SECTION 8.03.No Waiver; Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04.Costs and Expenses. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of Shearman & Sterling LLP, counsel for the Agent, with respect thereto and with respect to advising the Agent as to its rights and responsibilities under this Agreement. The Borrower further agrees to pay on demand all costs and expenses of the Agent and the Lenders, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, equityholders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 8.06 as a result of a demand by the Borrower pursuant to Section 8.06(a), the Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2.10, 2.13 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.
NYDOCS02/767329
SECTION 8.05.Binding Effect. This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.
SECTION 8.06.Assignments and Participations. (a) Each Lender may and, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.13) upon at least five Business Days' notice to such Lender and the Agent, will assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it);provided,however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof unless the Borrower and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.06(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.06(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a processing and recordation fee of $3,500 payable by the parties to each such assignment (not including the Borrower),provided,however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (vii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and
NYDOCS02/767329
recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Section 2.10, 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other entities (other than the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it);provided,however, that (i) such Lender's obligations under this
NYDOCS02/767329
Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.06, disclose to the assignee or participant or proposed assigneeor participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower;provided that, prior to any such disclosure, the assignee or participant or proposed assigneeor participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 8.07.Confidentiality; Patriot Act. Neither the Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to the Agent's or such Lender's Affiliates and their officers, directors, employees, agents and advisors on a "need to know" basis and, as contemplated by Section 8.06(f), to actual or prospective assignees and participants, and then, in each case, only if such Person agrees to be bound by the provisions of this Section 8.07, (b) as required by any law, rule or regulation or judicial process, (c) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking or other financial institutions or self regulatory authority and, (d) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder. In the case of a disclosure pursuant to clause (b) above, the disclosing party agrees, to the extent permitted by applicable law, to promptly notify the Borrower prior to such disclosure and to request confidential treatment. Each of the Lenders hereby notifies the Borrower that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow it to identify the Borrower in accordance with the Patriot Act.
SECTION 8.08.Governing Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 8.09.Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.10.Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York
NYDOCS02/767329
State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Borrower hereby agrees that service of process in any such action or proceeding brought in the any such New York State court or in such federal court may be made upon the Corporate Secretary of the Borrower at 175 East Houston Street, San Antonio, Texas 78205 (the "Process Agent") and the Borrower hereby irrevocably appoints the Process Agent its authorized agent to accept such service of process. The Borrower hereby further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to the Borrower at its address specified pursuant to Section 8.02. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 8.11.Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
AT&T INC.
By/s/ Jonathan P. Klug
Title: Senior Vice President and Treasurer
CITIBANK, N.A.,
as Agent
By/s/ Jeffrey Rothman
Title: Managing Director
Initial Lenders
CITIBANK, N.A.
By/s/ Jeffrey Rothman
Title: Managing Director
JPMORGAN CHASE BANK, N.A.
By/s/ Peter B. Thauer
Title: Vice President
BANK OF AMERICA, N.A.
By/s/ Stephen Phillips
Title: Vice President
NYDOCS02/767329
ABN AMRO BANK N.V.
By/s/ David Carrington
Title: Director
By/s/ Nick Zorin
Title: Associate
BARCLAYS BANK PLC
By/s/ Nicolas Bell
Title: Director
DEUTSCHE BANK AG, NEW YORK
BRANCH
By/s/ Andreas Neumeier
Title: Director
By/s/ Yvonne Tilden
Title: Vice President
UBS LOAN FINANCE LLC
By/s/ Richard L. Tavrow
Title: Director
By/s/ Marie Haddad
Title: Associate Director
LEHMAN BROTHERS BANK, FSB
By/s/ Janine M. Shugan
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC
By/s/ Andrew Wynn
Title: Managing Director
WACHOVIA BANK N.A.
By/s/ Mark L. Cook
Title: Director
BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By/s/ D. Barnell
Title: Vice President & Manager
NYDOCS02/767329
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH
By/s/ Doreen Barr
Title: Vice President
By/s/ Shaheen Malik
Title: Associate
MERRILL LYNCH BANK USA
By/s/ Louis Alder
Title: Director
MORGAN STANLEY BANK
By/s/ Daniel Twenge
Title: Authorized Signature
WILLIAM STREET COMMITMENT
CORPORATION
By/s/ Mark Walton
Title: Assistant Vice President
MELLON BANK N.A.
By/s/ Robert J. Mitchell
Title: First Vice President
STATE STREET BANK AND TRUST
COMPANY
By/s/ Janet B. Nolin
Title: Vice President
THE NORTHERN TRUST COMPANY
By/s/ Alex Nikolov
Title: Second Vice President
COMERICA BANK
By/s/ Mark Grover
Title: First Vice President
U.S. BANK NATIONAL ASSOCIATION
By/s/ Colleen McEvoy
Title: Vice President
FROST NATIONAL BANK
By/s/ Suzanne Peterson
Title: Market President, Alamo Heights
NYDOCS02/767329
SCHEDULE I
AT&T INC.
FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender | Commitments Prior to the Incremental Facility Effective Date | Commitments After the Incremental Facility Effective Date | Domestic Lending Office | Eurodollar Lending Office |
| | | | |
| | | | |
| | | | |
ABN AMRO BANK,
N.V. | $210,000,000.00 | $350,000,000.00 | 208 South LaSalle Street, Suite 1500 Chicago, IL 60604-1003 Attn: CPU Team T: 312 992-5152/53 F: 312 992-5157/58 | 208 South LaSalle Street, Suite 1500 Chicago, IL 60604-1003 Attn: CPU Team T: 312 992-5152/53 F: 312 992-5157/58 |
Bank of America, N.A. | $537,000,000.00 | $895,000,000.00 | 901 Main Street 14th Floor Dallas, TX 75202 Attn: Jean N. North T: 241 209-2151 F: 241 209-8380 | 901 Main Street 14th Floor Dallas, TX 75202 Attn: Jean N. North T: 241 209-2151 F: 241 209-8380 |
The Bank of
Tokyo-Mitsubishi UFJ,
Ltd., Houston Agency | $210,000,000.00 | $350,000,000.00 | 1100 Louisiana, #2800 Houston, TX 77002 Attn: Jimmy Yu T: 201 413-8566 F: 201 521-2338 | 1100 Louisiana, #2800 Houston, TX 77002 Attn: Jimmy Yu T: 201 413-8566 F: 201 521-2338 |
Barclays Bank PLC | $537,000,000.00 | $895,000,000.00 | 200 Park Avenue 4th Floor New York, NY 10166 Attn: Catherine Redfern T: 973 576-3220 F: 973 576-3014 | 200 Park Avenue 4th Floor New York, NY 10166 Attn: Catherine Redfern T: 973 576-3220 F: 973 576-3014 |
Citibank, N.A. | $582,000,000.00 | $970,000,000.00 | Two Penns Way New Castle, DE 19720 Attn: Paul Joseph T: 212 994-0961 F: 302 894-6016 | Two Penns Way New Castle, DE 19720 Attn: Paul Joseph T: 212 994-0961 F: 302 894-6016 |
Comerica Bank | $60,000,000.00 | $100,000,000.00 | | |
Credit Suisse, Cayman
Islands Branch | $210,000,000.00 | $350,000,000.00 | Eleven Madison Avenue New York, NY 10010 Attn: Paul Corona T: 212 538-3689 F: 212 743-4554 | Eleven Madison Avenue New York, NY 10010 Attn: Paul Corona T: 212 538-3689 F: 212 743-4554 |
NYDOCS02/767329
Deutsche Bank AG
Cayman Islands Branch | $537,000,000.00 | $895,000,000.00 | 300 South Grand Avenue 40th Floor Mail Stop LSA02-4001 Los Angeles, CA 90071 Attn: Esther Ocampo T: 213 620-8241 F: 213 620-8293 | 300 South Grand Avenue 40th Floor Mail Stop LSA02-4001 Los Angeles, CA 90071 Attn: Esther Ocampo T: 213 620-8241 F: 213 620-8293 |
Frost National Bank | $12,000,000.00 | $20,000,000.00 | 100 W. Houston RB-2 San Antonio, TX 78205 Attn: Janice Hill T: 210 220-4235 F: 210 220-4389 | 100 W. Houston RB-2 San Antonio, TX 78205 Attn: Pearl Esparza T: 210 220-4235 F: 210 220-4389 |
JPMorgan Chase Bank,
N.A. | $582,000,000.00 | $970,000,000.00 | 1111 Fannin street 10th Floor Houston, Texas 77002 Attn: Leslie Opeyemi T: 713 750-2318 F: 713 750-2228 | 1111 Fannin street 10th Floor Houston, Texas 77002 Attn: Leslie Opeyemi T: 713-750-2318 F: 713-750-2228 |
Lehman Brothers Bank, FSB | $357,000,000.00 | $595,000,000.00 | 745 7th Avenue 5th Floor New York, NY 10019 Attn: Joseph Lo T: 212 526-6560 F: 212 520-0450 | 745 7th Avenue 5th Floor New York, NY 10019 Attn: Joseph Lo T: 212 526-6560 F: 212 520-0450 |
Mellon Bank N.A. | $75,000,000.00 | $125,000,000.00 | 3 Mellon Center Room 1203 Pittsburgh, PA 15259 Attn: Daria Armen T: 412 234-1870 F: 412 209-6117 | 3 Mellon Center Room 1203 Pittsburgh, PA 15259 Attn: Daria Armen T: 412 234-1870 F: 412 209-6117 |
Merrill Lynch Bank USA | $210,000,000.00 | $350,000,000.00 | 15 W. South Temple Suite 300 Salt Lake City, UT 84101 Attn: Butch Alder T: 801 526-8324 F: 801 531-7470 | 15 W. South Temple Suite 300 Salt Lake City, UT 84101 Attn: Butch Alder T: 801 526-8324 F: 801 531-7470 |
Morgan Stanley Bank | $210,000,000.00 | $350,000,000.00 | 750 Seventh Avenue 11th Floor New York, NY 10019 Attn: Larry Benison T: 212 537-1439 F: 212 537-1867 | 750 Seventh Avenue 11th Floor New York, NY 10019 Attn: Larry Benison T: 212 537-1439 F: 212 537-1867 |
The Northern Trust Company | $75,000,000.00 | $125,000,000.00 | 801 S. Canal St. Chicago, IL 60607 Attn: Linda Honda T: 312 444-3532 F: 312 630-1566 | 801 S. Canal St. Chicago, IL 60607 Attn: Linda Honda T: 312 444-3532 F: 312 630-1566 |
NYDOCS02/767329
The Royal Bank of
Scotland PLC | $357,000,000.00 | $595,000,000.00 | 101 Park Avenue 6th Floor New York, NY 10178 Attn: Punam Gambhir T: 212 401-3278 F: 212 401-3456 | 101 Park Avenue 6th Floor New York, NY 10178 Attn: Punam Gambhir T: 212 401-3278 F: 212 401-3456 |
State Street Bank and
Trust Company | $75,000,000.00 | $125,000,000.00 | 225 Franklin Street Boston, MA 02110 Attn: Voy Pearson T: 617 664-4008 F: 617 664-3941 | 225 Franklin Street Boston, MA 02110 Attn: Voy Pearson T: 617 664-4008 F: 617 664-3941 |
UBS Loan Finance LLC | $537,000,000.00 | $895,000,000.00 | 677 Washington Blvd. Stamford, CT 06501 Attn: Christopher Aitkin T: 203 719-3845 F: 203 719-3888 | 677 Washington Blvd. Stamford, CT 06501 Attn: Christopher Aitkin T: 203 719-3845 F: 203 719-3888 |
U.S. Bank National
Association | $60,000,000.00 | $100,000,000.00 | | |
Wachovia Bank N.A. | $357,000,000.00 | $595,000,000.00 | 301 S. College Street Charlotte, NC 28288 Attn: John Brady T: 704 374-2432 F: 704 383-1625 | 301 S. College Street Charlotte, NC 28288 Attn: John Brady T: 704 374-2432 F: 704 383-1625 |
William Street Commitment Corporation | $210,000,000.00 | $350,000,000.00 | 1 New York Plaza 48th Floor New York, NY 10004 Attn: Philip Green T: 212 357-7570 F: 212 357-4597 | 1 New York Plaza 48th Floor New York, NY 10004 Attn: Philip Green T: 212 357-7570 F: 212 357-4597 |
NYDOCS02/767329
SCHEDULE 5.02(a)
EXISTING LIENS
NONE
NYDOCS02/767329
EXHIBIT A - FORM OF
NON-NEGOTIABLE PROMISSORY NOTE
U.S.$_______________ | Dated: _______________, 200_ |
FOR VALUE RECEIVED, the undersigned, AT&T INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office on the later of the Termination Date and the date designated pursuant to Section 2.05 of the Credit Agreement (each as defined in the Credit Agreement referred to below) the principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate principal amount of the Advances made by the Lender to the Borrower pursuant to the Five Year Credit Agreement dated as of July 12, 2006 among the Borrower, the Lender and certain other lenders parties thereto, Citigroup Global Markets Inc. and JPMorgan Securities Inc. as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A., as syndication agent, Bank of America, N.A., Barclays Bank PLC and Deutsche Bank AG New York Branch, and UBS Loan Finance LLC, as documentation agents, and Citibank, N.A., as Agent for the Lender and such other lenders (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount of each Advance from the date of such Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States of America to Citibank, as Agent, at 388 Greenwich Street, New York, New York 10013, in same day funds. Each Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower resulting from each such Advance being evidenced by this Promissory Note and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
AT&T INC.
By __________________________
Title:
NYDOCS02/767329
ADVANCES AND PAYMENTS OF PRINCIPAL
Date | Amount of Advance | Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
NYDOCS02/767329
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, AT&T Inc., refers to the Five Year Credit Agreement, dated as of July 12, 2006 (as amended or modified from time to time, the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto, Citigroup Global Markets Inc. and JPMorgan Securities Inc, as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A., as syndication agent, Bank of America, N.A., Barclays Bank PLC, Deutsche Bank AG New York Branch, and UBS Loan Finance LLC, as documentation agents, and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
| (i) | The Business Day of the Proposed Borrowing is _______________, 200_. |
(ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
| (iii) | The aggregate amount of the Proposed Borrowing is $_______________. |
(iv) The proceeds of the Proposed Borrowing shall be funded to account maintained by the Borrower at __________ at its office at __________, Account No. __________.
[(v) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit Agreement (except the representations set forth in the last sentence of subsection (e) thereof and in subsection (f)(i) thereof) are correct, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and
NYDOCS02/767329
(B) no event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default, and
(C) the Proposed Borrowing is within any applicable debt limitationsestablished by the Board of Directors of the Borrower.
.
Very truly yours,
AT&T INC.
By __________________________
Title:
NYDOCS02/767329
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of July 12, 2006 (as amended or modified from time to time, the "Credit Agreement") among AT&T Inc., a Delaware corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement), Citigroup Global Markets Inc. and JPMorgan Securities Inc, as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A., as syndication agent, Bank of America, N.A., Barclays Bank PLC, Deutsche Bank AG New York Branch, and UBS Loan Finance LLC, as documentation agents, and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignor's rights and obligations under the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Credit Agreement. After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Note[, if any] held by the Assignor [and requests that the Agent exchange such Note for a new Note payable to the order of [the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement, [respectively,] as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms required under Section 2.13 of the Credit Agreement.
NYDOCS02/767329
4. Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Assignment and Acceptance (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
NYDOCS02/767329
Schedule 1
to
Assignment and Acceptance
| Percentage interest assigned: | _____% | |
| Assignee's Commitment: | $______ |
| Aggregate outstanding principal amount of Advances assigned: | $______ |
| Principal amount of Note payable to Assignee: | $______ |
| Principal amount of Note payable to Assignor: | $______ |
| Effective Date*: | _______________, 200_ | |
| | | | | |
[NAME OF ASSIGNOR], as Assignor
By __________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By __________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
_________________________
* | This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Agent. |
NYDOCS02/767329
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
[Approved this __________ day
of _______________, 200_
AT&T INC.
By ]*
_________________________
* * | Required if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the definition of "Eligible Assignee". |
* | Required if the Assignee is an Eligible Assignee solely by reason of clause (iii) of the definition of "Eligible Assignee". |
NYDOCS02/767329
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
July 12, 2006
To each of the Lenders parties
to the Five Year Credit Agreement dated
as of July 12, 2006
among AT&T Inc.,
said Lenders and Citibank, N.A.,
as Agent for said Lenders, and
to Citibank, N.A., as Agent
Ladies and Gentlemen:
Pursuant to Section 3.01(h)(iv) of the Credit Agreement, dated as of July 12, 2006 (the "Credit Agreement"), among AT&T Inc. (the "Borrower"), the Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
2. The Credit Agreement has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Borrower in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' rights generally from time to time in effect and to general principles of equity).
3. Neither the execution and delivery of the Credit Agreement or the issuance of the Notes, nor the consummation of any other of the transactions therein contemplated, nor the fulfillment of the terms thereof will conflict with, result in a breach of, or constitute a default under, the charter or bylaws of the Borrower or the terms of any indenture or other agreement or instrument known to me and to which the Borrower is a party or by which the Borrower is bound, or any applicable law, order or regulation known to me to be applicable to the Borrower of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Borrower.
4. No order, consent, authorization, approval, registration or qualification of or with any governmental agency or body having jurisdiction over the Borrower is required for the due execution, delivery and performance by the Borrower of the Credit Agreement and the Notes.
5. The form and terms of the Notes have been duly authorized and established by all necessary corporate action, and, when executed and delivered, will constitute valid and legally binding obligations of the Borrower (subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' rights generally from time to time in effect and to general principles of equity).
NYDOCS02/767329
6. To the best of my knowledge, there is no pending or overtly threatened action, suit or proceedings against the Borrower or any of its Subsidiaries, as such term is defined in the Credit Agreement, before any court, governmental agency or arbitrator that purport to affect the legality, validity, binding effect or enforceability of the Credit Agreement or any of the Notes or the consummation of the transactions contemplated thereby or, if likely to have a materially adverse effect upon the financial condition or operations of the Borrower, that is not disclosed in a filing by the Borrower with the Securities and Exchange Commission.
In giving the foregoing opinion, I have assumed that at the time of any Borrowing and the execution of the Notes that any such Borrowing was in accordance with any applicable debt limitations established by the Board of Directors of the Borrower. In addition, I have relied, as to certain matters of fact, upon certificates of responsible officers of the Borrower and public officials.
Very truly yours,
NYDOCS02/767329
U.S. $10,000,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of July 12, 2006
Among
AT&T INC.
asBorrower
and
THE INITIAL LENDERS NAMED HEREIN
asInitialLenders
and
CITIBANK, N.A.
asAdministrativeAgent
and
CITIGROUP GLOBAL MARKETS INC.
and
JPMORGAN SECURITIES INC.
asJointLeadArrangersandJointBookrunners
and
JPMORGAN CHASE BANK, N.A.
asSyndication Agent
and
BANK OF AMERICA, N.A.
BARCLAYSBANK PLC
DEUTSCHE BANK AGNEW YORK BRANCH
and
UBS LOAN FINANCE LLC
asDocumentation Agents
TABLE OF CONTENTS
| ARTICLE I | |
SECTION 1.01.Certain Defined Terms | 1 |
SECTION 1.02.Computation of Time Periods | 10 |
SECTION 1.03.Accounting Terms | 10 |
ARTICLE II |
SECTION 2.01.The Advances | 10 |
SECTION 2.02.Making the Advances | 10 |
SECTION 2.03.Fees | 11 |
SECTION 2.04.Termination or Reduction of the Commitments | 11 |
SECTION 2.05.Repayment of Advances | 12 |
SECTION 2.06.Interest on Advances | 12 |
SECTION 2.07.Interest Rate Determination | 12 |
SECTION 2.08.Optional Conversion of Advances | 13 |
SECTION 2.09.Optional Prepayments of Advances | 13 |
SECTION 2.10.Increased Costs | 14 |
SECTION 2.11.Illegality | 14 |
SECTION 2.12.Payments and Computations | 15 |
SECTION 2.13.Taxes | 15 |
SECTION 2.14.Sharing of Payments, Etc. | 17 |
SECTION 2.15.Evidence of Debt | 17 |
SECTION 2.16.Use of Proceeds | 18 |
SECTION 2.17.Increase in the Aggregate Commitments | 18 |
SECTION 2.18.Extension of Termination Date | 20 |
NYDOCS02/767329
| ARTICLE III | |
SECTION 3.01.Conditions Precedent to Effectiveness of Section 2.01 | 22 |
SECTION 3.02.Conditions Precedent to Each Borrowing | 23 |
SECTION 3.03.Determinations Under Section 3.01 | 23 |
ARTICLE IV |
SECTION 4.01.Representations and Warranties of the Borrower | 24 |
ARTICLE V |
SECTION 5.01.Affirmative Covenants | 25 |
SECTION 5.02.Negative Covenants | 27 |
SECTION 5.03.Financial Covenant | 29 |
ARTICLE VI |
SECTION 6.01.Events of Default | 29 |
ARTICLE VII |
SECTION 7.01.Authorization and Action | 31 |
SECTION 7.02.Agent's Reliance, Etc. | 31 |
SECTION 7.03.Citibank and Affiliates | 31 |
SECTION 7.04.Lender Credit Decision | 31 |
SECTION 7.05.Indemnification | 32 |
SECTION 7.06.Successor Agent | 32 |
SECTION 7.07.Other Agents | 32 |
ARTICLE VIII |
SECTION 8.01.Amendments, Etc. | 32 |
SECTION 8.02.Notices, Etc. | 33 |
SECTION 8.03.No Waiver; Remedies | 34 |
NYDOCS02/767329
SECTION 8.04.Costs and Expenses | 34 |
SECTION 8.05.Binding Effect | 35 |
SECTION 8.06.Assignments and Participations | 35 |
SECTION 8.07.Confidentiality | 37 |
SECTION 8.08.Governing Law | 37 |
SECTION 8.09.Execution in Counterparts | 37 |
SECTION 8.10.Jurisdiction, Etc. | 37 |
SECTION 8.11.Waiver of Jury Trial | 38 |
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A | - | Form of Note | |
Exhibit B | - | Form of Notice of Borrowing | |
Exhibit C | - | Form of Assignment and Acceptance | |
Exhibit D | - | Form of Opinion of Counsel for the Borrower |
| | | | | |
NYDOCS02/767329
