EXHIBIT 10-D.3
CONFORMED COPY
AMENDMENT TO CREDIT AGREEMENTS
AMENDMENT dated as of June 11, 1999 to (i) the Amended and Restated
364-Day Credit Agreement dated as of May 7, 1999 (amending and restating the
364-Day Credit Agreement dated as of May 8, 1998, as amended by Amendment No. 1
dated as of June 30, 1998) and (ii) the Five-Year Credit Agreement dated as of
May 8, 1998, as amended by Amendment No. 1 dated as of June 30, 1998 (each
individually, a "Credit Agreement" and together, the "Credit Agreements") among
U S WEST CAPITAL FUNDING, INC. (the "Borrower"), U S WEST, INC., the BANKS
listed on the signature pages thereto (the "Banks") and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreements to
change the termination date, modify certain covenants, amend or add related
definitions, increase pricing and make other changes to conform to other credit
facilities;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in a Credit Agreement has
the meaning assigned to such term in such Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in a Credit Agreement shall, after this Amendment becomes effective,
refer to such Credit Agreement as amended hereby.
SECTION 2. Amendment of Section 1.01. (a) The definition of "Debt" in
Section 1.01 of each of the Credit Agreements is amended to delete the word
"international" from clause (x) in the second sentence thereof.
(b) The definition of "Termination Date" in Section 1.01 of each of
the Credit Agreements is amended to insert:
(1) before the date contained therein, the phrase "the earlier of
(i)", and
(2) after the expression "Section 2.01(b)", the clause "or
(ii) the date which is the thirtieth day after the date on which the
Merger is consummated,".
(c) Section 1.01 of each of the Credit Agreements is amended by adding
the following definitions in the appropriate alphabetical order:
"Merger" means any of the transactions constituting one of the
"Mergers" (as defined in the Merger Agreement as in effect on June 11,
1999) or any similar transaction pursuant to which the Company merges
with or into, or controls is controlled by or is under common control
with, Global Crossing Ltd.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of May 16, 1999 between the Company and Global Crossing Ltd.,
as amended prior to June 11, 1999.
"Reset Date" means the first date on which (i) the Borrower's
ratings are not on creditwatch (or the equivalent) by any of S&P,
Moody's and Duff & Phelps and (ii) the Borrower's senior unsecured
long-term debt securities guaranteed by the Company are rated at least
(x) A- by S&P, A- by Duff & Phelps and Baa1 by Moody's, (y) A- by S&P,
BBB+ by Duff & Phelps and A3 by Moody's, or (z) BBB+ by S&P, A- by Duff
& Phelps and A3 by Moody's. For purposes of this definition, "S&P" and
"Moody's" have the meanings set forth in the Pricing Schedule, and
"Duff & Phelps" means Duff & Phelps Credit Rating Co., a Delaware
corporation, and its successors or, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Duff & Phelps" shall be deemed to refer to
any other nationally recognized securities rating agency designated by
the Required Banks, with the approval of the Company, by notice to the
Agent and the Company.
"Tender Offer" means the offer to purchase for cash 39,259,305
of the outstanding shares of common stock of Global Crossing Ltd.
(approximately 9.5% of the shares of common stock outstanding on the
date of the offer) at $62.75 per share, without interest, upon the
terms and subject to the conditions set forth in the Offer to Purchase
dated May 21, 1999 and the related Letter of Transmittal, as filed on
May 21, 1999 with the Securities and Exchange Commission as exhibits to
Schedule 14D-1 and Schedule 13D.
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SECTION 3. Amendment of Section 2.02. Section 2.02 of each of the
Credit Agreements is amended to add the following proviso before the word "and"
at the end of clause (iii) thereof:
provided that if the date of such Borrowing occurs during the period
from and including December 15, 1999 to and including January 17, 2000,
such Loans shall bear interest at the Base Rate unless and until they
are converted to Euro-Dollar Loans on or after January 18, 2000,
SECTION 4. Amendment of Section 2.10. Section 2.10(a) of each of the
Credit Agreements is amended to replace the period at the end of clause (ii)
thereof with a semi-colon and to add after clauses (i) and (ii) the following
proviso, which applies to both clauses:
provided that if such conversion or continuation occurs during the
period from and including December 15, 1999 to and including January
17, 2000, such Loans shall be converted into or continued as Domestic
Loans unless and until they are converted to Euro-Dollar Loans on or
after January 18, 2000.
SECTION 5. Amendment of Section 4.04. Section 4.04(b) of each of the
Credit Agreements is amended to replace the parenthetical statement contained
therein with the following:
(it being understood that none of the consummation of the
Separation, the execution of the Merger Agreement or the
consummation of the Tender Offer shall be considered such a
change)
SECTION 6. Amendment of Section 4.07. Section 4.07(c) of each of the
Credit Agreements is amended and restated in its entirety to read as follows:
(c) Except as specifically identified in Schedule 4.07, there
are neither any conditions or circumstances known to the Company which
may give rise to any claims or liabilities respecting any Environmental
Laws or Hazardous Substances arising from the operations of the Company
or its Subsidiaries (including, without limitation, off-site
liabilities), nor any additional costs of compliance with Environmental
Laws, which collectively have an aggregate potential liability in
excess of $50,000,000.
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SECTION 7. Amendment of Sections 5.06 and 5.07. Sections 5.06 and 5.07
of each of the Credit Agreements are amended and restated in their entirety to
read as follows:
SECTION 5.06. Subsidiary Debt. Total Debt of all Consolidated
Subsidiaries (excluding Debt of (i) the Borrower which is Guaranteed by
the Company and (ii) a Consolidated Subsidiary to the Company or to a
Wholly-Owned Consolidated Subsidiary) as of the last day of any fiscal
quarter of the Company will not exceed 150% of Consolidated EBITDA for
the four consecutive fiscal quarters of the Company ending on such
date. For purposes of this Section, any preferred stock of a
Consolidated Subsidiary other than the Borrower which is held by a
Person other than the Company or a Wholly-Owned Consolidated Subsidiary
shall be included, at the higher of its voluntary or involuntary
liquidation value, in the Debt of such Consolidated Subsidiary.
SECTION 5.07. Debt Coverage. Consolidated Debt of the Company
and its Consolidated Subsidiaries as of the last day of any fiscal
quarter of the Company will not exceed (i) prior to the Reset Date,
350%, and (ii) on and after the Reset Date, 400%, of Consolidated
EBITDA for the four consecutive fiscal quarters of the Company ending
on such date.
SECTION 8. Amendment of Section 5.09. The last sentence of Section 5.09
of each of the Credit Agreements is amended and restated in its entirety to read
as follows:
The Company will retain ownership, directly or indirectly, of
at least 80% of the capital stock, and at least 80% of the voting
power, of U S WEST Communications, Inc.
SECTION 9. Amendment of Section 6.01. Clause (j) of Section 6.01 of
each of the Credit Agreements is amended by adding the following parenthetical
statement before the semi-colon at the end thereof:
(it being understood that in any event an administrative order of a
public utility commission shall not constitute an "order" for purposes
of this clause (j) so long as (x) no one is seeking to enforce such
order in an action, suit or proceeding before a court and (y) reserves
in the full amount of the cost of such order are maintained on the
books of the Company and its Subsidiaries)
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SECTION 10. Amendment of Section 10.03. Clause (i) of Section 10.03(a)
of each of the Credit Agreements is amended by adding the word "reasonable"
before the word "out-of-pocket" and before the word "fees".
SECTION 11. Amendment of Pricing Schedule. The Pricing Schedule for
each Credit Agreement is amended and restated in its entirety to read as set
forth in the attached Pricing Schedule for such Credit Agreement.
SECTION 12. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of each Credit Agreement will be true on and as of the Amendment
Effective Date (as defined below) and (ii) no Default will have occurred and be
continuing on such date.
SECTION 13. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 15. Effectiveness. This Amendment shall become effective with
respect to each Credit Agreement as of the date hereof on the date (the
"Amendment Effective Date") when the Agent shall have received from each of the
Company, the Borrower and the Required Banks (as defined in such Credit
Agreement) a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Agent) that such party has
signed a counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
U S WEST CAPITAL FUNDING, INC.
By /s/ SEAN P. FOLEY
Name: Sean P. Foley
Title: Treasurer
U S WEST, INC.
By /s/ SEAN P. FOLEY
Name: Sean P. Foley
Title: Treasurer
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MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ROBERT BOTTAMEDI
Name: Robert Bottamedi
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By /s/ DOUGLAS T. MECKELNBURG
Name: Douglas T. Meckelnburg
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ EDMOND DEFOREST
Name: Edmond DeForest
Title: Vice President
MELLON BANK, N.A.
By /s/ HENRY S. BEUKEMA
Name: Henry S. Beukema
Title: Assistant Vice President
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ABN AMRO BANK N.V.
By /s/ JOANNA RIOPELLE
Name: Joanna Riopelle
Title: Senior Vice President
By /s/ SANG W. LEE
Name: Sang W. Lee
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ JAMES WHITAKER
Name: James Whitaker
Title: Vice President
BANK ONE, COLORADO, N.A.
By
Name:
Title:
CITIBANK, N.A.
By /s/ MAUREEN MARONEY
Name: Maureen Maroney
Title: Vice President
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KEYBANK NATIONAL ASSOCIATION
By /s/ MARY K. YOUNG
Name: Mary K. Young
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By /s/ DAVID J. MITCHELL
Name: David J. Mitchell
Title: Vice President
COMMERZBANK AG LOS ANGELES
AND GRAND CAYMAN BRANCHES
By /s/ CHRISTIAN JAGENBERG
Name: Christian Jagenberg
Title: Senior Vice President and
Manager
By /s/ STEVEN F. LARSEN
Name: Steven F. Larsen
Title: Vice President
FLEET NATIONAL BANK
By /s/ SUE ANDERSON
Name: Sue Anderson
Title: Vice President
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CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ LAURA HOM
Name: Laura Hom
Title: Executive Director
CIBC World Markets Corp.
As Agent
BANKERS TRUST COMPANY
By /s/ GREGORY SHEFRIN
Name: Gregory Shefrin
Title: Principal
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ LORI J. THOMAS
Name: Lori J. Thomas
Title: Vice President
KBC BANK N.V.
By /s/ ROBERT SNAUFFER
Name: Robert Snauffer
Title: First Vice President
By /s/ RAYMOND F. MURRAY
Name: Raymond F. Murray
Title: First Vice President
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THE ROYAL BANK OF SCOTLAND PLC
By /s/ K. C. BARCLAY
Name: K. C. Barclay
Title: Head of Media and
Telecommunications
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By /s/ DONALD A. HARTMANN
Name: Donald A. Hartmann
Title: Senior Vice President
By /s/ CATHERINE M. WALLACE
Name: Catherine M. Wallace
Title: Vice President
BANK OF HAWAII
By /s/ ERIC N. PELLETIER
Name: Eric N. Pelletier
Title: Vice Prsident
BARCLAYS BANK PLC
By
Name:
Title:
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BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH
By /s/ PETER OBERMANN
Name: Peter Obermann
Title: Senior Vice President
By /s/ JAMES. H. BOYLE
Name: James H. Boyle
Title: Vice President
BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK
BRANCH
By
Name:
Title:
By
Name:
Title:
LEHMAN COMMERCIAL PAPER INC.
By /s/ MICHELE SWANSON
Name: Michele Swanson
Title: Authorized Signatory
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MERRILL LYNCH CAPITAL
CORPORATION
By /s/ CAROL FEELEY
Name: Carol Feeley
Title: Vice President
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By
Name:
Title:
THE TOKAI BANK, LIMITED
By
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By /s/ SCOTT E. PAGE
Name: Scott E. Page
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ CLIVE BETTLES
Name: Clive Bettles
Title: Senior Vice President & Manager
By /s/ MITCHELL M. OZAWA
Name: Mitchell M. Ozawa
Title: Vice President
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ROYAL BANK OF CANADA
By /s/ STEPHANIE BABICH
Name: Stephanie Babich
Title: Senior Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO ISTITUTO MOBILIARE
ITALIANO SPA
By
Name:
Title:
By
Name:
Title:
THE PROVIDENT BANK
By
Name:
Title:
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U S WEST Capital Funding, Inc.
PRICING SCHEDULE
for Amended and Restated 364-Day Credit Agreement
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
Level Level Level Level
Status I II Level III IV V Level VI Level VII
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
Euro-Dollar Margin .365% .430% .545% .650% .750% 1.100% 1.550%
- ------------------- ----------- ---------- ---------- ---------- ---------- ----------- ==========
- ------------------- ----------- ---------- ---------- ---------- ========== =========== ==========
Facility Fee Rate .060% .070% .080% .100% .125% .150% .200%
- ------------------- ----------- ---------- ---------- ---------- ========== =========== ==========
For purposes of this Schedule, the following terms have the following
meanings:
"Creditwatch Expiration Date" is the first date on which the Company's
ratings have been removed from creditwatch by S&P and Moody's.
"Level I Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Minimum Short-Term Credit
Ratings are in effect.
"Level II Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A or
higher by S&P or A2 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) Level I Status does not exist.
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A- or
higher by S&P or A3 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) neither Level I Status nor Level II Status
exists.
"Level IV Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) none of Level I Status, Level II Status or Level
III Status exists.
"Level V Status" exists at any date if, at such date, (i)(x) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB or higher by S&P and Baa2 or higher by Moody's and (y)
Minimum Short-Term Credit Ratings are in effect and (ii) none of Level I Status,
Level II Status, Level III or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Level VII Status" exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status, Level IV Status, Level V Status or
Level VI Status exists.
"Minimum Short-Term Credit Ratings" are in effect on any day on which
the Borrower's short-term debt is rated A-2 or higher by S&P and P-2 or higher
by Moody's.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
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"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status, Level VI Status or
Level VII Status exists at any date.
For purposes of this Schedule, the credit ratings to be utilized for senior
unsecured long-term debt securities are those assigned to the senior unsecured
long-term debt securities of the Borrower guaranteed by the Company, the credit
ratings to be utilized for short-term debt are those assigned to the commercial
paper of the Borrower, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
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U S WEST Capital Funding, Inc.
PRICING SCHEDULE
for Five-Year Credit Agreement
The "Euro-Dollar Margin" and "Facility Fee Rate" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day:
- ---------------------- ----------- ----------- ----------- ----------- ------------ ----------- ===========
Level Level Level Level Level
Status I II III IV V Level VI Level VII
- ---------------------- ----------- ----------- ----------- ----------- ------------ ----------- ===========
- ---------------------- ----------- ----------- ----------- ----------- ------------ =========== ===========
Euro-Dollar Margin .345% .410% .525% .625% .725% 1.075% 1.500%
Facility Fee Rate .080% .090% .100% .125% .150% .175% .250%
- ---------------------- ----------- ----------- ----------- ----------- ============ =========== ===========
For purposes of this Schedule, the following terms have the following
meanings:
"Creditwatch Expiration Date" is the first date on which the Company's
ratings have been removed from creditwatch by S&P and Moody's.
"Level I Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A+ or
higher by S&P or A1 or higher by Moody's and (ii) Minimum Short-Term Credit
Ratings are in effect.
"Level II Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A or
higher by S&P or A2 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) Level I Status does not exist.
"Level III Status" exists at any date on or after the Creditwatch
Expiration Date if, such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated A- or
higher by S&P or A3 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) neither Level I Status nor Level II Status
exists.
"Level IV Status" exists at any date on or after the Creditwatch
Expiration Date if, at such date, (i)(x) the Borrower's outstanding senior
unsecured long-term debt securities guaranteed by the Company are rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (y) Minimum Short-Term Credit
Ratings are in effect and (ii) none of Level I Status, Level II Status or Level
III Status exists.
"Level V Status" exists at any date if, at such date, (i)(x) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB or higher by S&P and Baa2 or higher by Moody's and (y)
Minimum Short-Term Credit Ratings are in effect and (ii) none of Level I Status,
Level II Status, Level III or Level IV Status exists.
"Level VI Status" exists at any date if, at such date, (i) the
Borrower's outstanding senior unsecured long-term debt securities guaranteed by
the Company are rated BBB- or higher by S&P and Baa3 or higher by Moody's and
(ii) none of Level I Status, Level II Status, Level III Status, Level IV Status
or Level V Status exists.
"Level VII Status" exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status, Level IV Status, Level V Status or
Level VI Status exists.
"Minimum Short-Term Credit Ratings" are in effect on any day on which
the Borrower's short-term debt is rated A-2 or higher by S&P and P-2 or higher
by Moody's.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, and its successors or, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks, with the approval of
the Company, by notice to the Agent and the Company.
"S&P" means Standard & Poor's Ratings Group, a New York corporation,
and its successors or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Company, by notice to
the Agent and the Company.
2
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status, Level VI Status or
Level VII Status exists at any date.
For purposes of this Schedule, the credit ratings to be utilized for senior
unsecured long-term debt securities are those assigned to the senior unsecured
long-term debt securities of the Borrower guaranteed by the Company, the credit
ratings to be utilized for short-term debt are those assigned to the commercial
paper of the Borrower, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
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