T Corp., a New York corporation
(the "Borrower"), hereby promises to pay to the order of [Name of Lender] (the
"Lender"), at the office of The Chase Manhattan Bank (the "Paying Agent") at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Maturity Date (as defined in the
Credit Agreement dated as of December 28, 2000 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Lenders named therein, The Chase Manhattan Bank, Credit Suisse First Boston and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as Administrative Agents, and the Paying
Agent) the lesser of the principal sum of [amount of Commitment in words] ($[ ])
and the aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made to the Borrower by the Lender pursuant to the Credit Agreement,
in lawful money of the United States of America, in immediately available funds,
and to pay interest on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum, from
the dates and payable on the dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates and maturity
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holder in
its internal records; provided, however, that the failure of the holder to make
such a notation or any error in such a notation shall not affect the obligations
of the Borrower under this Note.
The Loans evidenced hereby are Loans referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity thereof upon the happening of certain events, for optional and
mandatory prepayment of the principal thereof prior to the maturity thereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
AT&T CORP.
By: _________________________
Name: _______________________
Title: _____________________
Loans and Payments
================================================================================
Date Amount Maturity Principal Payments Interest Unpaid Name of
and Type Date Principal Person
of Loan Balance Making
of Note Notation
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
EXHIBIT F
FORM OF AT&T BUSINESS GUARANTEE
GUARANTEE AGREEMENT dated as of ___________, 200_, by AT&T Business, a
___________ corporation (with its successors, the "Guarantor") in favor of The
Chase Manhattan Bank, as Paying Agent (with its successors, the "Paying Agent"),
for the benefit of the Lenders and the Agents (as defined in the Credit
Agreement referred to below).
W I T N E S S E T H :
WHEREAS, AT&T Corp. (with its successors, the "Borrower"), a New York
corporation, the Lenders party thereto (the "Lenders"), the Paying Agent, and
The Chase Manhattan Bank, Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Administrative Agents (the "Administrative Agents" and,
together with the Paying Agent, the "Agents"), are parties to a 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of December
28, 2000 (as amended from time to time, the "Credit Agreement"); and
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower may
in the future provide, to the Guarantor, the Guarantor is willing to enter into
this Guarantee Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. The Guarantee. The Guarantor hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal and interest (including, without limitation,
interest accruing during the pendency of any bankruptcy or insolvency
proceedings whether or not allowable or allowed thereunder) on any Loan under
the Credit Agreement, and the full and punctual payment when due of all other
amounts payable by the Borrower under the Credit Agreement (all such obligations
being the "Guaranteed Obligations"). Upon failure by the Borrower to pay
punctually any such amount, the Guarantor agrees that it shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
the Credit Agreement.
SECTION 3. Guarantee Unconditional. The obligations of the Guarantor under
or in respect of this Guarantee are independent of any other obligations of the
Borrower under or in respect of the Credit Agreement, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guarantee, irrespective of whether any action is brought against the Borrower or
whether the Borrower is joined in any such action or actions. The liability of
the Guarantor under this Guarantee shall be irrevocable, absolute and
unconditional irrespective of, and the Guarantor hereby irrevocably waives, to
the extent such waiver is legally permitted, any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(i) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of the Borrower under the Credit Agreement, by
operation of law or otherwise;
(ii) any modification or amendment of or supplement to the Credit
Agreement;
(iii) any release, impairment, non-perfection or invalidity of any direct
or indirect security for any obligation of the Borrower under the Credit
Agreement;
(iv) any change in the corporate existence, structure or ownership of the
Borrower, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or any of its assets or any resulting release
or discharge of any obligation of the Borrower contained in the Credit
Agreement;
(v) the existence of any claim, set-off or other rights which the Guarantor
may have at any time against the Borrower, any Agent, any Lender or any other
Person, whether in connection with the Credit Agreement or with any unrelated
transactions; provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the Borrower
for any reason of the Credit Agreement, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower of the principal
of or interest on the Loans or any other amount payable by the Borrower under
the Credit Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, any Agent, any Lender or any other party to the Credit Agreement, or
any other circumstance whatsoever which might, but for the provisions of this
Section, constitute a legal or equitable discharge of or defense to obligations
of the Guarantor hereunder.
SECTION 4. Representations and Warranties. The Guarantor represents and
warrants that:
(a) Corporate Organization. The Guarantor (i) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, (ii) has all requisite power and authority to own its property and
assets and carry on its business as now conducted, (iii) is duly qualified in
every jurisdiction where such qualification is required, except where the
failure to so qualify would not result in a Material Adverse Effect and (iv) has
the corporate power and authority to execute, deliver and perform its
obligations under this Guarantee Agreement.
(b) Authorization; No Conflict. The execution, delivery and performance by
the Guarantor of this Guarantee Agreement (i) have been duly authorized by all
requisite corporate actions and (ii) will not (A) violate (1) any provision of
any law, statute, rule or regulation or of the certificate of incorporation or
other constitutive documents or by-laws of the Guarantor, (2) any order of any
Governmental Authority or (3) any provision of any indenture, agreement or other
instrument to which the Guarantor is a party or by which the Guarantor or any of
its property is or may be bound, (B) be in conflict with, result in a breach of
or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or (C) result in the creation
or imposition of any Lien upon any property or assets of the Guarantor.
(c) Binding Effect. This Guarantee Agreement is a legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
at law or in equity.
(d) Independent Decision. The Guarantor has, independently and without
reliance upon any Lender or any Agent and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guarantee, and the Guarantor has established
adequate means of obtaining from the Borrower on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise), operations, performance,
properties and prospects of the Borrower.
SECTION 5. Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. (a) The Guarantor's obligations hereunder shall remain in full
force and effect until the Commitments under the Credit Agreement shall have
terminated and the principal of and interest on the Loans and all other amounts
payable by the Borrower under the Credit Agreement shall have been paid in full.
If at any time any payment of the principal of or interest on any Loan or any
other amount payable by the Borrower under the Credit Agreement is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
SECTION 6. Waivers by the Guarantor. (a) The Guarantor irrevocably waives
notice of acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Borrower or any other Person.
(b) The Guarantor hereby unconditionally and irrevocably waives any defense
arising by reason of any claim or defense based upon an election of remedies by
any Lender or any Agent that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of the Guarantor or other rights of the
Guarantor to proceed against the Borrower, any other guarantor or any other
Person.
(c) The Guarantor hereby unconditionally and irrevocably waives any duty on
the part of any Lender or any Agent to disclose to the Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower or any of its
Subsidiaries now or hereafter known by such Lender or Agent.
(d) The Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Credit
Agreement and that the waivers set forth in Section 3 and this Section 6 are
knowingly made in contemplation of such benefits.
SECTION 7. Subrogation. Upon making any payment hereunder with respect to
the obligations of the Borrower, the Guarantor shall be subrogated to the rights
of the payee against the Borrower with respect to such obligation; provided that
the Guarantor shall not enforce any payment by way of subrogation (including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of any Lender or the Paying Agent against the Borrower, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or
right), until the repayment in full of all amounts payable by the Borrower under
the Credit Agreement and the termination of the Commitments under the Credit
Agreement.
SECTION 8. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under the Credit Agreement is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement shall
nonetheless be payable by the Guarantor hereunder forthwith on demand by the
Paying Agent made at the request of the Required Lenders.
SECTION 9. Amendments; Supplements. Any provision of this Guarantee
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Guarantor, the Paying Agent and the Required
Lenders; provided, however, that no amendment, waiver or consent shall, unless
in writing and signed by all of the Lenders, (a) reduce or limit the obligations
of the Guarantor hereunder, release the Guarantor hereunder if immediately
before and after giving effect to such release the Borrower's Public Debt Rating
is less than BBB+ by S&P or Baa1 by ▇▇▇▇▇'▇, or otherwise limit the Guarantor's
liability with respect to the obligations owing to the Lenders under or in
respect of the Credit Agreement, (b) postpone any date fixed for payment
hereunder or (c) change the number of Lenders or the percentage of (x) the Total
Commitments, or (y) the aggregate unpaid principal amount of the Loans that, in
each case, shall be required for the Lenders or any of them to take any action
hereunder.
SECTION 10. Continuing Guarantee. This Guarantee is a continuing Guarantee
and shall be binding upon the Guarantor and its successors and assigns, and
inure to the benefit of and be enforceable by the Paying Agent, the Agents or
the Lenders and their respective successors and assigns. This Guarantee is for
the benefit of the Agents and the Lenders and its successors and permitted
assigns pursuant to Sections 8.04 of the Credit Agreement, and in the event of
an assignment of all or any of any Lender's interest in and to its rights and
obligations under the Credit Agreement in accordance with the Credit Agreement,
the assignor's rights hereunder, to the extent applicable to the indebtedness or
obligation so assigned, shall automatically be transferred with such
indebtedness or obligation.
SECTION 11. Limitation on the Obligations. The obligations of the Guarantor
hereunder shall be limited to an aggregate amount that is equal to the largest
amount that would not render the obligations of the Guarantor hereunder subject
to avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of applicable law.
SECTION 12. Right of Set-Off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request specified
by Article VI of the Credit Agreement to authorize the Paying Agent to declare
the Loans due and payable pursuant to the provisions of said Article VI, each
Agent and each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Agent, such Lender or such Affiliate to or for the credit or
the account of the Guarantor against any and all of the Guaranteed Obligations
of the Guarantor now or hereafter existing hereunder, irrespective of whether
such Agent or such Lender shall have made any demand under this Guarantee and
although such Guaranteed Obligations may be unmatured. Each Agent and each
Lender agrees promptly to notify the Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Agent
and each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, such Lender and their respective Affiliates
may have.
SECTION 13. Taxes; Expenses; Indemnity; Miscellaneous. The provisions of
Sections 2.19, 8.01, 8.05, 8.06 and 8.10 through 8.14, inclusive, of the Credit
Agreement apply to the Guarantor and this Guarantee Agreement mutatis mutandis,
with notice to the Guarantor to be at:
AT&T Business
[Address]
Attention:
Fax:
IN WITNESS WHEREOF, the undersigned has caused this Guarantee Agreement to
be duly executed by its authorized officer as of the day and year first above
written.
AT&T BUSINESS
By:
Name:
Title:
