CREDIT AGREEMENT Dated as of April 11, 2008
Dated as
of April 11, 2008
AT&T
INC., a Delaware corporation (the “Borrower”), the
banks, financial institutions and other institutional lenders (the “Initial Lenders”)
listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and X.X.
XXXXXX SECURITIES INC., as joint lead arrangers and joint bookrunners, JPMORGAN
CHASE BANK, N.A., as syndication agent, BANK OF AMERICA N.A., BARCLAYS BANK PLC,
DEUTSCHE BANK AG NEW YORK BRANCH, THE ROYAL BANK OF SCOTLAND PLC and UBS LOAN
FINANCE LLC, as co-documentation agents, and CITIBANK, N.A. (“Citibank”), as agent
(the “Agent”)
for the Lenders (as hereinafter defined), agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
“Advance” means an
advance by a Lender to the Borrower as part of a Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a “Type” of
Advance).
“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term
“control” (including the terms “controlling”, “controlled by” and “under common
control with”) of a Person means the possession, direct or indirect, of the
power to vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
“Agent’s Account”
means the account of the Agent maintained by the Agent at Citibank at its office
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 00000000,
Attention: Bank Loan Syndications.
“Applicable Lending
Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
“Applicable Margin”
means (a) for Base Rate Advances, 0% per annum and (b) for Eurodollar Rate
Advances, as of any date, an amount per annum expressed as a percentage of the
Index and determined by reference to the Public Debt Rating in effect on such
date as set forth below:
Public
Debt Rating
S&P/Xxxxx’x
|
Applicable
Margin for
Eurodollar
Rate Advances
|
Xxxxx 0
A+/
A1
|
50%
of Index
|
Xxxxx 0
Xx
xxxxx X/X0
|
55%
of Index
|
Xxxxx 0
Xxxxx
xxxx Xxxxx 0
|
75%
of Index
|
“Applicable
Percentage” means, as of any date a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
Public
Debt Rating
S&P/Xxxxx’x
|
Applicable
Percentage
|
Xxxxx 0
Xx/
X0
|
0.000%
|
Xxxxx 0
Xx
least A/A2
|
0.050%
|
Xxxxx 0
Xxxxx
xxxx Xxxxx 0
|
0.060%
|
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee, and accepted by the Agent, in substantially the form
of Exhibit C hereto.
“Base Rate” means a
fluctuating interest rate per annum in effect from time to time, which rate per
annum shall at all times be equal to the highest of:
(a) the
rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;
(b) the
sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to
the next higher 1/4 of 1%) of (i) ½ of 1% per annum, plus (ii) the
rate obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages specified
during such three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) ½
of one percent per annum above the Federal Funds Rate.
“Base Rate Advance”
means an Advance that bears interest as provided in
Section 2.06(a)(i).
“Borrowing” means a
borrowing consisting of simultaneous Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
“Business Day” means a
day of the year on which banks are not required or authorized by law to close in
New York City and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
“Commitment” means as
to any Lender (a) the amount set forth opposite such Lender’s name on
Schedule I hereto or (b) if such Lender has entered into any Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained by
the Agent pursuant to Section 8.06(d), as such amount may be reduced
pursuant to Section 2.04.
“Consolidated” refers
to the consolidation of accounts in accordance with GAAP.
“Consolidated EBITDA”
means, for any period, Consolidated Net Income for such period plus, to the extent
deducted in determining Consolidated Net Income for such period, the aggregate
amount of (a) interest expense, (b) income tax expense, (c) depreciation,
amortization and other similar non-cash charges and (d) extraordinary non-cash
losses and minus, to the extent
included in determining such Consolidated Net Income, the aggregate amount of
(i) interest income, (ii) income tax benefit and (iii) extraordinary non-cash
gains. For the purpose of calculating Consolidated EBITDA for any
period, if during such period the Company or any Subsidiary shall have made a
Material Acquisition or Material Disposition, Consolidated EBITDA for such
period shall be calculated after giving pro forma effect to such Material
Acquisition or Material Disposition as if such Material Acquisition or Material
Disposition occurred on the first day of such period. “Material Acquisition”
means any acquisition or series of related acquisitions that involves a
consideration (including non-cash consideration) with a fair market value in
excess of $1,000,000,000. “Material Disposition”
means any disposition of property or series of related dispositions of property
that involves consideration (including non-cash consideration) with a fair
market value in excess of $1,000,000,000.
“Consolidated Net
Income” means, for any period, the net income of the Borrower and its
Consolidated Subsidiaries, determined on a Consolidated basis for such period in
accordance with GAAP, adjusted to (a) exclude the effect of (i) equity gains or
losses in unconsolidated Persons, (ii) any extraordinary or other non-recurring
non-cash gain or loss (including non-cash restructuring charges and non-cash
charges for discontinued operations), (iii) any gain or loss on the disposition
of investments or (iv) any changes to Financial Accounting Standards Nos. 87 and
106 (or any subsequently adopted standards relating to pension and
postretirement benefits) adopted by the Financial Accounting Standards Board
after the Effective Date and (b) include the effects of any business or
businesses acquired as indicated on the pro forma financial statements prepared
in accordance with Regulation S-X of the Securities and Exchange
Commission.
“Convert”, “Conversion” and
“Converted”
each refers to a conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.07 or 2.08.
“Debt” of any Person
means, without duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments and (c) all guarantees by such Person of Debt of
others.
“Debt for Borrowed
Money” of any Person means all items that, in accordance with GAAP, would
be classified as indebtedness on a Consolidated balance sheet of such
Person.
“Default” means any
Event of Default or any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
“Domestic Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to time specify
to the Borrower and the Agent.
“Effective Date” has
the meaning specified in Section 3.01.
“Eligible Assignee”
means (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with
Section 8.06, the Borrower, such approvals not to be unreasonably withheld or
delayed; provided, however, that neither
the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
“Eurodollar Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Eurodollar Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
“Eurodollar Rate”
means, for any Interest Period for each Eurodollar Rate Advance comprising part
of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 Page (or
any successor page) as the London interbank offered rate for deposits in U.S.
dollars at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank’s Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period. If the Reuters Screen LIBOR01 Page (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the
provisions of Section 2.07.
“Eurodollar Rate
Advance” means an Advance that bears interest as provided in
Section 2.06(a)(ii).
“Eurodollar Rate Reserve
Percentage” for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
“Events of Default”
has the meaning specified in Section 6.01.
“Existing Credit
Agreement” means the Five Year Credit Agreement dated as of July 12, 2006
among the Borrower, the lenders parties thereto and Citibank, N.A., as
administrative agent.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it.
“GAAP” has the meaning
specified in Section 1.03.
“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other similar agreements.
“Index” means an
amount determined on the date of the initial Borrowing and thereafter on the
first day of July 2008 and October 2008 as the average of the Markit CDX.NA.IG
Series 10 or any successor series (5 Year Period) for the preceding 30 days or,
if fewer, the number of days for which the then current series is in
effect.
“Information” has the
meaning specified in Section 8.07.
“Interest Period”
means, for each Eurodollar Rate Advance comprising part of the same Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two,
three or six months as the Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however,
that:
(a) the
Borrower may not select any Interest Period that ends after the Termination
Date;
(b) Interest
Periods commencing on the same date for Eurodollar Rate Advances comprising part
of the same Borrowing shall be of the same duration;
(c) whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(d) whenever
the first day of any Interest Period occurs on a day of an initial calendar
month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued
thereunder.
“Lenders” means the
Initial Lenders and each Person that shall become a party hereto pursuant to
Section 8.06.
“Lien” means any lien,
security interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor.
“Material Adverse
Change” means any material adverse change in the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the Borrower or the Borrower and its Subsidiaries taken as a whole.
“Material Adverse
Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Agent or any Lender under this Agreement or any Note
or (c) the ability of the Borrower to perform its obligations under this
Agreement or any Note.
“Xxxxx’x” means
Xxxxx’x Investors Service, Inc.
“Multiple Employer
Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
“Net Tangible Assets”
means, at any date, with respect to the Borrower, the total assets appearing on
the most recently prepared Consolidated balance sheet of the Borrower and its
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) the value
(net of any applicable reserves), as shown on such balance sheet 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).
“Note” means a
promissory note of the Borrower payable to the order of any Lender, delivered
pursuant to a request made under Section 2.15 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Advances made by such Lender.
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“Patriot Act” means
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as it may be
amended or otherwise modified from time to time.
“PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).
“Permitted Liens”
means such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days; (c) pledges or
deposits to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for its
present purposes.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single
Employer Plan or a Multiple Employer Plan.
“Public Debt Rating”
means, as of any date, the rating that has been most recently announced by
either S&P or Xxxxx’x, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower or, if any such
rating agency shall have issued more than one such rating, the lowest such
rating issued by such rating agency. For purposes of the foregoing,
(a) if only one of S&P and Xxxxx’x shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage shall be determined
by reference to the available rating; (b) if neither S&P nor Xxxxx’x
shall have in effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage will be set in accordance with Level 3 under the
definition of “Applicable Margin” or
“Applicable
Percentage”, as the case may be; (c) if the ratings established by
S&P and Xxxxx’x fall within different levels, the Applicable Margin and the
Applicable Percentage shall be based upon the higher rating, unless the
difference between such ratings is two or more levels, in which case the
Applicable Margin and the Applicable Percentage shall be based upon the rating
that is one level above the lower of such ratings; (d) if any rating
established by S&P or Xxxxx’x 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 Xxxxx’x shall
change the basis on which ratings are established, each reference to the Public
Debt Rating announced by S&P or Xxxxx’x, as the case may be, shall refer to
the then equivalent rating by S&P or Xxxxx’x, as the case may
be.
“Receivables
Securitization” means sales of accounts receivable of the Borrower or any
of its Subsidiaries in connection with agreements for limited recourse or
non-recourse sales by the Borrower or Subsidiary for cash, provided that (a) any
such agreement is of a type and on terms customary for comparable transactions
in the good faith judgment of the Board of Directors of the Borrower or
Subsidiary and (b) such agreement does not create any interest in any asset
other than accounts receivable (and property securing or otherwise supporting
accounts receivable) and proceeds of the foregoing.
“Reference Banks”
means Citibank, JPMorgan Chase Bank, N.A., Bank of America, N.A., Deutsche Bank
AG New York Branch and Barclays Bank PLC.
“Register” has the
meaning specified in Section 8.06(d).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
“Required Lenders”
means at any time Lenders owed at least a majority in interest of the then
aggregate unpaid principal amount of the Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least a majority in
interest of the Commitments.
“S&P” means
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies,
Inc.
“Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of the Borrower or
any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person’s other Subsidiaries, provided, for
purposes of this Agreement, Cingular Wireless shall be deemed not to be a
Subsidiary of the Borrower until the closing of the acquisition of 100 percent
of the common stock of BellSouth Corporation by the Borrower.
“Termination Date”
means the earlier of (a) December 15, 2008 and (b) the date of termination in
whole of the Commitments pursuant to Section 2.04 or 6.01.
“Voting Stock” means
capital stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.
SECTION
1.02. Computation of Time
Periods. In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word
“from” means “from and including” and the words “to” and “until” each
mean “to but excluding”.
SECTION
1.03. Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e) (“GAAP”).
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES
SECTION
2.01. The
Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender’s Commitment. Each Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments. Within the
limits of each Lender’s Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01.
SECTION
2.02. Making the
Advances. (a) Each Borrowing shall be made on
notice, given not later than (x) 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M.
(New York City time) on the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier. Each
such notice of a Borrowing (a “Notice of Borrowing”)
shall be by telephone, confirmed immediately in writing, or telecopier in
substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising
such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Lender shall, before
1:00 P.M. (New York City time) on the date of such Borrowing make
available for the account of its Applicable Lending Office to the Agent at the
Agent’s Account, in same day funds, such Lender’s ratable portion of such
Borrowing. After the Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower at the Agent’s address
referred to in Section 8.02.
(b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the
Borrower may not select Eurodollar Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $10,000,000 or if the obligation
of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant
to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not
be outstanding as part of more than 12 separate Borrowings.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless
the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s
ratable portion of such Borrowing, the Agent may assume that such Lender has
made such portion available to the Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the 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 so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the 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 Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender’s Advance as part of such Borrowing for purposes of this
Agreement.
(e) The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION
2.03. Fees. (a) Commitment
Fee. The Borrower agrees to pay to the Agent for the account
of each Lender a commitment fee on the amount of such Lender’s unused Commitment
then in effect from the Effective Date in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date at a rate per annum equal to the Applicable Percentage in effect from time
to time, payable in arrears quarterly on the last day of June 2008 and September
2008, commencing June 30, 2008, and on the Termination Date.
(b) Agent’s
Fees. The Borrower shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Borrower and the
Agent.
SECTION
2.04. Optional Termination or
Reduction of the Commitments. The Borrower shall have the
right, upon at least three Business Days’ notice to the Agent, to terminate in
whole or permanently reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION
2.05. Repayment of
Advances. The Borrower shall repay to the Agent for the
ratable account of each Lender on the Termination Date the aggregate principal
amount of the Advances made by such Lender then outstanding.
SECTION
2.06. Interest on
Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate
Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect from
time to time, payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate
Advances. During such periods as such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default
Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a) the Agent shall, and upon the occurrence
and during the continuance of any other Event of Default, the Agent may, and
upon the request of the Required Lenders shall, require the Borrower to pay
interest (“Default
Interest”) on (i) the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above, provided, however, that
following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION
2.07. Interest Rate
Determination. (a) Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The
Agent shall give prompt notice to the Borrower and the Lenders of each
determination of the Index, the applicable interest rate determined by the Agent
for purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished
by each Reference Bank for the purpose of determining the interest rate under
Section 2.06(a)(ii).
(b) If,
with respect to any Eurodollar Rate Advances, the Required Lenders notify the
Agent that the Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer
exist.
(c) If
the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01, the Agent will forthwith
so notify the Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(d) On
the date on which the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall automatically Convert
into Base Rate Advances.
(e) Upon
the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
(f) If
Reuters Screen LIBOR01 Pare is unavailable and fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the
Agent shall forthwith notify the Borrower and the Lenders that the interest rate
cannot be determined for such Eurodollar Rate Advances,
(ii) with
respect to Eurodollar Rate Advances, each such Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and
(iii) the
obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(g) If
the Index is unavailable, (i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the earlier of
(x) the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist or (y) the Borrower and the Lenders
agree on an alternative method for establishing the Applicable Margin for
Eurodollar Rate Advances.
SECTION
2.08. Optional Conversion of
Advances. The Borrower may on any Business Day, upon notice
given to the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Conversion and subject
to the provisions of Sections 2.07 and 2.11, Convert all Advances of one
Type comprising the same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and
no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b). Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION
2.09. Optional Prepayments of
Advances. The Borrower may, upon notice at least two Business
Days’ prior to the date of such prepayment, in the case of Eurodollar Rate
Advances, and not later than 11:00 A.M. (New York City time) on the date of such
prepayment, in the case of Base Rate Advances, to the Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay the outstanding principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x)
each partial prepayment shall be in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and
(y) in the event of any such prepayment of a Eurodollar Rate Advance, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
SECTION
2.10. Increased
Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from
(i) Taxes or Other Taxes (as to which Section 2.13 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would not,
in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If
any Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
or other entity controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender’s commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender’s commitment to lend hereunder. A certificate as to such
amounts submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
SECTION
2.11. Illegality. Notwithstanding
any other provision of this Agreement, if any Lender shall notify the Agent that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance,
and (b) the obligation of the Lenders to make Eurodollar Rate Advances or
to Convert Advances into Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist; provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION
2.12. Payments and
Computations. (a) The Borrower shall make each
payment hereunder, without counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at the
Agent’s Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or commitment fees ratably (other than amounts payable pursuant to
Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.06(c), from and after the effective date specified in
such Assignment and Acceptance, the Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All
computations of interest based on the Base Rate shall be made by the Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate or the Federal Funds Rate and of
commitment fees shall be made by the Agent on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
commitment fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(d) Unless
the Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Lenders hereunder that the Borrower will not
make such payment in full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date and the Agent may, in reliance upon
such assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent
the Borrower shall not have so made such payment in full to the Agent, each
Lender shall repay to the Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION
2.13. Taxes. (a) Any
and all payments by the Borrower to or for the account of any Lender or the
Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.12 or the applicable
provisions of such other documents, 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, excluding, in the
case of each Lender and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender’s Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as “Taxes”). If
the Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note or any other documents to be
delivered hereunder to any Lender or the Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.13) such Lender or the Agent (as the case may be) receives 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 taxation authority or other
authority in accordance with applicable law.
(b) In
addition, the Borrower shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or under the Notes or any other documents
to be delivered hereunder or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the Notes or
any other documents to be delivered hereunder (hereinafter referred to as “Other
Taxes”).
(c) The
Borrower shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes (including, without limitation,
taxes of any kind imposed or asserted by any jurisdiction on amounts payable
under this Section 2.13) imposed on or paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within
30 days after the date of any payment of Taxes, the Borrower shall furnish to
the Agent, at its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing such payment to the extent such a receipt
is issued therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Agent.
(e) Each
Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the case
of each Initial Lender and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender in the case of each other Lender, and from time to
time thereafter as reasonably requested in writing by the Borrower (but only so
long as such Lender remains lawfully able to do so), shall provide each of the
Agent and the Borrower with two original Internal Revenue Service
forms W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided, however, that, if at
the date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such
date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers
to be confidential, the Lender shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information. For purposes of this subsection (e), the terms “United States” and
“United States
person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(f) For
any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form, certificate or other document described in
Section 2.13(e) (other than if such failure
is due to a change in law, or in the interpretation or application thereof,
occurring subsequent to the date on which a form, certificate or other document
originally was required to be provided, or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.13(a) or (c) with
respect to Taxes imposed by the United States by reason of such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request, and at such Lender’s expense, to
assist the Lender to recover such Taxes.
(g) Any
Lender claiming any additional amounts payable pursuant to this
Section 2.13 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION
2.14. Sharing of Payments,
Etc. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Advances owing to it (other than pursuant to
Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share of payments
on account of the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such
participation.
SECTION
2.15. Evidence of
Debt. (a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Advance owing to such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, the Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender. Each Lender that receives a Note
pursuant to this Section 2.15 agrees that, upon the earlier of the termination
or expiration of this Agreement, such Lender will return such Note to the
Borrower.
(b) The
Register maintained by the Agent pursuant to Section 8.06(d) shall include a
control account, and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of each Borrowing
made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the
failure of the Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION
2.16. Use
of Proceeds. The proceeds of the Advances shall be available
(and the Borrower agrees that it shall use such proceeds) solely for general
corporate purposes of the Borrower and its Subsidiaries.
ARTICLE
III
CONDITIONS
TO EFFECTIVENESS AND LENDING
SECTION
3.01. Conditions Precedent to
Effectiveness of Section 2.01. Section 2.01 of this
Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:
(a) Except
as disclosed in filings with the Securities and Exchange Commission prior to the
Effective Date, there shall have occurred no Material Adverse Change since
December 31, 2007.
(b) There
shall exist no action, suit, investigation, litigation or proceeding affecting
the Borrower or any of its Subsidiaries pending or overtly threatened before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) The
Lenders shall have been given such access to the management of the Borrower and
its Subsidiaries as they shall have requested.
(d) All
governmental and third party consents and approvals necessary in connection with
the transactions contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders) and shall
remain in effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(e) The
Borrower shall have notified the Agent in writing as to the proposed Effective
Date.
(f) The
Borrower shall have paid all accrued fees and expenses of the Agent and the
Lenders (including the accrued fees and expenses of counsel to the
Agent).
(g) On
the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly
authorized officer of the Borrower, dated the Effective Date, stating
that:
(i) The
representations and warranties contained in Section 4.01 are correct on and
as of the Effective Date, and
(ii) No
event has occurred and is continuing that constitutes a Default.
(h) The
Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Lender:
(i) The
Notes to the order of the Lenders to the extent requested by any Lender pursuant
to Section 2.15.
(ii) Certified
copies of the resolutions of the Board of Directors of the Borrower approving
this Agreement and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A
certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A
favorable opinion of the general counsel of the Borrower, substantially in the
form of Exhibit D hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(v) A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form
and substance satisfactory to the Agent.
SECTION
3.02. Conditions Precedent to Each
Borrowing. The obligation of each Lender to make an Advance on
the occasion of each Borrowing shall be subject to the conditions precedent that
the Effective Date shall have occurred and on the date of such Borrowing
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing such statements are
true):
(i) the
representations and warranties contained in Section 4.01 (except the
representations set forth in the last sentence of subsection (e) thereof
and in subsection (f)(i) thereof) are correct on and as of such date,
before and after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(ii) no
event has occurred and is continuing, or would result from such Borrowing or
from the application of the proceeds therefrom, that constitutes a Default,
and
(iii) the
Borrowing is within any applicable debt limitations established by the Board of
Directors of the Borrower;
and
(b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request related to
clauses (a)(i) or (ii) of this Section.
SECTION
3.03. Determinations Under Section
3.01. For purposes of determining compliance with the
conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible for
the transactions contemplated by this Agreement shall have received notice from
such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection
thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations and
Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) The
execution, delivery and performance by the Borrower of this Agreement and the
Notes to be delivered by it, and the consummation of the transactions
contemplated hereby, are within the Borrower’s corporate powers, have been duly
authorized by all necessary corporate action, subject to any applicable debt
limitations established by the Board of Directors of the Borrower, and do not
contravene (i) the Borrower’s charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes to be delivered by it.
(d) This
Agreement has been, and each of the Notes to be delivered by it when delivered
hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective
terms.
(e) The
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2007, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Ernst & Young LLP, independent public
accountants, copies of which have been furnished to each Lender, fairly present
in all material respects the Consolidated financial condition of the Borrower
and its Subsidiaries as at such date and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied. Except as disclosed in filings with the
Securities and Exchange Commission prior to the Effective Date, since
December 31, 2007, there has been no Material Adverse Change.
(f) There
is no pending or threatened action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is not disclosed in a filing by
the Borrower with the Securities and Exchange Commission and could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System), and no proceeds
of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
(h) The
Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended.
ARTICLE
V
COVENANTS
OF THE BORROWER
SECTION
5.01. Affirmative
Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws,
Etc. Comply, and cause each of its Subsidiaries to comply, in
all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and the
Patriot Act.
(b) Payment of Taxes,
Etc. Pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
property and (ii) all lawful claims that, if unpaid, might by law become a
Lien upon its property; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Maintenance of
Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates; provided, however, that the
Borrower and its Subsidiaries may self-insure to the extent consistent with
prudent business practice.
(d) Preservation of Corporate
Existence, Etc. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence, rights (charter
and statutory) and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(b) and provided further that neither
the Borrower nor any of its Subsidiaries shall be required to preserve any right
or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower or such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the Borrower
or such Subsidiary.
(e) Visitation
Rights. At any reasonable time and from time to time during
normal business hours, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine the records and books of account of, and
visit the properties of, the Borrower and any of its Subsidiaries, and, upon
execution of a confidentiality agreement, to discuss the affairs, finances and
accounts of the Borrower and any of its Subsidiaries with any of the officers or
directors of the Borrower and with their independent certified public
accountants, provided, however, that
examination of the records and books of account of the Borrower or any of its
Subsidiaries shall occur only at times when an Advance or Advances shall be
outstanding.
(f) Keeping of
Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties,
Etc. Maintain and preserve, and cause each of its Subsidiaries
to maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
(h) Reporting
Requirements. Furnish to the Lenders:
(i) as
soon as available and in any event within 40 days after the end of each of the
first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Borrower as having been
prepared in accordance with generally accepted accounting principles (it being
understood that the certification provided by the chief financial officer in
compliance with the Xxxxxxxx-Xxxxx Act is acceptable for this purpose) and
certificates of the chief financial officer of the Borrower as to compliance
with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change since the Effective Date in generally accepted accounting
principles used in the preparation of such financial statements, the Borrower
shall provide the financial information required for the determination of
compliance with Section 5.03 based on GAAP in effect as of the Effective
Date;
(ii) as
soon as available and in any event within 75 days after the end of each fiscal
year of the Borrower, a copy of the annual report for such year for the Borrower
containing the Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such fiscal year and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Ernst & Young LLP or other independent public
accountants of national standing to the effect that such Consolidated financial
statements fairly present its financial condition and results of operations on a
Consolidated basis in accordance with generally accepted accounting principles
consistently applied and certificates of the chief financial officer of the
Borrower as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the
event of any change since the Effective Date in generally accepted accounting
principles used in the preparation of such financial statements, the Borrower
shall provide the financial information required for the determination of
compliance with Section 5.03 based on GAAP in effect as of the Effective
Date;
(iii) as
soon as possible and in any event within five days after the occurrence of each
Default continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with respect
thereto;
(iv) if
Advances are outstanding and if such are not available on the Internet at
xxx.xxx.xxx, xxx.xxx.xxx or another website designated by the Borrower, promptly
after the sending or filing thereof, copies of all reports that the Borrower
sends to any of its securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(v) prompt
notice of the commencement of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(vi) such
other information respecting the Borrower or any of its Subsidiaries as any
Lender through the Agent may from time to time reasonably request of a material
nature that may reasonably relate to the condition (financial or otherwise),
operations, properties or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole.
Reports
and financial statements required to be furnished by the Borrower pursuant to
clauses (i), (ii) and (iv) of this subsection (h) shall be deemed to have been
furnished on the earlier of (A) the date on which such reports and financial
statements are posted on the Internet at xxx.xxx.xxx or (B) the date on which
the Borrower posts such reports, or reports containing such financial
statements, on its website on the Internet at xxx.xxx.xxx or at such other
website identified by the Borrower in a notice to the Agent and the Lenders and
that is accessible by the Lenders without charge; provided that the
Lenders shall be deemed to have received the information specified in clauses
(i), (ii) and (iv) of this subsection (h) on the date (x) such information is
posted at the website of the Agent identified from time to time by the Agent to
the Lenders and the Borrower and (y) such posting is notified to the Lenders (it
being understood that the Borrower shall have satisfied the timing obligations
imposed by those clauses as of the earliest date such information is posted on
the Internet at xxx.xxx.xxx or the website referred to in clause (B)
above).
SECTION
5.02. Negative
Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens,
Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to any of
its properties, whether now owned or hereafter acquired, or assign, or permit
any of its Subsidiaries to assign, any right to receive income, other
than:
(i) Permitted
Liens,
(ii) purchase
money Liens upon or in any real property or equipment acquired or held by the
Borrower or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of such property or equipment, or
Liens existing on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such
Lien shall extend to or cover any properties of any character other than the
real property or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not theretofore subject to
the Lien being extended, renewed or replaced,
(iii) the
Liens existing on the Effective Date and described on Schedule 5.02(a)
hereto,
(iv) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such
Liens were not created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person so
merged into or consolidated with the Borrower or such Subsidiary or acquired by
the Borrower or such Subsidiary,
(v) Liens
on accounts receivable (and in property securing or otherwise supporting such
accounts receivable together with proceeds thereof) of the Borrower and its
Subsidiaries in connection with a Receivables Securitization,
(vi) Liens
on assets of a Subsidiary that is a regulated telephone company (a “Telco”) that,
pursuant to the public debt indenture(s) of such Telco, are created upon the
merger or conveyance or sale of all or substantially all of the assets of such
Telco,
(vii) Liens
on real property securing Debt and other obligations in an aggregate principal
amount not to exceed $1,000,000,000 at any time outstanding,
(viii) other
Liens securing Debt and other obligations in an aggregate principal amount not
to exceed at any time outstanding five percent of Consolidated Net Tangible
Assets, and
(ix) the
replacement, extension or renewal of any Lien permitted by clause (iii) or
(iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured thereby.
(b) Mergers,
Etc. Merge or consolidate with or into, or, directly or
indirectly, convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to, any Person.
(c) Accounting
Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except
as required or permitted by generally accepted accounting
principles.
SECTION
5.03. Financial
Covenant. The Borrower will maintain, as of the last day of
each fiscal quarter, a ratio of Consolidated Debt for Borrowed Money to
Consolidated EBITDA of the Borrower and its Subsidiaries for the four quarters
then ended of not more than 3.0 to 1.
ARTICLE
VI
EVENTS OF
DEFAULT
SECTION
6.01. Events of
Default. If any of the following events (“Events of Default”)
shall occur and be continuing:
(a) The
Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or the Borrower shall fail to pay any interest on any Advance
or to make any other payment of fees or other amounts payable under this
Agreement or any Note within three Business Days after the same becomes due and
payable; or
(b) Any
representation or warranty made by the Borrower herein or by the Borrower (or
any of its officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) (i) The
Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e) or (h), 5.02 or 5.03, or (ii) the
Borrower shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 10 days after written notice thereof shall
have been given to the Borrower by the Agent or any Lender; or
(d) The
Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding under the Existing Credit
Agreement or in a principal or net amount of at least $250,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate the maturity of such Debt; or any such Debt shall
be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof;
or
(e) The
Borrower or any of its Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Final
and non-appealable judgments or orders for the payment of money in excess of
$250,000,000 in the aggregate shall be rendered against the Borrower or any of
its Subsidiaries thirty days shall have passed since such judgment became final
and non-appealable and enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; provided, however, that any
such judgment or order shall not be an Event of Default under this
Section 6.01(f) if and for so long as (i) the amount of such judgment
or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least “A” by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such judgment
or order; or
(g) (i) Any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing more than 50% of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the Borrower shall
cease for any reason (other than due to retirement, death or disability) to
constitute a majority of the board of directors of the Borrower (except to the
extent that individuals who at the beginning of such 24-month period were
replaced by individuals (x) elected by 66-2/3% of the remaining members of
the board of directors of the Borrower or (y) nominated for election by a
majority of the remaining members of the board of directors of the Borrower and
thereafter elected as directors by the shareholders of the Borrower);
or
(h) The
Borrower or any ERISA Affiliate shall fail to satisfy minimum funding
requirements under Section 412 of the Code or Section 302 of ERISA to any Plan,
or apply for a waiver of such requirements;
then, and
in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE
VII
THE
AGENT
SECTION
7.01. Authorization and
Authority. Each Lender hereby irrevocably appoints Citibank,
N.A. to act on its behalf as the Agent hereunder and authorizes the Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Agent and the Lenders, and the Borrower shall have
no rights as a third party beneficiary of any of such provisions.
SECTION
7.02. Agent
Individually. (a) The Person serving as the Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the Agent and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as the Agent
hereunder in its individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Agent hereunder and without any duty to account therefor to the
Lenders.
(b) Each
Lender understands that the Person serving as Agent, acting in its individual
capacity, and its Affiliates (collectively, the “Agent’s Group”) are
engaged in a wide range of financial services and businesses (including
investment management, financing, securities trading, corporate and investment
banking and research) (such services and businesses are collectively referred to
in this Section 7.02 as “Activities”) and may
engage in the Activities with or on behalf of the Borrower or their its
Affiliates. Furthermore, the Agent’s Group may, in undertaking the
Activities, engage in trading in financial products or undertake other
investment businesses for its own account or on behalf of others (including the
Borrower and its Affiliates and including holding, for its own account or on
behalf of others, equity, debt and similar positions in the Borrower or its
Affiliates), including trading in or holding long, short or derivative positions
in securities, loans or other financial products of the Borrower or its
Affiliates. Each Lender understands and agrees that in engaging in
the Activities, the Agent’s Group may receive or otherwise obtain information
concerning the Borrower or its Affiliates (including information concerning the
ability of the Borrower to perform its obligations hereunder) which information
may not be available to any of the Lenders that are not members of the Agent’s
Group. None of the Agent nor any member of the Agent’s Group shall
have any duty to disclose to any Lender or use on behalf of the Lenders, and
shall not be liable for the failure to so disclose or use, any information
whatsoever about or derived from the Activities or otherwise (including any
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower or any Affiliate
thereof) or to account for any revenue or profits obtained in connection with
the Activities, except that the Agent shall deliver or otherwise make available
to each Lender such documents as are expressly required by this Agreement to be
transmitted by the Agent to the Lenders.
(c) Each
Lender further understands that there may be situations where members of the
Agent’s Group or their respective customers (including the Borrower and its
Affiliates) either now have or may in the future have interests or take actions
that may conflict with the interests of any one or more of the Lenders
(including the interests of the Lenders hereunder). Each Lender
agrees that no member of the Agent’s Group is or shall be required to restrict
its activities as a result of the Person serving as Agent being a member of the
Agent’s Group, and that each member of the Agent’s Group may undertake any
Activities without further consultation with or notification to any
Lender. None of (i) this Agreement, (ii) the receipt by the Agent’s
Group of information (including Information) concerning the Borrower or its
Affiliates (including information concerning the ability of the Borrower to
perform its obligations hereunder) nor (iii) any other matter shall give rise to
any fiduciary, equitable or contractual duties (including without limitation any
duty of trust or confidence) owing by the Agent or any member of the Agent’s
Group to any Lender including any such duty that would prevent or restrict the
Agent’s Group from acting on behalf of customers (including the Borrower or its
Affiliates) or for its own account.
SECTION
7.03. Duties of Agent; Exculpatory
Provisions. (a) The Agent’s duties hereunder are
solely ministerial and administrative in nature and the Agent shall not have any
duties or obligations except those expressly set forth
herein. Without limiting the generality of the foregoing, the Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
written direction of the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein), provided that the
Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Agent or any of its Affiliates to
liability or that is contrary to this Agreement or applicable law.
(b) The
Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 9.01 or 6.01) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to
have knowledge of any Default or the event or events that give or may give rise
to any Default unless and until the Borrower or any Lender shall have given
notice to the Agent describing such Default and such event or
events.
(c) Neither
the Agent nor any member of the Agent’s Group shall be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty,
representation or other information made or supplied in or in connection with
this Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or the perfection or priority of any Lien or security
interest created or purported to be created hereby or (v) the satisfaction
of any condition set forth in Article III or elsewhere herein, other than
(but subject to the foregoing clause (ii)) to confirm receipt of items expressly
required to be delivered to the Agent.
(d) Nothing
in this Agreement shall require the Agent or any of its Related Parties to carry
out any “know your customer” or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent that it is solely
responsible for any such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the Agent or any of its
Related Parties.
SECTION
7.04. Reliance by
Agent. The Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of an Advance
that by its terms must be fulfilled to the satisfaction of a Lender, the Agent
may presume that such condition is satisfactory to such Lender unless an officer
of the Agent responsible for the transactions contemplated hereby shall have
received notice to the contrary from such Lender prior to the making of such
Advance, and such Lender shall not have made available to the Agent such
Lender’s ratable portion of the applicable Borrowing. The Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
SECTION
7.05. Delegation of
Duties. The Agent may perform any and all of its duties and
exercise its rights and powers hereunder by or through any one or more
sub-agents appointed by the Agent. The Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. Each such sub-agent and the
Related Parties of the Agent and each such sub-agent shall be entitled to the
benefits of all provisions of this Article VIII and Section 9.04 (as though such
sub-agents were the “Agent” hereunder) as if set forth in full herein with
respect thereto.
SECTION
7.06. Resignation of
Agent. The Agent may at any time give notice of its
resignation to the Lenders and the Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank with an
office in New York, New York. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation
(such 30-day period, the “Lender Appointment
Period”), then the retiring Agent may on behalf of the Lenders, appoint a
successor Agent meeting the qualifications set forth above. In
addition and without any obligation on the part of the retiring Agent to
appoint, on behalf of the Lenders, a successor Agent, the retiring Agent may at
any time upon or after the end of the Lender Appointment Period notify the
Borrower and the Lenders that no qualifying Person has accepted appointment as
successor Agent and the effective date of such retiring Agent’s resignation
which effective date shall be no earlier than three business days after the date
of such notice. Upon the resignation effective date established in
such notice and regardless of whether a successor Agent has been appointed and
accepted such appointment, the retiring Agent’s resignation shall nonetheless
become effective and (i) the retiring Agent shall be discharged from its
duties and obligations as Agent hereunder and (ii) all payments,
communications and determinations provided to be made by, to or through the
Agent shall instead be made by or to each Lender directly, until such time as
the Required Lenders appoint a successor Agent as provided for above in this
paragraph. Upon the acceptance of a successor’s appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties as Agent of the retiring (or retired)
Agent, and the retiring Agent shall be discharged from all of its duties and
obligations as Agent hereunder (if not already discharged therefrom as provided
above in this paragraph). The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the
retiring Agent’s resignation hereunder, the provisions of this Article and
Section 8.04 shall continue in effect for the benefit of such retiring
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring Agent was
acting as Agent.
SECTION
7.07. Non-Reliance on Agent and
Other Lenders. (a) Each Lender confirms to the
Agent, each other Lender and each of their respective Related Parties that it
(i) possesses (individually or through its Related Parties) such knowledge and
experience in financial and business matters that it is capable, without
reliance on the Agent, any other Lender or any of their respective Related
Parties, of evaluating the merits and risks (including tax, legal, regulatory,
credit, accounting and other financial matters) of (x) entering into this
Agreement, (y) making Advances and other extensions of credit hereunder and (z)
in taking or not taking actions hereunder and thereunder, (ii) is financially
able to bear such risks and (iii) has determined that entering into this
Agreement and making Advances and other extensions of credit hereunder is
suitable and appropriate for it.
(b) Each
Lender acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with this Agreement, (ii) that it has, independently and without
reliance upon the Agent, any other Lender or any of their respective Related
Parties, made its own appraisal and investigation of all risks associated with,
and its own credit analysis and decision to enter into, this Agreement based on
such documents and information, as it has deemed appropriate and (iii) it will,
independently and without reliance upon the Agent, any other Lender or any of
their respective Related Parties, continue to be solely responsible for making
its own appraisal and investigation of all risks arising under or in connection
with, and its own credit analysis and decision to take or not take action under,
this Agreement based on such documents and information as it shall from time to
time deem appropriate, which may include, in each case:
(i) the
financial condition, status and capitalization of the Borrower;
(ii) the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with this Agreement;
(iii) determining
compliance or non-compliance with any condition hereunder to the making of an
Advance and the form and substance of all evidence delivered in connection with
establishing the satisfaction of each such condition;
(iv) the
adequacy, accuracy and/or completeness of any information delivered by the
Agent, any other Lender or by any of their respective Related Parties under or
in connection with this Agreement, the transactions contemplated hereby and
thereby or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with this
Agreement.
SECTION
7.08. No
Other Duties, etc. Anything herein to the contrary
notwithstanding, none of the Persons acting as Bookrunners, Arrangers,
Syndication Agent or Co-Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement, except
in its capacity, as applicable, as the Agent or as a Lender
hereunder.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01. Amendments,
Etc. No amendment or waiver of any provision of this Agreement
or the Notes, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase or extend the
Commitments of the Lenders, (c) reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, (d) postpone
any date fixed for any payment of principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, (e) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Advances, or
the number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
SECTION
8.02. Notices,
Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier
communication) and mailed, telecopied or delivered or (y) as and to the extent
set forth in Section 8.02(b), if to the Borrower, at its address at 000 Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx 00000,
Attention: Assistant Treasurer; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention:
Bank Loan Syndications Department; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Agent. All such notices and communications shall be effective when
received. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) So
long as Citibank or any of its Affiliates is the Agent, such materials as the
Borrower and the Agent shall agree shall be delivered to the Agent in an
electronic medium in a format acceptable to the Agent and the Lenders by e-mail
at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. With the Borrower’s prior consent,
the Agent may make such materials, as well as any other written information,
documents, instruments and other material relating to the Borrower, any of its
Subsidiaries or any other materials, notices, requests or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the “Communications”)
available to the Lenders by posting such notices on Intralinks or a
substantially similar electronic system (the “Platform”); provided, however, that the
Borrower’s prior consent is not required in the event such information is
publicly available. The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform and the Communications are provided “as is” and
“as available” and (iii) neither the Agent nor any of its Affiliates warrants
the accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent or any of its
Affiliates in connection with the Platform.
(c) Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying
that any Communications have been posted to the Platform shall constitute
effective delivery of such information, documents or other materials to such
Lender for purposes of this Agreement; provided that if
requested by any Lender the Agent shall deliver a copy of the Communications to
such Lender by email or telecopier. Each Lender agrees (i) to notify
the Agent in writing of such Lender’s e-mail address to which a Notice may be
sent by electronic transmission (including by electronic communication) on or
before the date such Lender becomes a party to this Agreement (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such e-mail
address.
SECTION
8.03. No
Waiver; Remedies. No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION
8.04. Costs
and Expenses. (a) The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the
reasonable fees and expenses of Shearman & Sterling LLP, counsel
for the Agent, with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under this Agreement. The Borrower
further agrees to pay on demand all costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Lender in connection with
the enforcement of rights under this Section 8.04(a).
(b) The
Borrower agrees to indemnify and hold harmless the Agent and each Lender and
each of their Affiliates and their officers, directors, employees, agents and
advisors (each, an “Indemnified Party”)
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
equityholders or creditors or an Indemnified Party or any other Person, whether
or not any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also
agrees not to assert any claim for special, indirect, consequential or punitive
damages against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If
any payment of principal of, or Conversion of, any Eurodollar Rate Advance is
made by the Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11, acceleration
of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the
Interest Period for such Advance upon an assignment of rights and obligations
under this Agreement pursuant to Section 8.06 as a result of a demand by the
Borrower pursuant to Section 8.06(a), the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(d) Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.10, 2.13
and 8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
(e) Each
Lender severally agrees to indemnify the Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s ratable share of any
and all losses, claims, damages, liabilities, obligations, penalties, actions,
judgments, suits, costs, disbursements and expenses, joint or several, of any
kind or nature (including the fees, charges and disbursements of any advisor or
counsel for such Person that may be imposed on, incurred by, or asserted against
the Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent hereunder; provided, however, that no
Lender shall be liable for any portion of such losses, claims, damages,
liabilities, obligations, penalties, actions, judgments, suits, costs,
disbursements or expenses resulting from the Agent’s gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender agrees
to reimburse the Agent for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrower under Section 8.04(a), to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower.
SECTION
8.05. Binding
Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION
8.06. Assignments and
Participations. (a) Each Lender may and, if
demanded by the Borrower (following a demand by such Lender pursuant to
Section 2.10 or 2.13) upon at least five Business Days’ notice to such
Lender and the Agent, will assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or Notes
held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender’s rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof unless the Borrower and the Agent otherwise agree,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower pursuant to this
Section 8.06(a) shall be arranged by the Borrower after consultation with
the Agent and shall be either an assignment of all of the rights and obligations
of the assigning Lender under this Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and obligations of
the assigning Lender under this Agreement, (v) no Lender shall be obligated
to make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.06(a) unless and until such Lender shall have received one
or more payments from either the Borrower or one or more Eligible Assignees in
an aggregate amount at least equal to the aggregate outstanding principal amount
of the Advances owing to such Lender, together with accrued interest thereon to
the date of payment of such principal amount and all other amounts payable to
such Lender under this Agreement, and (vi) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
subject to such assignment and a processing and recordation fee of $3,500
payable by the parties to each such assignment (not including the Borrower),
provided, however, that in the
case of each assignment made as a result of a demand by the Borrower, such
recordation fee shall be payable by the Borrower except that no such recordation
fee shall be payable in the case of an assignment made at the request of the
Borrower to an Eligible Assignee that is an existing Lender, and (vii) any
Lender may, without the approval of the Borrower and the Agent, assign all or a
portion of its rights to any of its Affiliates. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Section 2.10, 2.13 and 8.04 to the extent any claim thereunder
relates to an event arising prior such assignment) and 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).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or 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 confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred to
in Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(c) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with any Note
or Notes subject to such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(d) The
Agent shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each
Lender may sell participations to one or more banks or other entities (other
than the Borrower or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and any Note or Notes
held by it); provided, however, that
(i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(f) Any
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 8.06, 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, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Information
relating to the Borrower received by it from such Lender.
(g) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including, without limitation,
any pledge or assignment to secure obligations to a Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that, no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender party hereto.
SECTION
8.07. Confidentiality; Patriot
Act. Each of the Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it or its Affiliates (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder
or under any Note or any action or proceeding relating to this Agreement or any
Note or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives) to any swap, derivative or other transaction
under which payments are to be made by reference to the Borrower and its
obligations, this Agreement or payments hereunder, (iii) any rating agency, or
(iv) the CUSIP Service Bureau or any similar organization, (g) with the
consent of the Borrower or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Agent, any Lender or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.
For
purposes of this Section, “Information” means
all information received from the Borrower or any of its Subsidiaries relating
to the Borrower or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the Agent or
any Lender on a nonconfidential basis prior to disclosure by the Borrower or any
of its Subsidiaries, provided that, in the
case of information received from the Borrower or any of its Subsidiaries after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Each of
the Lenders hereby notifies the Borrower that, pursuant to the requirements of
the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow it to identify the Borrower in
accordance with the Patriot Act.
SECTION
8.08. Governing
Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of
New York.
SECTION
8.09. Execution in
Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION
8.10. 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 the Notes, 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 extent permitted
by law, in such federal court. The Borrower hereby agrees that
service of process in any such action or proceeding brought in the any such New
York State court or in such federal court may be made upon the Corporate
Secretary of the Borrower at 000 Xxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx 00000
(the “Process
Agent”) and the Borrower hereby irrevocably appoints the Process Agent
its authorized agent to accept such service of process. The Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 8.02. 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 or the Notes 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 or the Notes 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.
NYDOCS03/858824.4
SECTION
8.11. Waiver of Jury
Trial. Each of the Borrower, the Agent and the Lenders hereby
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 to this Agreement or the Notes or the actions of the Agent or any
Lender in the negotiation, administration, performance or enforcement
thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
AT&T
INC.
By /s/ Xxxxxxxx X.
Xxxx
Title: Senior
Vice President and Treasurer
CITIBANK,
N.A.,
as
Agent
By /s/ Xxxxx
Xxx
Title: Vice
President
Initial
Lenders
|
CITIBANK,
N.A.
|
|
By
/s/ Xxxxx
Xxx
|
|
Title: Vice
President
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
By
/s/ Xxxx
Xxxxxxxxx
|
|
Title: Executive
Director
|
|
BANK
OF AMERICA, N.A.
|
|
By
/s/ Xxxx
Xxxxxxx
|
|
Title: Vice
President
|
|
BARCLAYS
BANK PLC
|
|
By
/s/ Xxxxxxxx X.
Xxxx
|
|
Title: Director
|
|
DEUTSCHE
BANK AG NEW YORK BRANCH
|
|
By
/s/ Xxxxxxx
Xxxxxxxx
|
|
Title: Managing
Director
|
By /s/ Xxxxxx
Xxxxxx
|
Title: Director
|
NYDOCS03/858824.4
|
THE
ROYAL BANK OF SCOTLAND PLC
|
|
By
/s/ Xxxxxx
Xxxxxx
|
|
Title: Senior
Vice President
|
|
UBS
LOAN FINANCE LLC
|
|
By
/s/ Xxxxxxx X.
Xxxxxx
|
|
Title: Director
|
|
By
/s/ Xxxx X.
Xxxx
|
|
Title: Associate
Director
|
NYDOCS03/858824.4
SCHEDULE
I
AT&T
INC.
APPLICABLE
LENDING OFFICES
Name of Initial Lender
|
Commitments
|
Domestic Lending Office
|
Eurodollar Lending
Office
|
Bank
of America, N.A.
|
$428,571,428.57
|
000
Xxxx Xxxxxx
00xx
Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxx
Xxxxxxxx
T: 000-000-0000
F: 000-000-0000
|
000
Xxxx Xxxxxx
00xx
Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxx
Xxxxxxxx
T: 000-000-0000
F: 000-000-0000
|
Barclays
Bank PLC
|
$428,571,428.57
|
000
Xxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxxxx
Xxxxxxx
T: 000
000-0000
F: 973
576-3014
|
000
Xxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxxxx
Xxxxxxx
T: 000
000-0000
F: 000
000-0000
|
Citibank,
N.A.
|
$428,571,428.58
|
Xxx
Xxxxx Xxx
Xxx
Xxxxxx, XX 00000
Attn: Xxxx
Xxxxxx
T: 000
000-0000
F: 000
000-0000
|
Xxx
Xxxxx Xxx
Xxx
Xxxxxx, XX 00000
Attn: Xxxx
Xxxxxx
T: 000
000-0000
F: 000
000-0000
|
Deutsche
Bank AG New York Branch
|
$428,571,428.57
|
00
Xxxx Xxxxxx
XX:
NYC60-4310
Xxx
Xxxx, XX 00000
Attn: Xxxxxx
Xxxxxx
T: 000
000-0000
F: 213
797-4347
|
00
Xxxx Xxxxxx
MS:
NYC60-4310
Xxx
Xxxx, XX 00000
Attn: Xxxxxx
Xxxxxx
T: 000
000-0000
F: 000
000-0000
|
JPMorgan
Chase Bank, N.A.
|
$428,571,428.57
|
0000
Xxxxxx xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxx 00000
Attn:
Xxxxxx Xxxxxxx
T:
000-000-0000
F:
713-750-2228
|
0000
Xxxxxx xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxx 00000
Attn:
Xxxxxx Xxxxxxx
T:
000-000-0000
F:
000-000-0000
|
The
Royal Bank of Scotland plc
|
$428,571,428.57
|
000
Xxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxx
Xxxxxxx
T: 000
000-0000
F: 212
401-3456
|
000
Xxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxx
Xxxxxxx
T: 000
000-0000
F: 000
000-0000
|
UBS
Loan Finance LLC
|
$428,571,428.57
|
000
Xxxxxxxxxx Xxxx.
Xxxxxxxx,
XX 00000
Attn: Xxxxxxxxxxx
Xxxxxx
T: 000
000-0000
F: 203
719-3888
|
000
Xxxxxxxxxx Xxxx.
Xxxxxxxx,
XX 00000
Attn: Xxxxxxxxxxx
Xxxxxx
T: 000
000-0000
F: 000
000-0000
|
SCHEDULE
5.02(a)
EXISTING
LIENS
None.
1)
|
EXHIBIT A
- FORM OF
NON-NEGOTIABLE
PROMISSORY NOTE
U.S.$_______________ Dated: _______________,
200_
FOR VALUE
RECEIVED, the undersigned, AT&T INC., a Delaware corporation (the “Borrower”), HEREBY
PROMISES TO PAY to the order of _________________________ (the “Lender”) for the
account of its Applicable Lending Office on the Termination Date (as defined in
the Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender’s Commitment in figures] or, if less, the aggregate principal amount of
the Advances made by the Lender to the Borrower pursuant to the Credit Agreement
dated as of April 11, 2008 among the Borrower, the Lender and certain other
lenders parties thereto, Citigroup Global Markets Inc. and JPMorgan Securities
Inc. as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A.,
as syndication agent, Bank of America, N.A., Barclays Bank PLC, Deutsche Bank AG
New York Branch, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
co-documentation agents, and Citibank, N.A., as Agent for the Lender and such
other lenders (as amended or modified from time to time, the “Credit Agreement”;
the terms defined therein being used herein as therein defined) outstanding on
such date.
The
Borrower promises to pay interest on the unpaid principal amount of each Advance
from the date of such Advance until such principal amount is paid in full, at
such interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both
principal and interest are payable in lawful money of the United States of
America to Citibank, as Agent, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in same day funds. Each Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This
Promissory Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement. The Credit Agreement, among other
things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
AT&T
INC.
By
__________________________
Title:
ADVANCES
AND PAYMENTS OF PRINCIPAL
Date
|
Amount
of
Advance
|
Amount
of
Principal
Paid
or
Prepaid
|
Unpaid
Principal
Balance
|
Notation
Made
By
|
EXHIBIT B
- FORM OF NOTICE OF
BORROWING
Citibank,
N.A., as Agent
for
the Lenders parties
to
the Credit Agreement
referred
to below
Xxx
Xxxxx Xxx
Xxx
Xxxxxx, Xxxxxxxx 00000
[Date]
Attention:
Bank Loan Syndications Department
Ladies
and Gentlemen:
The
undersigned, AT&T Inc., refers to the Credit Agreement, dated as of April
11, 2008 (as amended or modified from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the
undersigned, certain Lenders parties thereto, Citigroup Global Markets Inc. and
JPMorgan Securities Inc, as joint lead arrangers and joint bookrunners, JPMorgan
Chase Bank, N.A., as syndication agent, Bank of America, N.A., Barclays Bank
PLC, Deutsche Bank AG New York Branch, The Royal Bank of Scotland plc and UBS
Loan Finance LLC, as co-documentation agents, and Citibank, N.A., as Agent for
said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the “Proposed Borrowing”)
as required by Section 2.02(a) of the Credit Agreement:
(i) The
Business Day of the Proposed Borrowing is _______________, 200_.
(ii) The
Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].
(iii) The
aggregate amount of the Proposed Borrowing is $_______________.
(iv) The
proceeds of the Proposed Borrowing shall be funded to account maintained by the
Borrower at __________ at its office at __________, Account
No. __________.
[(v) The
initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is _____ month[s].]
The
undersigned hereby certifies that the following statements are true on the date
hereof, and will be true on the date of the Proposed Borrowing:
(A) the
representations and warranties contained in Section 4.01 of the Credit
Agreement (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are correct,
before and after giving effect to the Proposed Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date;
and
(B) no
event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a
Default, and
(C) the
Proposed Borrowing is within any applicable debt limitations established by the Board of
Directors of the Borrower.
.
Very
truly yours,
AT&T
INC.
By
__________________________
Title:
NYDOCS03/858824.4
EXHIBIT C
- FORM OF
ASSIGNMENT
AND ACCEPTANCE
Reference
is made to the Credit Agreement dated as of April 11, 2008 (as amended or
modified from time to time, the “Credit Agreement”)
among AT&T Inc., a Delaware corporation (the “Borrower”), the
Lenders (as defined in the Credit Agreement), Citigroup Global Markets Inc. and
JPMorgan Securities Inc, as joint lead arrangers and joint bookrunners, JPMorgan
Chase Bank, N.A., as syndication agent, Bank of America, N.A., Barclays Bank
PLC, Deutsche Bank AG New York Branch, The Royal Bank of Scotland plc and UBS
Loan Finance LLC, as co-documentation agents, and Citibank, N.A., as agent for
the Lenders (the “Agent”). Terms
defined in the Credit Agreement are used herein with the same
meaning.
The
“Assignor” and the “Assignee” referred to on Schedule I hereto agree as
follows:
1. The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to the Assignor’s
rights and obligations under the Credit Agreement as of the date hereof equal to
the percentage interest specified on Schedule 1 hereto of all outstanding rights
and obligations under the Credit Agreement. After giving effect to
such sale and assignment, the Assignee’s Commitment and the amount of the
Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The
Assignor (i) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note[, if any] held by the Assignor [and requests
that the Agent exchange such Note for a new Note payable to the order of [the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto or new Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto and] the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, [respectively,] as specified on Schedule 1 hereto.
3. The
Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and
(vi) attaches any U.S. Internal Revenue Service forms required under
Section 2.13 of the Credit Agreement.
4. Following
the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date
for this Assignment and Acceptance (the “Effective Date”)
shall be the date of acceptance hereof by the Agent, unless otherwise specified
on Schedule 1 hereto.
5. Upon
such acceptance and recording by the Agent, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon
such acceptance and recording by the Agent, from and after the Effective Date,
the Agent shall make all payments under the Credit Agreement and the Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This
Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. This
Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule
1
to
Assignment
and Acceptance
Percentage
interest
assigned: _____%
Assignee’s
Commitment: $______
Aggregate
outstanding principal amount of Advances assigned:$______
Principal
amount of Note payable to
Assignee: $______
Principal
amount of Note payable to
Assignor: $______
Effective
Date*: _______________,
200_
[NAME OF
ASSIGNOR], as Assignor
By
__________________________
Title:
Dated: _______________,
200_
[NAME OF
ASSIGNEE], as Assignee
By
__________________________
Title:
Dated: _______________,
200_
Domestic
Lending Office:
[Address]
Eurodollar
Lending Office:
[Address]
*
|
This date should be no earlier
than five Business Days after the delivery of this Assignment and
Acceptance to the Agent.
|
NYDOCS03/858824.4
Accepted
[and Approved]**
this
__________
day of _______________, 200_
CITIBANK,
N.A., as Agent
By
Title:
[Approved
this __________ day
of
_______________, 200_
AT&T
INC.
By ]*
Title:
**
|
Required
if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of “Eligible
Assignee”.
|
*
|
Required
if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of “Eligible
Assignee”.
|
NYDOCS03/858824.4
EXHIBIT D
- FORM OF
OPINION
OF COUNSEL
FOR THE
BORROWER
April 11,
2008
To each
of the Lenders parties
to
the Credit Agreement dated
as
of April 11, 2008
among
AT&T Inc.,
said
Lenders and Citibank, N.A.,
as
Agent for said Lenders, and
to
Citibank, N.A., as Agent
Ladies
and Gentlemen:
Pursuant
to Section 3.01(h)(iv) of the Credit Agreement, dated as of April 11, 2008
(the “Credit
Agreement”), among AT&T Inc. (the “Borrower”), the
Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, I am of
the opinion that:
1. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
2. The
Credit Agreement has been duly authorized, executed and delivered, and
constitutes a legal, valid and binding instrument enforceable against the
Borrower in accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting creditors’ rights generally from time to time in effect and to general
principles of equity).
3. Neither
the execution and delivery of the Credit Agreement or the issuance of the Notes,
nor the consummation of any other of the transactions therein contemplated, nor
the fulfillment of the terms thereof will conflict with, result in a breach of,
or constitute a default under, the charter or bylaws of the Borrower or the
terms of any indenture or other agreement or instrument known to me and to which
the Borrower is a party or by which the Borrower is bound, or any applicable
law, order or regulation known to me to be applicable to the Borrower of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Borrower.
4. No
order, consent, authorization, approval, registration or qualification of or
with any governmental agency or body having jurisdiction over the Borrower is
required for the due execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes.
5. The form
and terms of the Notes have been duly authorized and established by all
necessary corporate action, and, when executed and delivered, will constitute
valid and legally binding obligations of the Borrower (subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general
applicability relating to or affecting creditors’ rights generally from time to
time in effect and to general principles of equity).
6. To the
best of my knowledge, there is no pending or overtly threatened action, suit or
proceedings against the Borrower or any of its Subsidiaries, as such term is
defined in the Credit Agreement, before any court, governmental agency or
arbitrator that purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or the consummation
of the transactions contemplated thereby or, if likely to have a materially
adverse effect upon the financial condition or operations of the Borrower, that
is not disclosed in a filing by the Borrower with the Securities and Exchange
Commission.
In giving
the foregoing opinion, I have assumed that at the time of any Borrowing and the
execution of the Notes that any such Borrowing was in accordance with any
applicable debt limitations established by the Board of Directors of the
Borrower. In addition, I have relied, as to certain matters of fact,
upon certificates of responsible officers of the Borrower and public
officials.
Very
truly yours,
EXECUTION
COPY
U.S.
$3,000,000,000
CREDIT
AGREEMENT
Dated as
of April 11, 2008
Among
AT&T
INC.
as Borrower
and
THE
INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK,
N.A.
as Administrative Agent
and
CITIGROUP
GLOBAL MARKETS INC.
and
JPMORGAN
SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
and
JPMORGAN
CHASE BANK, N.A.
as Syndication
Agent
and
BANK
OF AMERICA, N.A.
BARCLAYS
BANK PLC
DEUTSCHE
BANK AG NEW YORK
BRANCH
THE
ROYAL BANK OF SCOTLAND PLC
and
UBS
LOAN FINANCE LLC
as Co-Documentation
Agents
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
SECTION
1.01. Certain Defined
Terms[INSERT
PAGE NUMBER]
|
|
SECTION
1.02. Computation of Time
Periods[INSERT
PAGE NUMBER]
|
|
SECTION
1.03. Accounting
Terms[INSERT
PAGE NUMBER]
|
|
ARTICLE
II
|
|
SECTION
2.01. The Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.02. Making the
Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.03. Fees[INSERT
PAGE NUMBER]
|
|
SECTION
2.04. Termination or
Reduction of the Commitments[INSERT
PAGE NUMBER]
|
|
SECTION
2.05. Repayment of
Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.06. Interest on
Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.07. Interest Rate
Determination[INSERT
PAGE NUMBER]
|
|
SECTION
2.08. Optional Conversion of
Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.09. Optional Prepayments
of Advances[INSERT
PAGE NUMBER]
|
|
SECTION
2.10. Increased
Costs[INSERT
PAGE NUMBER]
|
|
SECTION
2.11. Illegality[INSERT
PAGE NUMBER]
|
|
SECTION
2.12. Payments and
Computations[INSERT
PAGE NUMBER]
|
|
SECTION
2.13. Taxes[INSERT
PAGE NUMBER]
|
|
SECTION
2.14. Sharing of Payments,
Etc.[INSERT
PAGE NUMBER]
|
|
SECTION
2.15. Evidence of
Debt[INSERT
PAGE NUMBER]
|
|
SECTION
2.16. Use of
Proceeds[INSERT
PAGE NUMBER]
|
|
ARTICLE
III
|
|
SECTION
3.01. Conditions Precedent
to Effectiveness of Section 2.01[INSERT
PAGE NUMBER]
|
|
SECTION
3.02. Conditions Precedent
to Each Borrowing.[INSERT
PAGE NUMBER]
|
|
SECTION
3.03. Determinations Under
Section 3.01[INSERT
PAGE NUMBER]
|
|
ARTICLE
IV
|
|
SECTION
4.01. Representations and
Warranties of the Borrower[INSERT
PAGE NUMBER]
|
|
ARTICLE
V
|
|
SECTION
5.01. Affirmative
Covenants[INSERT
PAGE NUMBER]
|
|
SECTION
5.02. Negative
Covenants[INSERT
PAGE NUMBER]
|
|
SECTION
5.03. Financial
Covenant[INSERT
PAGE NUMBER]
|
|
ARTICLE
VI
|
|
SECTION
6.01. Events of
Default[INSERT
PAGE NUMBER]
|
|
ARTICLE
VII
|
|
SECTION
7.01. Authorization and
Authority[INSERT
PAGE NUMBER]
|
|
SECTION
7.02. Agent
Individually[INSERT
PAGE NUMBER]
|
|
SECTION
7.03. Duties of Agent;
Exculpatory Provisions[INSERT
PAGE NUMBER]
|
|
SECTION
7.04. Reliance by
Agent[INSERT
PAGE NUMBER]
|
|
SECTION
7.05. Delegation of
Duties[INSERT
PAGE NUMBER]
|
|
SECTION
7.06. Resignation of
Agent[INSERT
PAGE NUMBER]
|
|
SECTION
7.07. Non-Reliance on Agent
and Other Lenders[INSERT
PAGE NUMBER]
|
|
SECTION
7.08. No Other Duties,
etc[INSERT
PAGE NUMBER]
|
|
ARTICLE
VIII
|
|
SECTION
8.01. Amendments,
Etc.[INSERT
PAGE NUMBER]
|
|
SECTION
8.02. Notices, Etc.[INSERT
PAGE NUMBER]
|
|
SECTION
8.03. No Waiver;
Remedies[INSERT
PAGE NUMBER]
|
|
SECTION
8.04. Costs and
Expenses[INSERT
PAGE NUMBER]
|
|
SECTION
8.05. Binding
Effect[INSERT
PAGE NUMBER]
|
|
SECTION
8.06. Assignments and
Participations[INSERT
PAGE NUMBER]
|
|
SECTION
8.07. Confidentiality[INSERT
PAGE NUMBER]
|
|
SECTION
8.08. Governing Law[INSERT
PAGE NUMBER]
|
|
SECTION
8.09. Execution in
Counterparts[INSERT
PAGE NUMBER]
|
|
SECTION
8.10. Jurisdiction,
Etc.[INSERT
PAGE NUMBER]
|
|
SECTION
8.11. Waiver of Jury
Trial[INSERT
PAGE NUMBER]
|
Schedules
Schedule
I - List of Applicable Lending Offices
Schedule
5.02(a) - Existing Liens
Exhibits
Exhibit
A
- Form of Note
Exhibit
B
- Form of Notice of
Borrowing
Exhibit
C
- Form of Assignment and
Acceptance
Exhibit
D
- Form of Opinion of Counsel for the
Borrower