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EXHIBIT 5
This document is a fair and accurate English summary translation of a foreign
language document.
/s/ Yoshinori Uda
-------------------------
Name: Yoshinori Uda
Title: Senior Executive
Vice President
(Summary Translation)
Loan Commitment Agreement dated January 5, 2001
Borrower: NTT DoCoMo, Inc.
Lenders: The Bank of Tokyo-Mitsubishi, Ltd.
The Industrial Bank of Japan, Limited
The Dai-ichi Kangyo Bank, Limited
The Fuji Bank, Limited
The Sumitomo Bank, Limited
Agent: The Bank of Tokyo-Mitsubishi, Ltd.
Article 1 AT&T: AT&T Corp.
(Definitions)
AT&T Wireless:
AT&T Wireless Services, Inc.
Each Lender's Individual Commitment Line:
(i) (Yen)24,000,000,000 up to and
including January 11, 2001 and
(ii) (Yen)240,000,000,000 thereafter
Base Rate:
(a) for a Loan in Japanese yen, an
interest rate per annum equal to TIBOR
(Tokyo Interbank Offered Rate) for
Euroyen published by Federation of
Bankers Association of Japan at or around
11:00 a.m., two Tokyo Business Days prior
to the
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proposed date of the Loan, and (b) for a
Loan in US dollars, an interest rate per
annum equal to LIBOR for US dollars
published by British Bankers Association
at or around 11:00 a.m., two London
Business Days prior to the proposed date
of the Loan
Commitment Period:
from January 5, 2001 through December
28, 2001
Spread:
(a) for a Loan in Japanese yen, *** per
annum, and (b) for a Loan in US dollars,
*** per annum
Aggregate Commitment Line:
(i) (Yen)120,000,000,000 up to and
including January 11, 2001 and
(ii) (Yen)1,200,000,000,000 thereafter
Article 2 . Each Lender shall make a Loan or Loans of up
(Rights and Obligations of to its Individual Commitment Line pursuant to
Each Lender) Article 4 from time to time during the
Commitment Period as long as the Borrower's
request for a Loan satisfies the requirements
set forth in this Agreement.
. The obligation of each Lender to make Loans
hereunder is several, and not joint. No
Lender shall be responsible for obligations
of any other Lenders to make Loans.
. The proceeds from the Loans under this
Agreement shall be used as bridging loans to
finance the Borrower's investment in AT&T
Wireless.
Article 3 . The Borrower may provide the Agent with a
(Request for Loans) notice of its request for a Loan from time
to time during the Commitment Period. Each
such notice must be received by the Agent no
later than 4:00 p.m., three business days
(and, in case of a Loan in excess of US$5
billion, five business days) prior to the
proposed date of the Loan. Each such notice
shall specify (a) the principal amount of the
Loan
*** Portions of this page have been omitted pursuant to a request for
confidential treatment and are filed separately with the Securities and
Exchange Commission.
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(which shall be (Yen)100 million or an
integral multiple thereof, or US$1 million or
an integral multiple thereof) and (b) the
maturity of the Loan (which shall be one
week, one month, two months, three months or
six months from the proposed date of the
Loan).
. The Borrower may not revoke any such request
without the written consent of all the
Lenders.
Article 4 Each Lender shall disburse to the Borrower an
(Disbursement of Loans) amount equal to the amount of the Loan requested
in the notice multiplied by the loan commitment
ratio applicable to such Lender.
Article 5 The obligation of each Lender to provide a Loan
(Conditions Precedent to is subject to certain conditions precedent,
Loans) including the following. All the conditions
precedent shall have been satisfied as of the
proposed date of each Loan.
. For each Lender, an aggregate amount of
outstanding Loans shall not exceed its
Individual Commitment Line.
. The Lender shall not have been relieved of
its obligations under the force majeure
provisions of Article 6.
. This Agreement shall not have been
terminated.
. The representations and warranties of the
Borrower set forth in Article 16 shall be
true and correct.
. No events of default set forth in Article 18
shall have occurred.
. The Borrower shall have executed definitive
agreements for investments in AT&T Wireless.
Article 6 If the Agent or Lenders with the aggregate
(Force Majeure) commitment ratio of 67% determines that a force
majeure event has occurred and is continuing,
the Lenders shall be relieved of their
obligations to make Loans under this Agreement.
The Borrower shall not be responsible for the
commitment fee for the period of such
suspension.
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Article 7 Interest shall be payable at a rate per annum
(Interest) (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to
the Base Rate plus the Spread.
Article 8 The Borrower shall pay to each Lender, every
(Commitment Fee) three months in arrears, a commitment fee in
Japanese yen. The amount of the commitment fee
shall be equal to *** per annum (computed on the
basis of the actual number of days elapsed over
a year of 360 days) on the average daily unused
amount of the Lender's Individual Commitment
Line over the relevant calculation period.
Article 9 In the event of default in the payment of any
(Default Interest) amount due and payable under this Agreement, the
Borrower shall pay, upon demand of the Agent,
default interest on the overdue amount at
whichever is higher of: (i) 2% per annum plus
the rate for each Lender's reasonable funding
cost or (ii) 14% per annum.
Article 10 Unless all the Lenders and the Agent agree in
(Prepayment) writing, the Borrower may not prepay any Loan.
The Borrower shall pay a prepayment penalty in
the event of any such prepayment, if the
interest rate for the Loan being prepaid exceeds
a rate of return that the Lenders are reasonably
expected to generate through investment of the
amount being prepaid in the interbank money
market.
Article 11 Each Loan shall be due and payable upon the
(Borrower's Payment maturity date of such Loan. If a request for a
Obligations) new Loan is made for disbursement on the
maturity date of the existing Loan, the payment
shall be made as to any balance after deduction
for the amount of the new Loan.
Article 12 When the Agent receives from the Borrower any
(Distribution to Each amount due under this Agreement, the Agent shall
Lender) promptly remit to each Lender such portion of
the amount so received that shall be
attributable to the Lender.
Article 13 . As a means to satisfy any amount due and
(Set-off and Foreclosure payable by the Borrower to a Lender
of Global Collateral) hereunder, the Lender may exercise the right
of set-off against any claims under a deposit
account or any other claims that the Borrower
may have against the Lender.
. If any global collateral (ne-tanpoken) has
been separately created for the benefit of
any Lender,
*** Portions of this page have been omitted pursuant to a request for
confidential treatment and are filed separately with the Securities and
Exchange Commission.
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the Lender may foreclose on such collateral
to satisfy any amount due and payable by the
Borrower to the Lender hereunder.
Article 14 . The Borrower shall bear and pay all out-of-
(Expenses and Taxes) pocket expenses incurred by the Lenders and
the Agent in connection with the enforcement
of their claims or performance of their
obligations hereunder, and any amendments or
supplement to this Agreement (including
attorneys' cost).
. The Borrower shall bear and pay all stamp and
similar taxes payable in connection with the
preparation, execution, registration,
performance, enforcement, amendment or
supplement of this Agreement or any related
documents.
Article 15 In the event that (i) any change in applicable
(Additional Costs) law or regulation or in the governmental
interpretation or application thereof or (ii)
any imposition of any reserve requirement or
increase in the amount of any required reserve
under such requirement, results in a significant
increase in the costs to any Lender of making or
maintaining the Loans under this Agreement, upon
such Lender's request, the Lender, the Borrower
and the Agent shall discuss whether the Borrower
shall bear any such additional costs to the
Lender.
Article 16 The Borrower makes certain representations and
(Borrower's Representa- warranties including the following as of the
tions and Warranties) date of this Agreement and the date of each
Loan.
. The Borrower is a corporation duly organized
and validly existing under the laws of Japan.
. The Borrower has the corporate power and
authority to execute and perform this
Agreement.
. The Borrower has authorized, through its
internal procedures, the execution and
performance of this Agreement.
. The execution and performance of this
Agreement by the Borrower will not violate
any applicable law or regulation, the
Borrower's articles of incorporation or any
other internal regulation, or
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any contracts or agreements to which the
Borrower or any of its assets is subject.
. This Agreement constitutes valid and binding
obligations of the Borrower enforceable in
accordance with its terms.
. The Borrower's Securities Report (yuka shoken
hokoku sho) and certain other reports are
accurate in light of accounting principles
generally accepted in Japan and are proper in
form.
. There are no legal or administrative
proceedings pending or threatened that could
materially adversely affect the Borrower's
performance of this Agreement.
. There has been and would be no events of
default set forth in Article 18.
Article 17 Until performance of all obligations are made by
(Borrower's Covenants) the Borrower under this Agreement, the Borrower
agrees, among others:
. To inform the Agent and the Lenders of the
occurrence of any event of default;
. To provide the Agent with a copy of the
Borrower's Securities Reports and other
reports, as well as any other information
regarding the Borrower, its subsidiaries or
affiliates upon request;
. To inform the Agent and the Lenders of any
material adverse change in the asset,
management or business conditions of the
Borrower, its subsidiaries or affiliates;
. Not to create any security interest for the
benefit of its other unsecured debt from
Japanese lenders, without the prior consent
of the Agent and all the Lenders, unless the
same or certain similar security interest is
created for the benefit of each Lender or
unless certain other exception applies;
. To comply with applicable laws and
regulations, and to continue to conduct its
business as it currently conducts;
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. To treat claims of the Lenders hereunder at
least pari passu with all its other unsecured
debt from Japanese lenders; and
. Not to effect any merger, consolidation,
compulsory share exchange, or sale or
disposition of material business or assets,
unless such transaction is not expected
materially adversely to affect the
performance by the Borrower of this
Agreement.
Article 18 The Borrower's obligations to the Lenders under
(Events of Default) this Agreement shall become automatically due
and payable either automatically or with the
Agent's notice (with or without a grace period),
as applicable:
. If any proceeding is commenced against the
Borrower seeking to adjudicate it a bankrupt
or seeking for it corporate reorganization,
rehabilitation or similar remedies;
. If the Borrower's privilege to effect
transactions on the commercial clearing house
is suspended;
. If any court order for attachment or
provisional attachment is rendered for the
benefit of any claims of a Lender against the
Borrower;
. If the Borrower is missing;
. If the Borrower defaults in payment of any
amounts payable to any Lender whether under
this Agreement or otherwise;
. If any representation or warranty set forth
in Article 16 proves to have been incorrect;
. If the Borrower breaches any covenant made in
this Agreement;
. If the Borrower defaults in payment with
respect to its other indebtedness in excess
of (Yen)5,000,000,000; or
. If there is any material adverse effect on
the Borrower's business or assets and there
arises the necessity to protect Lenders'
interest in the Loans.
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Article 19 The Agent shall exercise its power and authority
(Agent) delegated under this Agreement for the benefit
of all the Lenders.
Article 20 This Agreement shall terminate automatically in
(Termination) the event that (i) the commitment period
expires, (ii) the Borrower provides a 10
business days' advance notice to the Agent, or
(iii) the Borrower's obligations hereunder
becomes due and payable under Article 18.
Article 21 . A Lender may assign all or a portion of its
(Miscellaneous) interests, rights and obligations under this
Agreement to any third party with the consent
of the Borrower and the Agent.
. Jurisdiction: The Tokyo District Court
. Governing law: Japanese law
. Language: Japanese
