AMENDED AND RESTATED 364-DAY COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
================================================================================
$4,000,000,000
364-DAY REVOLVING CREDIT FACILITY AGREEMENT
Dated as of October 9, 2002
among
AT&T CORP.,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, CITIBANK, N.A.,
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH and ▇▇▇▇▇▇▇
SACHS CREDIT PARTNERS L.P.,
as Administrative Agents
and
CITIBANK, N.A.,
as Paying Agent,
with
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., CREDIT SUISSE FIRST
BOSTON, CAYMAN ISLANDS BRANCH and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as Joint
Lead Arrangers and Bookrunners
and
BANK OF AMERICA, N.A., HSBC BANK USA, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK and THE ROYAL BANK OF
SCOTLAND PLC, as Co-Arrangers
================================================================================
iii
AT&T CREDIT AGREEMENT
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Terms Generally................................................14
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................15
SECTION 2.02. Loans 15
SECTION 2.03. [Intentionally Omitted]........................................16
SECTION 2.04. Borrowing Procedure............................................16
SECTION 2.05. Conversion and Continuation of Loans...........................17
SECTION 2.06. Fees 18
SECTION 2.07. Repayment of Loans; Evidence of Debt...........................18
SECTION 2.08. Interest on Loans..............................................19
SECTION 2.09. Default Interest...............................................19
SECTION 2.10. Alternate Rate of Interest.....................................20
SECTION 2.11. Termination and Reduction of Commitments.......................20
SECTION 2.12. Prepayment.....................................................20
SECTION 2.13. Reserve Requirements; Change in Circumstances..................21
SECTION 2.14. Change in Legality.............................................22
SECTION 2.15. Indemnity......................................................23
SECTION 2.16. Pro Rata Treatment.............................................24
SECTION 2.17. Sharing of Setoffs.............................................24
SECTION 2.18. Payments.......................................................24
SECTION 2.19. Taxes 25
SECTION 2.20. Mandatory Assignment; Commitment Termination...................27
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...........................................28
SECTION 3.02. Authorization..................................................28
SECTION 3.03. Enforceability.................................................28
SECTION 3.04. Governmental Approvals.........................................28
SECTION 3.05. Financial Statements...........................................28
SECTION 3.06. Litigation; Compliance with Laws...............................29
SECTION 3.07. Federal Reserve Regulations....................................29
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act.....29
SECTION 3.09. Use of Proceeds................................................30
SECTION 3.10. No Material Misstatements......................................30
ARTICLE IV
Conditions of Effectiveness and of Lending
SECTION 4.01. All Borrowings.................................................30
SECTION 4.02. Closing Date...................................................30
ARTICLE V
Covenants
SECTION 5.01. Existence......................................................32
SECTION 5.02. Financial Statements, Reports, Etc.............................32
SECTION 5.03. Maintaining Records............................................32
SECTION 5.04. Use of Proceeds................................................33
SECTION 5.05. Consolidations, Mergers, Sales of Assets and Separation
Transactions.................................................................33
SECTION 5.06. Limitations on Liens...........................................33
SECTION 5.07. Limitations on Sale and Leaseback Transactions.................35
SECTION 5.08. Total Debt to EBITDA Ratio.....................................35
ARTICLE VI
Events of Default
SECTION 6.01. .......................................................35
ARTICLE VII
The Agents
SECTION 7.01. .......................................................38
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices 40
SECTION 8.02. Survival of Agreement..........................................41
SECTION 8.03. Binding Effect.................................................41
SECTION 8.04. Successors and Assigns.........................................41
SECTION 8.05. Expenses; Indemnity............................................44
SECTION 8.06. Applicable Law.................................................45
SECTION 8.07. Waivers; Amendment.............................................45
SECTION 8.08. Entire Agreement...............................................46
SECTION 8.09. Severability...................................................46
SECTION 8.10. Execution in Counterparts......................................46
SECTION 8.11. Headings.......................................................46
SECTION 8.12. Jurisdiction, Etc..............................................46
SECTION 8.13. Waiver of Jury Trial...........................................48
Schedules and Exhibits
Schedule 2.01..... Commitments
Exhibit A Form of Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for AT&T Corp.
Exhibit D Form of Note
NYDOCS03/637079 AT&T CREDIT AGREEMENT
NYDOCS03/637079 AT&T CREDIT AGREEMENT
364-DAY REVOLVING CREDIT FACILITY AGREEMENT (this "Agreement")
dated as of _________, 2002, among AT&T CORP., a New York corporation (the
"Borrower"), the lenders listed in Schedule 2.01 (the "Lenders"), JPMORGAN CHASE
BANK ("JPMorgan"), CITIBANK, N.A. ("Citibank"), CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH ("CSFB") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP"),
as administrative agents for the Lenders (in such capacity, the "Administrative
Agents"), Citibank, as paying agent for the Lenders (in such capacity, the
"Paying Agent") and with ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
CSFB and GSCP as joint lead arrangers and bookrunners (the "Joint Lead
Arrangers").
PRELIMINARY STATEMENTS
(1) The Borrower is a party to that certain Amended and
Restated 364-Day Competitive Advance and Revolving Credit Facility Agreement
dated as of December 14, 2001 (the "Existing Credit Facility"), among the
Borrower, the lenders party thereto, the co-arrangers party thereto, Citibank,
CSFB, Deutsche Bank AG New York Branch and GSCP, as administrative agents,
Citibank, as paying agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., CSFB, Deutsche Bank
▇▇▇▇ ▇▇▇▇▇ Inc. and GSCP, as joint lead arrangers and bookrunners.
(2) The Borrower has requested that the Lenders extend credit
to the Borrower to enable it to borrow on a revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $4,000,000,000 at any
time outstanding (the "Facility"). The proceeds of borrowings under the Facility
are to be used to refinance the Existing Credit Facility and for other general
corporate purposes of the Borrower, including the repayment of maturing
commercial paper of the Borrower. The Lenders are willing to extend such credit
to the Borrower on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I Definitions SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms shall have the meanings specified below:
-------------
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base Rate
in accordance with the provisions of Article II.
"Administrative Agents" shall have the meaning specified in
the recital of parties to this Agreement.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.06(c).
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is
controlled by or is under common control with the person specified.
"Agent Parties" shall mean the Agents and the Joint Lead
Arrangers.
"Agents" shall mean the Administrative Agents and the Paying
Agent.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof, "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Paying Agent as its prime
rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly
announced as effective. For purposes hereof, "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as released on the
next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so released for any day which is a Business
Day, the arithmetic average (rounded upwards to the next 1/100th of
1%), as determined by the Paying Agent, of the quotations for the day
of such transactions received by the Paying Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason
the Paying Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or
failure of the Paying Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Facility Fee Percentage" shall mean on any date, a
percentage per annum determined by reference to the Public Debt Ratings
in effect on such date as set forth below:
--------------------------------------------------------------
-------------------------------------------------------------
Applicable Facility Fee Percentage Pricing Grid
--------------------------------------------------------------
-------------------------------- -----------------------------
Public Debt Ratings Applicable Facility Fee
▇▇▇▇▇'▇/S&P Percentage
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
Greater than or equal 0.085%
to A3 or A- and A1 and P-1
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
Greater than or equal to 0.10%
A3 or A- and A-2 and P-2 but
less than Level 1
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
Greater than or equal to Baa1 0.125%
or BBB+ but less than Level 2
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
Greater than or equal to Baa2 0.15%
or BBB but less
than Level 3
-------------------------------- -----------------------------
-------------------------------- -----------------------------
▇▇▇▇▇ ▇ 0.20%
-------
Greater than or equal to Baa3
and BBB- but less than Level 4
-------------------------------- -----------------------------
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
0.25%
Less than Baa3 or BBB-
-------------------------------- -----------------------------
provided that, except as set forth above, if the Public Debt Ratings
established or deemed to have been established by ▇▇▇▇▇'▇ or S&P shall
fall within different levels, then (x) if either of the Public Debt
Ratings is equal to Baa2 or BBB or higher and the other Public Debt
Rating falls within Level 1, 2 or 3, the applicable percentage will be
based on the higher of the two Public Debt Ratings unless one of the
two Public Debt Ratings is two or more levels lower than the other, in
which case the applicable percentage shall be determined by reference
to the level next above that of the lower of the two Public Debt
Ratings and (y) if either of the Public Debt Ratings is equal to Baa3
or BBB- or lower and the other Public Debt Rating falls within a
different Level, the applicable percentage will be based on the lower
of the two Public Debt Ratings.
"Applicable Margin" shall mean on any date, with respect to
Eurodollar Loans, a percentage per annum determined by reference to the
Public Debt Ratings in effect on such date as set forth below:
--------------------------------------------------------------
Applicable Margin Pricing Grid
--------------------------------------------------------------
-------------------------------- -----------------------------
Public Debt Ratings Applicable Margin
▇▇▇▇▇'▇/S&P
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 1
Greater than or equal 0.54%
to A3 or A- and A-1 and P-1
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 2
Greater than or equal to 0.65%
A3 or A- and A-2 and P-2 but
less than Level 1
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 3
Greater than or equal to Baa1 0.875%
or BBB+ but less than Level 2
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Level 4
Greater than or equal to Baa2 1.10%
or BBB but less
than Level 3
-------------------------------- -----------------------------
-------------------------------- -----------------------------
▇▇▇▇▇ ▇ 1.55%
-------
Greater than or equal to Baa3
and BBB- but less than Level 4
-------------------------------- -----------------------------
-------------------------------- -----------------------------
▇▇▇▇▇ ▇ 2.00%
-------
Less than Baa3 or BBB-
-------------------------------- -----------------------------
provided that, except as set forth above, if the Public Debt Ratings
established or deemed to have been established by ▇▇▇▇▇'▇ or S&P shall
fall within different levels, then (x) if either of the Public Debt
Ratings is equal to Baa2 or BBB or higher and the other Public Debt
Rating falls within Level 1, 2 or 3, the applicable percentage will be
based on the higher of the two Public Debt Ratings unless one of the
two Public Debt Ratings is two or more levels lower than the other, in
which case the applicable percentage shall be determined by reference
to the level next above that of the lower of the two Public Debt
Ratings and (y) if either of the Public Debt Ratings is equal to Baa3
or BBB- or lower and the other Public Debt Rating falls within a
different Level, the applicable percentage will be based on the lower
of the two Public Debt Ratings.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee with the consent of
the Borrower, and accepted by the Paying Agent in accordance with
Section 8.04(e), substantially in the form of Exhibit B hereto.
"AT&T Broadband" means the Borrower's broadband business;
provided that for purposes of the definition of "Indebtedness", "AT&T
Broadband" shall mean any Person or Persons (whether existing as of the
date hereof or subsequently formed) holding any significant portion of
the Borrower's broadband business upon consummation of a Separation
Transaction (including, without limitation, the Broadband Separation).
"AT&T Latin America" means AT&T Latin America Corp., a
Delaware corporation.
"At Home Corporation" means At Home Corporation, a Delaware
corporation.
"Attributable Debt" shall mean, as of the date of its
determination, the present value (discounted semiannually at an
interest rate implicit in the terms of the lease) of the obligation of
a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any
sublessee of all or part of the same property) during the remaining
term of such Sale and Leaseback Transaction (including any period for
which the lease relating thereto has been extended), such rental
payments not to include amounts payable by the lessee for maintenance
and repairs, insurance, taxes, assessments and similar charges and for
contingent rents (such as those based on sales); provided, however,
that in the case of any Sale and Leaseback Transaction in which the
lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the present value of (a) the
rental payments to be paid under such Sale and Leaseback Transaction
until the first date (after the date of such determination) upon which
it may be so terminated plus the then applicable penalty upon such
termination and (b) the rental payments required to be paid during the
remaining term of such Sale and Leaseback Transaction (assuming such
termination provision is not exercised).
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Board of Directors" shall mean the Board of Directors of the
Borrower or any duly authorized committee thereof.
"Borrowing" shall mean a group of Revolving Credit Loans of a
single Type made by the Lenders on a single date and as to which a
single Interest Period is in effect.
"Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A.
"Broadband Receivable" shall have the meaning specified in
Section 6.01(i).
"Broadband Separation" shall mean the spin-off of AT&T
Broadband from the Borrower and the related merger with Comcast.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which
banks are open for business in New York City; provided, however, that,
when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Closing Date" shall mean the first date on which the
conditions set forth in Section 4.02 shall have been satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Comcast" shall mean Comcast Corporation, a Pennsylvania
corporation.
"Commitment" shall mean, with respect to each Lender, the
Commitment of such Lender as set forth in Schedule 2.01 hereto.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean, at any date, as
to the Borrower, the total assets appearing on the most recently
prepared consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of the most recent fiscal
quarter of the Borrower for which such balance sheet is available,
prepared in accordance with GAAP, less (a) all current liabilities as
shown on such balance sheet and (b) Intangible Assets.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States
of America.
"Equity Interests" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
authorized or otherwise existing on any date of determination.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Credit Facility" shall have the meaning set forth in
Preliminary Statement No. (1).
"Facility" shall have the meaning set forth in Preliminary
Statement (2).
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fee Letter" shall mean the Fee Letter dated August 30, 2002,
among the Borrower, the Joint Lead Arrangers, JPMorgan and Citibank.
"Fees" shall mean the Facility Fee, the Utilization Fee and
the Administrative Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Assistant
Treasurer of such corporation.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Granting Lender" shall have the meaning specified in Section
8.04.
"Indebtedness" of any Person shall mean all indebtedness representing
money borrowed which is created, assumed, incurred or guaranteed in any manner
by such Person or for which such Person is responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others or otherwise), excluding (i) indebtedness of AT&T Latin America, so long
as AT&T Latin America is a non-wholly-owned Subsidiary of the Borrower and (ii)
Monetized Debt; provided that for purposes of determining compliance with
Section 5.08, (a) Indebtedness in the form of guarantees entered into by the
Borrower or its Subsidiaries or for which the Borrower or any of its
Subsidiaries is responsible or liable shall exclude (i) keep-well and other
similar agreements to advance or supply funds (x) for the purchase or payment of
any primary obligation of any other Person (including AT&T Latin America, so
long as it is a non-wholly-owned Subsidiary of the Borrower) (such other Person
being the "primary obligor") or (y) to maintain working capital or equity
capital of the primary obligor or otherwise maintain the net worth or solvency
of the primary obligor and (ii) guarantees of obligations for which
cross-guarantees or cross-indemnifications in favor of the Borrower or such
Subsidiary from Liberty Media Corporation or AT&T Broadband exist and (b)
Indebtedness shall be calculated (i) net of cash and cash equivalents
(including, without limitation, cash and cash equivalents the use of which is
restricted to secure or repay Indebtedness, but only to the extent that the
relevant Indebtedness is reflected on the consolidated balance sheet of the
Borrower and its Subsidiaries and excluding cash and cash equivalents the use of
which is restricted in accordance with Section 5.06(g) to the payment of
principal of, interest on, or fees in connection with the incurrence of
Monetized Debt), held by the Borrower and its Consolidated Subsidiaries on the
date of determination (other than cash and cash equivalents held by AT&T Latin
America, so long as it is a non-wholly-owned Subsidiary of the Borrower) and
(ii) in the case of non-dollar denominated Indebtedness, after giving effect to
the ▇▇▇▇-to-market value of any currency hedge transactions entered into to
protect such Person from fluctuations in exchange rates related to such
Indebtedness.
"1990 Indenture" means the Indenture dated as of September 7, 1990
between American Telephone and Telegraph Company and The Bank of New York, as
Trustee.
"Intangible Assets" shall mean the value (net of any
applicable reserves), as shown on or reflected in the most recently
prepared consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of the most recent fiscal
quarter of the Borrower of: (i) all trade names, trademarks, licenses,
patents, copyrights and goodwill; (ii) organizational costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets
being amortized); but in no event shall the term "Intangible Assets"
include product development costs.
"Interest Payment Date" shall mean, with respect to any
Revolving Credit Loan, the last day of the Interest Period applicable
thereto and, in the case of a Eurodollar Loan with an Interest Period
of more than three months' duration, each day that would have been an
Interest Payment Date for such Revolving Credit Loan had successive
Interest Periods of three months' duration been applicable to such
Revolving Credit Loan and, in addition, the date of any conversion of
such Revolving Credit Loan to a Revolving Credit Loan of a different
Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on
the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect, and (b) as to any ABR Borrowing,
the period commencing on the date of such Borrowing or on the last day
of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the
next succeeding March 31, June 30, September 30 or December 31, (ii)
the Maturity Date, and (iii) the date such Borrowing is converted to a
Borrowing of a different Type in accordance with Section 2.05 or repaid
or prepaid in accordance with Section 2.07 or Section 2.12; provided,
however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Loans only,
such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such
Interest Period.
"Joint Lead Arrangers" shall have the meaning specified in the
recital of parties to this Agreement.
"LIBO Rate" shall mean, with respect to each Interest Period,
a rate of interest determined on the basis of at least two offered
rates for deposits in United States dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on the Reuters Screen LIBO Page as of 11:00 a.m. (London
time) on the day that is two Business Days prior to the first day of
such Interest Period. If at least two such offered rates appear on the
Reuters Screen LIBO Page, the rate with respect to each Interest Period
will be the arithmetic average (rounded upwards to the next 1/16th of
1%) of such offered rates. If fewer than two offered rates appear,
"LIBO Rate" in respect of any Interest Period will be determined on the
basis of the rates at which deposits in United States dollars are
offered by the Paying Agent at approximately 11:00 a.m. (London time)
on the day that is two Business Days preceding the first day of such
Interest Period to prime banks in the London interbank market for a
period equal to such Interest Period commencing on the first day of
such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset and (b) the
interest of a vendor or lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset.
"Long Term Debt" shall mean, at any time, any publicly held
senior unsecured debt obligations outstanding at such time with a
maturity more than one year after the date of any determination
hereunder.
"Long Term Senior Debt" shall have the meaning specified in
the definition of "Public Debt Ratings".
"Margin Regulations" shall mean Regulations T, U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse
effect on the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole (it
being understood that neither the proposed Broadband Separation nor any
event, condition or result reflected in reports or financial statements
filed with the SEC prior to August 14, 2002, shall be deemed to give
rise to a Material Adverse Effect).
"Maturity Date" shall mean October 8, 2003.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as of
December 19, 2001, as amended as of May 14, 2002 by and among the Borrower, AT&T
Broadband Corp., Comcast, AT&T Broadband Acquisition Corp., Comcast Acquisition
Corp. and AT&T Comcast Corporation.
"Monetized Debt" shall mean Indebtedness of the Borrower or a
non-operating Subsidiary of the Borrower secured by capital stock of
Persons not directly or indirectly controlled by the Borrower
(collectively, the "Available Stock"), so long as the Borrower or such
non-operating Subsidiary has at all times sufficient Available Stock so
that upon maturity or exchange prior to maturity it may satisfy
substantially all of the obligations arising under such Indebtedness
(other than obligations to pay cash coupon amounts on such
Indebtedness) solely by the delivery of Available Stock.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor rating agency.
"Operational EBITDA" shall mean, for any period operating
income (or operating loss) of the Borrower and its Consolidated
Subsidiaries, excluding the operating income (or operating loss) of
AT&T Latin America (so long as it is a non-wholly-owned Subsidiary of
the Borrower) and At Home Corporation plus, to the extent deducted in
determining such operating income (or operating loss), the sum of (a)
depreciation expense, (b) amortization expense, (c) restructuring and
other charges and (d) asset impairment charges. If the Borrower
acquires (whether by purchase, merger, consolidation or otherwise) all
or substantially all of the assets or property of any other Person, or
engages in any asset sale permitted by Section 5.05, during any period
in respect of which Operational EBITDA is to be determined hereunder,
such Operational EBITDA will be determined on a pro forma basis as if
such acquisition or such asset sale occurred on the first day of the
relevant period if the Operational EBITDA attributable to such
acquisition or assets sold represents more than 10% of the Borrower's
Operational EBITDA calculated immediately prior to giving effect to
such acquisition or such asset sale.
"Paying Agent" shall have the meaning specified in the recital
of parties to this Agreement.
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes that (x) are not
yet due or (y) are being contested in good faith by
appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that (x) are not overdue by more than 90 days or
(y) are being contested in good faith by appropriate
proceedings;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, joint-build contracts, leases, public, quasi-public
and statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, and
governmental (foreign, Federal, state or municipal) liens
arising out of governmental franchise or similar agreements or
contracts for the purchase of products, in each case in the
ordinary course of business;
(e) attachment, judgment or similar liens in respect
of judgments, unless such liens relate to one or more
judgments for the payment of money in an aggregate amount
exceeding $250,000,000 and (i) such judgments have remained
undischarged for a period of 60 consecutive days or more
during which execution has not been effectively stayed or (ii)
action has been legally taken by a judgment creditor to attach
or levy upon assets of the Borrower or any Restricted
Subsidiary to enforce any such judgment;
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from
the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Restricted
Subsidiary;
(g) leases (other than leases with respect to Sale
and Leaseback Transactions), licenses and indefeasible rights
of use or similar arrangements relating to the shared use of
facilities entered into in the ordinary course of business and
consistent with past practices;
(h) landlords' liens under leases of property to
which the Borrower or a Restricted Subsidiary is a party; and
(i) other incidental encumbrances which do not secure
Indebtedness and do not in the aggregate materially detract
from the value of the assets of the Borrower and its
Restricted Subsidiaries or materially impair the use thereof
in the operation of it business.
"Permitted Receivables Financing" shall mean any financing
pursuant to which the Borrower or any Restricted Subsidiary of the
Borrower may sell, convey, or otherwise transfer to any Person, or
grant a security interest in, any accounts receivable (and related
assets) of the Borrower or such Restricted Subsidiary, provided that
such financing shall be on customary market terms and shall be with
limited or no recourse to the Borrower and its Subsidiaries except to
the extent customary for such transactions.
"Person" or "person" shall mean any natural person,
corporation, business trust, joint venture, association, company,
partnership or government, or any agency or political subdivision
thereof.
"Principal Property" of the Borrower shall mean any land, land
improvements, building and associated factory, laboratory office and
switching equipment (excluding all products marketed by the Borrower or
any Subsidiary) constituting a manufacturing facility, development
facility, warehouse facility, service facility, office facility or
operating facility (including any portion thereof), which facility (a)
is owned by or leased to the Borrower or any Restricted Subsidiary, (b)
is located within the United States and (c) has an acquisition cost
plus capitalized improvements in excess of 0.25% of Consolidated Net
Tangible Assets of the Borrower as of the date of such determination,
other than (i) any such facility, or portion thereof, which has been
financed by obligations issued by or on behalf of a State, a Territory
or a possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, the interest on
which is excludable from gross income of the holders thereof (other
than a "substantial user" of such facility or a "related person" as
those terms are used in Section 103 of the Code) pursuant to the
provisions of Section 103 of the Code (or any similar provisions
hereafter enacted) as in effect at the time of issuance of such
obligations, (ii) any such facility which the Borrower's Board of
Directors may by resolution declare is not of material importance to
the Borrower and the Restricted Subsidiaries taken as a whole and (iii)
any such facility, or portion thereof, owned or leased jointly or in
common with one or more persons other than the Borrower and any
Subsidiary of the Borrower and in which the interest of the Borrower
and all Subsidiaries of the Borrower does not exceed 50%.
"Proxy Statement" means the proxy statement filed with the SEC
on May 14, 2002 in connection with the Merger Agreement.
"Public Debt Ratings" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt (the "Long-Term Senior Debt") and commercial paper (the
"Short-Term Debt") issued by the Borrower; provided that if the
Borrower has caused the credit facility evidenced by this Agreement to
be rated by S&P and Moody's, then such ratings shall be used in lieu of
the ratings applicable to Long-Term Senior Debt and Short-Term Debt of
the Borrower for all purposes hereunder. For purposes of the foregoing,
with respect to the Borrower (a) if S&P or Moody's shall have in effect
a rating for only one but not both of the Long-Term Senior Debt or the
Short-Term Debt, the Applicable Margin and the Applicable Facility Fee
Percentage shall be the lowest level that may be determined by
reference to the available rating; (b) if only one of S&P and Moody's
shall have in effect Public Debt Ratings, the Applicable Margin and the
Applicable Facility Fee Percentage shall be determined by reference to
the available rating; (c) if neither S&P nor Moody's shall have in
effect Public Debt Ratings for either of the Long-Term Senior Debt or
the Short-Term Debt, the Applicable Margin and the Applicable Facility
Fee Percentage will be set in accordance with Level 6 under the
definition of "Applicable Margin" or "Applicable Facility Fee
Percentage", as the case may be; (d) if any rating established by S&P
or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating
agency making such change; and (e) if S&P or Moody's shall change the
basis on which ratings are established, each reference to the Public
Debt Ratings announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may
be.
"Register" shall have the meaning given such term in Section
8.04(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations
thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing at least 51% of the Total Commitment or, if
the Commitments shall have been terminated, or for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding
Revolving Credit Loans representing at least 51% of the aggregate
principal amount of the Revolving Credit Loans outstanding.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any
other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect of
this Agreement.
"Restricted Subsidiary" shall mean (a) any Subsidiary of the
Borrower (i) which has substantially all of its property within the
United States of America, (ii) which owns or is a lessee of any
Principal Property, and (iii) in which the investment of the Borrower
and all other Subsidiaries of the Borrower exceeds 0.25% of
Consolidated Net Tangible Assets of the Borrower as of the date of such
determination; provided, however, that the term "Restricted Subsidiary"
shall not include (A) any Subsidiary of the Borrower (x) primarily
engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases,
trust receipts, mortgages, commercial paper or other financing
instruments and any collateral or agreements relating thereto,
including in the business, individually or through partnerships, of
financing (whether through long- or short-term borrowings, pledges,
discounts or otherwise) the sales, leasing or other operations of the
Borrower and the Subsidiaries or any of them, or (y) engaged in the
business of financing the assets and operations of third parties;
provided that, notwithstanding (x) and (y) above, such Subsidiary of
the Borrower shall be a Restricted Subsidiary if it owns, leases or
operates any property which would qualify as Principal Property except
as incidental to such financing business; or (B) any Subsidiary of the
Borrower acquired or organized after April 1, 1986, for the purpose of
acquiring the stock or business or assets of any person other than the
Borrower or any Restricted Subsidiary, whether by merger,
consolidation, acquisition of stock or assets or similar transaction
analogous in purpose or effect, so long as such Subsidiary of the
Borrower does not acquire by merger, consolidation, acquisition of
stock or assets or similar transactions analogous in purpose or effect
all or any substantial part of the business or assets of the Borrower
or any Restricted Subsidiary of the Borrower; and (b) any other
Subsidiary of the Borrower which is hereafter designated by the Board
of Directors of the Borrower as a Restricted Subsidiary of the
Borrower.
"Revolving Credit Loans" shall mean the revolving loans made
by the Lenders to the Borrower pursuant to Section 2.04. Each Revolving
Credit Loan shall be a Eurodollar Loan or an ABR Loan.
"Sale and Leaseback Transaction" shall mean any arrangement
with any person providing for the leasing by the Borrower or any
Restricted Subsidiary of any Principal Property (whether such Principal
Property is now owned or hereafter acquired) that has been or is to be
sold or transferred by the Borrower or such Restricted Subsidiary to
such person, other than (a) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years; (b)
leases between the Borrower and a Restricted Subsidiary or between
Restricted Subsidiaries; and (c) leases of Principal Property executed
by the time of, or within 180 days after the latest of, the
acquisition, the completion of construction or improvement (including
any improvements on property which will result in such property
becoming Principal Property), or the commencement of commercial
operation of such Principal Property.
"SEC" shall mean the Securities and Exchange Commission.
"Separation Transaction" shall mean any disposition, spin-off
or other similar transaction (whether pursuant to a single transaction
or a series of related transactions) of any division or line of
business of the Borrower or any of its Subsidiaries as a result of
which, after giving effect thereto, such division or line of business
is no longer a part of or conducted by the Borrower or any of its
Subsidiaries. The Broadband Separation or any other separation of AT&T
Broadband shall constitute a "Separation Transaction".
"SFAS Statement No. 133" shall mean the Statement of Financial
Accounting Standards No. 133 ("Accounting for Derivative Instruments
and Hedging Activities").
"S&P" means Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor rating agency.
"Short-Term Debt" shall have the meaning assigned to such term
in the definition of Public Debt Ratings.
"SPC" shall have the meaning specified in Section 8.04(j).
"Subsidiary" shall mean, at any time, any Person, a majority
of the Voting Equity Interests of which are at such time owned or
controlled, directly or indirectly, by the Borrower or by one or more
Subsidiaries of the Borrower. As used herein, Voting Equity Interests
are Equity Interests entitled to vote in the election of directors (or
comparable management positions).
"Swap Agreement" shall mean any agreement with respect to any
swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any
combination of these transactions entered into in the ordinary course
of business and not for speculative purposes.
"Total Commitment" shall mean, at any time, the aggregate
amount of Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type" when used in respect of any Revolving Credit Loan or
Borrowing, shall refer to the Rate by reference to which interest on
such Revolving Credit Loan or on the Revolving Credit Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include
the LIBO Rate and the Alternate Base Rate.
"Utilization Fee" shall have the meaning assigned to such term
in Section 2.06(b).
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Paying Agent that the Borrower wishes to
amend any covenant in Article V to eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Paying Agent notifies the Borrower
that the Required Lenders wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Credit Loans to the Borrower, at
any time and from time to time on and after the date hereof and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Commitment, subject, however, to the conditions that (i) at no
time shall the outstanding aggregate principal amount of all Revolving Credit
Loans made by all Lenders exceed the Total Commitment, and (ii) at all times the
outstanding aggregate principal amount of all Revolving Credit Loans made by
each Lender shall equal the product of (A) the percentage which its Commitment
represents of the Total Commitment times (B) the outstanding aggregate principal
amount of all Revolving Credit Loans made pursuant to Section 2.04. Each
Lender's Commitment is set forth opposite its name in Schedule 2.01. Such
Commitments may be terminated or reduced from time to time pursuant to Section
2.11.
Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Revolving Credit Loans hereunder, on and after the Closing
Date and prior to the Maturity Date, subject to the terms, conditions and
limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Credit Loan shall be made as part of a
Borrowing consisting of Revolving Credit Loans made by the Lenders ratably in
accordance with their respective Commitments; provided, however, that the
failure of any Lender to make any Revolving Credit Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Revolving Credit Loan required to be made by such other
Lender). The Revolving Credit Loans comprising any Borrowing shall be in an
aggregate principal amount which is an integral multiple of $10,000,000 and not
less than $50,000,000 (or an aggregate principal amount equal to the remaining
balance of the available Commitments).
(b) Each Borrowing shall be comprised entirely of Eurodollar Loans or ABR Loans,
as the Borrower may request pursuant to Section 2.04. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Eurodollar Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Eurodollar Loan in accordance with the terms of this Agreement. Borrowings
of more than one Type may be outstanding at the same time; provided, however,
that the Borrower shall not be entitled to request any Borrowing which, if made,
would result in an aggregate of more than 25 separate Borrowings comprised of
Eurodollar Loans being outstanding hereunder at any one time. For purposes of
the foregoing, Revolving Credit Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Revolving Credit Loans.
(c) Subject to Section 2.05, each Lender shall make each Revolving Credit Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Paying Agent in New York, New York, not later
than 12:00 noon, New York City time, and the Paying Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the general deposit
account of the Borrower with the Paying Agent or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders. Revolving
Credit Loans shall be made by the Lenders pro rata in accordance with Section
2.16. Unless the Paying Agent shall have received notice from a Lender prior to
the date (or in the case of ABR Borrowings, prior to 12:00 noon New York City
time on the date of such Borrowing) of any Borrowing that such Lender will not
make available to the Paying Agent such Lender's portion of such Borrowing, the
Paying Agent may assume that such Lender has made such portion available to the
Paying Agent on the date of such Borrowing in accordance with this paragraph (c)
and the Paying Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have made such portion available to the Paying Agent, such
Lender and the Borrower severally agree to repay to the Paying Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Paying Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Revolving Credit Loans comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Effective
Rate. If such Lender shall repay to the Paying Agent such corresponding amount,
such amount shall constitute such Lender's Revolving Credit Loan as part of such
Borrowing for purposes of this Agreement.
SECTION 2.03. [Intentionally Omitted].
SECTION 2.04. Borrowing Procedure. In order to request a Borrowing, the Borrower
shall notify the Paying Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before a proposed Borrowing and (b) in the case of an ABR
Borrowing, not later than 10:30 a.m., New York City time, on the day of a
proposed Borrowing. Each such telephonic borrowing request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the Paying Agent
of a written Borrowing Request in the form of Exhibit A. Each such telephonic
and written Borrowing Request shall specify (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto, which shall not end after the Maturity Date. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
Notwithstanding any other provision of this Agreement to the contrary, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect to such Borrowing would end after the Maturity Date. The
Paying Agent shall promptly advise the Lenders of any notice given pursuant to
this Section 2.04 and of each Lender's portion of the requested Borrowing.
SECTION 2.05. Conversion and Continuation of Loans. The Borrower shall have the
right at any time upon prior notice by telephone to the Paying Agent (i) not
later than 10:30 a.m., New York City time, on the day of the conversion, to
convert all or any part of any Eurodollar Borrowing into an ABR Borrowing, (ii)
not later than 10:30 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period and (iii) not later than 10:30 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period,
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(a) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, the aggregate principal amount of the
Borrowing converted or continued shall be an integral multiple of
$10,000,000 and not less than $50,000,000;
(b) accrued interest on a Borrowing (or portion thereof) being converted
shall be paid by the Borrower at the time of conversion;
(c) if any Eurodollar Borrowing is converted at a time other than the end
of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.15;
(d) any portion of a Borrowing maturing or required to be repaid in less
than one month may not be converted into or continued as a Eurodollar
Borrowing;
(e) any portion of a Eurodollar Borrowing which cannot be continued as a
Eurodollar Borrowing by reason of clause (d) above shall be
automatically converted at the end of the Interest Period in effect for
such Eurodollar Borrowing into an ABR Borrowing; and
(f) no Interest Period may be selected for any Eurodollar Borrowing that
would end later than the Maturity Date.
Each such telephonic notice shall be confirmed promptly by
hand delivery or telecopy to the Paying Agent of a written notice. Each such
telephonic and written notice of the Borrower pursuant to this Section 2.05
shall be irrevocable and shall refer to this Agreement and specify (i) the
identity and amount of the Borrowing that the Borrower requests to be converted
or continued, (ii) whether such Borrowing is to be converted to or continued as
a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and (iv)
if such Borrowing is to be converted to or continued as a Eurodollar Borrowing,
the Interest Period with respect thereto. If no Interest Period is specified in
any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice in
accordance with this Section 2.05 to convert or continue any Borrowing, such
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted or continued
into a new Interest Period as an ABR Borrowing.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Lender, through the
Paying Agent, on each March 31, June 30, September 30 and December 31 (with the
first payment being due on December 31, 2002) and on the date on which the
Commitment of such Lender shall be terminated or reduced as provided herein, a
facility fee (a "Facility Fee") on the average daily amount of the Commitment of
such Lender, whether used or unused, during the preceding quarter (or other
period commencing on the date of this Agreement, or ending with the Maturity
Date or any date on which the Commitment of such Lender shall be terminated or
reduced) at a rate per annum equal to the Applicable Facility Fee Percentage in
effect from time to time. All Facility Fees shall be computed on the basis of
the actual number of days elapsed in a year of 365 or 366 days, as the case may
be. The Facility Fee due to each Lender shall commence to accrue on the date of
this Agreement, and shall cease to accrue on the earlier of the Maturity Date
and the termination of the Commitment of such Lender as provided herein.
(b) The Borrower agrees to pay to each Lender, through the Paying Agent, on each
March 31, June 30, September 30 and December 31 and on each date on which the
Commitment of such Lender shall be terminated or reduced as provided herein, a
utilization fee (a "Utilization Fee") equal to a pro rata portion (based on the
ratio of such Lender's Commitment to the Total Commitment) of 0.25% per annum on
the aggregate principal amount of the outstanding Revolving Credit Loans for
each day during the preceding quarter (or other period commencing on the date
hereof or ending with the Maturity Date or any date on which the Commitment of
such Lender shall be terminated on which the sum of the Revolving Credit Loans
outstanding under the Facility exceeds 25% of the Total Commitment. The
Utilization Fee due to each Lender shall be payable in arrears and shall
commence to accrue on the date of this Agreement and cease to accrue on the
earlier of the Maturity Date and the termination of the Commitment of such
Lender as provided herein.
(c) The Borrower agrees to pay the Paying Agent, for its own account, the agency
and other fees referred to in the Fee Letter (the "Administrative Fees") at the
times and in the amounts agreed upon in the Fee Letter.
(d) All Fees shall be paid on the dates due, in immediately available funds, to
the Paying Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
agrees that the outstanding principal balance of each Revolving Credit Loan
shall be payable on the Maturity Date. Each Revolving Credit Loan shall bear
interest on the outstanding principal balance thereof as set forth in Section
2.08.
(b) Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to the appropriate
lending office of such Lender resulting from each Revolving Credit Loan made by
such lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid such lending office of such Lender from
time to time under this Agreement.
(c) The Paying Agent shall maintain the Register pursuant to Section 8.04(d),
and a subaccount for each Lender, in which Register and accounts (taken
together) shall be recorded (i) the amount of each Revolving Credit Loan made
hereunder, the Type of each Revolving Credit Loan made and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Paying Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant to
paragraph (b) and (c) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Paying Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Revolving Credit
Loans made to the Borrower by such Lender in accordance with their terms.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of Section 2.09,
the Revolving Credit Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Margin from time to time in
effect.
(b) Subject to the provisions of Section 2.09, the Revolving Credit Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, for periods during which the Alternate Base Rate is determined by reference
to the Prime Rate and 360 days for periods during which the Alternate Base Rate
is determined by reference to the Federal Funds Effective Rate) at a rate per
annum equal to the Alternate Base Rate.
(c) Interest on each Revolving Credit Loan shall be payable on each Interest
Payment Date applicable to such Revolving Credit Loan except as otherwise
provided in this Agreement. The applicable LIBO Rate or Alternate Base Rate for
each Interest Period or day within an Interest Period, as the case may be, shall
be determined in good faith by the Paying Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.09. Default Interest. If the Borrower shall default in the payment of
the principal of or interest on any Revolving Credit Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, the Borrower shall on demand from time to time from
the Paying Agent pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the Alternate Base Rate plus
2.00%.
SECTION 2.10. Alternate Rate of Interest. In the event, and on each occasion,
that on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Borrowing the Paying Agent shall have determined in good
faith (i) that dollar deposits in the principal amounts of the Eurodollar Loans
comprising such Borrowing are not generally available in the London interbank
market or (ii) that reasonable means do not exist for ascertaining the LIBO
Rate, the Paying Agent shall, as soon as practicable thereafter, give telex or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination under clauses (i) or (ii) above, until the
Paying Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.04 shall be deemed to
be a request for an ABR Borrowing. In the event a Lender notifies the Paying
Agent that the rates at which dollar deposits are being offered will not
adequately and fairly reflect the cost to such Lender of making or maintaining
its Eurodollar Loan during such Interest Period, the Paying Agent shall notify
the Borrower of such notice and until the Lender shall have advised the Paying
Agent that the circumstances giving rise to such notice no longer exist, any
request by the Borrower for a Eurodollar Borrowing shall be deemed a request for
an ABR Borrowing for the same Interest Period with respect to such Lender. Each
determination by the Paying Agent hereunder shall be in good faith and
conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a) The
Commitments shall be automatically terminated on the Maturity
----------------------------------------
Date.
(b) Upon at least three Business Days' prior irrevocable telex or telecopy
notice to the Paying Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that each partial reduction of the Total
Commitment shall be in an integral multiple of $10,000,000 and in a minimum
principal amount of $50,000,000.
(c) Each reduction in the Total Commitment hereunder shall be made ratably among
the Lenders in accordance with their respective Commitments. The Borrower shall
pay to the Paying Agent for the account of the Lenders, on the date of each
termination or reduction of the Commitment, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) On the date on which the conditions contained in the
Merger Agreement to the consummation of the Broadband Separation are satisfied
or waived, the Facility shall be automatically and permanently reduced to
$3,000,000,000 and such reduction shall be made ratably among the Lenders in
accordance with their Commitments.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon giving
telex or telecopy notice (or telephone notice promptly confirmed by telex or
telecopy notice) to the Paying Agent: (i) before 10:00 a.m., New York City time,
three Business Days prior to prepayment, in the case of Eurodollar Loans and
(ii) before 10:00 a.m., New York City time, one Business Day prior to
prepayment, in the case of ABR Loans; provided, however, that each partial
prepayment shall be in an amount which is an integral multiple of $10,000,000
and not less than $50,000,000.
(b) On the date of any termination or reduction of the Commitments pursuant to
Section 2.11, the Borrower shall pay or prepay so much of the Borrowings as
shall be necessary in order that the aggregate principal amount of the Revolving
Credit Loans outstanding will not exceed the Total Commitment, after giving
effect to such termination or reduction.
(c) Each notice of prepayment from the Borrower shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section 2.12 shall be subject to Section
2.15 but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
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(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets or deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on such Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurodollar Loan made
by such Lender, and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender shall have determined that the applicability of any law, rule,
regulation or guideline adopted after the date hereof pursuant to or arising out
of the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or any Lender's holding company
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement, such Lender's Commitment or the Revolving Credit Loans made by
such Lender pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered. It is
acknowledged that this Agreement is being entered into by the Lenders on the
understanding that the Lenders will not be required to maintain capital against
their Commitments under currently applicable laws, regulations and regulatory
guidelines.
(c) A certificate of the Lender setting forth such amount or amounts (including
computation of such amount or amounts) as shall be necessary to compensate the
Lender or its holding company as specified in paragraph (a) or (b) above, as the
case may be, shall be delivered to the Borrower and such amount or amounts may
be reviewed by the Borrower. Unless the Borrower disagrees in good faith with
the computation of the amount or amounts in such certificate, the Borrower shall
pay to the Lender, within 10 Business Days after receipt by the Borrower of such
certificate delivered by the Lender, the amount shown as due on any such
certificate. If the Borrower, after receipt of any such certificate from the
Lender, disagrees with the Lender on the computation of the amount or amounts
owed to the Lender pursuant to paragraph (a) or (b) above, the Lender and the
Borrower shall negotiate in good faith to promptly resolve such disagreement. In
either case, however, the Lender shall have a duty to mitigate the damages that
may arise as a consequence of paragraph (a) or (b) above to the extent that such
mitigation will not, in the judgment of the Lender, entail any cost or
disadvantage to the Lender that the Lender is not reimbursed or compensated for
by the Borrower.
(d) Failure on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any period shall not constitute a waiver of such
Lender's right to demand compensation with respect to such period or any other
period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision
herein, if after the date hereof any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by 30 days' (or
such shorter period as shall be required in order to comply with applicable law)
written notice to the Borrower and to the Paying Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be converted
to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any Lender
shall be effective as to each Eurodollar Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower. Before
giving any such notice, such Lender shall designate a different lending office
if such designation will avoid the need for giving such notice and will not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender against any
out-of-pocket loss or expense which such Lender may sustain or incur as a
consequence of (a) any failure by the Borrower to borrow or to refinance,
convert or continue any Revolving Credit Loan hereunder after irrevocable notice
of such borrowing, refinancing, conversion or continuation has been given
pursuant to Section 2.04 or 2.05, (b) any payment, prepayment or conversion, or
an assignment required under Section 2.20, of a Eurodollar Loan by the Borrower
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default by the Borrower in payment or prepayment of
the principal amount of any Revolving Credit Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (d) the occurrence of any Event of Default.
In the case of a Eurodollar Loan, such out-of-pocket loss or
expense shall be limited to an amount equal to the excess, if any, of (i) such
Lender's cost of obtaining the funds for the Eurodollar Loan being paid,
prepaid, converted or not borrowed, converted or continued (based on the LIBO
Rate applicable thereto) for the period from the date of such payment,
prepayment, conversion or failure to borrow, convert or continue to the last day
of the Interest Period for such Eurodollar Loan (or, in the case of a failure to
borrow, convert or continue, the Interest Period for such Eurodollar Loan which
would have commenced on the date of such failure) over (ii) the amount of
interest that would be realized by such Lender in reemploying the funds so paid,
prepaid, converted or not borrowed, converted or continued for such period or
Interest Period, as the case may be. In the case of an ABR Loan, such
out-of-pocket loss or expense shall be limited to an amount equal to the excess,
if any, of (i) such Lender's cost of obtaining the funds for the ABR Loan being
paid, prepaid, converted or not borrowed, converted or continued for the period
from the date of such payment, prepayment, conversion or failure to borrow,
convert or continue to the next Business Day for such ABR Loan over (ii) the
amount of interest that would be realized by such Lender in reemploying the
funds so paid, prepaid, converted or not borrowed, converted or continued until
the next Business Day, as the case may be.
A certificate of the Lender setting forth such amount or
amounts (including the computation of such amount or amounts) as shall be
necessary to compensate the Lender or its holding company for the out-of-pocket
expenses defined herein shall be delivered to the Borrower and such amount or
amounts may be reviewed by the Borrower. If the Borrower, after receipt of any
such certificate from the Lender, disagrees in good faith with the Lender on the
computation of the amount or amounts owed to the Lender pursuant to this Section
2.15, the Lender and the Borrower shall negotiate in good faith to promptly
resolve such disagreement.
Each Lender shall have a duty to mitigate the damages to such
Lender that may arise as a consequence of clause (a), (b), (c) or (d) above to
the extent that such mitigation will not, in the judgment of such Lender, entail
any cost or disadvantage to such Lender that such Lender is not reimbursed or
compensated for by the Borrower.
SECTION 2.16. Pro Rata Treatment. Except as required under Sections 2.10, 2.13,
2.14, 2.15, 2.19 and 2.20, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Revolving Credit
Loans, each payment of the Facility Fees and Utilization Fees, each reduction of
the Commitments and each refinancing or conversion of any Borrowing with a
Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Revolving Credit Loans). Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Paying Agent may, in its discretion, round each Lender's percentage of such
Borrowing to the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall, through
the exercise of a right of banker's lien, setoff or counterclaim against the
Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Credit Loans as a
result of which the unpaid principal portion of the Revolving Credit Loans of
such Lender shall be proportionately less than the unpaid principal portion of
the Revolving Credit Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Revolving Credit Loans of such other Lender, so that the aggregate unpaid
principal amount of the Revolving Credit Loans and participations in the
Revolving Credit Loans held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Revolving Credit Loans then
outstanding as the principal amount of its Revolving Credit Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Revolving Credit Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Revolving Credit Loan deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Revolving Credit Loan directly to the Borrower in the
amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder from an account in the United States not later than 12:00 noon, New
York City time, on the date when due in dollars to the Paying Agent at the
location set forth in Section 8.01(b), in immediately available funds.
(b) Whenever any payment (including principal of or interest on any Borrowing or
any Fees or other amounts) hereunder shall become due, or otherwise would occur,
on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.18, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by the United
States or any political subdivision or taxing authority thereof, excluding taxes
imposed on the Paying Agent or any Lender's (or any transferee's or assignee's,
including a participation holder's (any such entity a "Transferee")) net income
and franchise taxes imposed on the Paying Agent or any Lender (or Transferee) by
the United States or any political subdivision or taxing authority thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender (or any Transferee) or the Paying Agent, (i) the sum
payable shall be increased by the amount necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.19) such Lender (or Transferee) or the Paying Agent (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
imposed by the United States or any political subdivision or taxing authority
thereof (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and the Paying Agent
for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
on amounts payable under this Section 2.19) paid by such Lender (or Transferee)
or the Paying Agent, as the case may be, with respect to the Borrower and any
liability (including penalties, interest and reasonable out-of-pocket expenses)
arising therefrom or with respect thereto (other than any such liability that
results from the negligence or willful misconduct of the Lender (or Transferee)
or the Paying Agent), whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within 30 days after the date any
Lender (or Transferee) or the Paying Agent, as the case may be, makes written
demand therefor. If the Borrower or any Lender (or Transferee) or the Paying
Agent shall determine that Taxes or Other Taxes may not have been correctly or
legally assessed by the relevant taxing authority or other Governmental
Authority, and that a Lender (or Transferee) or the Paying Agent may be entitled
to receive a refund in respect of Taxes or Other Taxes, it shall promptly notify
the other party of the availability of such refund and such Lender (or
Transferee) or the Paying Agent shall, within 30 days after receipt of a request
by the Borrower, apply for such refund at the Borrower's expense. If any Lender
(or Transferee) or the Paying Agent receives a refund or credit or offset
against another tax liability in respect of any Taxes or Other Taxes for which
such Lender (or Transferee) or the Paying Agent has received payment from the
Borrower hereunder it shall promptly repay such refund or credit or offset
against another tax liability (including any interest received by such Lender
(or Transferee) or the Paying Agent from the taxing authority with respect to
the refund with respect to such Taxes or Other Taxes) to the Borrower, net of
all out-of-pocket expenses of such Lender; provided that the Borrower, upon the
request of such Lender (or Transferee) or the Paying Agent, agrees to return
such refund or credit or offset against another tax liability (plus penalties,
interest or other charges) to such Lender (or Transferee) or the Paying Agent in
the event such Lender (or Transferee) or the Paying Agent is required to repay
such refund or credit or offset against another tax liability. For purposes of
the preceding sentence, the Paying Agent or any Lender shall determine in good
faith and in its discretion the amount of any credit or offset against another
tax liability and shall be under no obligation to make available to the Borrower
any of its tax returns or any other information that it deems to be
confidential.
(d) As soon as practicable after the date of any payment of Taxes or Other Taxes
withheld by the Borrower in respect of any payment to any Lender (or Transferee)
or the Paying Agent, the Borrower will furnish to the Paying Agent, at its
address referred to in Section 8.01, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained herein,
the agreements and obligations contained in this Section 2.19 shall survive the
payment in full of the principal of and interest on all Revolving Credit Loans
made hereunder.
(f) Each Lender (or Transferee) which is organized outside the United States
shall, prior to the due date of the first payment by the Borrower to such Lender
(or Transferee) hereunder, deliver to the Borrower such certificates, documents
or other evidence, as required by the Code or Treasury Regulations issued
pursuant thereto, including Internal Revenue Service Form W-8BEN or Form W-8ECI,
or any successor or other form prescribed by the Internal Revenue Service
properly completed and duly executed by such Lender (or Transferee) establishing
that such payment is (i) not subject to withholding under the Code because such
payment is effectively connected with the conduct by such Lender (or Transferee)
of a trade or business in the United States or (ii) totally exempt from United
States tax under a provision of an applicable tax treaty. Each such Lender (or
Transferee) that changes its funding office shall promptly notify the Borrower
of such change and, upon written request from the Borrower, shall deliver any
new certificates, documents or other evidence required pursuant to the preceding
sentence prior to the immediately following due date of any payment by the
Borrower hereunder. Unless the Borrower and the Paying Agent have received forms
or other documents satisfactory to them indicating that payments hereunder are
not subject to United States withholding tax, notwithstanding paragraph (a), the
Borrower or the Paying Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Lender (or
Transferee) organized under the laws of a jurisdiction outside the United
States.
(g) The Borrower shall not be required to pay any additional amounts to any
Lender (or Transferee) in respect of Taxes and Other Taxes pursuant to
paragraphs (a), (b) and (c) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender (or Transferee)
to comply with the provisions of paragraph (f) above unless such Lender (or
Transferee) is unable to comply with paragraph (f) because of (i) a change in
applicable law, regulation or official interpretation thereof or (ii) an
amendment, modification or revocation of any applicable tax treaty or a change
in official position regarding the application or interpretation thereof, in
each case after the date hereof (and, in the case of a Transferee, after the
date of assignment or transfer).
(h) Any Lender (or Transferee) claiming any additional amounts payable under
this Section 2.19 shall (i) to the extent legally able to do so, upon written
request from the Borrower, file any certificate or document if such filing would
avoid the need for or reduce the amount of any such additional amounts which may
thereafter accrue, and the Borrower shall not be obligated to pay such
additional amounts if, after the Borrower's request, any Lender (or Transferee)
could have filed such certificate or document and failed to do so; or (ii)
consistent with legal and regulatory restrictions, use reasonable efforts to
change the jurisdiction of its applicable lending office if the making of such
change would avoid the need for or reduce the amount of any additional amounts
which may thereafter accrue and would not, in the sole determination of such
Lender (or Transferee), be otherwise disadvantageous to such Lender (or
Transferee).
SECTION 2.20. Mandatory Assignment; Commitment Termination. In the event any
Lender delivers to the Paying Agent or the Borrower, as appropriate, a
certificate in accordance with Section 2.13(c) or a notice in accordance with
Section 2.10 or 2.14, or the Borrower is required to pay any additional amounts
or other payments in accordance with Section 2.19, the Borrower may, at its own
expense, and in its sole discretion (a) require such Lender to transfer and
assign in whole or in part, without recourse (in accordance with Section 8.04),
all or part of its interests, rights and obligations under this Agreement to an
assignee which shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority and (ii) the Borrower or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Revolving
Credit Loans made by it hereunder and all other amounts owed to it hereunder or
(b) terminate the Commitment of such Lender and prepay all outstanding Revolving
Credit Loans of such Lender; provided that (x) such termination of the
Commitment of such Lender and prepayment of Revolving Credit Loans does not
conflict with any law, rule or regulation or order of any court or Governmental
Authority and (y) the Borrower shall have paid to such Lender in immediately
available funds the principal of and interest accrued to the date of such
payment on the Revolving Credit Loans made by it hereunder and all other amounts
owed to it hereunder.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Organization; Powers. The Borrower (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in every jurisdiction
where such qualification is required, except where the failure so to qualify
would not result in a Material Adverse Effect, and (d) has the corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and to borrow funds hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by the
Borrower of this Agreement and the Borrowings of the Borrower hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate action and (b) will not (i) violate (A) any provision of any
law, statute, rule or regulation (including, without limitation, the Margin
Regulations) or of the certificate of incorporation or other constitutive
documents or by-laws of the Borrower, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
to which the Borrower is a party or by which the Borrower or any of its property
is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon any property or assets of the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any
----------------------
Governmental Authority is or will be required in connection with the
Transactions.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore furnished to
the Agents and the Lenders copies of (i) its consolidated financial statements
for the year ended December 31, 2001, which were included in the Borrower's
annual report on Form 10-K filed with the SEC on April 1, 2002 under the
Exchange Act, the Borrower's annual report on Form 10-K/A filed with the SEC on
May 3, 2002 under the Exchange Act and the Borrower's annual report on Form
10-K/A filed with the SEC on May 13, 2002 under the Exchange Act, (ii) its
consolidated financial statements for the three months ended March 30, 2002,
which were included in the Borrower's quarterly report on Form 10-Q filed with
the SEC on May 15, 2002 under the Exchange Act and (iii) its consolidated
financial statements for the six months ended June 30, 2002, which were included
in the Borrower's quarterly report on Form 10-Q filed with the SEC on August 14,
2002 under the Exchange Act. Such financial statements present fairly, in all
material respects, the consolidated financial condition and the results of
operations of the Borrower as of such dates in accordance with GAAP.
(b) As of the Closing Date, there has occurred no material adverse change in the
consolidated financial condition of the Borrower from the financial condition
reflected in the financial statements referred to in the first sentence of
paragraph (a) above (it being understood that neither the proposed Broadband
Separation nor any event, condition or result accurately reflected in reports or
financial statements filed with the SEC prior to August 14, 2002, shall be
deemed to give rise to a material adverse change).
SECTION 3.06. Litigation; Compliance with Laws. (a) There are no actions or
proceedings filed or (to the knowledge of the Borrower) investigations pending
or overtly threatened against the Borrower in any court or before any
Governmental Authority or arbitration board or tribunal which question the
validity or legality of or seek damages in connection with this Agreement, the
Transactions or any action taken or to be taken pursuant to this Agreement and
no order or judgment has been issued or entered restraining or enjoining the
Borrower from the execution, delivery or performance of this Agreement nor is
there any action or proceeding which involves a probable risk of an adverse
determination which would have any such effect; nor is there as of the date
hereof any other action or proceeding filed or (to the knowledge of the
Borrower) investigation pending or overtly threatened against the Borrower in
any court or before any Governmental Authority or arbitration board or tribunal
which involves a probable risk of a material adverse decision which would result
in a Material Adverse Effect or materially restrict the ability of the Borrower
to comply with its obligations under this Agreement.
(b) Neither the Borrower nor any of its Subsidiaries is in violation of any law,
rule or regulation, or in default with respect to any judgment, writ, injunction
or decree of any Governmental Authority, where such violation or default would
result in a Material Adverse Effect.
SECTION 3.07. Federal Reserve Regulations. (a) Neither the Borrower nor
any of its Subsidiaries is engaged principally, or as
---------------------------
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Revolving Credit Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose which entails a violation of, or which is inconsistent with, the
provisions of the Margin Regulations.
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.09. Use of Proceeds. All proceeds of the Revolving Credit Loans shall
be used to refinance the Existing Credit Facility and for other general
corporate purposes of the Borrower, including, without limitation, the repayment
of maturing commercial paper of the Borrower.
SECTION 3.10. No Material Misstatements. No report, financial statement or other
written information furnished by or on behalf of the Borrower to any Agent or
any Lender pursuant to Section 3.05 or Section 5.02 hereof contains or will
contain any material misstatement of fact or omits or will omit to state any
material fact necessary to make the statements therein, taken as a whole, in the
light of the circumstances under which they were or will be made, not
misleading.
ARTICLE IV
Conditions of Effectiveness and of Lending
The obligations of the Lenders to make Revolving Credit Loans
hereunder are subject to the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing:
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(a) The Paying Agent shall have received a notice of such Borrowing as
required by Section 2.04.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the
date of such Borrowing with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and provisions
set forth herein in all material respects, and at the time of and
immediately after such Borrowing no Event of Default or Default shall
have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date. This Agreement shall be effective upon the
satisfaction of the following conditions set forth in this
------------
Section 4.02:
(a) The Paying Agent shall have received this Agreement, duly executed by each
of the parties hereto.
(b) The Paying Agent shall have received a favorable written opinion of the
General Attorney for Corporate Matters of the Borrower, dated the
Closing Date and addressed to the Lenders, to the effect set forth in
Exhibit C hereto.
(c) The Paying Agent shall have received (i) a long form certificate as to the
certificate of incorporation, including all amendments thereto, of the Borrower,
as of a recent date by the Secretary of State of the state of incorporation of
the Borrower and a certificate as to the good standing of the Borrower as of a
recent date, from such Secretary of State; (ii) a certificate of the Secretary
or an Assistant Secretary of the Borrower dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of the
Borrower as in effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of the Borrower authorizing the execution, delivery and performance of
this Agreement and the Borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C) that
the certificate of incorporation of the Borrower has not been amended since the
date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency and
specimen signature of each officer executing this Agreement or any other
document delivered in connection herewith on behalf of the Borrower; and (iii) a
certificate of another officer of the Borrower as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above.
(d) The Paying Agent shall have received a certificate from the Borrower,
dated the Closing Date and signed by a Financial Officer of the
Borrower, (i) confirming compliance with the conditions precedent set
forth in paragraphs (b) and (c) of Section 4.01 and (ii) certifying
that either no change has been made to the Merger Agreement that has
resulted in any reduction in the amount of the Broadband Receivable or
that the aggregate amount of all such reductions, changes and
replacements referred to in clauses (A), (B) and (C) of Section 6.01(i)
resulting from changes in the Merger Agreement does not exceed $2
billion.
(e) The Paying Agent shall have received any Fees and other amounts due and
payable on or prior to the Closing Date to the extent invoiced.
(f) The Existing Credit Facility shall have been repaid in full, all fees
due under the Existing Credit Facility shall have been paid in full and
the commitments thereunder shall have been terminated.
(g) The Public Debt Rating of the Borrower shall be at least equal to BBB-
by S&P and Baa3 by ▇▇▇▇▇'▇.
ARTICLE V
Covenants
The Borrower covenants and agrees with each Lender and each
Agent that so long as this Agreement shall remain in effect or the principal of
or interest on any Revolving Credit Loan, any Fees or any other expenses or
amounts payable hereunder shall be unpaid, unless the Required Lenders shall
otherwise consent in writing:
SECTION 5.01. Existence. The Borrower will do or cause to be done all
things necessary to preserve, renew and keep in full force
---------
and effect its legal existence, except as otherwise expressly permitted under
Section 5.05.
SECTION 5.02. Financial Statements, Reports, Etc. The Borrower will
furnish to the Paying Agent for distribution to the Lenders:
----------------------------------
(a) promptly after the filing or sending thereof and in any event not later
than (i) 105 days after the end of each fiscal year, a copy of the
Borrower's report on Form 10-K which the Borrower files with the SEC
for such year and (ii) 15 days after being sent to its public security
holders, a copy of the Borrower's annual report;
(b) promptly after the filing thereof, and in any event within 60 days
after the end of each of the first three fiscal quarters during each
fiscal year, the Borrower's report on Form 10-Q which the Borrower
files with the SEC for such quarter;
(c) concurrently with any delivery of information under paragraph (a)
above, a certificate of a Financial Officer certifying that no Event of
Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of all other
reports filed by it with the SEC, or any Governmental Authority
succeeding to any of or all the functions of the SEC, or distributed to
its shareholders, as the case may be; and
(e) promptly after the same become publicly available, notice that either
or both of the Public Debt Ratings have changed from the immediately
preceding Public Debt Ratings previously reported to the Paying Agent
by the Borrower.
Reports required to be delivered pursuant to subsections (a),
(b) and (d) of this Section 5.02 shall be deemed to have been delivered on the
date on which the Borrower posts such reports on the Borrower's website on the
Internet at the website address listed on the signature pages hereof or when
such report is posted on the SEC's website at ▇▇▇.▇▇▇.▇▇▇; provided that the
Borrower shall deliver paper copies of the reports referred to in subsections
(a), (b) and (d) of this Section 5.02 to any Agent or any Lender who requests
the Borrower to deliver such paper copies until written notice to cease
delivering paper copies is given by such Agent or such Lender and provided
further that in every instance the Borrower shall provide paper copies of the
certificate required by subsection (c) and the notice required by subsection (e)
to the Paying Agent and each of the Lenders until such time as the Paying Agent
shall provide the Borrower written notice otherwise.
SECTION 5.03. Maintaining Records. The Borrower will record, summarize and
report all financial information in accordance with
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GAAP.
SECTION 5.04. Use of Proceeds. The Borrower will use the proceeds of the
Revolving Credit Loans only for the purposes set forth
---------------
in Section 3.09.
SECTION 5.05. Consolidations, Mergers, Sales of Assets and Separation
Transactions. (a) Nothing contained in this Agreement shall prevent any
consolidation of the Borrower with, or merger of the Borrower into, another
corporation or corporations (whether or not affiliated with the Borrower), or
successive consolidations or mergers to which the Borrower or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the property of the Borrower (including stock of Subsidiaries) as an entirety
or substantially as an entirety to any other corporation (whether or not
affiliated with the Borrower) authorized to acquire and own or operate the same;
provided, however, that the Borrower hereby covenants and agrees, that, upon any
such consolidation, merger, sale or conveyance, the due and punctual payment of
the principal of and interest on all the Revolving Credit Loans and the due and
punctual performance and observance of all the covenants and conditions of this
Agreement to be performed or observed by the Borrower shall be expressly
assumed, by one or more agreements, reasonably satisfactory in form to the
Required Lenders, executed and delivered to the Paying Agent by the corporation
formed by such consolidation, or into which the Borrower shall have been merged,
or which shall have acquired such property. In the case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Borrower, with the same effect as if it had been named
herein.
(b) Separation Transactions. Notwithstanding clause (a) above,
the Borrower will not effect, or permit any Subsidiary to effect, a Separation
Transaction other than the Broadband Separation unless, at the time thereof and
after giving effect thereto, (i) no Default or Event of Default shall have
occurred and be continuing, (ii) the Public Debt Rating of the Borrower for its
Long-Term Senior Debt is at least BBB- by S&P and Baa3 by ▇▇▇▇▇'▇, and (iii) all
preferred Equity Interests held by, and intercompany Indebtedness owed to, the
Borrower in or by any Subsidiary that is the subject of the Separation
Transaction are redeemed or repaid in full. For the avoidance of doubt, nothing
contained in this Agreement shall prevent the consummation of the Broadband
Separation (it being understood that Section 6.01(i) shall not be affected by
this sentence).
SECTION 5.06. Limitations on Liens. The Borrower will not, and will not permit
any Restricted Subsidiary (other than AT&T Latin America) to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Restricted
Subsidiary existing on the date hereof hereto securing obligations in
an aggregate principal amount not exceeding $250,000,000 and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof; provided that such Lien shall not
apply to any other property or asset of the Borrower or any Restricted
Subsidiary;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Restricted Subsidiary or existing on any
property or asset of any Person that becomes a Restricted Subsidiary
after the date hereof prior to the time such Person becomes a
Restricted Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Restricted Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any
Restricted Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the
date such Person becomes a Restricted Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved by
the Borrower or any Restricted Subsidiary; provided that (i) such
security interests and the obligations secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of
such construction or improvement, (ii) such security interests shall
not apply to any other property or assets of the Borrower or any
Restricted Subsidiary and (iii) the Indebtedness secured thereby shall
not exceed the cost of acquiring, constructing or improving such fixed
or capital assets;
(e) Liens solely in favor of the Borrower or any Restricted Subsidiary
arising in connection with transactions among the Borrower or any
Subsidiary of the Borrower;
(f) Liens arising in connection with Permitted Receivables Financings, as
long as the aggregate outstanding principal amount of the obligations
secured thereby does not exceed $2,700,000,000 at any time;
(g) Liens of the type described in the definition of Monetized Debt which
secure Monetized Debt; provided that such Liens shall not apply to any
other property or assets of the Borrower or any Restricted Subsidiary
other than the Available Stock related thereto and Liens on cash and
cash equivalents the use of which is restricted to the payment of
principal of, interest on, or fees in connection with the incurrence of
such Monetized Debt;
(h) Liens incurred in connection with sales and leasebacks of
customer-related equipment undertaken by AT&T Business Services, a
business division of the Borrower, in the ordinary course of fulfilling
the terms and conditions of its contractual arrangements consistent
with past practices; provided that such Liens extend solely to such
customer-related equipment and physical investments made in connection
with fulfilling such contractual arrangements;
(i) Liens securing obligations under Swap Agreements;
(j) Liens on cash and cash equivalents the use of which is restricted to
defeasing or repaying Indebtedness existing on the date
hereof;
(k) Liens on cash and cash equivalents arising under or incurred pursuant
to certain collateral arrangements made in connection with a
$360,100,000 letter of credit obligation incurred on April 18, 2002 in
connection with a private debt transaction of the Borrower of
approximately $0.8 billion; and
(l) Liens not otherwise permitted hereunder securing obligations (including
Attributable Debt outstanding under Sale and Leaseback Transactions) in
an aggregate amount which shall not at any time exceed $500,000,000.
SECTION 5.07. Limitations on Sale and Leaseback Transactions. The Borrower will
not, and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction unless the sum of (i) the Attributable Debt to be
outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt then outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Borrower or a Restricted Subsidiary after the
date of this Agreement and (iii) all then outstanding Indebtedness secured in
reliance on Section 5.06(l) does not exceed $500,000,000.
SECTION 5.08. Total Debt to EBITDA Ratio. As of the last day of each fiscal
quarter, the ratio of Consolidated Indebtedness of the Borrower and its
Consolidated Subsidiaries on such day to Consolidated Operational EBITDA of the
Borrower and its Consolidated Subsidiaries for the four consecutive fiscal
quarters ending on such day shall not exceed 3.75:1.00; provided that as of the
last day of each fiscal quarter ending after the date of the consummation of the
Broadband Separation or the date of consummation of any other separation of AT&T
Broadband from the Borrower, such ratio shall not exceed 2.25:1.00.
SECTION 5.09. Maintenance of Cash. The Borrower shall at all times after the
consummation of the exchange/consent offer contemplated by the Borrower's
registration statement on form S-4 filed with the SEC on August 12, 2002, as
amended, maintain cash, cash equivalents and marketable securities not subject
to any Lien in an amount which equals or exceeds the lesser of (x)
$1,270,000,000 or (y) the aggregate principal amount of any series of
Indebtedness incurred pursuant to the 1990 Indenture that has not been deemed to
have consented to such exchange/consent offer (net of any amount of such
Indebtedness that has been determined in a final non-appealable judgment by a
court of competent jurisdiction not to be due and payable before its stated
maturity as a result of a breach or an alleged breach of Article 5 of the 1990
Indenture due to the consummation of the Broadband Separation).
ARTICLE VI
Events of Default
SECTION 6.01. In case of the happening of any of the following events
(each, an "Event of Default"):
(a) any representation or warranty made or deemed made in or in connection
with the execution and delivery of this Agreement or the Borrowings
hereunder, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Revolving
Credit Loan when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Revolving
Credit Loan or any Fee or any other amount (other than an amount
referred to in paragraph (b) above) due hereunder, when and as the same
shall become due and payable, and such default shall continue
unremedied for a period of ten days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 5.01, 5.04, 5.05
or 5.08;
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those
specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Paying
Agent or any Lender to the Borrower;
(f) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Borrower or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 30
consecutive days;
(g) the Borrower shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law; or consent to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Borrower or for any substantial part of
its property or make any general assignment for the benefit of
creditors; or the Borrower shall admit in writing its inability to pay
its debts generally as they become due, or corporate action shall be
taken by the Borrower in furtherance of any of the aforesaid purposes;
(h) (i) the Borrower or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on any Indebtedness of the Borrower or such
Subsidiary (as the case may be) that is outstanding in a principal amount of at
least $250,000,000 either individually or in the aggregate (but excluding
Indebtedness outstanding hereunder), 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 Indebtedness;
or (ii) any other event shall occur or condition shall exist under any agreement
or instrument relating to any such Indebtedness 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
Indebtedness or otherwise to cause such Indebtedness to mature before its stated
maturity; or (iii) any such Indebtedness 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) before its stated maturity; provided that
neither clause (ii) nor (iii) shall apply to secured Indebtedness that becomes
due solely as a result of a voluntary sale or transfer of the property securing
such Indebtedness; and provided, further, that, so long as the Borrower shall
have commenced the exchange offer contemplated by the Borrower's registration
statement on Form S-4 filed with the SEC on August 12, 2002, as amended, none of
clauses (i), (ii) or (iii) shall apply to Indebtedness existing on the date
hereof, and incurred pursuant to the 1990 Indenture, the maturity of which is
accelerated, or is otherwise declared to be due and payable, as a result of a
breach or an alleged breach of Article 5 of the 1990 Indenture due to the
consummation of the Broadband Separation, so long as (x) the Borrower is
contesting in good faith any such breach or alleged breach in appropriate
proceedings and (y) there has not been entered against the Borrower one or more
judgments to pay such Indebtedness in an aggregate amount exceeding
$250,000,000, which judgment either (A) exceeds the cash, cash equivalents and
marketable securities (not subject to any Lien, and net of (1) the outstanding
aggregate principal amount of the Revolving Credit Loans and (2) the principal
amount of any such Indebtedness that at such time is being contested in a
different proceeding of the type referred to above in clause (x)) of the
Borrower at the time such judgment is entered, or (B) has remained undischarged
for a period of 30 consecutive days; and
(i) there shall occur any material change to the terms of the
Merger Agreement or Proxy Statement that is adverse from the standpoint
of the Borrower and either (i) requires a second shareholder vote to
approve the terms of the Broadband Separation or (ii) would result in
(A) the incurrence, assumption or retention of any additional
liabilities or Indebtedness by the Borrower, (B) any reduction in
(including without limitation, forgiveness of all or part of) the
amount of the intercompany receivable owed to the Borrower by AT&T
Broadband (the "Broadband Receivable") or any change in the form of
consideration paid in respect of the Broadband Receivable; provided
that the Borrower may exchange cash consideration that would otherwise
be paid in respect of the Broadband Receivable for the assumption of an
equal or greater amount of additional Indebtedness of the Borrower by
AT&T Broadband or (C) the Broadband Receivable being replaced by a note
made by a Comcast affiliate in favor of the Borrower, in an aggregate
amount for all such additional liabilities, reductions, changes or
replacements referred to above in clauses (A), (B) and (C) in excess of
$2 billion (excluding fees and expenses incurred by the Borrower in
connection with the repayment of the Broadband Receivable);
then, and in every such event (other than an event described in paragraph (f) or
(g) above), and at any time thereafter during the continuance of such event, the
Paying Agent, at the request of the Required Lenders, shall, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate forthwith the Commitments and (ii) declare the Revolving
Credit Loans then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Revolving Credit Loans so declared to be
due and payable, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein to the contrary notwithstanding; and, in any event
with respect to the Borrower described in paragraph (f) or (g) above, the
Commitments shall automatically terminate and the principal of the Revolving
Credit Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding.
ARTICLE VII
The Agents
SECTION 7.01. In order to expedite the transactions contemplated by this
Agreement, Citibank is hereby appointed to act as Paying Agent on behalf of the
Lenders and JPMorgan, CSFB, Citibank and GSCP are hereby appointed to act as
Administrative Agents on behalf of the Lenders. The Administrative Agents do not
assume any responsibility or obligation under this Agreement or any duties as
agents for the Lenders. The title "Administrative Agent" implies no fiduciary
obligation on the part of any Administrative Agent to any Person and the use of
such title does not impose on any Administrative Agent any duties under this
Agreement. Each of the Lenders hereby authorizes each Agent to take such actions
on behalf of such Lender and to exercise such powers as are specifically
delegated to such Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Paying Agent is
hereby expressly authorized by the Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Revolving Credit Loans and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender its proper share of
each payment so received; (b) to give notice on behalf of each of the Lenders to
the Borrower of any Event of Default specified in this Agreement of which the
Paying Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Paying Agent. It is understood that the Agent
Parties shall not have any duties or obligations except those expressly set
forth herein.
Neither any Agent Party nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or willful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
this Agreement. No Agent Party shall be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. Each Agent Party may deem and
treat the Lender which makes any Revolving Credit Loan as the holder of the
indebtedness resulting therefrom for all purposes hereof until, in the case of
the Paying Agent, the Paying Agent shall have received notice from such Lender
or, in the case of any other Agent Party, such Agent Party shall have received
notice from the Paying Agent that it received such notice from such Lender, in
each case, given as provided herein, of the transfer thereof. Each Agent Party
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (or when
expressly required hereby, all the Lenders) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent Party shall, in
the absence of knowledge to the contrary, be entitled to rely on any instrument
or document believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons. Neither any Agent Party nor
any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower of any of their respective obligations hereunder or
in connection herewith. Each Agent Party may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that each Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Paying Agent as provided below, any Agent may resign at any time by notifying
the Lenders and the Borrower. Upon any such resignation of the Paying Agent, the
Required Lenders shall have the right to appoint a successor Paying Agent
acceptable to the Borrower. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Paying Agent gives notice of its resignation, then the retiring
Paying Agent may, on behalf of the Lenders, appoint a successor Paying Agent
which shall be a bank with an office in New York, New York, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as a Paying Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Paying Agent and the
retiring Paying Agent shall be discharged from its duties and obligations
hereunder. After any Agent's resignation hereunder, the provisions of this
Article and Section 8.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as an Agent.
With respect to the Revolving Credit Loans made by it
hereunder, any Agent in its individual capacity and not as an Agent shall have
the same rights and powers as any other Lender and may exercise the same as
though it were not an Agent, and each Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not an
Agent.
Each Lender agrees (i) to reimburse the Paying Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder)
of any expenses incurred for the benefit of the Lenders by such Agent, including
reasonable counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrower, and (ii) to indemnify and hold harmless each Agent Party and
any of its directors, officers, employees or agents, on demand, in the amount of
such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as an Agent Party or any
of them in any way relating to or arising out of this Agreement or any action
taken or omitted by it or any of them under this Agreement to the extent the
same shall not have been reimbursed by the Borrower; provided that no Lender
shall be liable to any Agent Party for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent Party or any of its directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and
without reliance upon any Agent Party or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent
Party or any other Lender and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement or any related
agreement or any document furnished hereunder or thereunder.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at AT&T Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Senior Treasury Manager (Facsimile No. 908-630-1965) with a copy to
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
(Facsimile No. 212-450-4800);
(b) if to the Paying Agent, to it at Citibank, N.A., ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇
(Facsimile No. 212-994-0961);
(c) if to an Administrative Agent, to it at its address (or telecopy
number) set forth in Schedule 2.01; and
(d) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 8.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 8.01.
SECTION 8.02. Survival of Agreement. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Revolving Credit Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Revolving Credit Loan or any Fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not been
terminated.
SECTION 8.03. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and each Agent and when the Paying
Agent shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of each Lender, and thereafter shall be
binding upon and inure to the benefit of the Borrower, each Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its respective rights or duties hereunder or
any interest herein without the prior consent of all the Lenders and any
attempted assignment without such consent shall be void.
SECTION 8.04. Successors and Assigns. (a) Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Borrower, the Agents or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Revolving Credit Loans at the time owing to
it); provided, however, that (i) unless an Event of Default has occurred and is
continuing under subsection (a), (b), (c), (f), (g) or (h) of Article VI hereto
or with respect to the covenant of the Borrower contained in Section 5.08
hereof, the Borrower must give its prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) in the case of an
assignment made by a Lender to a Person other than a Lender or an Affiliate of a
Lender, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Paying Agent) shall not be less
than $5,000,000 (or the remaining balance of its Commitment) and the amount of
the Commitment of such Lender remaining after such assignment shall not be less
than $5,000,000 or shall be zero, and (iii) the parties to each such assignment
shall execute and deliver to the Paying Agent an Assignment and Acceptance, and
a processing and recordation fee of $3,000. Upon acceptance and recording
pursuant to paragraph (e) of this Section 8.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, (B) the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.13,
2.15, 2.19 and 8.05, as well as to any Fees accrued for its account hereunder
and not yet paid)) and (C) Schedule 2.01 shall be deemed amended to give effect
to such assignment.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, (ii) except
as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.02 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon any Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to such Agent by the terms
hereof, together with such powers as are reasonably incidental thereto and (vii)
such assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Paying Agent shall maintain at one of its offices in the City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and the principal amount of the Revolving Credit Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Borrower, the Agents and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and each Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an assignee, the processing and recordation fee referred
to in paragraph (b) above and, if required, the written consent of the Borrower
to such assignment, the Paying Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.
(f) Each Lender may, without the consent of the Borrower or any of the Agents,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Revolving Credit Loans owing to it); provided,
however, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) each participating bank or
other entity shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.13, 2.15 and 2.19 to the same extent as if it was the
selling Lender, except that all claims and petitions for payment and payments
made pursuant to such Sections shall be made through such selling Lender, and
(iv) the Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such selling Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender shall retain the
sole right (and participating banks or other entities shall have no right) to
enforce the obligations of the Borrower relating to the Revolving Credit Loans
and to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing any fees
payable hereunder or the amount of principal of or the rate at which interest is
payable on the Revolving Credit Loans, or extending any scheduled principal
payment date or date fixed for the payment of interest on the Revolving Credit
Loans).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall execute
an agreement whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of any such confidential
information relating to the Borrower.
(h) The Borrower shall not assign or delegate any of its respective rights and
duties hereunder without the prior written consent of all Lenders and any
attempted assignment without such consent shall be void.
(i) Any Lender may at any time pledge all or any portion of its rights under
this Agreement to a Federal Reserve Bank; provided that no such pledge shall
release any Lender from its obligations hereunder or substitute any such Bank
for such Lender as a party hereto. In order to facilitate such an assignment to
a Federal Reserve Bank, the Borrower shall, at the request of the assigning
Lender, duly execute and deliver to the assigning Lender a promissory note or
notes in substantially the form of Exhibit D hereto evidencing the Revolving
Credit Loans made to the Borrower by the assigning Lender hereunder.
(j) Notwithstanding anything to the contrary contained herein, any Lender (a
"Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of
such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Revolving Credit Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided, that (i) nothing herein shall constitute a commitment
by any SPC to make any Revolving Credit Loan and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Revolving Credit Loan, the Granting Lender shall be obligated to make such
Revolving Credit Loan pursuant to the terms hereof. The making of a Revolving
Credit Loan by an SPC hereunder shall utilize the Commitment of such Granting
Lender to the same extent, and as if, such Revolving Credit Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any payment under this Agreement for which a Lender would otherwise
be liable, for so long as, and to the extent that, the related Granting Lender
makes such payment. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 8.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Revolving Credit Loans to its Granting
Lender or to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Revolving Credit
Loans and (ii) disclose on a confidential basis any non-public information
relating to its Revolving Credit Loans to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC. This section may not be amended without the written consent of each
SPC that holds any Revolving Credit Loans at the time of such proposed
amendment.
SECTION 8.05. Expenses; Indemnity. (a) The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by any Agent in connection with entering into
this Agreement or by the Paying Agent in connection with any amendments,
modifications or waivers of the provisions hereof, or incurred by any Agent or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement or in connection with the Revolving Credit Loans
made hereunder, including the reasonable fees and disbursements of a single
counsel for the Agents or, in the case of enforcement or protection, counsel for
the Lenders.
(b) The Borrower agrees to indemnify the Agent Parties, the Lenders, their
respective Affiliates, and their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the transactions contemplated thereby, (ii) the use of the
proceeds of the Revolving Credit Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
negligence or willful misconduct of such Indemnitee.
(c) The provisions of this Section 8.05 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Revolving Credit Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of any
Agent Party or any Lender. All amounts due under this Section 8.05 shall be
payable on written demand therefor.
(d) All out-of-pocket expenses that any Lender may sustain or incur as a
consequence of (a), (b), (c) or (d) of Section 2.15 but that are not included in
the calculations made pursuant to the second and third sentences of Section
2.15, shall be included in the amount or amounts payable to such Lender and in
the manner provided pursuant to this Section 8.05.
SECTION 8.06. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
--------------
NEW YORK.
SECTION 8.07. Waivers; Amendment. (a) No failure or delay of any Agent or any
Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Revolving Credit Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Revolving Credit Loan, without
the prior written consent of each Lender affected thereby, (ii) increase the
Commitment or decrease the Facility Fee of any Lender without the prior written
consent of such Lender, or (iii) amend or modify the provisions of Section 2.16
or Section 8.04(h), the provisions of this Section or the definition of the
"Required Lenders", without the prior written consent of each Lender; provided
further, however, that no such agreement shall amend, modify or otherwise affect
the rights or duties of any Agent hereunder without the prior written consent of
such Agent. Each Lender shall be bound by any waiver, amendment or modification
authorized by this Section and any consent by any Lender pursuant to this
Section shall bind any assignee of its rights and interests hereunder.
SECTION 8.08. Entire Agreement. This Agreement, any promissory notes issued
hereunder, and the Fee Letter constitute the entire contract among the parties
relative to the subject matter hereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the Fee Letter. Nothing in this Agreement or the Fee Letter expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the Fee Letter.
SECTION 8.09. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 8.03. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 8.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only,
--------
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this
Agreement.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the fullest extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
48
NYDOCS03/637079 AT&T CREDIT AGREEMENT
SECTION 8.13. Waiver of Jury Trial. EACH OF THE BORROWER, THE AGENTS AND THE
LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the Borrower, the Agents and the Lenders
have caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
AT&T CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & Treasurer
Website: ▇▇▇.▇▇▇.▇▇▇
CITIBANK, N.A., as a Lender, as
Paying Agent and as an Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, as a Lender and
as an Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
JPMORGAN CHASE BANK,
as a Lender and as an Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as a Lender and as an Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
The Lenders
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
HSBC BANK USA
By: /s/ Paolo de Alessindrini
Name: Paolo de Alessindrini
Title: Senior Banker
THE ROYAL BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ Jaap L. Tonckens
Name: Jaap L. Tonckens
Title: Vice President
DEUTSCHE BANK
By: /s/ Andreas Neumeirer
Name: Andreas Neumeirer
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Sr. Manager
CAIXA GENERAL DE DEPOSITOS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice
President & General Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President &
General Manager
COMERICA BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CIBC INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp. as Agent
SCHEDULE 2.01
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
JPMorgan Chase Bank $512,500,000.00 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 270 Park Avenue
36th Floor 36th Floor
Global Media & Global Media &
Telecommunications Group Telecommunications Group
▇▇, ▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Credit Suisse First Boston ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 11 Madison Avenue
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$512,500,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$512,500,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Citibank, N.A. Two Penns Way, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$512,500,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Bank of America, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$300,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
HSBC Bank USA 1 HSBC Center 1 HSBC Center
Agent Servicing- 26th floor Agent Servicing- ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Buffalo, NY
Attn: ▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$300,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
The Royal Bank of Scotland ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
21st Floor 21st Floor
NY, NY 10022 ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$300,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ 25th floor
West Valley City, UT 84120 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$250,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$50,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇/66
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Bank One, NA ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$200,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Deutsche Bank AG New York Branch ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 31 West 52nd Street and/or
Cayman Islands Branch NY, NY 10019 ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$200,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
ABN Amro 1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$200,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
The Royal Bank of Scotland ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
21st Floor 21st Floor
NY, NY 10022 ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$300,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Royal Bank of Canada ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
5th Floor 5th Floor
NY, NY 10006-1404 ▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$50,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Caixa General de Depositos Paseo de la Castellana ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ 189
28046 Madrid 28046 Madrid
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
$25,000,000.00 Fax: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
Comerica Bank ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 500 ▇▇▇▇▇▇▇▇ Avenue
9th Floor, MC ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
The Northern Trust Company ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
CIBC ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 55 East 52nd Street
NY, NY 10055 ▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000.00 Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------ ---------------------- ---------------------------------- ----------------------------------
-----------------------------------------------------------
Total $4,000,000,000.00
-----------------------------------------------------------
Form of Borrowing Request
EXHIBIT A
FORM OF BORROWING REQUEST
Citibank, N.A., as Paying Agent
for the Lenders referred to below,
==========
Attention: [Date]
Ladies and Gentlemen:
The undersigned, AT&T Corp. (the "Borrower"), refers to the
364-Day Revolving Credit Facility Agreement dated as of ___________, 2002 (as it
may be amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, the Lenders named therein, JPMorgan Chase Bank,
Citibank, N.A. ("Citibank"), Credit Suisse First Boston, Cayman Islands Branch
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as Administrative Agents, and Citibank,
as Paying Agent. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
Borrower hereby gives you notice pursuant to Section 2.04 of the Credit
Agreement that it requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Borrowing is requested to be
made:
(A) Date of Borrowing (which is a Business Day) --------------------------
(B) Principal Amount of Borrowing 1/
--------------------------
(C) Interest rate basis 2/
--------------------------
(D) Interest Period and the last day thereof 3/
--------------------------
Upon acceptance of any or all of the Revolving Credit Loans
made by the Lenders in response to this request, the Borrower shall be deemed to
have represented and warranted that the conditions to lending specified in
Section 4.01(b) and (c) of the Credit Agreement have been satisfied.
Very truly yours,
AT&T CORP.,
By:
-----------------------------------------
Name:
Title: [Responsible Officer]
Form of Assignment and Acceptance
Form of Assignment and Acceptance
EXHIBIT B
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Revolving Credit Facility
Agreement dated as of ___________, 2002 (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among AT&T
Corp., (the "Borrower"), the Lenders named therein, JPMorgan Chase Bank,
Citibank, N.A. ("Citibank"), Credit Suisse First Boston, Cayman Islands Branch
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as Administrative Agents, and Citibank,
as Paying Agent for the Lenders (in such capacity, the "Paying Agent"). Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date set forth below, the
interests set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth herein in the Commitment of the Assignor on the Effective
Date and Revolving Credit Loans owing to the Assignor which are outstanding on
the Effective Date, together with unpaid interest accrued on the assigned
Revolving Credit Loans to the Effective Date. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 8.04(c) of the Credit Agreement,
a copy of which has been received by each such party. From and after the
Effective Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Paying Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.19(f)
of the Credit Agreement, duly completed and executed by such Assignee, and (ii)
a processing and recordation fee of $3,000.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment (may not be fewer than 5 Business Days after the
Date of Assignment):
Percentage Assigned of Facility
and Commitment thereunder
Principal Amount Assigned (set forth, to at least 8 decimals,
as a percentage of the Facility
and the aggregate Commitments
of all Lenders thereunder)
--------------------------
Commitment Assigned: $ %
Revolving Credit Loans:
The terms set forth above and on the
reverse side hereof are hereby agreed to: Accepted: as of ___________________,
______________________, as Assignor AT&T CORP.
By: _________________________ By: _______________________________
Name: _______________________ Name: ____________________________
Title: _______________________ Title: _____________________________
_____________________, as Assignee
By: _________________________
Name: _______________________
Title: _______________________
NYDOCS03/597836.2 Form of Opinion of Counsel for AT&T Corp.
NYDOCS03/637079 Form of Opinion of Counsel for AT&T Corp.
EXHIBIT C
FORM OF
OPINION OF COUNSEL FOR AT&T CORP. 4/
1. AT&T Corp. (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York, (ii) has
all requisite power and authority to own its property and assets and to carry on
its business as now conducted, (iii) is qualified to do business in every
jurisdiction within the United States where such qualification is required,
except where the failure so to qualify would not result in a Material Adverse
Effect on AT&T Corp., and (iv) has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Credit Agreement and
to borrow funds thereunder.
2. The execution, delivery and performance by AT&T Corp. of
the Credit Agreement and the Borrowings of AT&T Corp. thereunder (collectively,
the "Transactions") (i) have been duly authorized by all requisite corporate
action and (ii) will not (a) violate (1) any provision of law, statute, rule or
regulation (including without limitation, the Margin Regulations), or of the
certificate of incorporation or other constitutive documents or by-laws of AT&T
Corp., (2) any order of any governmental authority or (3) any provision of any
indenture, agreement or other instrument to which AT&T Corp. is a party or by
which it or its property is or may be bound, (b) be in conflict with, result in
a breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (c) result in
the creation or imposition of any lien upon any property or assets of AT&T Corp.
3. The Credit Agreement has been duly executed and delivered
by AT&T Corp. and constitutes a legal, valid and binding obligation of AT&T
Corp. enforceable against AT&T Corp. in accordance with its terms, subject as to
the enforceability of rights and remedies to any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditors' rights from
time to time in effect.
4. No action, consent or approval of, registration or filing
with, or any other action by, any government authority is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect.
5. Neither AT&T Corp. nor any of its subsidiaries is (a)
an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
2
NYDOCS03/637079 Form of Note
NYDOCS03/637079 Form of Note
EXHIBIT D
FORM OF NOTE
$ [Amount of Commitment] New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned, AT&T Corp., a New York
corporation (the "Borrower"), hereby promises to pay to the order of [Name of
Lender] (the "Lender"), at the office of ___________ (the "Paying Agent") at
[__________] on the Maturity Date (as defined in the 364-Day Revolving Credit
Facility Agreement dated as of ___________, 2002 (as it may be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders named therein, JPMorgan Chase Bank, Citibank, N.A.,
Credit Suisse First Boston, Cayman Islands Branch and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Administrative Agents, and the Paying Agent) the lesser of the
principal sum of [amount of Commitment in words] ($[ ]) and the aggregate unpaid
principal amount of all Revolving Credit Loans (as defined in the Credit
Agreement) made to the Borrower by the Lender pursuant to the Credit Agreement,
in lawful money of the United States of America, in immediately available funds,
and to pay interest on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum, from
the dates and payable on the dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by the holder of any
of its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
and maturity dates thereof shall be endorsed by the holder hereof on the
schedule attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by
such holder in its internal records; provided, however, that the failure of the
holder to make such a notation or any error in such a notation shall not affect
the obligations of the Borrower under this Note.
The Revolving Credit Loans evidenced hereby are Revolving
Credit Loans referred to in the Credit Agreement, which, among other things,
contains provisions for the acceleration of the maturity thereof upon the
happening of certain events, for optional and mandatory prepayment of the
principal thereof prior to the maturity thereof and for the amendment or waiver
of certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
AT&T CORP.
By:
-----------------------------------------
Name:
Title:
Loans and Payments
========================================================================================================================
Date Amount Maturity Principal Payments Interest Unpaid Name of
---- --------- -------- --------
and Type Date Principal Person
----
of Loan Balance Making
-------
of Note Notation
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
========================================================================================================================
--------
1/ Not less than $50,000,000 (and in integral multiples of $10,000,000) or
greater than the Total Commitment then available. 2/ Eurodollar Loan or ABR
Loan. 3/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date. 4/ Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the 364-Day
Revolving Credit Facility Agreement dated as of ___________, 2002 (as it may be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among AT&T Corp., (the "Borrower"), the Lenders named therein,
JPMorgan Chase Bank, Citibank, N.A. ("Citibank"), Credit Suisse First Boston and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as Administrative Agents, and Citibank, as
Paying Agent for the
Lenders.