Exhibit 10fff
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
BY AND AMONG
BELLSOUTH CORPORATION,
SBC COMMUNICATIONS INC.
AND
CINGULAR WIRELESS LLC
DATED AS OF JUNE 28, 2005
REVOLVING CREDIT AGREEMENT
This Amended and Restated Revolving Credit Agreement (the "Agreement"),
dated as of the 28th day of June 2005, by and among BellSouth Corporation, a
Georgia corporation ("BellSouth"), SBC Communications Inc., a Delaware
corporation ("SBC," and along with BellSouth, each a "Lender" and, collectively,
the "Lenders") and Cingular Wireless LLC, a Delaware limited liability company
("Cingular").
ARTICLE I
GENERAL PROVISIONS
Section 1.01. Definitions. For the purposes of this Agreement, the
following terms shall have the meanings specified or referred to in this
Section 1.01:
"Agreement" shall have the meaning set forth in the Preamble to this
Agreement.
"Available Cash" means, for any Business Day, the result, rounded down
to the nearest $1,000,000, of (a) the amount of cash of Cingular and its direct
and indirect wholly owned Subsidiaries held in banks and available for
withdrawal by Cingular, less (b) Cingular's good faith estimate of the amount,
if any, of cash required for expenditures expected to occur later during the
same Business Day.
"Average Monthly LIBOR Rate" shall mean, for any calendar month, the
average 30-day LIBOR rate as reported by Bloomberg or another generally
available reporting service jointly selected by the Lenders.
"BellSouth" shall have the meaning set forth in the Preamble to this
Agreement.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in either the State of Georgia or the State of
Texas are authorized or obligated by law or executive order to close.
"Cingular" shall have the meaning set forth in the Preamble to this
Agreement.
"Cingular Advance" shall have the meaning set forth in Section 2.04.
"Cingular Advance Interest Rate" means, for any day, a rate equal to
the Average Monthly LIBOR Rate for the calendar month during which such day
occurs.
"Cingular Bank Account" means the United States bank account listed in
Exhibit B hereto, or such other bank account as the Designated Financial Officer
of Cingular shall specify by written notice to each of the Lenders.
"Cingular Business Plan" means, with respect to any fiscal year, the
most recent detailed annual plan and projections for such fiscal year that has
been approved from time to time by the Strategic Review Committee.
"Daily Notification" shall have the meaning set forth in Section 2.02.
"Designated Financial Officer" means, with respect to each of Cingular,
BellSouth and SBC, the person or persons designated in Section 4.02 to receive
notices on behalf of such party, or such other person as the party may designate
by written notice to each of the other parties.
"Dollars" or "$" means lawful currency of the United States of America.
"Effective Date" means the date of this Agreement.
"Interest Rate" means, for any day, a rate equal to the Average Monthly
LIBOR Rate for the calendar month during which such day occurs plus 0.05%.
"Lender" and "Lenders" shall have the meanings set forth in the
Preamble to this Agreement.
"Lender Bank Account," with respect to each Lender, means the United
States bank account listed in Exhibit B hereto, or such other bank account as
the Designated Financial Officer of such Lender shall specify by written notice
to Cingular.
"Manager" means Cingular Wireless Corporation, a Delaware corporation.
"Percentage Interests" shall mean with respect to each Lender, the
percentage of the outstanding common shares of Manager assuming full conversion
by each Lender and its Subsidiaries of all units owned in Cingular (currently,
60%/40% for SBC and BellSouth, respectively).
"Person" means an individual, corporation, partnership, limited
liability company, trust or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Relative Debt Percentage Interest" means, as of any date, with respect
to each Lender, the ratio of the amount outstanding under the Revolving Loans
owed to such Lender by Cingular to the amount outstanding under the Revolving
Loans owed to both Lenders by Cingular.
"Revolving Loans" shall have the meaning set forth in Section 2.02(b).
"SBC" shall have the meaning set forth in the Preamble to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shareholder Loans" means indebtedness of Cingular to SBC, BellSouth,
or any of their respective Subsidiaries pursuant to the Amended, Restated and
Consolidated Subordinated Promissory Notes, dated July 1, 2003, issued by
Cingular in favor of SBC, BellSouth and Cellular Credit Corporation, a wholly
owned Subsidiary of BellSouth, and all interest and penalties thereunder.
"Significant Subsidiary" means, with respect to any Person, any
"significant subsidiary," within the meaning of Regulation S-X promulgated under
the Securities Act, of such Person.
"Stockholders' Agreement" means the Stockholders' Agreement by and
among SBC, BellSouth and Manager, dated as of October 2, 2000, as amended.
"Strategic Review Committee" shall have the meaning ascribed to such
term in the certificate of incorporation of Manager.
"Subsidiary" means, with respect to any Person, any "subsidiary" within
the meaning of Regulation S-X promulgated under the Securities Act, of such
Person.
"Termination Date" means July 31, 2007 or such later date to which the
Termination Date has been extended pursuant to Section 4.01, or if such date is
not a Business Day, the next Business Day or such other date determined in
accordance with Section 4.01.
Section 1.02. Interpretation of Definitions. All definitions in the
singular shall, unless the context specifies otherwise, include and mean the
plural, and all references to the masculine gender shall include the feminine,
and vice versa.
ARTICLE II
FORECASTS; REVOLVING LOANS
Section 2.01. Forecasts.
(a) On the first Business Day of November of each fiscal year Cingular
shall deliver to each of the Lenders a reasonably detailed forecast of
Cingular's estimated monthly and annual cash flow, including a capital spending
plan, for the following fiscal year.
(b) Within 30 days of the end of each calendar quarter, Cingular shall
deliver to each of the Lenders a forecast of its sources and uses of cash for
each calendar quarter for the remainder of such calendar year.
(c) On each Business Day, Cingular shall deliver to each of the Lenders
a forecast of
its anticipated cash requirements for each Business Day during the
following two calendar weeks (the "Daily Forecast").
Section 2.02. Daily Notification. Not later than 11:15 a.m. (Eastern
Time) on each Business Day, the Designated Financial Officer of Cingular shall
send an e-mail to the Designated Financial Officer of each Lender (the "Daily
Notification") setting forth for such Business Day:
(a) the amount of Available Cash, if any; and
(b) if there is no Available Cash, the amount of cash, if any,
(i) to be repaid from Cingular Advances made to the Lenders, or
(ii) if no Cingular Advances are or will be outstanding,
then to be borrowed hereunder from each Lender, which
amount for each Lender shall be the product of (x)
the aggregate amount to be borrowed as reflected in
the Daily Notification and (y) that Lender's
Percentage Interest (the "Revolving Loans").
Section 2.03. The Revolving Loans.
(a) Subject to the terms of this Agreement, each Lender, individually
and not jointly with the other Lender, agrees to make available to Cingular, on
a revolving basis, the Revolving Loans with respect to it as set forth in each
Daily Notification. Repayments of Cingular Advances and/or cash advanced on any
day under the Revolving Loans shall be made in Dollars and shall be delivered
severally by the Lenders by wire transfer of immediately available funds to the
Cingular Bank Account on such day. The outstanding principal amount advanced
under all Revolving Loans shall bear interest at the Interest Rate which shall
accrue from day to day from the date such advance is made including the date on
which such Revolving Loan is repaid. Interest shall be calculated on the basis
of such actual number of days elapsed over 360 and shall be determined with
respect to each calendar month as of the last calendar day of such month.
(b) Notwithstanding the foregoing, in no event shall a Lender be
required to advance funds to Cingular (i) if the repayment of the Cingular
Advances or the Revolving Loan proceeds are to be used for expenditures that are
not set forth in or contemplated by the Cingular Business Plan (or, in the event
the Cingular Business Plan has not yet been approved, the requested funds are to
be used for expenditures outside the normal course of business as determined by
the Designated Financial Officers of SBC and BellSouth) or otherwise approved by
the Strategic Review Committee; (ii) in the case of Revolving Loans, after the
Termination Date, (iii) if the advance would give rise to an Event of Default
under Article III (iv); (iv) after the occurrence of an Event of Default under
Article III(v) or (vi); or (v) if the amount requested in the Daily
Notifications is in excess of $250,000,000 and such amount has not been set
forth in the Daily
Forecast on each of the five Business Days prior to the request.
Section 2.04. Application of Available Cash. In the event that, on any
Business Day, including the last Business Day of each calendar month, Available
Cash is in excess of $5,000,000, such Available Cash shall be applied as
follows: (i) first, to the repayment of any principal amount outstanding under
the Revolving Loans in proportion to the Lender's Relative Debt Percentage
Interests and (ii) second, as loans to each of the Lenders, in each case in
proportion to their Percentage Interests (a "Cingular Advance"). The outstanding
principal amount of each Cingular Advance shall bear interest at the Cingular
Advance Interest Rate which shall accrue from day to day from the date such
Cingular Advance is made including the date on which such Cingular Advance is
repaid. Interest shall be calculated on the basis of such actual number of days
elapsed over 360 and shall be determined with respect to each calendar month as
of the last calendar day of such month. Any payments due to the Lenders pursuant
to this Section 2.04 shall be made in Dollars and delivered by wire transfer of
immediately available funds to the Lenders' respective Lender Bank Accounts
promptly after receipt of such Daily Notification identifying such Available
Cash.
Section 2.05 Repayment and Application of Cingular Advances.
(a) As of the last calendar day of each calendar month, and after the
application of Section 2.04, all interest that has accrued on any principal
amounts outstanding under the Revolving Loan of such Lender and the Cingular
Advances made to such Lender (including interest accruing on such last calendar
day) shall be netted. After giving effect to such netting, the principal balance
of the Revolving Loans or the Cingular Advances, as the case may be, shall be
adjusted to include the net accrued interest. If the aggregate principal amount
of the Cingular Advances outstanding, after this interest is applied to adjust
the principal balance, is in excess of $5,000,000, each of the Lenders shall
repay its Cingular advances by applying them as provided in Section 2.05(b) as
of the last day of the calendar month. All payments under Section 2.05(b) shall
be reflected on the books of the Lenders and Cingular without wire transfer of
funds, and in addition by Cingular by notation of such payment on the promissory
notes evidencing the Shareholder Loans, if applicable.
(b) The Lenders and Cingular shall apply the amounts due in respect of
the Cingular Advances as follows:
(i) first, to repay by set-off the outstanding principal
amount of the Shareholder Loans in proportion to the
Lenders' Percentage Interests; and
(ii) second, as a distribution on a pro rata basis to the
members of Cingular, from time to time.
Each of the Lenders hereby waive, and will cause each of their
respective Subsidiaries that are parties to the Shareholder Loans to waive, any
requirement that notice of such repayment of the Shareholder Loans be given. Any
repayments made under clause (i) above shall be
applied to the particular Shareholder Loan of a Lender (or its Subsidiary) as
the Designated Financial Officer of such Lender shall direct in writing to
Cingular in advance. Cingular shall take all actions necessary to approve and
effect the distributions set forth above in a tax efficient manner.
Section 2.06. Recordkeeping. Each Lender agrees to maintain a record of
the aggregate principal amount outstanding, together with accrued interest,
under such Lender's Revolving Loan and the aggregate principal amount
outstanding, together with accrued interest, of any Cingular Advance received by
such Lender hereunder and shall provide a copy of such record to Cingular upon
the reasonable request of Cingular in writing to such Lender; provided, however,
that failure of a Lender to provide a copy of such record shall in no way affect
its rights or Cingular's obligations hereunder. The entries in such record of a
Lender shall be binding and conclusive upon Cingular absent manifest error.
ARTICLE III
EVENTS OF DEFAULT
Each of the following events shall constitute an "Event of Default":
(i) the failure of Cingular to pay any principal amount
outstanding under any Revolving Loan when and as the same
shall have become due and payable and such failure shall
continue unremedied for a period of 5 days;
(ii) the failure of Cingular to pay any interest or other
amount on any Revolving Loan when and as the same shall
have become due and payable and such failure shall
continue unremedied for a period of 10 days;
(iii) the failure of Cingular in any way to comply with or
breach of any other covenant contained in this Agreement
and such failure, or breach, as the case may be, shall
continue unremedied in any material respect for a period
of 30 days following notice to Cingular by either Lender
of such failure or breach;
(iv) any default by Cingular under any bond, debenture, note,
mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by Cingular (or by any
Subsidiary of Cingular, the repayment of which Cingular
has guaranteed or for which Cingular is directly
responsible or liable as obligor or guarantor), having a
principal amount outstanding in excess of $100,000,000
(other than indebtedness which is non-recourse to Cingular
or its Subsidiaries) under the terms of the instrument
under which the indebtedness is issued or secured, whether
such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such
indebtedness being declared due and payable prior to the
date on which it would otherwise have become due and
payable, without such indebtedness having been discharged,
or such
acceleration having been rescinded or annulled, or there
being deposited with an unaffiliated depository, in
trust, money in the necessary amount to discharge such
indebtedness;
(v) Cingular or any Significant Subsidiary of Cingular shall
(a) commence a voluntary case under the Bankruptcy Code of
1978, as amended or other federal bankruptcy law (as now
or hereafter in effect); (b) file a petition seeking to
take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization,
winding up or composition for adjustment of debts; (c)
consent to or fail to contest in a timely and appropriate
manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws; (d) apply
for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its
property, domestic or foreign; (e) be unable to, or admit
in writing its inability to, pay its debts as they become
due; or (f) make a general assignment for the benefit of
creditors; or (g) make a conveyance fraudulent as to
creditors under any state or federal law; or
(vi) the commencement of a case or other proceeding against
Cingular or any Significant Subsidiary of Cingular in any
court of competent jurisdiction seeking (a) relief under
the Bankruptcy Code of 1978, as amended or other federal
bankruptcy law (as now or hereafter in effect) or under
any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or
adjustment of debts or (b) the appointment of a trustee,
receiver, custodian, liquidator or the like for Cingular
or such Significant Subsidiary, and such involuntary case
or proceeding shall remain undismissed and unstayed for a
period of 60 days.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Termination of the Agreement.
(a) On or prior to any Termination Date then in effect, the Lenders
acting jointly may extend the term of this Agreement for a period of 364 days
measured from such Termination Date (in which case, subject to the terms and
conditions of this Agreement, the Termination Date shall instead be the last day
of such 364-day period). Notwithstanding anything herein to the contrary, a
Termination Date shall occur (i) upon 90 days written notice by one or both
Lenders upon an Event of Default (other than an Event of Default described in
clauses (v) or (vi) of Article III) or (ii) by both Lenders at any time. Within
90 days after the Termination Date, all outstanding principal amounts under the
Revolving Loans, together with all accrued interest thereon and all such other
amounts then owing by Cingular to the Lenders hereunder, shall be
paid in full by Cingular and all outstanding principal amounts under the
Cingular Advances, together with all accrued interest thereon and all such other
amounts then owing by Lenders to Cingular hereunder, shall be paid in full by
the Lenders (it being understood that such repayment of the Cingular Advances
shall be made in accordance with Section 2.05(b)). If any principal or interest
owing to any Lender under the Revolving Loans is not paid when due, such overdue
amount shall bear interest for each day until paid at a rate per annum equal to
the Interest Rate plus 2%. In no event shall the amount of interest due or
payable under this Agreement exceed the maximum rate of interest allowed by
applicable law and, in the event any such payment is inadvertently paid by
Cingular or inadvertently received by any Lender, then such excess sum shall be
repaid by netting in accordance with Section 2.05(a) (to the extent allowed by
applicable law). It is the express intent of the parties hereto that Cingular
not pay and no Lender or any of its Subsidiaries receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by Cingular under applicable law.
(b) Upon the occurrence of an Event of Default described in clause (v)
or (vi), the obligation of each Lender to advance funds hereunder shall
automatically terminate and the principal amount then outstanding under the
Revolving Loans, together with all accrued interest thereon, and any other
amounts owing to each of the Lenders hereunder shall immediately become due and
payable, without demand or notice of any kind, the requirements of which are
hereby expressly waived by Cingular.
Section 4.02. Notices. Any notice to be given hereunder shall be in
writing, shall be sent to the address (including email address) of the relevant
party as identified in this Section 4.02 or as otherwise specified by such party
from time to time in a notice to each of the other parties hereto, and shall be
deemed given (i) on the earlier of the date of receipt or the date three
Business Days after deposit of such notice in the United States mail, if sent
postage prepaid, certified mail, return receipt requested or (ii) when actually
received, if personally delivered, delivered by email or delivered by any other
manner.
BellSouth: BellSouth Corporation
0000 Xxxxxxxxx Xxxxxx XX
Xxxxx 00X00
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Email: xxxxxx.xxxxxxxx@xxxxxxxxx.xxx
SBC: SBC Communications Inc.
000 Xxxx Xxxxxxx
Xxxx Xx. 0X00
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Email: xxxxxx@xxxx.xxx.xxx
Cingular: Cingular Wireless LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email xxxx.xxxxx@xxxxxxxx.xxx
Section 4.03. Agreement Binding; Assignment. This Agreement and the
rights, duties and obligations of the parties hereunder (including all rights
with respect to the Revolving Loans) and thereunder shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall not be transferable or assignable without the prior written consent of
each of the Lenders; provided, that each Lender may transfer or assign all or
part of its rights or obligations hereunder to any wholly-owned Subsidiary of
such Lender without the prior written consent of the other Lenders; provided,
further that no such transfer or assignment shall be effective until such Lender
delivers to the other parties hereto a written undertaking in form and substance
reasonably satisfactory to the other parties pursuant to which such Lender
guarantees the performance of the obligations hereunder by such Subsidiary.
Section 4.04. Waivers; Remedies Cumulative. No delay or omission to
exercise any right, power or remedy accruing to any Lender under this Agreement
shall impair any such right, power or remedy of such Lender, nor shall it be
construed to be a waiver of any such right, power or remedy. Any waiver, permit,
consent or approval of any kind or character on the part of a Lender of any
breach or default under this Agreement, or any waiver on the part of a Lender of
any provisions or condition of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies under this Agreement or by law or otherwise afforded to a Lender, shall
be cumulative and not alternate. No waiver, consent or approval given by either
Lender in favor of Cingular shall be effective unless also given by the other
Lender.
Section 4.05. Governing Law. This Agreement and any other instrument or
agreement required hereunder shall be governed by, and construed under, the laws
of the State of Delaware without regard to principles of conflicts of law.
Section 4.06. Amendments. This Agreement may not be amended,
supplemented or modified except by a written instrument, signed by the party or
parties affected or to be affected thereby.
Section 4.07. Expenses. Cingular shall pay all expenses incurred by the
Lenders in the collection of amounts payable under this Agreement that are not
paid when due, including, without limitation, the reasonable fees and
disbursements of counsel to the Lenders. Cingular shall not be required to pay
the expenses of collection of a Lender when the inability of
Cingular to pay such amounts was due to the fault of that Lender in not
complying with this Agreement.
Section 4.08. Shareholder Loans. The parties agree that to the extent
any of the terms and provisions of this Agreement conflict or are inconsistent
with any of the terms and provisions of the Shareholder Loans, such terms and
provisions of this Agreement shall supercede the conflicting terms and
provisions of the Shareholder Loans. Subject to the foregoing, the Shareholder
Loans shall remain in full force and effect in accordance with their respective
terms and provisions.
Section 4.09. Obligations of the Lenders Several. The obligations of
the Lenders pursuant to this Agreement are several. Failure of any Lender to
carry out those obligations does not relieve any other Lender of its obligations
hereunder.
Section 4.10. Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient, all of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers, as of the date first above written.
BELLSOUTH CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President, Treasurer
SBC COMMUNICATIONS INC.
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President - Treasurer
CINGULAR WIRELESS LLC
By: Cingular Wireless Corporation, its sole manager
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
