Exhibit 10pp
REVOLVING CREDIT AGREEMENT
BY AND AMONG
BELLSOUTH CORPORATION,
SBC COMMUNICATIONS INC.
AND
CINGULAR WIRELESS LLC
DATED AS OF AUGUST 1, 2004
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement (the "Agreement"), dated as of the 1st
day of August 2004, 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 $1,000,000, of (a) the amount of cash of Cingular and its direct
and indirect wholly owned Subsidiaries held in banks and available for
withdrawal by Cingular, less (b) Cingular's good faith estimate of the amount,
if any, of cash required for expenditures expected to occur later during the
same Business Day.
"Average Monthly LIBOR Rate" shall mean, for any calendar month, the
average 30-day LIBOR rate as reported by Bloomberg or another generally
available reporting service jointly selected by the Lenders.
"BellSouth" shall have the meaning set forth in the Preamble to this
Agreement.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in both the State of Georgia and the State of
Texas are authorized or obligated by law or executive order to close.
"Cingular" shall have the meaning set forth in the Preamble to this
Agreement.
"Cingular Advance" shall have the meaning set forth in Section 2.04.
"Cingular Advance Interest Rate" means, for any day, a rate equal to
the Average Monthly LIBOR Rate for the calendar month during which such day
occurs.
"Cingular Bank Account" means the United States bank account listed in
Exhibit B hereto, or such other bank account as the Designated Financial Officer
of Cingular shall specify by written notice to each of the Lenders.
"Cingular Business Plan" means, with respect to any fiscal year, the
most recent detailed annual plan and projections for such fiscal year that has
been approved from time to time by the Strategic Review Committee.
"Daily Notification" shall have the meaning set forth in Section 2.02.
"Designated Financial Officer" means, with respect to each of Cingular,
BellSouth and SBC, the person or persons designated in Section 4.02 to receive
notices on behalf of such party, or such other person as the party may designate
by written notice to each of the other parties.
"Dollars" or "$" 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, 2005 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. The forecast for the remainder of the
fiscal year 2004 is attached hereto as Exhibit A.
(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 outstanding, then to be borrowed hereunder from each
Lender, which amount for each Lender shall be the product of (i) the aggregate
amount to be borrowed as reflected in the Daily Notification and (ii) 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. 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 up to but not 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 at the end of such month.
(b) Notwithstanding the foregoing, in no event shall a Lender be
required to advance funds to Cingular (i) if 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) 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, 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 up to but not 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 at the end 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) On the first Business Day of each calendar month, if the
aggregate principal amount of the Cingular Advances outstanding is in excess of
$5,000,000, each of the Lenders shall repay its Cingular Advances by wire
transfer of immediately available funds to the Cingular Bank Account. Accrued
interest on any principal amounts outstanding under the Revolving Loan of such
Lender and the Cingular Advances made to such Lender during any month shall be
netted against each other on the first Business Day of each calendar month.
After giving effect to such netting, (i) in the event that Cingular owes any
Lender accrued interest on the Revolving Loans from such Lender, such accrued
interest shall be added, as of the first Business Day of such calendar month, to
the aggregate outstanding principal amount of the Revolving Loans from such
Lender, and (ii) in the event that such Lender owes Cingular accrued interest on
the Cingular Advances, such accrued interest shall, on such date, be paid by
such Lender, individually and not jointly, to Cingular together with any
repayment of principal or, if no such amounts are payable to Cingular pursuant
to Section 2.05(a), such accrued interest shall be added, as of the first
Business Day of such calendar month, to the aggregate amount of the Cingular
Advances owed by such Lender to Cingular.
(b) Cingular shall apply the amount received in respect of the
Cingular Advances as follows:
(i) first, to repay the principal amount outstanding
under the Revolving Loans, if any, in proportion to
the Lenders' Relative Debt Percentage Interests;
(ii) second, to repay the outstanding principal amount of
the Shareholder Loans in proportion to the Lenders'
Percentage Interests; and
(iii) third, 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 (ii) 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. If any principal or interest
owing to any Lender under the Revolving Loans is not paid when due, such overdue
amount shall be 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
applied in accordance with Section 2.05(a)(ii) (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: Xxxxx Xxxxxxxxx
Email: xxxxx.xxxxxxxxx@xxxxxxxxx.xxx
SBC: SBC Communications Inc.
000 Xxxx Xxxxxxx
Xxxx Xx. 0X00
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Email: XX0000@xxxxxx.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 Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President and Treasurer
SBC COMMUNICATIONS INC.
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President and Treasurer
CINGULAR WIRELESS LLC
By: Cingular Wireless Corporation, its sole manager
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President and Treasurer
