EXECUTION COPY
--------------------------------------------------------------------------------
$1,300,000,000
CREDIT AGREEMENT
Dated as of September 14, 1995
Among
COMCAST CELLULAR COMMUNICATIONS, INC.,
THE BANKS LISTED ON THE
SIGNATURE PAGES HEREOF,
THE BANK OF NEW YORK,
BARCLAYS BANK PLC,
THE CHASE MANHATTAN BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION
and
THE TORONTO-DOMINION BANK,
as Arranging Agents,
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend .................................. 1
(a) Loans.......................................... 1
(b) Type of Loans.................................. 1
Section 1.02. Manner of Borrowing.................................. 1
Section 1.03. Interest............................................. 3
(a) Rates.......................................... 3
(b) Payment........................................ 3
(c) Conversion and Continuation.................... 3
(d) Maximum Interest Rate.......................... 4
Section 1.04. Repayment............................................ 5
Section 1.05. Prepayments.......................................... 5
(a) Optional Prepayments........................... 5
(b) Mandatory Prepayments.......................... 5
Section 1.06. Limitation on Types of Loans......................... 7
Section 1.07. Reductions of Total Tranche A Commitment............. 7
(a) Scheduled Reductions .......................... 7
(b) Optional Reductions ........................... 8
(c) Other Mandatory Reductions .................... 8
(d) Adjustments ................................... 9
(e) No Reinstatement .............................. 9
Section 1.08. Commitment Fees ..................................... 9
Section 1.09. Computation of Interest and Fees .................... 9
Section 1.10. Payments by the Borrower ............................ 9
(a) Time, Place and Manner ........................ 9
(b) No Reductions .................................10
(c) Authorization to Charge Accounts ..............10
(d) Extension of Payment Dates ....................10
Section 1.11. Distribution of Payments by the
Administrative Agent ................................11
Section 1.12. Taxes on Payments ...................................11
(a) Taxes Payable by the Borrower .................11
(b) Taxes Payable by any Bank or Agent ............12
(c) Exemption from U.S. Withholding Taxes .........12
(d) Credits and Deductions ........................13
Section 1.13. Evidence of Indebtedness ............................14
Section 1.14. Pro Rata Treatment ..................................14
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans ............................16
Section 2.02. Conditions to Each Loan ................................18
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Power; Qualification .....................20
Section 3.02. Capitalization; Subsidiaries ...........................20
Section 3.03. Authorization; Enforceability; Required
Consents; Absence of Conflicts .........................20
Section 3.04. Litigation .............................................21
Section 3.05. Burdensome Provisions ..................................22
Section 3.06. No Adverse Change or Event .............................22
Section 3.07. Taxes ..................................................22
Section 3.08. No Default .............................................23
Section 3.09. Cellular Licenses and Related Matters ..................23
Section 3.10. Not an Investment Company ..............................23
Section 3.11. Hazardous Materials ....................................24
Section 3.12. Senior Obligations .....................................24
Section 3.13. Benefit Plans ..........................................24
Section 3.14. Security Interest ......................................24
ARTICLE 4
CERTAIN COVENANTS
Section 4.01. Preservation of Existence and Properties,
Scope of Business, Compliance with Law,
Payment of Taxes and Claims, Preservation
of Enforceability ......................................25
Section 4.02. Insurance ..............................................25
Section 4.03. Use of Proceeds ........................................26
Section 4.04. Guaranties .............................................26
Section 4.05. Liens ..................................................26
Section 4.06. Restricted Payments ....................................27
Section 4.07. Merger or Consolidation; Acquisitions ..................28
Section 4.08. Disposition of Assets ..................................30
Section 4.09. Indebtedness ...........................................31
Section 4.10. Transactions with Affiliates ...........................32
Section 4.11. Management .............................................32
(a) Management Agreement ...............................32
(b) Management Fees ....................................32
Section 4.12. Limitation on Restrictive Covenants ....................33
Section 4.13. Issuance or Disposition of Capital
Securities .............................................33
Section 4.14. Investments ............................................34
Section 4.15. Leverage Ratio .........................................35
Section 4.16. Interest Coverage Ratio ................................35
Section 4.17. Pro Forma Debt Service Ratio ...........................35
Section 4.18. Interest Rate Protection Agreements ....................35
Section 4.19. Cellular Systems Revenues ..............................36
Section 4.20. Tax Sharing Agreement ..................................36
Section 4.21. Senior Subordinated Indebtedness .......................36
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION
Section 5.01. Financial Statements and Information
to Be Furnished ........................................37
(a) Quarterly Financial Statements;
Officer's Certificate .............................37
(b) Year End Financial Statements;
Accountants' and Officer's
Certificates ......................................37
(c) Reports and Filings ................................38
(d) Requested Information ..............................38
(e) Notice of Defaults and Other Matters ...............38
(f) Cellular System Information ........................39
Section 5.02. Accuracy of Financial Statements and
Information ............................................39
(a) Historical Financial Statements ....................39
(b) Future Financial Statements ........................40
(c) Historical Information .............................40
(d) Future Information .................................41
Section 5.03. Additional Covenants Relating to
Disclosure .............................................41
(a) Accounting Methods and Financial
Records ............................................41
(b) Fiscal Year ........................................41
(c) Visits, Inspections and Discussions ................42
Section 5.04. Authorization of Third Parties to Deliver
Information ............................................42
ARTICLE 6
DEFAULT
Section 6.01. Events of Default ......................................42
Section 6.02. Remedies upon Event of Default .........................46
Section 6.03. Certain Cure Rights ....................................47
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of
Eurodollar Rate Loans ..................................48
Section 7.02. Regulatory Changes .....................................49
Section 7.03. Capital Requirements ...................................50
Section 7.04. Funding Losses .........................................51
Section 7.05. Determinations .........................................51
Section 7.06. Change of Lending Office ...............................51
Section 7.07. Replacement of Banks ...................................52
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Powers .................................53
Section 8.02. Limitation on Agents' Liability ........................53
Section 8.03. Defaults ...............................................54
Section 8.04. Rights as a Bank .......................................54
Section 8.05. Indemnification ........................................54
Section 8.06. Non Reliance on Agents and Other Banks .................55
Section 8.07. Resignation of the Administrative Agent ................55
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries .................................56
(a) Manner of Delivery .................................56
(b) Addresses ..........................................56
(c) Effectiveness ......................................57
Section 9.02. Expenses; Indemnification ..............................58
Section 9.03. Amounts Payable Due upon Request for
Payment ................................................59
Section 9.04. Remedies of the Essence ................................59
Section 9.05. Rights Cumulative ......................................60
Section 9.06. Confidentiality ........................................60
Section 9.07. Amendments; Waivers ....................................60
Section 9.08. Set Off; Suspension of Payment and
Performance ............................................61
Section 9.09. Sharing of Recoveries ..................................62
Section 9.10. Assignments and Participations .........................63
(a) Assignments ........................................63
(b) Participations .....................................64
(c) Rights of Assignees and Participants ...............64
(d) Assignments and Transfers of
Registered Notes ...................................65
Section 9.11. Governing Law ..........................................65
Section 9.12. Judicial Proceedings; Waiver of Jury Trial .............65
Section 9.13. Severability of Provisions .............................66
Section 9.14. Counterparts ...........................................66
Section 9.15. Survival of Obligations ................................66
Section 9.16. Entire Agreement .......................................66
Section 9.17. Successors and Assigns .................................66
Section 9.18. Reference Banks ........................................66
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions ................................67
(a) Defined Terms ..................................67
(b) Other Definitional Provisions ..................92
Section 10.02. Accounting Matters .....................................93
Section 10.03. Representations and Warranties .........................94
Section 10.04. Captions ...............................................94
Annex A Banks, Lending Offices and Notice
Addresses
Schedule 1.02 Form of Notice of Borrowing
Schedule 1.03(c)(iv) Form of Notice of Conversion or
Continuation
Schedule 1.05 Form of Notice of Prepayment
Schedule 2.01 Form of Certificate as to
Resolutions, etc.
Schedule 2.01(a)(iv)-l Form of Opinion of Counsel for the
Borrower
Schedule 2.01(a)(iv)-2 Form of Opinion of Counsel for each Loan
Party other than the Borrower
Schedule 2.01(a)(v)-l Form of Opinion of Special FCC Counsel
Schedule 2.01(a)(v)-2 Form of Opinion of Local Counsel - NJ
Schedule 2.01(a)(v)-3 Form of Opinion of Local Counsel - IL
Schedule 2.01(a)(v)-4 Form of Opinion of Local Counsel - PA
Schedule 2.01(a)(vi) Form of Opinion of Special Counsel for
the Arranging Agents and the
Managing Agents
Schedule 2.01(a)(xiv) Form of Solvency Certificate of the
Borrower
Schedule 3.02(a) Schedule of Capital Securities owned by
the Borrower
Schedule 3.03 Schedule of Required Consents and
Governmental Approvals
Schedule 3.04 Material Litigation
Schedule 3.09(a) List of Cellular Licenses and related
information
Schedule 3.09(b) List of Point to Point Microwave
Licenses
Schedule 3.09(c) List of 38 GHz Microwave Licenses
Schedule 3.13 Schedule of Existing Benefit Plans
Schedule 4.04 Schedule of Existing Guaranties
Schedule 4.05 Schedule of Existing Liens
Schedule 4.08(g) Form of Certificate as to Sales
and Exchanges
Schedule 4.12 Schedule of Existing Restrictive
Covenants
Schedule 4.14 Schedule of Existing Investments
Schedule 5.01(a) Form of Certificate as to Quarterly
Financial Statements
Schedule 5.01(b) Form of Certificate as to
Year-End Financial Statements
Schedule 5.01(f) Form of Certificate as to Cellular
System Information
Schedule 5.02(a) Schedule of Historical Financial
Statements
Schedule 9.10(a) Form of Notice of Assignment
Schedule 10.01 Schedule of Predecessor Indebtedness
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
CREDIT AGREEMENT
Dated as of September 14, 1995
COMCAST CELLULAR COMMUNICATIONS, INC., a Delaware corporation,
the BANKS listed on the signature pages hereof, THE BANK OF NEW YORK, BARCLAYS
BANK PLC, THE CHASE MANHATTAN BANK, N.A., PNC BANK, NATIONAL ASSOCIATION and THE
TORONTO-DOMINION BANK, as Arranging Agents and TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent, agree as follows (with certain terms used herein being
defined in Article 10):
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend. (a) Loans. Upon the terms
and subject to the conditions of this Agreement, each Bank agrees to make, (i)
from time to time during the period from the Agreement Date through the Tranche
A Commitment Termination Date, one or more Tranche A Loans to the Borrower in an
aggregate unpaid principal amount not exceeding at such time such Bank's Tranche
A Commitment at such time and (ii) on the Closing Date, a Tranche B Loan to the
Borrower in a principal amount not exceeding such Bank's Tranche B Commitment at
such time; provided, however, that no Tranche A Loan shall be requested or made
if, after giving effect to the making thereof and the making of each other
Tranche A Loan requested to be made at such time, the aggregate principal amount
of all Tranche A Loans outstanding at such time, together with the aggregate
amount of all Senior Subordinated Indebtedness outstanding at such time, would
exceed the Total Tranche A Commitment at such time. The Total Tranche A
Commitment on the Agreement Date is $1,000,000,000. The Total Tranche B
Commitment on the Agreement Date is $300,000,000.
(b) Type of Loans. Subject to Section 1.06 and the other terms
and conditions of this Agreement, the Loans may, at the option of the Borrower,
be made as, and from time to time continued as or converted into, Base Rate
Loans or Eurodollar Rate Loans of any permitted Type, or any combination
thereof.
Section 1.02. Manner of Borrowing. (a) The Borrower shall give
the Administrative Agent notice (which shall be irrevocable) no later than 10:00
a.m. (New York time) on, in the case of Base Rate Loans, the Business Day and,
in the case of Eurodollar Rate Loans, the third Eurodollar Business Day, before
the requested date for the making of such Loans. Each such notice shall be in
the form of Schedule 1.02 and shall specify
(i) in the case of the initial Loans, whether such Loans are Tranche A Loans or
Tranche B Loans (or a combination thereof), (ii) the requested date for the
making of the requested Loans, which shall be, in the case of Base Rate Loans, a
Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (iii) the Type or Types of Loans requested and (iv) the amount of each such
Type of Loan, the aggregate amount of which shall be $5,000,000 or any integral
multiple of $1,000,000 in excess thereof or the amount of the unused Total
Tranche A Commitment or Total Tranche B Commitment, as applicable. Upon receipt
of any such notice, the Administrative Agent shall promptly notify each Bank of
the contents thereof, of the amount and Type of each Loan to be made by such
Bank on the requested date specified therein and whether such Loan is a Tranche
A Loan or a Tranche B Loan (or a combination thereof).
(b) Not later than 12:00 noon (New York time) on each
requested date for the making of Loans, each Bank shall make available to the
Administrative Agent, in Dollars in funds immediately available to the
Administrative Agent at the Administrative Agent's Office, the Loans to be made
by such Bank on such date. The obligations of the Banks hereunder are several
and, accordingly, any Bank's failure to make any Loan to be made by it on the
requested date therefor shall not relieve any other Bank of its obligation to
make any Loan to be made by such other Bank on such date, but such other Bank
shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to 12:00 noon (New York time) on the requested date for the
making of any Loans that such Bank will not make available to the Administrative
Agent the Loans requested to be made by such Bank on such date, the
Administrative Agent may assume that such Bank has made such Loans available to
the Administrative Agent on such date in accordance with Section 1.02(b) and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Administrative Agent the Loans requested to be made by such
Bank on such date and the Administrative Agent shall have so made available to
the Borrower a corresponding amount on behalf of such Bank, such Bank shall, on
demand, pay to the Administrative Agent such corresponding amount together with
interest thereon, for each day from the date such amount shall have been so made
available by the Administrative Agent to the Borrower until the date such amount
shall have been paid to the Administrative Agent, at the Federal Funds Rate
until (and including) the third Business Day after demand is made and thereafter
at the Base Rate. If such Bank does not pay such corresponding amount promptly
upon the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower and the Borrower shall
2
immediately repay such corresponding amount to the Administrative Agent together
with accrued interest thereon at the applicable rate or rates provided in
Section 1.03(a); provided, however, that, with respect to such repayment, the
Borrower shall have no liability with respect to losses, costs or expenses
otherwise compensable under Section 7.04 in connection therewith.
(d) All Loans made available to the Administrative Agent in
accordance with Section 1.02(b) shall be disbursed by the Administrative Agent
not later than 3:00 p.m. (New York time) on the requested date therefor in
Dollars in funds immediately available to the Borrower by credit to an account
of the Borrower at the Administrative Agent's Office or in such other manner as
may have been specified in the applicable notice and as shall be acceptable to
the Administrative Agent.
Section 1.03. Interest. (a) Rates. Each Loan shall bear
interest on the outstanding principal amount thereof until due at a rate per
annum equal to, (i) so long as it is a Base Rate Loan, the Base Rate as in
effect from time to time plus the Applicable Margin and (ii) so long as it is a
Eurodollar Rate Loan, the applicable Adjusted Eurodollar Rate plus the
Applicable Margin. If all or any part of a Loan or any other amount due and
payable under the Borrower Loan Documents is not paid when due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise), such
unpaid amount shall, to the maximum extent permitted by Applicable Law, bear
interest for each day during the period from the date such amount became so due
until it shall be paid in full (whether before or after judgment) at a rate per
annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) in the case of
Base Rate Loans, on each Interest Payment Date, (ii) in the case of Eurodollar
Rate Loans, on the last day of each applicable Interest Period (and, in the case
of a Eurodollar Rate Loan having an Interest Period longer than three months, on
each three month anniversary of the first day of such Interest Period) and (iii)
in the case of any Loan, when such Loan shall be due (whether at maturity, upon
mandatory prepayment, by reason of notice of prepayment or acceleration or
otherwise) or converted, but only to the extent then accrued on the amount then
so due or converted. Interest at the Post-Default Rate shall be payable on
demand.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of Loans of any Type may, on any Business Day, be converted
into any other Type or Types of Loans, except that (A) Eurodollar Rate Loans may
be converted only on the last day of the applicable Interest Periods therefor
and (B) Base Rate Loans may be converted into Eurodollar Rate Loans only on a
Eurodollar Business Day.
3
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into Loans of another Type. Eurodollar Rate
Loans of any Type shall continue as Loans of such Type until the end of the then
current Interest Period therefor, at which time they shall be automatically
converted into Base Rate Loans unless the Borrower shall have given the
Administrative Agent notice in accordance with Section 1.03(c)(iv) requesting
either that such Loans continue as Loans of such Type for another Interest
Period or that such Loans be converted into Loans of another Type at the end of
such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), so long as an Event of Default shall have occurred
and be continuing, the Administrative Agent may (and, at the request of Banks
having more than 66_% of the Loans outstanding (or, if there are no Loans
outstanding, more than 66_% of the Total Commitment), shall) notify the Borrower
that Loans may only be converted into or continued upon the expiration of the
applicable current Interest Period therefor as Loans of certain specified Types
and, thereafter, until no Event of Default shall continue to exist, Loans may
not be converted into or continued as Loans of any Type other than one or more
of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or continuation of
Eurodollar Rate Loans no later than 11:00 a.m. (New York time) on, in the case
of a conversion into Base Rate Loans, the Business Day and, in the case of a
conversion into or continuation of Eurodollar Rate Loans, the third Eurodollar
Business Day before the requested date of such conversion or continuation. Each
notice of conversion or continuation shall be in the form of Schedule
1.03(c)(iv) and shall specify (A) the requested date of such conversion or
continuation, (B) whether such Loans are Tranche A Loans or Tranche B Loans (or
a combination thereof), (C) the amount and Type and, in the case of Eurodollar
Rate Loans, the last day of the applicable Interest Period for the Loans to be
converted or continued and (D) the amount and Type or Types of Loans into which
such Loans are to be converted or as which such Loans are to be continued. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
Bank of (w) the contents thereof, (x) the amount and Type and, in the case of
Eurodollar Rate Loans, the last day of the applicable Interest Period for each
Loan to be converted or continued by such Bank, (y) whether such Loans are
Tranche A Loans or Tranche B Loans (or a combination thereof) and (z) the amount
and Type or Types of Loans into which such Loans are to be converted or as which
such Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan
Documents shall require the Borrower at any time to pay
4
interest at a rate exceeding the Maximum Permissible Rate. If interest payable
by the Borrower on any date would exceed the maximum amount permitted by the
Maximum Permissible Rate, such interest payment shall automatically be reduced
to such maximum amount permitted, and interest for any subsequent period, to the
extent less than the maximum amount permitted for such period by the Maximum
Permissible Rate, shall be increased by the unpaid amount of such reduction. Any
interest actually received for any period in excess of such maximum amount
permitted for such period shall be deemed to have been applied as a prepayment
of the corresponding Loans.
Section 1.04. Repayment. (a) The aggregate outstanding
principal amount of the Tranche A Loans shall mature and become due and payable,
and shall be repaid by the Borrower, on the Tranche A Commitment Termination
Date.
(b) The aggregate outstanding principal amount of the Tranche
B Loans shall mature and become due and payable, and shall be repaid by the
Borrower, in two installments of $150,000,000 each, payable on March 31, 2004
and on September 30, 2004, respectively.
Section 1.05. Prepayments. (a) Optional Prepayments. The
Borrower may, at any time and from time to time, prepay the Loans in whole or in
part, without premium or penalty, except that any optional partial prepayment
shall be in an aggregate principal amount of $5,000,000 or any integral multiple
of $1,000,000 in excess thereof. Any prepayment of Eurodollar Rate Loans made on
a day other than the last day of the applicable Interest Periods therefor shall
be accompanied by the amount, if any, required to be paid in respect thereof
pursuant to Section 7.04. The Borrower shall give the Administrative Agent
notice of each prepayment no later than 11:00 a.m. (New York time) on, in the
case of a prepayment of Base Rate Loans, the Business Day and, in the case of a
prepayment of Eurodollar Rate Loans, the third Eurodollar Business Day, before
the date of such prepayment. Each such notice of prepayment shall be in the form
of Schedule 1.05 and shall specify (i) whether such Loans are Tranche A Loans or
Tranche B Loans, (ii) the date such prepayment is to be made and (iii) the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Periods for the Loans to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Bank of the
contents thereof and the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Periods for the Loans of such
Bank to be prepaid. Amounts to be so prepaid shall irrevocably be due and
payable on the date specified in the applicable notice of prepayment, together
with interest thereon as provided in Section 1.03(b).
(b) Mandatory Prepayments. (i) If, after giving effect to any
reduction of the Total Tranche A Commitment
5
pursuant to Section 1.07, the aggregate outstanding principal amount of the
Tranche A Loans exceeds the Total Tranche A Commitment, the Borrower shall
prepay the Tranche A Loans in an amount equal to the amount of such excess.
(ii) Commencing in 1998 in respect of the fiscal year of the
Borrower ending December 31, 1997, upon the earlier of the date on which the
Administrative Agent receives the financial statements specified in Section
5.01(b) hereof with respect to the most recently ended fiscal year of the
Borrower and the date by which the Borrower is required to provide the
Administrative Agent with such financial statements, the Borrower shall prepay
the Tranche B Loans in an amount equal to the Tranche B Share at such time of
50% of Excess Cash Flow for such fiscal year; provided, however that no
prepayments under this Section 1.05(b)(ii) shall be required with respect to
Excess Cash Flow for any fiscal year if the Leverage Ratio is less than or equal
to 5.00 to 1 as of the time that such prepayment would otherwise be required to
be made.
(iii) In the event that (A) any of the Net Proceeds of any
sale or disposition of assets contemplated by and in accordance with Section
4.08(g) have not been reinvested, pursuant to acquisitions described in Section
4.07(e) or pursuant to investments described in Section 4.14(j), in a manner not
prohibited by this Agreement within the fifteen-month period following such sale
or disposition and (B) the Leverage Ratio is greater than 5.50 to 1 on the last
day of such fifteen-month period, the Borrower shall, on such day, prepay the
Tranche B Loans in an amount equal to the Tranche B Share at such time of the
amount of such uninvested Net Proceeds.
(iv) Upon the making of any Restricted Payment contemplated by
Section 4.06(e), the Borrower shall prepay the Tranche B Loans, in an amount
equal to the Tranche B Share at such time of 50% of the amount of such
Restricted Payment, on the day on which such Restricted Payment shall have been
made.
(v) Upon the incurrence of any Permitted Additional
Indebtedness the principal amount of which, together with the principal amount
of all other Permitted Additional Indebtedness then outstanding, is in excess of
$550,000,000, the Borrower shall prepay the Tranche B Loans (without giving
effect to any increase thereof in the event that such Permitted Additional
Indebtedness consists in whole or in part of an increase of the Tranche B
Loans), in an amount equal to the Tranche B Share (determined without giving
effect to the incurrence of such Permitted Additional Indebtedness) at such time
of the amount of such excess, on the day on which such Indebtedness shall have
been incurred.
(vi) Amounts prepaid pursuant to this Section 1.05(b) shall be
accompanied by interest thereon accrued to the
6
date of such prepayment as provided in Section 1.03(b) and the amount, if any,
required to be paid in respect thereof pursuant to Section 7.04, and shall be
applied first to prepay Base Rate Loans and then to prepay Eurodollar Loans in
the order that the Interest Periods for such Loans end. Amounts to be prepaid
pursuant to this Section 1.05(b) shall be paid on the date specified therefor,
whether or not such payment would require a prepayment of Eurodollar Rate Loans
prior to the last day of the applicable Interest Period or would result in
losses, costs or expenses compensable under Section 7.04; provided, however,
that if and to the extent that the Borrower shall be required to prepay
Eurodollar Rate Loans prior to the last day of the applicable Interest Period in
order to effect any of the prepayments required pursuant to clauses (ii), (iii),
(iv) or (v) of this Section 1.05(b) (or pursuant to clause (i) of this Section
1.05(b) as a result of a related mandatory reduction of the Total Tranche A
Commitment pursuant to Section 1.07(c)), such prepayment, at the election of the
Borrower, may be made on the last day of the applicable earliest-expiring
Interest Period or Periods so long as the Borrower shall have deposited with the
Administrative Agent, on the day on which such prepayment would have been
required to be made but for this proviso, funds in the entire amount of such
prepayment to be held by the Administrative Agent in an interest-bearing cash
collateral account pursuant to arrangements satisfactory to the Administrative
Agent. The amounts so deposited shall be applied on such last day or days to
such prepayment and interest thereon shall be paid to the Borrower.
(c) Application to Tranche B Loans. Each prepayment of Tranche
B Loans made pursuant to this Section 1.05 shall be applied to each of the
remaining installments thereof, pro rata in accordance with the respective
amounts thereof.
(d) Reborrowing. Amounts of Tranche B Loans prepaid
may not be reborrowed.
Section 1.06. Limitation on Types of Loans. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower shall borrow,
prepay, convert and continue Loans in a manner such that (a) the aggregate
principal amount of Eurodollar Rate Loans having the same Interest Period shall
at all times be not less than $5,000,000, (b) there shall not be, at any one
time, more than ten Interest Periods in effect with respect to Eurodollar Rate
Loans of all Types and (c) no payment of Eurodollar Rate Loans will have to be
made prior to the last day of an applicable Interest Period in order to repay
the Loans in the amounts and (subject to Section 1.10(d)) on the dates specified
in Sections 1.04 and 1.05(b).
Section 1.07. Reductions of Total Tranche A Commitment. (a)
Scheduled Reductions. Subject to the adjustments described in Section 1.07(d),
the Total Tranche A
7
Commitment shall be automatically reduced on each date set forth below by the
amount set forth below opposite each such date:
Amount of
Date Reduction
---- ---------
September 30, 1998 $50,000,000
December 31, 1998 $25,000,000
March 31, 1999 $25,000,000
June 30, 1999 $25,000,000
September 30, 1999 $25,000,000
December 31, 1999 $50,000,000
March 31, 2000 $50,000,000
June 30, 2000 $50,000,000
September 30, 2000 $50,000,000
December 31, 2000 $50,000,000
March 31, 2001 $50,000,000
June 30, 2001 $50,000,000
September 30, 2001 $50,000,000
December 31, 2001 $56,250,000
March 31, 2002 $56,250,000
June 30, 2002 $56,250,000
September 30, 2002 $56,250,000
December 31, 2002 $56,250,000
March 31, 2003 $56,250,000
June 30, 2003 $56,250,000
September 30, 2003 $56,250,000
(b) Optional Reductions. The Borrower may reduce the Total
Tranche A Commitment by giving the Administrative Agent notice (which shall be
irrevocable) thereof no later than 10:00 a.m. (New York time) on the third
Business Day before the requested date of such reduction, except that each
partial reduction thereof shall be in an amount equal to $5,000,000 or any
integral multiple of $1,000,000 in excess thereof and that no reduction shall
reduce the Total Tranche A Commitment to an amount less than the aggregate
principal amount of all Tranche A Loans outstanding at such time and all Senior
Subordinated Indebtedness outstanding at such time. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each Bank of the contents
thereof and the amounts to which such Bank's Tranche A Commitment is to be
reduced.
(c) Other Mandatory Reductions. The Total Tranche A Commitment
(without giving effect, in the case of any reduction required pursuant to this
clause (c) relating to Section 1.05(b)(v), to any increase thereof in the event
that the Permitted Additional Indebtedness referred to in Section
8
1.05(b)(v) consists in whole or in part of an increase of the Total Tranche A
Commitment) shall automatically be reduced on each day on which a prepayment of
Tranche B Loans is required to be made pursuant to Section 1.05(b)(ii), (iii),
(iv) or (v) by an amount equal to the Tranche A Share (determined, in the case
of any reduction required pursuant to this clause (c) relating to Section
1.05(b)(v), without giving effect to the incurrence of the Permitted Additional
Indebtedness referred to therein) at such time of, in the case of Section
1.05(b)(ii), 50% of the applicable Excess Cash Flow referred to therein, in the
case of Section 1.05(b)(iii), the amount of the applicable uninvested Net
Proceeds referred to therein, in the case of Section 1.05(b)(iv), 50% of the
amount of the applicable Restricted Payment referred to therein and, in the case
of Section 1.05(b)(v), the amount of the applicable excess Indebtedness referred
to therein.
(d) Adjustments. Upon each reduction of the Total Tranche A
Commitment pursuant to Section 1.07(b) or Section 1.07(c), the remaining
scheduled reductions set forth in Section 1.07(a) shall be adjusted, after
giving effect to any prior adjustments thereto pursuant to this Section 1.07(d),
by reducing each such scheduled reduction by the amount obtained by multiplying
such reduction of the Total Tranche A Commitment by a fraction, the numerator of
which is the amount of such scheduled reduction and the denominator of which is
the aggregate of all such remaining scheduled reductions.
(e) No Reinstatement. No reduction of the Total
Tranche A Commitment may be reinstated.
Section 1.08. Commitment Fees. The Borrower shall pay to the
Administrative Agent, for the account of each Bank, a commitment fee on the
daily unused amount of such Bank's Tranche A Commitment for each day from the
Agreement Date through the Commitment Termination Date at a rate per annum of
(a) for so long as the Leverage Ratio is greater than 5.00 to 1, 0.375%, and (b)
for so long as the Leverage Ratio is less than or equal to 5.00 to 1, 0.250%,
payable in arrears on successive Interest Payment Dates, on the date of any
reduction of such Tranche A Commitment (to the extent accrued and unpaid on the
amount of such reduction) and on the Tranche A Commitment Termination Date.
Section 1.09. Computation of Interest and Fees. Interest
calculated on the basis of the Adjusted Eurodollar Rate or the Federal Funds
Rate shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed. Commitment fees and interest calculated on the
basis of the Prime Rate shall be computed on the basis of a year of 365 or 366
days, as applicable, and paid for the actual number of days elapsed. Interest
for any period shall be calculated from and including the first day thereof to
but excluding the last day thereof.
9
Section 1.10. Payments by the Borrower. (a) Time, Place and
Manner. All payments due to the Administrative Agent under the Borrower Loan
Documents shall be made to the Administrative Agent at the Administrative
Agent's Office or to such other Person or at such other address as the
Administrative Agent may designate by notice to the Borrower. All payments due
to any Bank under the Borrower Loan Documents shall, in the case of payments on
account of principal of or interest on the Loans or fees, be made to the
Administrative Agent at the Administrative Agent's Office and, in the case of
all other payments, be made directly to such Bank at its Domestic Lending Office
or at such other address as such Bank may designate by notice to the Borrower.
All payments due to any Bank under the Borrower Loan Documents, whether made to
the Administrative Agent or directly to such Bank, shall be made for the account
of, in the case of payments in respect of Eurodollar Rate Loans, such Bank's
Eurodollar Lending Office and, in the case of all other payments, such Bank's
Domestic Lending Office. A payment shall not be deemed to have been made on any
day unless such payment has been received by the required Person, at the
required place of payment, in Dollars in funds immediately available to such
Person, no later than 1:00 p.m. (New York time) on such day; provided, however,
that the failure of the Borrower to make any such payment by such time shall not
constitute a Default hereunder so long as such payment is received no later than
3:00 p.m. (New York time) on such day, but any such payment received later than
1:00 p.m. (New York time) on such day shall be deemed to have been made on the
next Business Day for the purpose of calculating interest on the amount paid.
(b) No Reductions. All payments due to the Administrative
Agent or any Bank under the Borrower Loan Documents, and all other terms,
conditions, covenants and agreements to be observed and performed by the
Borrower thereunder, shall be made, observed or performed by the Borrower
without any reduction or deduction whatsoever, including any reduction or
deduction for any set-off, recoupment, counterclaim (whether sounding in tort,
contract or otherwise) or Tax, except for, so long as the Borrower is in
compliance with Section 1.12, any withholding or deduction for Taxes required to
be withheld or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent and each Bank, if and to the extent any
amount payable by the Borrower under the Borrower Loan Documents (whether
payable to such Person or to any other Person that is the Administrative Agent
or a Bank) is not otherwise paid when due, to charge such amount against any or
all of the demand deposit or other transaction accounts of the Borrower with
such Person or any of such Person's Affiliates (whether maintained at a branch
or office located within or without the United States), with the Borrower
remaining liable for any deficiency. The Person so charging any such account
10
shall give the Borrower prompt notice thereof, but any failure to give or delay
in giving such notice shall not affect such Person's right to effect such
charge.
(d) Extension of Payment Dates. Whenever any payment to the
Administrative Agent or any Bank under the Borrower Loan Documents would
otherwise be due (except by reason of acceleration) on a day that is not a
Business Day or, in the case of payments of the principal of Eurodollar Rate
Loans, a Eurodollar Business Day, such payment shall instead be due on the next
succeeding Business or Eurodollar Business Day, as the case may be, unless, in
the case of a payment of the principal of Eurodollar Rate Loans, such extension
would cause payment to be due in the next succeeding calendar month, in which
case such due date shall be advanced to the next preceding Eurodollar Business
Day. If the due date for any payment under the Borrower Loan Documents is
extended (whether by operation of any Borrower Loan Document, Applicable Law or
otherwise), such payment shall bear interest for such extended time at the rate
of interest applicable hereunder.
Section 1.11. Distribution of Payments by the Administrative
Agent. (a) The Administrative Agent shall promptly distribute to each Bank its
ratable share of each payment received by the Administrative Agent under the
Loan Documents for the account of the Banks by credit to an account of such Bank
at the Administrative Agent's Office or by wire transfer to an account of such
Bank at an office of any other commercial bank located in the United States or
at any Federal Reserve Bank, in each case as may be specified by such Bank.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
under the Loan Documents that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent in
its sole discretion may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date a corresponding amount with respect to
the amount then due such Bank. If and to the extent the Borrower shall not have
so made such payment in full to the Administrative Agent and the Administrative
Agent shall have so distributed to any Bank a corresponding amount, such Bank
shall, on demand, repay to the Administrative Agent the amount so distributed
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate until (and including) the third
Business Day after demand is made and thereafter at the Base Rate.
Section 1.12. Taxes on Payments. (a) Taxes Payable by the
Borrower. If any Tax is required to be withheld or
11
deducted from, or is otherwise payable by the Borrower in connection with, any
payment due to any Bank or any Agent that is not a "United States person" (as
such term is defined in Section 7701(a)(30) of the Code) hereunder, the Borrower
(i) shall, if required, withhold or deduct the amount of such Tax from such
payment and, in any case, pay such Tax to the appropriate taxing authority in
accordance with Applicable Law and (ii) except in the case of any Bank Tax,
shall pay to such Bank or Agent such additional amounts as may be necessary so
that the net amount received by such Bank or Agent with respect to such payment,
after withholding or deducting all Taxes required to be withheld or deducted, is
equal to the full amount payable hereunder. If any Tax is withheld or deducted
from, or is otherwise payable by the Borrower in connection with, any payment
due to any such Bank or Agent hereunder, the Borrower shall furnish to such Bank
or Agent the original or a certified copy of a receipt for such Tax from the
applicable taxing authority within 30 days after the date of such payment (or,
if such receipt shall not have been made available by such taxing authority
within such time, the Borrower shall use reasonable efforts to promptly obtain
and furnish such receipt). If the Borrower fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to any such Bank or Agent the
required receipts, the Borrower shall indemnify such Bank or Agent for any
Taxes, interest, penalties or additions to Tax that may become payable by such
Bank or Agent as a result of any such failure.
(b) Taxes Payable by any Bank or Agent. The Borrower shall,
promptly upon request by any Bank or Agent that is not a United States person
for the payment thereof, pay to any such Bank or Agent an amount equal to (i)
all Taxes (other than Bank Taxes and without duplication of amounts paid
pursuant to Section 1.12(a)) payable by such Bank or Agent with respect to any
payment due to such Bank or Agent hereunder and (ii) all Taxes (other than Bank
Taxes) payable by such Bank or Agent as a result of payments made by the
Borrower (whether made to a taxing authority or to such Bank or Agent) pursuant
to Section 1.12(a) or this Section 1.12(b).
(c) Exemption from U.S. Withholding Taxes. (i) Each Bank that
is not a United States person shall submit to the Borrower and the
Administrative Agent, on or before the fifth day prior to the first Interest
Payment Date occurring after the Closing Date (or, in the case of a Person that
is not a United States person and that became a Bank by assignment, promptly
upon such assignment), two duly completed and signed copies of either (A)(1)
Form 1001 of the United States Internal Revenue Service entitling such Bank to a
complete exemption from withholding on all amounts to be received by such Bank
pursuant to this Agreement and the Loans or (2) Form 4224 of the United States
Internal Revenue Service relating to all amounts to be received by such Bank
pursuant to this Agreement and the Loans or (B) in the case of any Bank (or
Person that becomes a Bank by
12
assignment) that is exempt from United States Federal withholding tax pursuant
to Sections 871(b) or 881(c) of the Code, Form W-8 of the United States Internal
Revenue Service. Each such Bank shall, from time to time after submitting any
such Form, submit to the Borrower and the Administrative Agent such additional
duly completed and signed copies of one or another such Forms (or any successor
forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be (A) requested in writing by the Borrower or the
Administrative Agent and (B) appropriate under the circumstances and under then
current United States law or regulations to avoid or reduce United States
withholding taxes on payments in respect of all amounts to be received by such
Bank pursuant to this Agreement or the Loans. Upon the request of the Borrower
or the Administrative Agent, each Bank that is a United States person shall
submit to the Borrower and the Administrative Agent a certificate to the effect
that it is a United States person.
(ii) If any Bank determines that it is unable to submit to the
Borrower or the Administrative Agent any form or certificate that such Bank is
obligated to submit pursuant to the preceding paragraph, or that it is required
to withdraw or cancel any such form or certificate, or that any such form or
certificate previously submitted has otherwise become ineffective or inaccurate,
such Bank shall promptly notify the Borrower and the Administrative Agent of
such fact.
(iii) Notwithstanding anything to the contrary contained
herein, the Borrower shall not be required to pay any additional amount in
respect of United States withholding taxes pursuant to Section 1.12(a) or
Section 7.02 to any Bank that (A) is not, on the date this Agreement is executed
by such Bank (or, in the case of a Person that became a Bank by assignment, on
the date of such assignment), either (x) entitled to submit Form W-8 or Form
1001 of the United States Internal Revenue Service entitling such Bank to a
complete exemption from withholding on all amounts to be received by such Bank
pursuant to this Agreement and the Loans or Form 4224 of the United States
Internal Revenue Service relating to all amounts to be received by such Bank
pursuant to this Agreement and the Loans or (y) a United States person, (B) is
no longer entitled or, in the case of a Bank that is no longer a United States
person, is not entitled, to submit either such Form (or any successor form as
shall be adopted from time to time by the relevant United States taxing
authorities) as a result of any change in circumstances or other event other
than a Regulatory Change or (C) with respect to any affected interest payments,
fails to fulfill its requirements set forth in Section 1.12(c)(i) (other than as
a result of a Regulatory Change).
(d) Credits and Deductions. If any Agent or Bank is, in its
sole opinion, able to apply for any refund, offset, credit, deduction or other
reduction in Taxes by reason of any
13
payment made by the Borrower under Section 1.12(a) or (b), such Agent or Bank,
as the case may be, shall use reasonable efforts to obtain such refund, offset,
credit, deduction or other reduction and, upon receipt thereof, will pay to the
Borrower such amount, not exceeding the increased amount paid by the Borrower,
as is equal to the net after-tax value to such Agent or Bank, in its sole
opinion, of such part of such refund, offset, credit, deduction or other
reduction as it considers to be allocable to such payment by the Borrower,
having regard to all of such Agent's or Bank's dealings giving rise to similar
refunds, offsets, credits, deductions or other reductions in relation to the
same tax period and to the cost of obtaining the same; provided, however, that
if any Agent or Bank has made a payment to the Borrower pursuant to this Section
1.12(d) and the applicable refund, offset, credit, deduction or other reduction
in Tax is subsequently disallowed, the Borrower shall, promptly upon request by
any Agent or Bank, refund to such Agent or Bank that portion of such payment
determined by such Agent or Bank, in its sole opinion, relating to such
disallowance; and provided, further that (i) such Agent or Bank, as the case may
be, shall not be obligated to disclose to the Borrower any information regarding
its Tax affairs or computations and (ii) nothing in this Section 1.12(d) shall
interfere with the right of such Agent or Bank to arrange its Tax affairs as it
deems appropriate.
Section 1.13. Evidence of Indebtedness. Each Bank's Loans and
the Borrower's obligation to repay such Loans with interest in accordance with
the terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and, in the case of Tranche A Loans, a single Tranche A Note payable
to the order of such Bank and, in the case of Tranche B Loans, a single Tranche
B Note payable to the order of such Bank. The Administrative Agent shall keep a
record of each Bank's Commitments, Loans and accrued interest thereon and of all
payments made in respect thereof; provided, however, that the records of each
such Bank shall be prima facie evidence of such Loans, interest and payments.
Section 1.14. Pro Rata Treatment. Except to the extent
otherwise provided herein, (a) Tranche A Loans and Tranche B Loans shall be made
by the Banks pro rata in accordance with their respective Tranche A Commitments
or Tranche B Commitments, as applicable, (b) Tranche A Loans of the Banks shall
be converted and continued pro rata in accordance with their respective amounts
of Tranche A Loans of the Type and, in the case of Eurodollar Rate Loans, having
the Interest Period being so converted or continued, (c) Tranche B Loans of the
Banks shall be converted and continued pro rata in accordance with their
respective amounts of Tranche B Loans of the Type and, in the case of Eurodollar
Rate Loans, having the Interest Period being so converted or continued, (d) each
reduction of the Total Tranche A Commitment shall be applied to the Tranche A
Commitments of the Banks pro rata in accordance with the
14
respective amounts thereof and (e) each payment of the principal of or interest
on the Loans or of commitment fees shall be made for the account of the Banks
pro rata in accordance with their respective amounts thereof then due and
payable.
Section 1.15. Registered Notes. (a) Any Bank that is not a
U.S. Person (a "Non-U.S. Bank"), and that could become completely exempt from
withholding of U.S. Taxes in respect of payment of any obligations due to such
Bank hereunder relating to any of its Loans if such Loans were in registered
form for U.S. Federal income tax purposes, may request the Borrower (through the
Administrative Agent), and the Borrower agrees thereupon, to register such Loans
as provided in Section 1.15(c) and to issue such Bank's Tranche A Note or
Tranche B Note, as applicable, evidencing such Loans, or to exchange either
thereof for a new Tranche A Note or Tranche B Note, as applicable, registered as
provided in Section 1.15(c) (a "Registered Note"). A Registered Note may not be
exchanged for a Note that is not in registered form. A Registered Note shall be
deemed to be and shall be a Note for all purposes of this Agreement and the
other Loan Documents.
(b) Each Non-U.S. Bank that requests or holds a Registered
Note pursuant to Section 1.15(a) or registers its Loans pursuant to Section
1.15(c) (a "Registered Noteholder") (or, if such Registered Noteholder is not
the beneficial owner thereof, such beneficial owner) shall deliver to the
Borrower (with a copy to the Administrative Agent) prior to or at the time such
Non-U.S. Bank becomes a Registered Noteholder, the applicable form described in
Section 1.12(c)(i) (or such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States of America)
together with an annual certificate stating that such Registered Noteholder or
beneficial owner, as the case may be, is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and is not otherwise described in Section
881(c)(3) of the Code. Each Registered Noteholder or beneficial owner, as the
case may be, shall promptly notify the Borrower (with a copy to the
Administrative Agent) if at any time such Registered Noteholder or beneficial
owner, as the case may be, determines that it is no longer in a position to
provide such previously delivered certificate to the Borrower (or any other form
of certification adopted by the relevant taxing authorities of the United States
of America for such purposes).
(c) The Administrative Agent, acting, for this purpose, as
agent of the Borrower, shall maintain a register (the "Register") (which shall
be kept by the Administrative Agent at no extra charge to the Borrower at the
address to which notices to the Administrative Agent are to be sent hereunder)
on which it shall enter the name, address and taxpayer identification number (if
provided) of the registered owner of the Loans evidenced by a Registered Note or
for which a Registered Note has been requested
15
(and, upon request of such registered owner, such entry shall be made by the
Administrative Agent notwithstanding that such Registered Note may not have yet
been delivered to such owner). In addition to the requirements of Section 9.10,
a Registered Note and the Loans evidenced thereby (or such Loans pending
delivery of such Registered Note) may be assigned or otherwise transferred in
whole or in part only by registration of such assignment or transfer of such
Registered Note and the Loans evidenced thereby on the Register (and each such
Registered Note shall expressly so provide). Any assignment or transfer of all
or part of such Loans and the Registered Note evidencing the same shall be
registered on the Register only upon compliance with the provisions of Section
9.10 and surrender for registration of assignment or transfer of the Registered
Note evidencing such Loans, duly endorsed by (or accompanied by a written
instrument of assignment or transfer fully executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s) and, if less than all of such Registered Notes is thereby being
assigned or transferred, the assignor or transferor. Prior to the due
presentation for registration of transfer of any Registered Note, the Borrower
and the Administrative Agent shall treat the Person in whose name such Loans and
the Registered Note evidencing the same is registered as the owner thereof for
the purpose of receiving all payments thereon and for all other purposes,
notwithstanding any notice to the contrary.
(d) The Register shall be available for inspection by the
Borrower and any Bank at any reasonable time during the Administrative Agent's
business hours upon reasonable prior notice.
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans. The obligation of
each Bank to make its initial Loan is subject to the fulfillment of each of the
following conditions:
(a) the Arranging Agents' and the Managing Agents' receipt of
each of the following, in form and substance and, in the case of the materials
referred to in clauses (i), (ii), (iii), (vii), (viii), (x), (xiii) and (xiv)
below, certified in a manner satisfactory to the Arranging Agents and the
Managing Agents:
(i) a certificate of the Secretary or an Assistant Secretary
or a Responsible Officer of each of the Loan Parties, dated the requested date
for the making of such Loan, substantially in the form of Schedule 2.01(a)(i),
to
16
which shall be attached copies of the resolutions and by-laws referred to
in such certificate;
(ii) copies of the certificate of incorporation of each of the
Loan Parties, in each case certified, as of a recent date, by the Secretary of
State or other appropriate official of the jurisdiction of incorporation of such
Loan Party;
(iii) a good standing or subsistence certificate with respect
to the Borrower, each Consolidated Subsidiary and each other Loan Party (in each
case, other than partnerships, to the extent such certificate is not customarily
available with respect thereto), issued as of a recent date by the Secretary of
State or other appropriate official of such Person's jurisdiction of
incorporation, together with a telegram from such Secretary of State or other
official, updating the information in such certificate;
(iv) an opinion of counsel for the Borrower and an opinion of
counsel for each other Loan Party, each dated the requested date for the making
of such Loan, in the form of Schedules 2.01(a)(iv)-1 and 2.01(a)(iv)-2,
respectively, with such changes as the Arranging Agents and the Managing Agents
shall approve;
(v) an opinion of special FCC counsel for the Borrower and the
Subsidiaries and opinions of local counsel for the Borrower and the Subsidiaries
addressing the law of the States of New Jersey, Pennsylvania (which may be staff
counsel of the Borrower) and Illinois, each dated the requested date for the
making of such Loan, in the form of Schedules 2.01(a)(v)-1, 2.01(a)(v)-2,
2.01(a)(v)-3 and 2.01(a)(v)-4, respectively, with such changes as the Arranging
Agents and the Managing Agents shall approve;
(vi) an opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
special counsel for the Arranging Agents and the Managing Agents, dated the
requested date for the making of such Loan, in the form of Schedule 2.01(a)(vi);
(vii) a copy of each Governmental Approval and other consent
or approval listed on Schedule 3.03;
(viii) a certificate of a Responsible Officer of the Borrower,
dated the requested date for the making of such Loan, with respect to the
conditions set forth in Sections 2.02(b) and (c) and setting forth the
calculation of the Leverage Ratio in effect immediately after giving effect to
the making of the initial Loans and the application of the proceeds thereof;
17
(ix) a duly executed Tranche A Note and Tranche B Note for
each Bank and a duly executed copy of each of the other Loan Documents;
(x) a copy of the Management Agreement and the Tax Sharing
Agreement, each of which shall be in form and substance satisfactory to the
Arranging Agents and the Managing Agents;
(xi) such instruments and other documents as the Arranging
Agents and the Managing Agents may request, the possession of which is necessary
or appropriate in the Arranging Agents' and the Managing Agents' determination
to create or perfect a security interest in the Collateral under Applicable Law,
including but not limited to the certificates representing the Pledged
Securities, together with undated stock powers for such certificates duly
executed in blank, and duly executed UCC-1 financing statements;
(xii) evidence that, prior to or substantially simultaneously
with the making of such Loan, (A) the Predecessor Indebtedness will be repaid,
(B) all commitments to lend in respect of the Predecessor Indebtedness shall
have been effectively terminated and (C) all UCC-3 termination statements and
all other documents necessary in the determination of the Arranging Agents and
the Managing Agents to effectively terminate of record all security interests
related to the Predecessor Indebtedness shall have been duly executed by the
proper parties and shall have been delivered to the Administrative Agent, or
other arrangements with respect thereto satisfactory to the Arranging Agents and
the Managing Agents shall have been made;
(xiii) a certificate of a Responsible Officer of the Borrower,
dated the requested date for the making of such Loan, to which shall be attached
financial projections for the Borrower and the Consolidated Subsidiaries and a
pro forma balance sheet of the Borrower and the Consolidated Subsidiaries as at
June 30, 1995, reflecting the making of the initial Loans and the repayment or
satisfaction of the Predecessor Indebtedness, each of which shall be in
reasonable detail and in form satisfactory to the Arranging Agents and the
Managing Agents;
(xiv) a certificate of a Responsible Officer of the Borrower
with respect to its solvency and adequacy of capital, substantially in the form
of Schedule 2.01(a)(xiv); and
(xv) evidence that the Borrower shall have paid all of the
fees required to be paid to the Agents and the Banks on the date of the initial
Loans and all of the reasonable fees
18
and disbursements of Winthrop, Stimson, Xxxxxx & Xxxxxxx, special
counsel for the Arranging Agents and the Managing Agents, in connection
with the negotiation, preparation, execution and delivery of the Loan
Documents and the making of the initial Loans.
Section 2.02. Conditions to Each Loan. The obligation of each
Bank to make each Loan requested to be made by it, including its initial Loan,
is subject to the fulfillment of each of the following conditions:
(a) the Administrative Agent shall have received a notice of
borrowing with respect to such Loan complying with the requirements of Section
1.02;
(b) each Loan Document Representation and Warranty shall be
true and correct in all material respects at and as of the time such Loan is to
be made, both with and without giving effect to such Loan and all other Loans to
be made at such time and to the application of the proceeds thereof, except, in
the case of Loans other than the initial Loans, to the extent waived by the
Required Banks;
(c) no Default (other than a Default (i) that shall have been
waived by the Required Banks or, to the extent required by Section 9.07, each of
the Banks or (ii) that shall not constitute an Event of Default and will be
cured, contemporaneously with the making of such Loan, pursuant to arrangements
satisfactory to the Required Agents, by the application of the proceeds of such
Loan and the other Loans to be made at such time) shall have occurred and be
continuing at the time such Loan is to be made or would result from the making
of such Loan and all other Loans to be made at such time or from the application
of the proceeds thereof;
(d) without in any way limiting Section 2.02(c), such Bank
shall have received such materials as it may have reasonably requested pursuant
to Section 5.01(d) and that were reasonably capable of being delivered to such
Bank prior to the making of such Loan; and
(e) in the case of any Loan the proceeds of which are to be
used to make any Restricted Payment contemplated by clauses (a) or (b) of
Section 4.06, the Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower with respect to its solvency and adequacy of
capital, substantially in the form of Schedule 2.01(a)(xiv) and giving effect to
the making of such Loans.
Except to the extent that the Borrower shall have disclosed in
the notice of borrowing, or in a subsequent notice given to the Banks prior to
5:00 p.m. (New York time) on the Business Day before the requested date for the
making of the
19
requested Loans, that a condition specified in Section 2.02(b) or (c) will not
be fulfilled as of the requested time for the making of such Loans, the Borrower
shall be deemed to have made a Representation and Warranty as of the time of the
making of such Loans that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure by the Borrower that a condition
specified in Section 2.02(b) or (c) will not be fulfilled as of the requested
time for the making of the requested Loans shall affect the right of each Bank
to not make the Loans requested to be made by it if such condition has not been
fulfilled at such time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
In order to induce each Bank to enter into this Agreement and
to make each Loan requested to be made by it, the Borrower represents and
warrants as follows:
Section 3.01. Organization; Power; Qualification. Each of the
Borrower and the Subsidiaries is a corporation or a partnership, as the case may
be, duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has full corporate or partnership power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and in good standing as
a foreign corporation or limited partnership, as the case may be, and is
authorized to do business, in all jurisdictions in which the character of its
properties or the nature of its business requires such qualification or
authorization, except for qualifications and authorizations the lack of which,
singly or in the aggregate, has not had and, insofar as can reasonably be
foreseen, will not have a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole or (b) the Collateral.
Section 3.02. Capitalization; Subsidiaries. Schedule 3.02 sets
forth, as of the Agreement Date, (a) all of the Capital Securities issued by the
Borrower and the Persons owning such Capital Securities, the jurisdictions of
incorporation of such Persons and the percentages of such Capital Securities so
owned and (b) all of the Subsidiaries, their jurisdictions of organization and
the percentages of the various classes of their Capital Securities owned by the
Borrower or another Subsidiary and indicates which Subsidiaries are Consolidated
Subsidiaries. The Borrower or another Subsidiary, as the case may be, has the
unrestricted right to vote, and (subject to limitations imposed by Applicable
Law) to receive dividends and distributions on, all Capital Securities issued by
the Subsidiaries indicated on Schedule 3.02 as owned by the Borrower or such
Subsidiary. All such Capital Securities have been duly authorized and issued and
20
are fully paid and nonassessable.
Section 3.03. Authorization; Enforceability; Required
Consents; Absence of Conflicts. The Borrower has the power, and has taken all
necessary action (including, if a corporation, any necessary stockholder action)
to authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and to borrow
hereunder in the amount of the unused Total Commitment. This Agreement has been,
and each of the other Loan Documents to which the Borrower is a party when
delivered to the Arranging Agents and the Managing Agents will have been, duly
executed and delivered by the Borrower and is, or when so delivered will be, a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity. The execution, delivery and performance in accordance with
their respective terms by the Borrower of the Loan Documents to which it is a
party, and each borrowing hereunder, whether or not in the amount of the unused
Total Commitment, do not and (absent any change in any Applicable Law or
applicable Contract) will not (a) require any Governmental Approval or any other
consent or approval, including any consent or approval of any Subsidiary or any
consent or approval of the stockholders or the partners, as the case may be, of
the Borrower or any Subsidiary, other than Governmental Approvals and other
consents and approvals that have been obtained, are in full force and effect and
are final and not subject to review on appeal or to collateral attack and, in
the case of any such required under any Applicable Law or Contract as in effect
on the Agreement Date, are listed on Schedule 3.03 or (b) violate, conflict
with, result in a breach of, constitute a default under, or result in or require
the creation of any Lien upon any assets of the Borrower or any Subsidiary
under, (i) any Contract to which the Borrower or any Subsidiary is a party or by
which the Borrower or any Subsidiary or any of their respective properties may
be bound or (ii) any Applicable Law, except for such violations, conflicts,
breaches or defaults of or under, or Liens resulting from or created under,
Contracts or Applicable Law (A) so long as, in the case of any Contract, such
Contract is not expressly identified or contemplated herein or in any other Loan
Document, and no Loan Party is party thereto, or, in the case of Applicable Law,
such Applicable Law is not applicable to any Loan Party, or, in the case of any
such Lien, such Lien does not attach to any property of the Borrower, (B) that
could not reasonably be expected to expose any Agent or Bank to any liability,
loss, cost or expense and (C) that, either alone or in conjunction with all
other such violations, breaches or defaults, could not have a Materially Adverse
Effect on (x) the Borrower and the Consolidated Subsidiaries taken as a whole,
(y) any Material Loan Document or (z) the Collateral.
21
Section 3.04. Litigation. Except as set forth on Schedule
3.04, there are not, in any court or before any arbitrator of any kind or before
or by any governmental or non-governmental body, any actions, suits or
proceedings pending or, to the knowledge of the Borrower and the Subsidiaries,
threatened against or in any other way relating to or affecting (i) the Borrower
or any Subsidiary or any of their respective businesses or properties, (ii) any
Material Loan Document or (iii) the Collateral (except actions, suits or
proceedings that may affect the cellular telephone industry generally but with
respect to which neither the Borrower or any Subsidiary nor any other Loan Party
is a party) with respect to which there is a reasonable probability of a
determination adverse to the interests of the Borrower or any Subsidiary that,
if adversely determined, would, singly or in the aggregate, have a Materially
Adverse Effect on (A) the Borrower and the Consolidated Subsidiaries taken as a
whole, (B) any Material Loan Document or (C) the Collateral.
Section 3.05. Burdensome Provisions. As of the Agreement Date
and as of the Closing Date, neither the Borrower nor any Subsidiary is a party
to or bound by any Contract or Applicable Law (other than Applicable Law
affecting the cellular telephone industry generally), compliance with which
might, insofar as can reasonably be foreseen by the Borrower, have a Materially
Adverse Effect on (a) the Borrower and the Consolidated Subsidiaries taken as a
whole, (b) any Material Loan Document or (c) the Collateral.
Section 3.06. No Adverse Change or Event. Except for events
affecting the cellular telephone industry generally, since December 31, 1994, no
change in the business, assets, Liabilities, financial condition or results of
operations of the Borrower or any Subsidiary has occurred, and no event has
occurred or, in the case of events anticipated by the Borrower to have occurred
prior to the making or deemed making of this representation and warranty, failed
to occur, that has had or might have, insofar as can reasonably be foreseen by
the Borrower, either alone or in conjunction with all other such changes, events
and failures, a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole, (b) any Material Loan Document or
(c) the Collateral. Such an adverse change may have occurred, and such an event
may have occurred or failed to occur, within the meaning of this Section 3.06 at
any particular time without regard to whether such change, event or failure
constitutes a Default or whether any other Default shall have occurred and be
continuing.
Section 3.07. Taxes. Each of the Borrower and the Subsidiaries
has filed (either directly or indirectly through the Affiliate of the Borrower
or such Subsidiary responsible (whether as common parent or agent of a filing
group or otherwise) under Applicable Law for such filing) all United States
Federal income
22
tax returns and all other material Tax returns that are required to be filed by
such Person and have paid (either directly or indirectly through the Affiliate
of the Borrower or such Subsidiary responsible (whether as common parent or
agent of a filing group or otherwise) under Applicable Law for such payment) all
Taxes reflected as being due pursuant to such returns and all Taxes due pursuant
to any assessment received by the Borrower or any of its Affiliates and relating
to the Borrower or any Subsidiary, except such Taxes, if any, as are being
contested in good faith by appropriate proceedings, if any, and as to which
adequate reserves have been provided and except, with respect to such
Subsidiaries, as at the Agreement Date and the Closing Date, for such tax
returns the failure to file and Taxes the failure to pay of which could not
reasonably be expected to have a Materially Adverse Effect on (a) the Borrower
and the Consolidated Subsidiaries taken as a whole, (b) any Material Loan
Document or (c) the Collateral. The charges, accruals and reserves on the books
of the Borrower and each of the Subsidiaries in respect of Taxes and other
governmental charges are, as of the Agreement Date and the Closing Date, to the
knowledge of the Borrower, and at all other times, in the opinion of the
Borrower, adequate. Other than the Tax Sharing Agreement, there is in effect on
the Agreement Date no tax sharing, tax allocation or similar agreement to which
the Borrower or any Subsidiary is a party.
Section 3.08. No Default. Neither the Borrower nor any of the
Subsidiaries is in default in the payment or performance or observance of any
Contract to which it is a party or by which it or its properties or assets may
be bound that, individually or together with all other such defaults, could have
a Materially Adverse Effect on (a) the Borrower and the Consolidated
Subsidiaries taken as a whole, (b) any Material Loan Document or (c) the
Collateral.
Section 3.09. Cellular Licenses and Related Matters. Schedule
3.09 sets forth, as of the Agreement Date, (a) each MSA and RSA in which Amcell,
AWACS or any of their respective Subsidiaries is authorized by the FCC to
operate a Cellular System, together with, for each such Cellular System, (i) the
FCC call sign for such Cellular System, (ii) the name of the licensee of such
Cellular System and (iii) the date of the expiration of the license for such
Cellular System and (b) each point-to-point common carrier microwave station
that Amcell, AWACS or any of their respective Subsidiaries is authorized by the
FCC to operate, together with, for each such microwave station, (i) the FCC call
sign for such station and (ii) the name of the licensee of such station. Except
as set forth on Schedule 3.09, each of the Borrower and the Subsidiaries has
duly secured all permits, licenses, consents and authorizations from, and has
duly filed all registrations, applications, reports and other documents with,
the FCC and, if applicable, any state public utilities commission or similar
regulatory authority, and has obtained all
23
other Governmental Approvals, necessary for the ownership and operation of the
Cellular Systems owned or operated by the Borrower or any Subsidiary, and the
ownership and operation of such Cellular Systems by the Borrower and the
Subsidiaries comply in all material respects with the Communications Act of 1934
and all rules and regulations of the FCC thereunder, except to the extent that
the failure to secure any such permit, license, consent or authorization, or to
have made any such filing, or to obtain any such Governmental Approval, or to
comply with such Act or any such rules or regulations, would not have a
Materially Adverse Effect on (a) the Borrower and the Consolidated Subsidiaries
taken as a whole, (b) any Material Loan Document or (c) the Collateral.
Section 3.10. Not an Investment Company. Neither the
Borrower nor any of the Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940.
Section 3.11. Hazardous Materials. The Borrower and each of
the Subsidiaries have obtained all permits, licenses and other authorizations
which are required under all Environmental Laws, except to the extent failure to
have any such permit, license or authorization would not reasonably be expected
to have a Materially Adverse Effect on (a) the Borrower and the Consolidated
Subsidiaries taken as a whole, (b) any Material Loan Document or (c) the
Collateral. The Borrower and each of the Subsidiaries are in compliance with the
terms and conditions of all such permits, licenses and authorizations, and are
also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable Environmental Law or in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply could
not reasonably be expected to have a Materially Adverse Effect on (i) the
Borrower and the Consolidated Subsidiaries taken as a whole, (ii) any Material
Loan Document or (iii) the Collateral. In addition, to the knowledge of the
Borrower, no notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed and no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the Borrower
or any of the Subsidiaries to have any permit, license or authorization required
in connection with the conduct of the business of the Borrower or any of the
Subsidiaries or with respect to any generation, treatment, storage, recycling,
transportation, discharge, disposal or "release" (as such term is defined in 42
U.S.C. ss. 9601(22)) of Hazardous Materials generated by the Borrower or any of
the Subsidiaries, the consequences of any of which would have a Materially
Adverse Effect on (x) the Borrower and the Consolidated Subsidiaries taken as a
whole, (y) any Material Loan Document or (z) the Collateral.
24
Section 3.12. Senior Obligations. The obligations of the
Borrower under the Borrower Loan Documents and under any Interest Rate
Protection Agreement entered into with any Bank or any Affiliate of a Bank
constitute "Senior Obligations" within the meaning and pursuant to the terms of
the Affiliate Subordination Agreement with respect to Affiliate Subordinated
Obligations.
Section 3.13. Benefit Plans. As of the Agreement Date, neither
the Borrower nor any Subsidiary has any Existing Benefit Plans other than those
listed on Schedule 3.13.
Section 3.14. Security Interest. When the Administrative Agent
as the Secured Party has taken possession on behalf of the Principals (as
defined in the Pledge Agreement) of the certificates representing the Pledged
Securities, the Security Interest will constitute a valid and perfected security
interest in the Pledged Securities and the Pledged Securities will not be
subject to any other Lien.
ARTICLE 4
CERTAIN COVENANTS
-----------------
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Subsidiary to:
Section 4.01. Preservation of Existence and Properties, Scope
of Business, Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. (a) Preserve and maintain its corporate or partnership
existence, as the case may be (except as permitted by Section 4.07 and except
for liquidation or dissolution of any Subsidiary in connection with or following
the sale or other disposition of all or substantially all of the assets of such
Subsidiary in a disposition permitted under Section 4.08), and, except as
contemplated under Section 4.08, all of its other franchises, licenses, rights
and privileges, including Cellular Licenses, (b) preserve, protect and obtain
all Intellectual Property, and preserve and maintain in good repair, working
order and condition all other properties, required for the conduct of its
business, (c) comply with Applicable Law, including, without limitation, all
laws applicable to the construction, ownership and operation of a Cellular
System or the ownership and use of a Cellular License (including, without
limitation, the Communications Act of 1934, and all rules and regulations of the
FCC thereunder), (d) pay or discharge when due all Taxes and all Liabilities
that are or might become a Lien on any of its properties and (e) take all action
and obtain all consents and Governmental Approvals required so that its
obligations under the Loan Documents will at
25
all times be legal, valid and binding and enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally; provided, however, that this Section
4.01 (other than clause (a) above (insofar as it requires the Borrower to
preserve its corporate or partnership existence, as the case may be) and clause
(e) above) shall not apply in any circumstance where noncompliance, together
with all other noncompliances with this Section 4.01, will not have a Materially
Adverse Effect on (i) the Borrower and the Consolidated Subsidiaries taken as a
whole, (ii) any Material Loan Document or (iii) the Collateral.
Section 4.02. Insurance. Maintain insurance with responsible
insurance companies against at least such risks and in at least such amounts (a)
as is customarily maintained by similar businesses or (b) as may be required by
Applicable Law, except, in the case of clause (b) above, to the extent that the
failure to maintain such insurance could not have a Materially Adverse Effect on
(i) the Borrower and the Consolidated Subsidiaries taken as a whole, (ii) any
Material Loan Document or (iii) the Collateral. Whether or not customarily
maintained by similar businesses, the Borrower shall, and shall cause the
Subsidiaries to, maintain business interruption insurance, so long as such
insurance is available on commercially reasonable terms or is otherwise required
to be maintained by the Required Agents.
Section 4.03. Use of Proceeds. Use the proceeds of the Loans
only to (a) repay in full the Predecessor Indebtedness and pay transaction costs
in connection herewith, (b) make acquisitions to which Section 4.07 is by its
express terms inapplicable, (c) make investments to which Section 4.14 is by its
express terms inapplicable, (d) fund working capital and capital expenditure
requirements and other general corporate purposes, (e) subject to Section 4.06,
make Restricted Payments and (f) subject to Section 4.21, make payments of
principal and interest in respect of Senior Subordinated Indebtedness. None of
the proceeds of any of the Loans shall be used by the Borrower or any Subsidiary
to purchase or carry, or to reduce or retire or refinance any credit incurred by
the Borrower or any Subsidiary to purchase or carry, any margin stock (within
the meaning of Regulations U and X of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of purchasing or
carrying any margin stock. If requested by any Bank, the Borrower shall complete
and sign Part I of a copy of Federal Reserve Form U-1 referred to in Regulation
U of the Board of Governors of the Federal Reserve System and deliver such copy
to such Bank.
B. The Borrower shall not, and shall not permit or suffer
any Subsidiary to, directly or indirectly:
26
Section 4.04. Guaranties. Be obligated, at any time, in
respect of any Guaranty, except that this Section 4.04 shall not apply to (a)
Existing Guaranties and (b) Permitted Guaranties.
Section 4.05. Liens. Permit to exist, at any time, any Lien
upon any of its properties or assets of any character, whether now owned or
hereafter acquired, or upon any income or profits therefrom, except that this
Section 4.05 shall not apply to Permitted Liens; provided, however, that if,
notwithstanding this Section 4.05, any Lien to which this Section 4.05 is
applicable shall be created or arise, the Liabilities of the Loan Parties under
the Loan Documents shall, to the extent such Lien attaches to any asset that
does not constitute Collateral or to any asset with respect to which such Lien
would be prior to the Security Interest, automatically be secured by such Lien
to the full extent permitted by Applicable Law equally and ratably with the
other Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected; provided further, however, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a default by the Borrower in the performance or
observance of this Section 4.05.
Section 4.06. Restricted Payments. Make or declare or
otherwise become obligated to make any Restricted Payment, except that, so long
as, at both the time of the declaration or other incurrence, if any, of any such
Restricted Payment, and the time of the making thereof, and immediately after
giving effect thereto, no Default shall have occurred and be continuing, this
Section 4.06 shall not apply to (a) any Restricted Payment made to Comcast
Cellular Corporation for the purpose of redeeming, and promptly applied to the
redemption of, the Comcast Cellular Zeros; (b) any Restricted Payment (i) made
to Comcast or any Subsidiary of Comcast in an amount up to the aggregate
redemption price of the Comcast Cellular Zeros, if any, redeemed with shares of
Comcast Common Stock and/or (ii) in an amount up to the amount of the proceeds
of the redemption of Comcast Cellular Zeros owned by the Borrower or any
Subsidiary; (c) any Restricted Payment made to Comcast or any Subsidiary of
Comcast of up to $100,000,000 of the proceeds of Permitted Additional
Indebtedness of the Borrower; (d) any Restricted Payment made to Holdco for the
purpose of making, and promptly applied to make, cash interest payments on
Permitted Additional Non-Facility Indebtedness of Holdco, so long as, if the
terms and conditions of such Permitted Additional Non-Facility Indebtedness did
not require any cash interest payments thereon at any time within the three-year
period immediately following the incurrence thereof (other than customary
charges, not to exceed $2,750,000 in any year, payable in connection with
Permitted Additional Non-
27
Facility Indebtedness of Holdco), the Leverage Ratio is less than 5.50 to 1 both
before and after giving effect to such Restricted Payment; (e) any Restricted
Payment, so long as (i) the Leverage Ratio is less than 5.00 to 1 both before
and after giving effect to such Restricted Payment and (ii) the Borrower shall
have made (A) the prepayment, if any, of the Tranche A Loans pursuant to Section
1.05(b)(i) required to be made upon the reduction of the Total Tranche A
Commitment pursuant to Section 1.07(c) resulting from such Restricted Payment
and (B) the prepayment of the Tranche B Loans pursuant to Section 1.05(b)(iv)
required to be made upon the making of such Restricted Payment; (f) any
Restricted Payment, so long as the Leverage Ratio is less than 4.50 to 1 both
before and after giving effect to such Restricted Payment; (g) any distribution
of the assets or Capital Securities of, or other equity interests in, the
Excluded Subsidiaries or any Restricted Payment consisting of the proceeds of
any disposition of such assets, Capital Securities or other equity
interests; (h) any Restricted Payment consisting of the proceeds of any issuance
of the capital stock of the Borrower, so long as no Default under Section
6.01(l) shall have resulted from such issuance; (i) any Restricted Payment made
for the purpose of redeeming or repurchasing the Borrower's Class B
Participating Redeemable Preferred Stock; and (j) any Restricted Payment, in an
amount, together with the aggregate amount of all other Restricted Payments
pursuant to this clause (j), not in excess of $2,750,000 in any year, made to
Holdco for the purpose of making, and promptly applied to make, payment of
customary charges payable in connection with Permitted Additional Non-Facility
Indebtedness of Holdco; provided, that the Borrower shall have delivered to the
Banks, prior to the making of any such Restricted Payment pursuant to clauses
(a), (b) and (c) above, the financial projections referred to in Section
2.01(a)(xiii), revised to reflect (A) operating performance since the date of
such financial projections and (B) the making of such Restricted Payment, and
demonstrating pro forma compliance with the terms of this Agreement through the
Termination Date.
Section 4.07. Merger or Consolidation; Acquisitions. Merge or
consolidate with any Person, or acquire substantially all the assets or
business, business unit or division from or substantially all the Capital
Securities issued by any Person, except that, if after giving effect thereto no
Default would exist, this Section 4.07 shall not apply to (a) any merger or
consolidation of the Borrower with any Person so long as the sole purpose of
such merger or consolidation was to change the domicile of the Borrower, the
Person into which the Borrower merged or with which it consolidated was
specially formed for such purpose and had at no time conducted any business or
operations and such Person shall have assumed in writing the obligations of the
Borrower under the Loan Documents in a manner reasonably satisfactory to the
Required Agents, (b) any merger or consolidation of any Subsidiary with any one
or more other Subsidiaries or with any Person acquired as provided in clause
28
(e) below, (c) any acquisition of assets in the ordinary course of business or
contemplated by Section 4.08(c), (d) any acquisition of any interest in Cellular
Systems within the Ocean County, New Jersey RSA; the Trenton, New Jersey MSA;
the Atlantic City, New Jersey MSA; the Delaware 1-Kent RSA, the Aurora/Elgin,
Illinois MSA; the Joliet, Illinois MSA; and the Vineland-Millville-Brigeton, New
Jersey MSA, and (e) any acquisition (whether effected by merger, consolidation,
acquisition of Capital Securities or otherwise) of Cellular Systems located
within the United States and of businesses directly related to Cellular Systems
owned or controlled by the Borrower or any Subsidiary which is in exchange for
Cellular Systems or related telecommunications businesses as provided in Section
4.08(g)(ii) or the purchase price of which is funded with any one or any
combination of the following sources, subject to any condition or restriction
set forth below with respect thereto:
(i) the proceeds of Junior Subordinated Indebtedness
received after the Agreement Date (other than Junior
Subordinated Indebtedness applied or deemed applied as
set forth in Section 6.03);
(ii) the amount of cash equity contributions and cash
payments for the Borrower's Capital Securities (other
than Mandatorily Redeemable Securities) received by the
Borrower after the Agreement Date
(other than from a Subsidiary);
(iii) so long as such acquisition is from any Person
other than an Affiliate, the proceeds of sales (or the
cash component of exchanges) of assets referred to in
clauses (f) or (g) of Section 4.08; and
(iv) other funds available therefor, so long as any such
acquisition the purchase price of which is funded in
whole or in part as contemplated by this clause (iv) is
consummated after December 31, 1996 and the aggregate
amount of funds so used pursuant to this clause (iv) for
all such acquisitions, together with the aggregate amount
of investments to which the proviso contained in Section
4.14(j) is applicable, is not in excess of (A) so long as
the Leverage Ratio is less than 5.50 to 1 both before and
immediately after giving effect to such acquisition,
$200,000,000 and (B) at all other times, $100,000,000;
provided, however, that, in the case of clauses (d) and (e), the Borrower shall
have furnished to the Banks, promptly upon consummation of each such acquisition
wherein the Pro Forma Cash Flow Percentage of the acquired Cellular System or
business exceeds 10%, financial statements, subscriber information and pro forma
projections relating thereto demonstrating pro forma
29
compliance with the terms of this Agreement through the Termination Date and
that, in the event that any such acquisition is from an Affiliate, the Board of
Directors of the Borrower shall have determined in its good faith judgment that
the amount paid was not in excess of the fair market value of the assets
acquired. For purposes of this Section 4.07, "Pro Forma Cash Flow Percentage"
means, as of the date of any such acquisition, the ratio, expressed as a
percentage, derived by dividing (x) Cash Flow attributable to the Cellular
System or business so acquired for the four consecutive fiscal quarters of the
seller thereof ending on, or most recently ended prior to, such date for which
financial information is available by (y) the sum of the amount determined
pursuant to clause (x) and Cash Flow of the Borrower and the Consolidated
Subsidiaries for the four consecutive fiscal quarters of the Borrower ending on,
or most recently ended prior to, such date for which financial information is
available and has been delivered to the Banks hereunder prior to such date.
Section 4.08. Disposition of Assets. Sell, lease, license,
transfer or otherwise dispose of any asset or any interest therein, except that
this Section 4.08 shall not apply to (a) any disposition of property in the
ordinary course of business, (b) any disposition of equipment that is obsolete
or no longer required in its business, (c) any disposition of any asset or any
interest therein by a Subsidiary to the Borrower (so long as, after giving
effect to such disposition and all other such dispositions by such Subsidiary to
the Borrower after the Agreement Date, such Subsidiary shall not have disposed
of a substantial portion of its assets to the Borrower) or a Wholly Owned
Subsidiary or any disposition of any asset or any interest therein by the
Borrower to a Wholly Owned Subsidiary, (d) any sale or assignment of delinquent
accounts receivable or other delinquent trade receivables (or notes evidencing
such receivables) to a collection agency or similar service in the ordinary
course of business, (e) any transaction to which any of the other provisions of
this Agreement (other than Section 4.10) is by its express terms inapplicable,
(f) any disposition of (i) any interest in or assets of the Excluded
Subsidiaries or any proceeds of any disposition of any such interest or assets
or (ii) any interest in Cellular Systems within the Maryland 2 RSA or any other
such interests that are owned by the Borrower or any Subsidiary on the Agreement
Date and constitute no more than 15% of the total equity of any Cellular System
and (g) any disposition of any interest in or assets of a Cellular System or a
cellular telephone, wireless or related telecommunications business, so long as
no Default shall have occurred and be continuing immediately prior to or after
giving effect to such disposition and
(i) such disposition is a sale to any Person for cash
in an amount not less than the fair market value of the interests or
assets sold net of the liabilities assumed, as
30
determined in the good faith judgment of the Board of Directors of the
Borrower or the applicable Subsidiary, and (A) the Cash Flow Percentage
attributable to such interests or assets together with the Cash Flow
Percentage of all other interests and assets sold or exchanged by the
Borrower and its Subsidiaries pursuant to this clause (i) or clause
(ii) below within the prior twelve calendar month period (or, if
shorter, the period from the Closing Date) does not exceed 5% and (B)
the Cash Flow Percentage attributable to such interests or assets
together with the Cash Flow Percentage (determined, with respect to
prior sales or exchanges, at the time of each such sale or exchange)
attributable to all interests and assets sold or exchanged by the
Borrower and its Subsidiaries pursuant to this clause (i) or clause
(ii) below since the Closing Date does not exceed 20%, or
(ii) such disposition is an exchange, with any Person, of
interests or assets exchanged by the Borrower or applicable Subsidiary
comprising interests in or assets of one or more cellular telephone,
wireless and related telecommunications businesses or the stock or
other equity of a Person owning such interests or assets for interests
in or assets of one or more other Cellular Systems located in the
United States or businesses directly related to Cellular Systems owned
or controlled by the Borrower or any Subsidiary, together with any
Permitted Securities received by the Borrower or any Subsidiary in
connection with such exchange, and of equal or greater value, as
determined in the good faith judgment of the Board of Directors of the
Borrower or the applicable Subsidiary, and (A) the Cash Flow Percentage
attributable to such interests or assets exchanged by the Borrower or
applicable Subsidiary together with the Cash Flow Percentage
attributable to all other interests and assets exchanged or sold by the
Borrower and its Subsidiaries pursuant to this clause (ii) or clause
(i) above within the prior twelve calendar month period (or, if
shorter, the period from the Closing Date) does not exceed 5% and (B)
the Cash Flow Percentage attributable to such interests or assets
together with the Cash Flow Percentage (determined, with respect to
prior exchanges, at the time of each such exchange) attributable to all
other interests and assets exchanged or sold by the Borrower and its
Subsidiaries pursuant to this clause (ii) or clause (i) above since the
Closing Date does not exceed 20%;
provided that, in the case of any such sale to or exchange with an Affiliate, in
addition to the requirements set forth above in clause (i) and (ii), (y) the
Cash Flow Percentage attributable to the interests or assets sold or exchanged,
together with the Cash Flow Percentage of all other interests and assets sold to
or exchanged with Affiliates since the Closing Date, shall not exceed 5%, and
(z) such Board of Directors shall have determined,
31
in its good faith judgment, that such sale or exchange is for consideration or
in exchange for interests or assets reflecting the fair market value of the
interests or assets sold or exchanged, and the Borrower shall have furnished to
the Banks, not later than the fifteenth Business Day preceding the date of such
sale or exchange, a fairness opinion with respect to such sale or exchange from
a recognized investment bank or broker, as the case may be, reasonably
satisfactory in form and content to the Required Agents.
Section 4.09. Indebtedness. Incur, create, assume or suffer to
exist any Indebtedness, except that this Section 4.09 shall not apply to (a)
Indebtedness under the Loan Documents, provided that, any portion thereof
representing an increase in the aggregate amount of Indebtedness and, without
duplication, Commitments hereunder pursuant to the consent of the Required Banks
shall constitute Permitted Additional Facility Indebtedness, (b) Junior
Subordinated Indebtedness, (c) Senior Subordinated Indebtedness, (d)
Indebtedness to which Section 4.14 is by its express terms inapplicable by
virtue of clause (f) thereof, (e) assumptions by certain Subsidiaries of
portions of the Indebtedness of the Borrower described in clause (a) of this
Section 4.09, so long as such assumptions (i) are effected pursuant to
assumption agreements in the forms furnished to the Arranging Agents and the
Managing Agents on the Closing Date and (ii) shall not constitute a release in
whole or in part of the Borrower from its obligations in respect thereof, (f)
Permitted Additional Non-Facility Indebtedness of the Borrower, and (g) other
Indebtedness in an aggregate principal amount outstanding at any time not in
excess of $35,000,000.
Section 4.10. Transactions with Affiliates. Effect any
transaction with any Affiliate (other than the Borrower or any Subsidiary) on a
basis less favorable than would at the time be obtainable for a comparable
transaction in arms-length dealing with an unrelated third party, except that
this Section 4.10 shall not apply to (a) transactions to which this Agreement is
by its express terms inapplicable, (b) the Management Agreement and (c) the Tax
Sharing Agreement.
Section 4.11. Management. (a) Management Agreement. Fail at
any time to keep the Management Agreement in full force and effect (payment
under which shall be the sole and exclusive payment by the Borrower and the
Subsidiaries to Comcast or any Subsidiary of Comcast or any other Person for the
supervision and management of the Borrower and the Subsidiaries (other than
amounts paid in reimbursement of out-of-pocket costs and expenses incurred on
behalf of the Borrower or the Subsidiaries)) or permit any Persons other than
Comcast or any Subsidiary of Comcast to supervise or manage the day-to-day
business of the Borrower and the Subsidiaries.
(b) Management Fees. Make payments in respect of, or
32
accrue, Management Fees at any time other than Permitted Management Fees. For
purposes of this Agreement, "Permitted Management Fees" means, with respect to
any fiscal quarter of the Borrower, (i) Management Fees in an amount up to 6% of
Total Revenue for such fiscal quarter, which may be paid in cash or accrued to
the extent not currently paid in cash as provided below within 90 days (or, in
the case of the last quarter of any fiscal year of the Borrower, 120 days) after
the end of such fiscal quarter ("Current Management Fees"), and (ii) the accrued
and unpaid portion of Management Fees for periods preceding the Closing Date and
Current Management Fees from prior fiscal quarters ("Accrued Management Fees").
When the Leverage Ratio is greater than 7.00 to 1 as of the last day of any
fiscal quarter of the Borrower, no Current Management Fees with respect to such
fiscal quarter or Accrued Management Fees shall be paid. When the Leverage Ratio
is greater than 5.00 to 1 but less than or equal to 7.00 to 1 as of the last day
of any fiscal quarter of the Borrower (determined without giving effect to the
payment, if any, of Current Management Fees pursuant to this sentence), the
portion of Current Management Fees with respect to such fiscal quarter paid in
cash shall not exceed 2% of Total Revenue for such fiscal quarter. When the
Leverage Ratio is less than 5.00 to 1 as of the last day of any fiscal quarter
of the Borrower (determined without giving effect to the payment, if any, of
Current Management Fees pursuant to this sentence), the portion of Current
Management Fees with respect to such fiscal quarter paid in cash shall not
exceed 4% of Total Revenue for such fiscal quarter. Accrued Management Fees
shall not be paid in cash unless and only to the extent that any payment thereof
would constitute a Restricted Payment contemplated by clauses (e) or (f) of
Section 4.06. Notwithstanding the foregoing, Permitted Management Fees shall not
be paid in cash at any time a Default exists or, immediately after giving effect
thereto, would exist. For purposes of this Section 4.11, "Total Revenue" means,
with respect to any fiscal quarter of the Borrower, consolidated gross operating
revenue of the Borrower and the Subsidiaries (excluding interest income and
unusual or extraordinary items) for such fiscal quarter.
Section 4.12. Limitation on Restrictive Covenants. Permit to
exist, at any time, any consensual restriction limiting the ability (whether by
covenant, event of default, subordination or otherwise) of any Subsidiary to (a)
pay dividends or make any other distributions on shares of its Capital
Securities held by the Borrower or any other Subsidiary, (b) pay any obligation
owed to the Borrower or any other Subsidiary, (c) make any loans or advances to
or investments in the Borrower or in any other Subsidiary, (d) transfer any of
its material property or assets (other than property or assets subject to
Permitted Liens) to the Borrower or any other Subsidiary, except for contracts,
leases or licenses which by their terms are non-assignable or (e) create any
Lien upon its material property or assets (other than property or assets subject
to Permitted Liens) whether now owned
33
or hereafter acquired or upon any income or profits therefrom (other than
contracts, leases or licenses which by their terms may not be pledged or
otherwise encumbered), except that this Section 4.12 shall not apply to
Permitted Restrictive Covenants or, in the case of clause (d) and (e) only, to
limitations or restrictions applicable to stock, partnership or joint venture
interests held by a Subsidiary contained in the charter, partnership agreement
or other constitutive or governing document with respect to such interests or
limitations or restrictions with respect to Cellular Licenses.
Section 4.13. Issuance or Disposition of Capital Securities.
Issue any of its Capital Securities or sell, transfer or otherwise dispose of
any Capital Securities issued by any Subsidiary, except that this Section 4.13
shall not apply to (a) any issuance by a Subsidiary of any of its Capital
Securities to the Borrower or a Wholly Owned Subsidiary, (b) any issuance by a
Subsidiary of any of its Capital Securities to the holders of the common stock
or other ownership interests of such Subsidiary made pro rata to the relative
amounts of such common stock or other ownership interests, respectively, held by
such holders or otherwise as permitted under Section 4.07(d), (c) any
disposition by the Borrower or any Subsidiary of any Capital Securities issued
by a Subsidiary (other than the Collateral, except as expressly provided in the
Pledge Agreement) (i) to the Borrower or a Wholly Owned Subsidiary or (ii)
pursuant to any disposition permitted under Section 4.08 and (d) so long as no
Default under Section 6.01(l) would result therefrom, any issuance by the
Borrower of its Capital Securities.
Section 4.14. Investments. Purchase or acquire obligations or
Capital Securities issued by, or any other interest in, or make loans to, any
Person, except that this Section 4.14 shall not apply to any such obligation,
Capital Security, interest or loan consisting of (a) obligations issued or
guaranteed by the United States of America with a remaining maturity not
exceeding one year, (b) commercial paper with maturities of not more than 270
days and a published rating of not less than A-1 by Standard & Poor's Ratings
Services, a Division of the McGraw Hill Companies, Inc. ("S&P") or P-1 by
Xxxxx'x Investors Service, Inc. ("Moody's") (or the equivalent rating), (c)
certificates of time deposit and bankers' acceptances having maturities of not
more than one year of any Bank or other commercial bank if (i) such bank has a
combined capital and surplus of at least $100,000,000 and (ii) its unsecured
long-term debt obligations, or those of a holding company of which it is a
Subsidiary, are rated not less than A- or A3 (or the equivalent rating) by a
nationally recognized investment rating agency, (d) repurchase agreements with
any Bank for periods not in excess of 180 days fully collateralized by
securities constituting obligations issued or guaranteed by the United States of
America, (e) notes and other instruments that are exempt from Federal income
taxation with a remaining maturity
34
not exceeding one year, provided that such notes and other instruments are rated
in the highest safety category (MIG1 or equivalent) by Moody's or S&P, (f) stock
or interests in, or loans or advances to, the Borrower or any of the
Consolidated Subsidiaries, provided that no such loans or advances to a
Consolidated Subsidiary shall remain outstanding after any sale, exchange or
disposition of such Subsidiary, (g) acquisitions referred to in Section 4.07,
(h) Interest Rate Protection Agreements having a designated notional amount not
exceeding, at the time entered into, 100% of the Total Commitment then in
effect, having a maturity not later than the Commitment Termination Date, (i)
Existing Investments, (j) investments in cellular telephone, wireless and
related telecommunications businesses made with (i) the funds described in any
of clauses (i), (ii), (iii) (to the extent that such funds constitute the
proceeds of sales (or the cash component of exchanges) of assets other than
Cellular Systems located within the United States or of businesses directly
related to Cellular Systems owned or controlled by the Borrower or any
Subsidiary, or any interest therein) and (iv) of Section 4.07(e) and (ii) the
proceeds of any dividends or distributions received in cash by the Borrower or
any Subsidiary with respect to any such investment, provided that, in the case
of any such investment funded in part or in whole with funds described in such
clause (iv), such investment shall have been made after December 31, 1996 and
the aggregate amount of such funds described in such clause (iv) used for all
investments shall not exceed (A) so long as the Leverage Ratio is less than 5.50
to 1 both before and after giving effect to such investment, the lesser of (x)
$75,000,000 and (y) $200,000,000 minus the aggregate amount of such funds used
for acquisitions contemplated by Section 4.07(e)(iv)(A) and (B) at all other
times, the lesser of (x) $35,000,000 and (y) $100,000,000 minus the aggregate
amount of such funds used for acquisitions contemplated by Section
4.07(e)(iv)(B) and (k) investments in Permitted Securities. For purposes of the
foregoing proviso, the amount of any such investment shall be deemed to be the
aggregate amount of cash (or fair market value of other property) which the
Person making such investment is specifically obligated or committed to pay or
contribute with respect thereto at any time, as increased, at the time such
Person makes any additional payment or contribution with respect thereto, by the
amount thereof.
C. The Borrower shall not:
----------------------
Section 4.15. Leverage Ratio. Permit the Leverage Ratio to be
greater than the following respective amounts at any time during the following
respective periods:
Period Leverage Ratio
Closing Date through June 29, 1996 9.95 to 1
June 30, 1996 through December 30, 1996 9.50 to 1
35
December 31, 1996 through December 30, 1997 8.50 to 1
December 31, 1997 through December 30, 1998 7.00 to 1
December 31, 1998 through September 29, 1999 5.50 to 1
September 30, 1999 through September 29, 2000 5.00 to 1
September 30, 2000 and thereafter 4.50 to 1
; provided, however, that if the Borrower shall have made a Restricted Payment
contemplated by Section 4.06(f), the Borrower shall not permit the Leverage
Ratio to be greater than 4.50 to 1 at any time after such Restricted Payment
shall have been made.
Section 4.16. Interest Coverage Ratio. Permit the Interest
Coverage Ratio to be less than (a) 1.15 to 1 at any time during the period from
the Closing Date through December 31, 1996, (b) 1.30 to 1 at any time during the
period from January 1, 1997 through December 31, 1997, (c) 1.60 to 1 at any time
during the period from January 1, 1998 through December 31, 1998 and (d) 2.00 to
1 at any time thereafter.
Section 4.17. Pro Forma Debt Service Ratio. Permit the Pro
Forma Debt Service Ratio to be less than 1.05 to 1 at any time after January 1,
1997.
Section 4.18. Interest Rate Protection Agreements. At any time
on and after the date that is 180 days after the Closing Date, fail to maintain
in full force and effect Interest Rate Protection Agreements or other similar
arrangements satisfactory in form and substance to no fewer than four of the
five Arranging Agents with respect to a notional principal amount that, together
with the aggregate principal amount of all Consolidated Indebtedness (other than
Junior Subordinated Indebtedness) and Permitted Additional Non-Facility
Indebtedness of Holdco that would be included in the calculation of the Leverage
Ratio by operation of the definition of "Leverage Ratio" at such time then
outstanding that bears interest at a fixed rate, would be equal to or greater
than 40% of the aggregate principal amount of Consolidated Indebtedness (other
than Junior Subordinated Indebtedness) and Permitted Additional Non-Facility
Indebtedness of Holdco that would be included in the calculation of the Leverage
Ratio by operation of the definition of "Leverage Ratio" at such time; provided,
however, that the Borrower shall not be required to maintain such Interest Rate
Protection Agreements during any period in which the Leverage Ratio is less than
4.50 to 1 at all times and was less than 4.50 to 1 at all times during the two
full fiscal quarters of the Borrower immediately preceding such period.
Section 4.19. Cellular Systems Revenues. Permit at any time
the portion of consolidated gross revenues of the Borrower and its Consolidated
Subsidiaries derived from their Cellular Systems for any fiscal quarter of the
Borrower to be less than 90% of the total consolidated gross revenues of the
Borrower and its Consolidated Subsidiaries for such fiscal
36
quarter.
Section 4.20. Tax Sharing Agreement. File, or permit or suffer
any Subsidiary to file, a consolidated tax return with any other Person other
than Comcast or its Subsidiaries or amend, modify, or waive any provision of, or
terminate, the Tax Sharing Agreement or enter into, or allow any Subsidiary to
enter into, any other tax sharing, tax allocation or similar agreement, if the
result of such amendment, modification, waiver or agreement is adverse to the
Borrower and the Consolidated Subsidiaries taken as a whole.
Section 4.21. Senior Subordinated Indebtedness. Make payments
of principal or interest in respect of Senior Subordinated Indebtedness, except
that this Section 4.21 shall not apply to any payments so long as (i) such
payments of principal are made with the proceeds of Loans made substantially
simultaneously therewith and (ii) such payments of interest are made on the
regularly-scheduled quarterly payment dates therefor or on the date of any
repayment of Senior Subordinated Indebtedness in an amount not in excess of the
amount accrued on the principal being repaid.
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION
------------------------------------
Section 5.01. Financial Statements and Information to Be
Furnished. From the Agreement Date and until the Repayment Date, the Borrower
shall furnish to the Administrative Agent, with sufficient copies for each of
the Banks (which copies shall be promptly forwarded by the Administrative Agent
to each of the Banks):
(a) Quarterly Financial Statements; Officer's Certificate. As
soon as available and in any event within 60 days after the close of each of the
first three quarterly accounting periods in each fiscal year of the Borrower,
commencing with the quarterly period ending September 30, 1995:
(i) a consolidated balance sheet of the Borrower and
the Consolidated Subsidiaries as at the end of such quarterly period and the
related consolidated statements of operations, retained earnings and cash flows
of the Borrower and the Consolidated Subsidiaries for such quarterly period and
for the elapsed portion of the fiscal year of the Borrower ended with the last
day of such quarterly period, setting forth in each case in comparative form the
figures for the corresponding periods of the previous fiscal year of the
Borrower; and
(ii) a certificate with respect thereto of a
37
Responsible Officer of the Borrower in the form of Schedule 5.01(a).
(b) Year-End Financial Statements; Accountants' and Officer's
Certificates. As soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 1995:
(i) a consolidated balance sheet of the Borrower and
the Consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of operations, changes in retained
earnings or net equity and cash flows of the Borrower and the
Consolidated Subsidiaries for such fiscal year, setting forth in each
case in comparative form the figures as at the end of and for the
previous fiscal year of the Borrower;
(ii) an audit report of Deloitte & Touche, or other
independent certified public accountants of recognized standing
satisfactory to the Required Agents, on the consolidated financial
statements referred to in clause (i) above, which report shall state
that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of the
Borrower and the Consolidated Subsidiaries in conformity with Generally
Accepted Accounting Principles (except for the exclusion of the
Excluded Subsidiaries) as at the end of and for such fiscal year and
which report shall otherwise be satisfactory in scope to the Required
Agents;
(iii) a certificate of the accountants referred to in
clause (ii) above addressed to the Banks and in form satisfactory to
the Required Agents stating that such accountants have read this
Agreement in making the examination necessary for their report on such
consolidated financial statements and that nothing came to their
attention that caused them to believe that, as of the date of such
financial statements, any Default exists or, if such is not the case,
specifying such Default and its nature, when it occurred and whether it
is continuing; provided, however, that the furnishing of such
certificate shall not require any expansion of the scope of the audit
conducted by such accountants; and
(iv) a certificate of a Responsible Officer of the
Borrower in the form of Schedule 5.01(b).
(c) Reports and Filings. (i) During any period while the most
recent financial statements of the Borrower and the Consolidated Subsidiaries
delivered pursuant to Section 5.01(a) or (b) shall have been accompanied by a
qualified opinion of the Borrower's independent public accountants or by a
similar written
38
statement of material inadequacy with respect to such financial statements,
then, promptly upon receipt thereof, copies of all reports, if any, submitted to
the Borrower or any Subsidiary, or the Board of Directors of the Borrower or any
Subsidiary, by such independent certified public accountants, including any
management letter; and (ii) together with the financial statements next required
to be furnished pursuant to Section 5.01(a) or (b), copies of all financial
statements and reports as Comcast, the Borrower or any Subsidiary shall send to
its stockholders (other than, in the case of the Borrower or any Subsidiary, its
Affiliates) and of all registration statements and all regular or periodic
reports that the Borrower or any Subsidiary shall file with the Securities and
Exchange Commission.
(d) Requested Information. From time to time and with
reasonable promptness upon request of any Bank, such Information regarding the
Loan Documents, the Loans or the business, assets, Liabilities, financial
condition, results of operations or business prospects of the Borrower and the
Subsidiaries as such Bank may reasonably request.
(e) Notice of Defaults and Other Matters. Prompt notice of:
(i) any Event of Default, after a Responsible Officer of the Borrower shall have
become aware thereof, describing such Default and the action, if any, that the
Borrower is proposing to take with respect thereto, (ii) the occurrence or
non-occurrence of any change or event that would cause the Representation and
Warranty contained in Section 3.10 to be incorrect if made at such time and
(iii) any material amendment to the certificate of incorporation or by-laws of
the Borrower.
(f) Cellular System Information. Together with the
financial statements delivered pursuant to Section 5.01(a) and
(b), a report
(i) setting forth, with respect to each Cellular
System owned or controlled by the Borrower or any of the Consolidated
Subsidiaries, the aggregate number of subscribers served by such Cellular System
as at the last day of the most recent fiscal quarter of the Borrower covered by
such financial statements; and
(ii) setting forth, in the case of such financial
statements covering the fourth fiscal quarter of any fiscal year of the
Borrower, with respect to each Cellular System owned or controlled by the
Borrower or any of the Consolidated Subsidiaries, (A) the aggregate percentage
ownership held by the Borrower and the Consolidated Subsidiaries in such
Cellular System and (B) the Pops of such Cellular System, in each case, as at
the last day of such fourth fiscal quarter.
Section 5.02. Accuracy of Financial Statements and
Information.
39
(a) Historical Financial Statements. The Borrower hereby
represents and warrants that (i) Schedule 5.02(a) sets forth a complete and
correct list of the financial statements (other than projections) submitted by
the Borrower to the Banks in order to induce them to execute and deliver this
Agreement, (ii) (A) each of such financial statements which is audited is and
(B) each of such financial statements which is unaudited is, in all material
respects, complete and correct and presents fairly, in accordance with Generally
Accepted Accounting Principles (except (x) as noted in the auditor's report
thereon, (y) for the absence of footnotes in unaudited financial statements and
normal year-end audit adjustments and any pro forma balance sheets and (z) for
the exclusion of the Excluded Subsidiaries), the financial position of the
Persons to which such financial statements relate as at their respective dates
and the results of operations, retained earnings or partners' capital, as the
case may be, and, as applicable, changes in financial position or cash flows of
such Persons for the respective periods to which such statements relate and
(iii) except as disclosed or reflected in such financial statements, or
otherwise set forth herein (including the Schedules hereto), as at June 30,
1995, none of such Persons had any Liability, contingent or otherwise, or any
unrealized or anticipated loss, that, singly or in the aggregate, has had or
might have, insofar as can reasonably be foreseen by the Borrower, a Materially
Adverse Effect on the Borrower and the Consolidated Subsidiaries taken as a
whole.
(b) Future Financial Statements. The financial statements
delivered pursuant to Section 5.01(a) or (b) shall present fairly, in accordance
with Generally Accepted Accounting Principles (except for changes therein or
departures therefrom, subject to satisfaction of the exception set forth in
Section 10.02 and except for the exclusion of the Excluded Subsidiaries), the
consolidated financial position of the Borrower and the Consolidated
Subsidiaries as at their respective dates and the consolidated results of
operations, retained earnings and cash flows of the Borrower and such
Subsidiaries for the respective periods to which such statements relate. The
furnishing of the financial statements pursuant to Section 5.01(a) and (b) shall
constitute a representation and warranty by the Borrower made on the date the
same are furnished to the Administrative Agent to that effect and to the further
effect that, except as disclosed or reflected in such financial statements, as
at the respective dates thereof, neither the Borrower nor any Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, has had or might have, insofar as can reasonably be
foreseen by the Borrower, a Materially Adverse Effect on the Borrower and the
Consolidated Subsidiaries taken as a whole.
40
(c) Historical Information. The Borrower hereby represents and
warrants that all Information (other than the financial statements listed on
Schedule 5.02(a) and financial projections) furnished to the Administrative
Agent or the Banks in writing by or on behalf of the Borrower or any Subsidiary
and concerning such Person, and not the cellular telephone industry generally,
prior to the Agreement Date in connection with or pursuant to the Loan Documents
and the relationships established thereunder, at the time the same was so
furnished, but in the case of Information dated as of a prior date, as of such
date, when taken together (giving effect to Information so furnished that
corrects, supplements or supersedes Information previously furnished), (i) in
the case of any Information prepared in the ordinary course of business, was
correct in all material respects in the light of the purpose for which it was
prepared and (ii) in the case of any Information the preparation of which was
requested by any Bank, (A) did not contain any untrue statement of a material
fact and (B) did not omit to state a material fact necessary in order to make
the statements contained therein not misleading in the light of the
circumstances under which they were made. The Borrower hereby represents and
warrants that all financial projections furnished to the Administrative Agent or
the Banks in writing by or on behalf of the Borrower or any Subsidiary on or
prior to the Closing Date, which are not to be construed as guaranties of the
financial performance of the Borrower and the Consolidated Subsidiaries for the
period or periods to which such projections relate, were based on reasonable
estimates and assumptions made by the Borrower in good faith and are the
projections used in the capitalization and financial planning of the Borrower
and the Consolidated Subsidiaries for such period or periods, and no fact is
known to the Borrower on the Agreement Date or the Closing Date that has not
been disclosed in writing to the Banks that would result in any material change
in any such projections or in any estimate or assumption reflected therein.
(d) Future Information. All Information (other than financial
statements delivered pursuant to Section 5.01(a) or (b)) furnished to the
Administrative Agent or the Banks in writing by or on behalf of the Borrower or
any Subsidiary and concerning such Person, and not the cellular telephone
industry generally, on or after the Agreement Date in connection with or
pursuant to the Loan Documents or in connection with or pursuant to any
amendment or modification of, or waiver of rights under, the Loan Documents,
shall, at the time the same is so furnished, but in the case of Information
dated as of a prior date, as of such date, when taken together (giving effect to
Information so furnished that corrects, supplements or supersedes Information
previously so furnished) (i) in the case of any Information prepared in the
ordinary course of business, be correct in all material respects in the light of
the purpose prepared and (ii) in the case of any Information required by the
terms of the Loan Documents or the preparation of which was requested by any
Bank,
41
not contain any untrue statement of a material fact, and not omit to state a
material fact necessary in order to make the statements contained therein not
misleading in the light of the circumstances under which they were made, and the
furnishing of the same to the Administrative Agent or any Bank shall constitute
a representation and warranty by the Borrower made on the date the same are so
furnished to the effect specified in clauses (i) and (ii) above.
Section 5.03. Additional Covenants Relating to Disclosure.
From the Agreement Date and until the Repayment Date, the Borrower shall and
shall cause each Subsidiary to:
(a) Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete) as may be required or necessary to permit (i) the preparation
of financial statements required to be delivered pursuant to Sections 5.01(a)
and (b) and (ii) the determination of the compliance of the Borrower and the
Subsidiaries with the terms of the Loan Documents.
(b) Fiscal Year. Unless the Required Agents shall otherwise
consent, maintain the same opening and closing dates for each fiscal year as for
the fiscal year reflected in the Base Financial Statements or, if the opening
and closing dates for the fiscal year reflected in the Base Financial Statements
were determined pursuant to a formula, determine the opening and closing dates
for each fiscal year pursuant to the same formula.
(c) Visits, Inspections and Discussions. Permit
representatives (whether or not officers or employees) of any Bank, from time to
time, as often as may be reasonably requested and upon reasonable notice, but,
unless an Event of Default shall have occurred and be continuing, at such Bank's
expense, to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it and (iv) discuss its affairs, finances and accounts with its
officers, employees and, upon prior notice to the Borrower and subject to the
Borrower's right, unless an Event of Default shall have occurred and be
continuing, to have a representative present at such discussion, its independent
public accountants (and by this provision the Borrower authorizes such
accountants to discuss the finances and affairs of the Borrower and the
Subsidiaries).
Section 5.04. Authorization of Third Parties to Deliver
Information. The Borrower hereby agrees that any opinion, report or other
Information delivered to the Administrative Agent, the Arranging Agents, the
Managing Agents
42
or the Banks pursuant to the Loan Documents (including under Article 2 or this
Article 5) is hereby deemed to have been authorized and directed by the Borrower
to be delivered for the benefit of the Administrative Agent, the Arranging
Agents, the Managing Agents and the Banks.
ARTICLE 6
DEFAULT
Section 6.01. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary, or within or without the control of the
Borrower, any Subsidiary or any other Loan Party, or be effected by operation of
law or pursuant to any judgment or order of any court or any order, rule or
regulation of any governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of the
Loans or the Notes or of any fee shall not be made when and as due (whether at
maturity, upon mandatory prepayment, by reason of notice of prepayment or
acceleration or otherwise) and in accordance with the terms of this Agreement
and the Notes and, except in the case of payments of principal, such failure
shall continue for three Business Days;
(b) Any Loan Document Representation and Warranty shall at any
time prove to have been incorrect or misleading in any material respect when
made;
(c) (i) The Borrower shall default in the performance or
observance of:
(A) any term, covenant, condition or
agreement contained in (x) Section 4.01(a) (insofar as such
Section requires the preservation of the corporate existence
of each of the Loan Parties), 4.01(e), 4.03 through 4.17, 4.19
through 4.21, 5.01(e)(i), 5.03(b) or 5.03(c) of this Agreement
or (y) Sections 2 and 3 of the Pledge Agreement; or
(B) any term, covenant, condition or
agreement contained in (x) this Agreement or the Pledge
Agreement (other than a term, covenant, condition or agreement
a default in the performance or observance of which is
elsewhere in this Section 6.01 specifically dealt with) or (y)
any other Borrower Loan Document and, in the case of any such
default under clause (x) or (y), if capable of being remedied,
such default shall continue unremedied for a period of 30
days; or
43
(ii) Any Loan Party (other than the
Borrower) shall default in the performance or observance of
any term, covenant, condition or agreement contained in any
Loan Document to which such Loan Party is a party, and, if
capable of being remedied, such default shall continue
unremedied for the duration of any applicable cure period
provided for in such Loan Document; or
(d) (i) The Borrower, Holdco or any Subsidiary shall fail to
pay, in accordance with its terms and when due and payable (after giving effect
to any applicable grace period), any of the principal of or interest on any
Indebtedness (other than the Loans and Affiliate Subordinated Obligations)
having a then outstanding principal amount in excess of $15,000,000, (ii) the
maturity of any such Indebtedness shall, in whole or in part, have been
accelerated, or any such Indebtedness shall, in whole or in part, have been
required to be prepaid or purchased prior to the stated maturity thereof (other
than pursuant to any customary due-on-sale clause or any provision requiring
prepayment of such Indebtedness based on excess cash flow or other similar
arrangement), in accordance with the provisions of any Contract evidencing,
providing for the creation of or concerning such Indebtedness or (iii) (A) any
event shall have occurred and be continuing that, after giving effect to any
applicable waivers or amendments, permits (or, with the passage of time or the
giving of notice or both, would permit) any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such holder or holders or
any other Person so to accelerate such maturity or require any such prepayment
or purchase and (B) if the Contract evidencing, providing for the creation of or
concerning such Indebtedness provides for a cure period for such event, such
event shall not be cured prior to the end of such cure period;
(e) A default by the Borrower or any Subsidiary shall be
continuing under any Contract (other than a Contract relating to Indebtedness to
which clause (a) or (d) of this Section 6.01 is applicable) binding upon the
Borrower, any Subsidiary or any other Loan Party, except a default that,
together with all other such defaults, has not had and will not have a
Materially Adverse Effect on (i) the Borrower and the Consolidated Subsidiaries
taken as a whole or any other Loan Party, (ii) any Material Loan Document or
(iii) the Collateral;
(f) (i) The Borrower, Holdco, any Subsidiary or any other Loan
Party shall (A) commence a voluntary case under the Federal bankruptcy laws (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 or 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
44
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, liquidator or the like
of itself or of a substantial part of its assets, domestic or foreign, (E) admit
in writing its inability to pay, or generally not be paying, its debts (other
than those that are the subject of bona fide disputes) as they become due, (F)
make a general assignment for the benefit of creditors or (G) take any corporate
action for the purpose of effecting any of the foregoing; or
(ii) (A) A case or other proceeding shall be commenced
against the Borrower, Holdco, any Subsidiary or any other Loan Party seeking (x)
relief under the Federal bankruptcy laws (as now or hereafter in effect) or
under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts or (y) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Borrower, Holdco, any Subsidiary or any other Loan Party, or of all or any
substantial part of the assets, domestic or foreign, of the Borrower, Holdco,
any Subsidiary or any other Loan Party, and such case or proceeding shall
continue undismissed or unstayed for a period of 60 days or (B) an order
granting the relief requested in such case or proceeding against the Borrower,
Holdco, any Subsidiary or any other Loan Party (including an order for relief
under such Federal bankruptcy laws) shall be entered;
(g) A judgment or order shall be entered against the Borrower
or any Subsidiary by any court and (i) in the case of a judgment or order for
the payment of money, such judgment or order shall continue undismissed,
unbonded, undischarged or unstayed for a period of 30 days in which the
aggregate amount of all such judgments and orders exceeds $15,000,000 and (ii)
in the case of any judgment or order for other than the payment of money, such
judgment or order could, in the reasonable judgment of the Required Banks,
together with all other such judgments or orders, have a Materially Adverse
Effect on the Borrower and the Consolidated Subsidiaries taken as a whole;
45
(h) (i) any Termination Event shall occur with respect to any
Benefit Plan of the Borrower or any Subsidiary or any of their respective ERISA
Affiliates, (ii) any Accumulated Funding Deficiency, whether or not waived,
shall exist with respect to any such Benefit Plan, (iii) any Person shall engage
in any Prohibited Transaction involving any such Benefit Plan, (iv) the
Borrower, any Subsidiary or any of their respective ERISA Affiliates shall be in
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit Plan as a result
of such Person's complete or partial withdrawal (as described in Section 4203 or
4205 of ERISA) therefrom, (v) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall fail to pay when due an amount that is payable
by it to the PBGC or to any such Benefit Plan under Title IV of ERISA, (vi) a
proceeding shall be instituted by a fiduciary of any such Benefit Plan against
the Borrower, any Subsidiary or any of their respective ERISA Affiliates to
enforce Section 515 of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter or (vii) any other event or condition shall occur or
exist with respect to any such Benefit Plan, except that no event or condition
referred to in clauses (i) through (vii) above shall constitute an Event of
Default if it, together with all other such events or conditions at the time
existing, has not subjected and is not reasonably likely to subject the Borrower
or any Subsidiary to any Liability that, alone or in the aggregate, has had or
could have a Materially Adverse Effect on (x) the Borrower and the Consolidated
Subsidiaries taken as a whole, (y) any Material Loan Document or (z) the
Collateral;
(i) Any Loan Party asserts, or any Loan Party institutes any
proceedings seeking to establish, that (i) any provision of the Loan Documents
is invalid, not binding or unenforceable or (ii) the Security Interest is not a
valid and perfected first priority security interest in the Collateral subject
only to Permitted Liens;
(j) One or more Cellular Licenses held by the Borrower or any
of the Subsidiaries shall be terminated or revoked such that the Borrower and
the Subsidiaries are no longer able to operate the related Cellular Systems and
retain the revenue received therefrom or the Borrower and the Subsidiaries or
the grantors of any such Cellular License shall fail to renew any such Cellular
License at the stated expiration thereof such that the Borrower and the
Subsidiaries are no longer able to operate the related Cellular Systems and
retain the revenue received therefrom, and the overall effect of all such
terminations, revocations and failures to renew would be to reduce Annualized
Cash Flow by 10% or more;
(k) Any of the parties to the Affiliate Subordination
Agreement (other than the Administrative Agent) shall have
46
breached any of the provisions thereof or shall otherwise be in default
thereunder;
(l) Comcast shall at any time cease to own, directly or
indirectly, and control Capital Securities issued by the Borrower (i) having a
majority of the total votes of all outstanding Capital Securities entitled to
vote in an ordinary election of the Board of Directors of the Borrower and (ii)
representing not less than 50.01% of the equity ownership interest in the
Borrower;
(m) The Management Agreement shall have been terminated or
shall cease to be in full force and effect or Comcast or a Subsidiary of Comcast
shall at any time fail to manage and supervise pursuant to the Management
Agreement each Cellular System of the Borrower and the Subsidiaries in a manner
consistent with good industry practices;
(n) Holdco shall at any time incur, create, assume or suffer
to exist any Indebtedness other than Permitted Additional Non-Facility
Indebtedness and other than the Comcast Cellular Zeros;
(o) Any of the Capital Securities of the Borrower or any
interest therein shall at any time become subject to a Lien other than a
Permitted Lien and other than a pledge of the Borrower's Class B Participating
Redeemable Preferred Stock in favor of Comcast; and
(p) Any redemption or repurchase of the Borrower's Class B
Participating Redeemable Preferred Stock shall be funded other than with the
capital stock (or other equity investments) or assets of Excluded Subsidiaries
or the proceeds of (i) the sale of GuestInformant (a division of LIN Cellular
Communications Corporation), (ii) cash payments for stock (other than
Mandatorily Redeemable Securities), cash equity contributions and other equity
contributions, so long as, in the case of any non-cash equity contribution, such
redemption or repurchase is effected with such non-cash equity contribution in
the exact form received or with the proceeds thereof realized upon the sale
thereof to a Person other than a Subsidiary, and (iii) Junior Subordinated
Indebtedness, in each case, received by the Borrower or any Subsidiary after the
Agreement Date.
Section 6.02. Remedies upon Event of Default. During the
continuance of any Event of Default (other than one specified in Section 6.01(f)
with respect to the Borrower) and in every such event, the Administrative Agent,
upon notice to the Borrower, may (but shall not be obligated to), and if so
directed by the Required Banks shall, do either or both of the following: (a)
declare, in whole or, from time to time, in part, the principal of and interest
on the Loans and the Notes and all other amounts owing under the Borrower Loan
Documents to be, and
47
the Loans and the Notes and all such other amounts shall thereupon and to that
extent become, due and payable and (b) terminate, in whole or, from time to
time, in part, the Commitments. Upon the occurrence of an Event of Default
specified in Section 6.01(f) with respect to the Borrower, automatically and
without any notice to the Borrower, (i) the principal of and interest on the
Loans and the Notes and all other amounts owing under the Borrower Loan
Documents shall be due and payable and (ii) the Commitments shall terminate.
Presentment, demand, protest or notice of any kind (other than
the notice provided for in the first sentence of this Section 6.02) are hereby
expressly waived.
Section 6.03. Certain Cure Rights. Notwithstanding the
provisions of Sections 6.01 and 6.02, but without limiting the obligations of
the Borrower under Sections 4.15, 4.16 and 4.17, if the Borrower shall default
in the performance or observance of any term, covenant, condition or agreement
contained in Sections 4.15, 4.16 or 4.17, such default shall not constitute an
Event of Default (but shall constitute a Default) until the Cure Date, and if on
or before the Cure Date the respective actions set forth below shall have been
taken and evidence thereof shall have been delivered to the Banks, then such
default shall be deemed to have been cured:
(a) With respect to Section 4.15, the Borrower shall have
prepaid Loans, either from cash on hand or the proceeds of new capital
contributions or Junior Subordinated Indebtedness in an aggregate amount
sufficient so that, after giving effect to the application of such prepayments
and the reduction of Consolidated Indebtedness by the amount thereof for the
purpose of determining compliance with Section 4.15, the Borrower would be in
compliance therewith as recalculated at the date of receipt of such proceeds;
and
(b) With respect to Section 4.16 or 4.17, the Borrower shall
have prepaid Loans, either from the proceeds of new capital contributions or the
proceeds of Junior Subordinated Indebtedness, in an amount sufficient so that if
the respective ratios set forth in Section 4.16 or 4.17 as at the date of
receipt of such proceeds were recalculated in a manner which, in the case of
Section 4.16, would include as additional Cash Flow or which, in the case of
Section 4.17, would add to Annualized Cash Flow the amount of such proceeds, the
Borrower would be in compliance with the provisions of Section 4.16 or 4.17 as
at such date;
provided, however, that (i) any such default may not be deemed to be cured
pursuant to this Section 6.03 more than an aggregate of four times during the
term of this Agreement or with respect to more than two consecutive fiscal
quarters of the Borrower and, for purposes of this proviso, in the event that
the receipt and application by the Borrower of the proceeds of any new capital
48
contributions or Junior Subordinated Indebtedness shall at any time have the
effect of enabling the Borrower to avoid any such default, the Borrower shall be
deemed to have cured any such default pursuant to this Section 6.03 and (ii) the
recalculations described in this Section 6.03 shall not be deemed to constitute
a recalculation for any other purpose of this Agreement, including the
determination of the Applicable Margin. For purposes of this Section 6.03, "Cure
Date" means, with respect to any breach of the covenants contained in Sections
4.15, 4.16 and 4.17, the date that is 30 days after the earlier of (A) the day
on which financial statements for the fiscal quarter (or fiscal year, in the
case of any such breach occurring in the fourth quarter of any fiscal year) in
which such breach occurred are delivered to the Banks pursuant to Section 5.01
and (B) the day by which such financial statements are required to be delivered
pursuant to Section 5.01.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
-------------------------------------
Section 7.01. Mandatory Suspension and Conversion of
Eurodollar Rate Loans. A Bank's obligations to make, continue or convert into
Eurodollar Rate Loans of any Type shall be suspended, all such Bank's
outstanding Loans of such Type shall be converted on the last day of their
applicable Interest Periods (or, if earlier, in the case of clause (c) below, on
the last day such Bank may lawfully continue to maintain Loans of such Type or,
in the case of clause (d) below, on the day determined by such Bank to be the
last Business Day before the effective date of the applicable restriction) into,
and all pending requests for the making or continuation of or conversion into
Loans of such Type by such Bank shall be deemed requests for, Base Rate Loans,
if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of such Type for any Interest Period, the Administrative
Agent determines that for any reason appropriate information is not available to
it for purposes of determining the Adjusted Eurodollar Rate for such Interest
Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of such Type, the Required Banks have informed the
Administrative Agent of their determination that the Adjusted Eurodollar Rate as
determined by the Administrative Agent for such Interest Period would not
accurately reflect the cost to such Banks of making, continuing or converting
into a Eurodollar Rate Loan of such Type for such Interest Period;
(c) at any time such Bank determines that any
49
Regulatory Change makes it unlawful or impracticable for such Bank or its
applicable Lending Office to make, continue or convert into a Eurodollar Rate
Loan of such Type, or to comply with its obligations hereunder in respect
thereof; or
(d) such Bank determines that, by reason of any Regulatory
Change, such Bank or its applicable Lending Office is restricted, directly or
indirectly, in the amount that it may hold of (i) a category of liabilities that
includes deposits by reference to which, or on the basis of which, the interest
rate applicable to Eurodollar Rate Loans of such Type is directly or indirectly
determined or (ii) the category of assets that includes Eurodollar Rate Loans of
such Type.
If, as a result of this Section 7.01, any Loan of any Bank that would otherwise
be made or maintained as or converted into a Eurodollar Rate Loan of any Type
for any Interest Period is instead made or maintained as or converted into a
Base Rate Loan, then, unless the corresponding Loan of each of the other Banks
is also to be made or maintained as or converted into a Base Rate Loan, such
Loan shall be treated as being a Eurodollar Rate Loan of such Type for such
Interest Period for all purposes of this Agreement (including the timing,
application and proration among the Banks of interest payments, conversions and
prepayments) except for the calculation of the interest rate borne by such Loan.
The Administrative Agent shall promptly notify the Borrower and each Bank of the
existence or occurrence of any condition or circumstance specified in clause (a)
above, and each Bank shall promptly notify the Borrower and the Administrative
Agent of the existence, occurrence or termination of any condition or
circumstance specified in clause (b), (c) or (d) above applicable to such Bank's
Loans, but the failure by the Administrative Agent or such Bank to give any such
notice shall not affect such Bank's rights hereunder.
Section 7.02. Regulatory Changes. If in the determination of
any Bank (a) any Regulatory Change shall directly or indirectly (i) reduce the
amount of any sum received or receivable by such Bank with respect to any Loan
or the return to be earned by such Bank on any Loan, (ii) impose a cost on such
Bank or any Affiliate of such Bank that is attributable to the making or
maintaining of, or such Bank's commitment to make, any Loan, (iii) require such
Bank or any Affiliate of such Bank to make any payment on or calculated by
reference to the gross amount of any amount received by such Bank under any Loan
Document or (iv) reduce, or have the effect of reducing, the rate of return on
any capital of such Bank or any Affiliate of such Bank that such Bank or such
Affiliate is required to maintain on account of any Loan or such Bank's
commitment to make any Loan and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the applicable rates of
interest payable under the Loan Documents, then the Borrower shall pay to such
Bank such additional amounts as such Bank
50
determines will, together with any adjustment in the applicable rates of
interest payable hereunder, fully compensate for such reduction, increased cost
or payment. Such additional amounts shall be payable, in the case of those
applicable to prior periods, within 15 Business Days after request by such Bank
for such payment accompanied by the certificate described in Section 7.05 and,
in the case of those applicable to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank. Each Bank will
promptly notify the Borrower of any determination made by it referred to in
clauses (a) and (b) above, but the failure to give such notice shall not affect
such Bank's right to such compensation; provided, however, that the Borrower
shall not be required to pay such additional amounts in respect of any
Regulatory Change for any period ending prior to the date that is 90 days prior
to the giving of the notice of the determination of such additional amounts
(unless such period shall have commenced after the date that such Bank notified
the Borrower of the possibility that additional amounts may be payable as a
result of such Regulatory Change), except, if such Regulatory Change shall have
been imposed retroactively, for the period from the effective date of such
Regulatory Change to the date that is 90 days after the first date on which such
Bank reasonably should have had knowledge of such Regulatory Change.
Section 7.03. Capital Requirements. If, in the determination
of any Bank, such Bank or any Affiliate of such Bank is required, as a result of
a Regulatory Change, to maintain capital on account of any Loan or such Bank's
commitment to make any Loan, then, upon request by such Bank, the Borrower shall
from time to time thereafter pay to such Bank such additional amounts as such
Bank determines will fully compensate for any reduction in the rate of return on
the capital that such Bank or such Affiliate is so required to maintain on
account of such Loan or commitment suffered as a result of such capital
requirement. Such additional amounts shall be payable, in the case of those
applicable to prior periods, within 15 Business Days after request by such Bank
for such payment accompanied by the certificate described in Section 7.05 and,
in the case of those relating to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank; provided,
however, that the Borrower shall not be required to pay such additional amounts
in respect of any Regulatory Change for any period ending prior to the date that
is 90 days prior to the making of such Bank's initial request for such
additional amounts (unless such period shall have commenced after the date that
such Bank notified the Borrower of the possibility that additional amounts may
be payable as a result of such Regulatory Change), except, if such Regulatory
Change shall have been imposed retroactively, for the period from the effective
date of such Regulatory Change to the date that is 90 days after the first date
on which such Bank reasonably should have had knowledge of such Regulatory
Change.
51
Section 7.04. Funding Losses. The Borrower shall pay to each
Bank, upon request, such amount or amounts as such Bank determines are necessary
to compensate it for any loss, cost or expense (excluding loss of the Applicable
Margin) incurred by it as a result of (a) any payment, prepayment or conversion
of a Eurodollar Rate Loan on a date other than the last day of an Interest
Period for Eurodollar Rate Loan or (b) a Eurodollar Rate Loan for any reason not
being made or converted (other than as a result of the failure of such Bank to
make such Loan available to the Borrower upon the fulfillment of the conditions
specified in Article 2 without any determination by the Administrative Agent or
such Bank under Section 7.01), or any payment of principal thereof or interest
thereon not being made, on the date therefor determined in accordance with the
applicable provisions of this Agreement. At the election of such Bank, and
without limiting the generality of the foregoing, but without duplication, such
compensation on account of losses may include an amount equal to the excess of
(i) the interest that would have been received from the Borrower under this
Agreement (excluding the Applicable Margin) on any amounts to be reemployed
during an Interest Period or its remaining portion over (ii) the interest
component of the return that such Bank determines it could have obtained had it
placed such amount on deposit in the London interbank Dollar market for a period
equal to such Interest Period or remaining portion.
Section 7.05. Determinations. In making the determinations
contemplated by Sections 7.01, 7.02, 7.03 and 7.04, each Bank may make such
estimates, assumptions, allocations and the like that such Bank in good faith
determines to be appropriate, and such Bank's selection thereof in accordance
with this Section 7.05, and the determinations made by such Bank on the basis
thereof, shall be final, binding and conclusive upon the Borrower, except, in
the case of such determinations, for manifest errors in computation or
transmission. Each Bank shall furnish to the Borrower, at the time of any
request for compensation under Section 7.02 or 7.03 and otherwise upon request,
a certificate outlining in reasonable detail the computation of any amounts
claimed by it under this Article 7 and the assumptions underlying such
computations, which shall include a statement of an officer of such Bank
certifying that such request for compensation is being made pursuant to a policy
adopted by such Bank to seek such compensation generally from customers similar
to the Borrower and having similar provisions in agreements with such Bank.
Section 7.06. Change of Lending Office. If an event occurs
with respect to a Lending Office of any Bank that obligates the Borrower to pay
any amount under Section 1.12, makes operable the provisions of Section 7.01(c)
or (d) or entitles such Bank to make a claim under Section 7.02 or 7.03, such
Bank shall, if requested by the Borrower, use reasonable efforts to designate
another Lending Office or Offices the
52
designation of which will reduce the amount the Borrower is so obligated to pay,
eliminate such operability or reduce the amount such Bank is so entitled to
claim, provided that such designation would not, in the sole and absolute
discretion of such Bank, be disadvantageous to such Bank in any manner or
contrary to such Bank's policies. Each Bank may at any time and from time to
time change any Lending Office and shall give notice of any such change to the
Administrative Agent and the Borrower. Except in the case of a change in Lending
Offices made at the written request of the Borrower, the designation of a new
Lending Office by any Bank shall not obligate the Borrower to pay any amount to
such Bank under Section 1.12, make operable the provisions of Section 7.01(c) or
(d) or entitle such Bank to make a claim under Section 7.02 or 7.03 if such
obligation, the operability of such clause or such claim results solely from
such designation and not from a Regulatory Change subsequent to such
designation.
Section 7.07. Replacement of Banks. If any Bank requests
compensation pursuant to Section 1.12, 7.02 or 7.03, or such Bank's obligation
to make or continue, or to convert Loans of any other Type into, any Type of
Eurodollar Rate Loan shall be suspended pursuant to Section 7.01, the Borrower,
upon three Business Days' notice, may require that such Bank transfer all of its
right, title and interest under this Agreement and such Bank's Notes to any bank
or financial institution identified by the Borrower with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld) (a) if
such proposed transferee agrees to assume all of the obligations of such Bank
for consideration equal to the outstanding principal amount of such Bank's
Loans, together with interest thereon to the date of such transfer, and
satisfactory arrangements are made for payment to such Bank of all other amounts
payable hereunder to such Bank on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts that would be payable
under Section 7.04 as if all of such Bank's Loans were being prepaid in full on
such date) and (b) if such Bank being replaced has requested compensation
pursuant to Section 1.12, 7.02 or 7.03, such proposed transferee's aggregate
requested compensation, if any, pursuant to Section 1.12, 7.02 or 7.03 with
respect to such replaced Bank's Loans is lower than that of the Bank replaced.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements of the Borrower contained in Sections 1.12, 7.02,
7.03, 7.04 and 9.02 (without duplication of any payments made to such Bank by
the Borrower or the proposed transferee) shall survive for the benefit of any
Bank replaced under this Section 7.07 with respect to the time prior to such
replacement.
53
ARTICLE 8
THE AGENTS
----------
Section 8.01. Appointment and Powers. Each Bank hereby
irrevocably appoints and authorizes the Agents, individually in their respective
capacities as Agents, to act as the agents for such Bank under the Loan
Documents with such powers as are delegated to the respective Agents by the
terms thereof, together with such other powers as are reasonably incidental
thereto. The Agents' duties shall be purely ministerial and they shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. None of the Agents shall be required under any circumstances to take
any action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose it to any Liability or expense
against which it has not been indemnified to its satisfaction. None of the
Agents shall, by reason of its serving as an Agent, be a trustee or other
fiduciary for any Bank. By its execution and delivery hereof, each Bank, in its
capacity as a Bank and in its capacity, if any, as a party to an Interest Rate
Protection Agreement, authorizes the Administrative Agent to act as its agent
under, and to execute and deliver, in its name and on its behalf, the Pledge
Agreement and the Affiliate Subordination Agreement. The Administrative Agent
shall consent to any amendment of any term, covenant, agreement or condition of,
or to any waiver of any right under, the Pledge Agreement or the Affiliate
Subordination Agreement if, but only if, but subject to Section 9.07, the
Administrative Agent is directed to do so in writing by the Required Banks;
provided, however, that the Administrative Agent shall not be required to
consent to any such amendment or waiver that affects its rights or duties.
Section 8.02. Limitation on Agents' Liability. None of the
Agents nor any of their respective directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by
them under or in connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. None of the Agents shall be responsible
to any Bank for (a) any recitals, statements, representations or warranties
contained in the Loan Documents or in any certificate or other document referred
to or provided for in, or received by any of the Banks under, the Loan
Documents, (b) the validity, effectiveness or enforceability of the Loan
Documents or any such certificate or other document, (c) the value or
sufficiency of the Collateral or (d) any failure by the Loan Parties to perform
any of their obligations under the Loan Documents. Each of the Agents may employ
agents and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact so long as such Agent was not
grossly negligent in selecting or directing such agents or attorneys-in-fact.
Each of the Agents shall be entitled to rely upon any
54
certification, notice or other communication (including any thereof by
telephone, telex, telecopier, telegram or cable) believed by it to be genuine
and correct and to have been signed or given by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such Agent. As to any matters not
expressly provided for by the Loan Documents, each of the Agents shall in all
cases be fully protected in acting, or in refraining from acting, under the Loan
Documents in accordance with instructions signed by the Required Banks, and such
instructions of the Required Banks and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
Section 8.03. Defaults. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment to it of fees or principal of or interest on Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default and stating that such notice is a "Notice of Default." In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the Banks.
In the event of any Default, the Administrative Agent shall (a) in the case of a
Default that constitutes an Event of Default, take either or both of the actions
referred to in Section 6.02(a) and Section 6.02(b) if so directed by the
Required Banks and (b) in the case of any Default, take such other action with
respect to such Default as shall be reasonably directed by the Required Banks.
Unless and until the Administrative Agent shall have received such directions,
in the event of any Default, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interests of the Banks.
Section 8.04. Rights as a Bank. Each Person acting as an Agent
that is also a Bank shall, in its capacity as a Bank, have the same rights and
powers under the Loan Documents as any other Bank and may exercise the same as
though it were not acting as an Agent, and the term "Bank" or "Banks" shall
include such Person in its individual capacity. Each Person acting as an Agent
and its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Loan Parties and their Affiliates as if it were not
acting as an Agent, and such Person and its Affiliates may accept fees and other
consideration from the Borrower and its Affiliates for services in connection
with the Loan Documents or otherwise without having to account for the same to
the Banks.
Section 8.05. Indemnification. The Banks agree to indemnify
each of the Agents (to the extent not reimbursed by the Loan Parties under the
Loan Documents), ratably on the basis of
55
the respective principal amounts of the Loans outstanding made by the Banks (or,
if no Loans are at the time outstanding, ratably on the basis of their
respective Commitments), for any and all Liabilities, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against such Agent in its capacity as an Agent (including the costs and expenses
that the Loan Parties are obligated to pay under the Loan Documents) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent they arise from gross negligence or willful misconduct by such Agent.
Section 8.06. Non-Reliance on Agents and Other Banks. Each
Bank agrees that it has made and will continue to make, independently and
without reliance on any of the Agents or any other Bank, and based on such
documents and information as it deems appropriate, its own credit analysis of
the Loan Parties, its own evaluation of the Collateral and its own decision to
enter into the Loan Documents and to take or refrain from taking any action in
connection therewith. None of the Agents shall be required to keep itself
informed as to the performance or observance by the Loan Parties of the Loan
Documents or any other document referred to or provided for therein or to
inspect the properties or books of any Loan Party or any Subsidiary thereof or
the Collateral. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
under the Loan Documents, none of the Agents shall have any obligation to
provide any Bank with any information concerning the business, status or
condition of any Loan Party or any Subsidiary thereof, the Loan Documents or the
Collateral that may come into the possession of such Agent or any of its
Affiliates.
Section 8.07. Resignation of the Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Borrower. Upon receipt of any such notice of
resignation, the Required Banks may, with the consent of the Borrower (which
consent shall not be unreasonably withheld), appoint any bank or financial
institution as the successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks and with the consent of the
Borrower (which consent shall not be unreasonably withheld), appoint any bank or
financial institution as the successor Administrative Agent. Upon the acceptance
by any Person of its appointment as a
56
successor Administrative Agent, such Person shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties and obligations of
the retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent under the
Loan Documents. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article 8 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries.
(a) Manner of Delivery. All notices, communications and
materials (including all Information) to be given or delivered pursuant to the
Borrower Loan Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in writing (which shall
include telecopy transmissions). Notices under Sections 1.02, 1.03(c), 1.05,
1.07 and 6.02 may be by telephone, promptly confirmed in writing. In the event
of a discrepancy between any telephonic notice and any written confirmation
thereof, such written confirmation shall be deemed the effective notice except
to the extent that the Administrative Agent has acted in reliance on such
telephonic notice.
(b) Addresses. All notices, communications and materials to be
given or delivered pursuant to the Borrower Loan Documents shall be given or
delivered at the following respective addresses and telecopier and telephone
numbers and to the attention of the following individuals or departments:
(i) if to the Borrower, to it at:
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
57
with a copy to:
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Senior
Treasurer
(ii) if to the Administrative Agent, to it
at:
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Manager, Agency
(iii) if to any Bank, to it at the address
or telecopier or telephone number and
to the attention of the individual or
department set forth below such
Bank's name under the heading "Notice
Address" on Annex A or, in the case
of a Bank that becomes a Bank
pursuant to an assignment, set forth
under the heading "Notice Address" in
the Notice of Assignment given to the
Borrower and the Administrative Agent
with respect to such assignment;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party to which such
information pertains is the Borrower, the Administrative Agent and each Bank,
(y) if the party to which such information pertains is the Administrative Agent,
the Borrower and each Bank and (z) if the party to which such information
pertains is a Bank, the Borrower and the Administrative Agent.
(c) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Borrower Loan Documents shall
be deemed so given or delivered (i) if sent by registered or certified mail,
postage prepaid, return receipt
58
requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (ii) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (iii) if sent by telecopier, when
such notice, communication or material is transmitted to the appropriate
telecopier number as above provided and is received at such number and (iv) if
given by telephone, when communicated to the individual or any member of the
department specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Administrative Agent to the Borrower under Section 6.02 given by
telephone as above provided, if any individual or any member of the department
to whose attention notices, communications and materials are to be given or
delivered is unavailable at the time, to any other officer of the Borrower,
except that notices of a change of address, telecopier or telephone number or
individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received.
Section 9.02. Expenses; Indemnification. Whether or
not any Loans are made hereunder, the Borrower shall:
(a) pay or reimburse the Administrative Agent and each Bank
for all transfer, documentary, stamp and similar taxes, and all recording and
filing fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or the
making of the Loans, excluding any such taxes imposed as a result of the
assignment of any Loan or portion thereof;
(b) pay or reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses (including reasonable fees and
disbursements of legal counsel collectively retained by the Arranging Agents and
the Managing Agents or, other than with respect to clause (i) below, appraisers,
accountants and other experts employed or retained collectively by the Arranging
Agents and the Managing Agents or the Administrative Agent) incurred by the
Administrative Agent (or, in the case of fees and disbursements of legal
counsel, the Arranging Agents and the Managing Agents) in connection with,
arising out of, or in any way related to (i) the negotiation, preparation,
execution and delivery of (A) the Loan Documents and (B) whether or not
executed, any waiver, amendment or consent thereunder or thereto, (ii) the
administration of and any operations under the Loan Documents, (iii) consulting
with respect to any matter in any way arising out of, related to, or connected
with, the Loan Documents, including (A) the protection or preservation of the
Collateral, (B) the protection, preservation, exercise or enforcement of any of
the rights of the Administrative Agent or
59
the Banks in, under or related to the Collateral or the Loan Documents during a
Default or (C) the performance of any of the obligations of the Administrative
Agent or the Banks under or related to the Loan Documents, (iv) protecting or
preserving the Collateral or (v) protecting, preserving, exercising or enforcing
any of the rights of the Administrative Agent or the Banks in, under or related
to the Collateral or the Loan Documents during a Default, including defending
the Security Interest as a valid, perfected, first priority security interest in
the Collateral subject only to Permitted Liens;
(c) pay or reimburse each Bank for all reasonable costs and
expenses (including reasonable fees and disbursements of legal counsel and other
experts employed or retained by such Bank) incurred by such Bank in connection
with, arising out of, or in any way related to protecting, preserving,
exercising or enforcing during a Default any of its rights in, under or related
to the Collateral or the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from
and against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and reasonable expenses
(including reasonable fees and disbursements of legal counsel and other experts
employed or retained by such Indemnified Person) incurred, by such Indemnified
Person in connection with, arising out of or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person or the
Borrower or any other Person), including the prosecution or defense thereof and
any litigation or proceeding with respect thereto (whether or not, in the case
of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out of,
related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity shall
not be applicable to (A) any loss suffered by any Indemnified Person to the
extent such loss is determined by a judgment of a court that is binding on the
Borrower and such Indemnified Person, final and not subject to review on appeal
to be the result of acts or omissions on the part of such Indemnified Person
constituting gross negligence or willful misconduct or (B) any such losses,
costs and expenses incurred in connection with any examination of such
Indemnified Person by governmental authorities and arising other than with
respect to this Agreement and the Loans specifically.
Section 9.03. Amounts Payable Due upon Request for Payment.
All amounts payable by the Borrower under Section 9.02 and under the other
provisions of the Borrower Loan Documents shall, except as otherwise expressly
provided, be immediately due upon request for the payment thereof accompanied by
a certificate of the requesting Bank setting forth the basis for the request and
the computation for the amount thereof in reasonable detail.
60
Section 9.04. Remedies of the Essence. The various rights and
remedies of the Administrative Agent and the Banks under the Borrower Loan
Documents are of the essence of those agreements, and the Administrative Agent
and the Banks shall be entitled to obtain a decree requiring specific
performance of each such right and remedy.
Section 9.05. Rights Cumulative. Each of the rights and
remedies of the Administrative Agent and the Banks under the Loan Documents
shall be in addition to all of their other rights and remedies under the Loan
Documents and Applicable Law, and nothing in the Loan Documents shall be
construed as limiting any such rights or remedies.
Section 9.06. Confidentiality. Each Bank agrees to exercise
all reasonable efforts to keep any information delivered or made available by
the Borrower confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided, however, that nothing herein
shall prevent any Bank from disclosing such information (a) to any Affiliate of
such Bank or to any other Bank, (b) upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Bank, (d) that has been publicly
disclosed, (e) in connection with any litigation relating to the Loans, this
Agreement or any transaction contemplated hereby to which any Bank, any Loan
Party or any Agent may be a party, (f) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (g) to such Bank's legal
counsel and independent auditors and (h) to any actual or proposed participant
or assignee of all or any part of its Loans hereunder, if such other Person,
prior to such disclosure, agrees for the benefit of the Borrower to comply with
the provisions of this Section 9.06.
Section 9.07. Amendments; Waivers. Any term, covenant,
agreement or condition of any Loan Document to which the Banks are party may be
amended, and any right under the Loan Documents may be waived, if, but only if,
such amendment or waiver is in writing and is signed by the Required Banks and,
if the rights and duties of the Administrative Agent are affected thereby, by
the Administrative Agent and by each Loan Party that is a party thereto;
provided, however, that no such amendment or waiver shall be effective, unless
in writing and signed by each Bank affected thereby, to the extent it (a)
changes the amount or extends the term of such Bank's Commitment, (b) reduces
the principal of or the rate of interest on such Bank's Loans or Notes or any
fees payable to such Bank hereunder, (c) postpones any date fixed for, or
reduces the amount of, any scheduled payment of principal of or interest on such
Bank's Loans or Notes or any fees payable to such Bank hereunder or any
scheduled
61
reduction of Commitments, (d) amends or waives Section 1.05(b)(i), (ii) or (v)
or Section 1.07 (as such Section relates to Section 1.05(b)(i), (ii) or (v)), or
amends any of the defined terms used therein, in a manner that has the effect of
postponing any date fixed for, or reducing the amount of, any mandatory payment
of principal or interest on such Bank's Loans or Notes or any fees payable to
such Bank hereunder or any mandatory reduction of Commitments (other than any
such amendment or waiver providing for the issuance or otherwise providing for
the treatment hereunder of, Mandatorily Redeemable Securities), (e) releases any
portion of the Collateral from the Security Interest (except that assets (other
than Capital Securities of a Subsidiary) received by the Borrower as the result
of the liquidation or dissolution of Amcell or one or more of its Subsidiaries
or the merger or consolidation of Amcell or one or more of its Subsidiaries with
the Borrower may be released with the consent of the Required Banks and no fewer
than four of the five Arranging Agents), (f) waives any material condition
precedent under Section 2.01 or 2.02 (as Section 2.02 applies to the initial
Loans hereunder), (g) amends or waives the proviso to Section 4.09(a) or Section
9.10(a)(i)(A), (B) or (C) or (h) amends this Section 9.07 or any provision of
this Agreement or the other Loan Documents requiring the consent or other action
of all of the Banks. Unless otherwise specified in such waiver, a waiver of any
right under the Borrower Loan Documents shall be effective only in the specific
instance and for the specific purpose for which given. No election not to
exercise, failure to exercise or delay in exercising any right, nor any course
of dealing or performance, shall operate as a waiver of any right of the
Administrative Agent or any Bank under the Borrower Loan Documents or Applicable
Law, 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 of the
Administrative Agent or any Bank under the Borrower Loan Documents or Applicable
Law.
Section 9.08. Set-Off; Suspension of Payment and Performance.
The Administrative Agent and each Bank is hereby authorized by the Borrower, at
any time and from time to time, without prior notice, (a) during any Event of
Default, to set off against, and to appropriate and apply to the payment of, the
Liabilities of the Borrower under the Borrower Loan Documents (whether owing to
such Person or to any other Person that is the Administrative Agent or a Bank
and whether matured or unmatured, fixed or contingent or liquidated or
unliquidated) any and all Liabilities owing by such Person to the Borrower
(whether payable in Dollars or any other currency, whether matured or unmatured
and, in the case of Liabilities that are deposits, whether general or special,
time or demand and however evidenced and whether maintained at a branch or
office located within or without the United States) and (b) during any Default,
to suspend the payment and performance of such Liabilities owing by such Person
and, in the case of Liabilities that are deposits, to
62
return as unpaid for insufficient funds any and all checks and other items drawn
against such deposits. The Person so setting off against any such Liabilities of
the Borrower or suspending payment or performance of any such Liabilities of
such Person, as the case may be, shall give the Borrower notice thereof promptly
following such set-off or suspension, but any failure to give or delay in giving
such notice shall not affect such Person's right to so set off or suspend
payment or performance.
Section 9.09. Sharing of Recoveries. (a) Each Bank agrees
that, if, for any reason, including as a result of (i) the exercise of any right
of counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar proceeding being deemed
secured by a Debt owed by it to any Loan Party, including a claim deemed secured
under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by
the Administrative Agent or any Loan Party in a manner contrary to the
provisions of Section 1.14, such Bank shall receive payment of a proportion of
the aggregate amount due and payable to it hereunder as principal, interest or
fees that is greater than the proportion received by any other Bank in respect
of the aggregate of such amounts due and payable to such other Bank hereunder,
then the Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder so that all
such recoveries with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided, however, that if all or part
of such proportionately greater payment received by the purchasing Bank is
thereafter recovered by or on behalf of any Loan Party from such Bank, such
purchases shall be rescinded and the purchase prices paid for such participation
shall be returned to such Bank to the extent of such recovery, but without
interest (unless the purchasing Bank is required to pay interest on the amount
recovered to the Person recovering such amount, in which case the selling Bank
shall be required to pay interest at a like rate). The Borrower expressly
consents to the foregoing arrangements and agrees that any holder of a
participation in any rights hereunder so purchased or acquired pursuant to this
Section 9.09(a) shall, with respect to such participation, be entitled to all of
the rights of a Bank under Sections 7.02, 9.02 and 9.08 and may exercise any and
all rights of set-off with respect to such participation as fully as though the
Borrower were directly indebted to the holder of such participation for Loans in
the amount of such participation.
(b) Notwithstanding anything to the contrary contained herein,
Section 9.09(a) shall not be deemed to limit each Bank's entitlement to exercise
any right of counterclaim, set-off, banker's lien or similar right that it may
have in respect of the Borrower in any manner as it may choose and to apply the
amount subject to such exercise to the payment of Liabilities of the
63
Borrower other than obligations subject to the sharing provisions of Section
9.09(a).
Section 9.10. Assignments and Participations. (a) Assignments.
(i) The Borrower may not assign any of its rights or obligations under the
Borrower Loan Documents without the prior written consent of the Administrative
Agent and each Bank, and no assignment of any such obligation shall release the
Borrower therefrom unless the Administrative Agent or each Bank, as applicable,
shall have consented to such release in a writing specifically referring to the
obligation from which the Borrower is to be released; provided, however, that
the Borrower may, upon the prior written consent of the Required Banks, assign
all of its rights and obligations under the Borrower Loan Documents to a
Permitted Successor, so long as (A) no Default shall have occurred and be
continuing at the time any such assignment is to be made or would result from
the making of such assignment, (B) each Loan Document Representation and
Warranty shall be true and correct in all material respects at and as of the
time such assignment is to be made and after giving effect thereto, and (C) the
Arranging Agents and the Managing Agents shall have received (1) such items
described in Section 2.01(a) (other than clauses (vi) and (xii) thereof) as they
shall request, in each case as of the date of such assignment and with respect
to such Permitted Successor, including a pledge agreement, substantially in the
form of the Pledge Agreement and with respect to the Collateral, duly executed
and delivered by such Permitted Successor, and (2) executed copies of all
documents effecting such assignment of rights and obligations of the Borrower,
in scope, form and substance satisfactory to the Required Agents.
(ii) Each Bank may from time to time assign any or
all of its rights and obligations under the Loan Documents and with respect to
the Collateral to one or more banks or other financial institutions with (except
in the case of any assignment by a Bank to an Affiliate of such Bank) the
consent of the Borrower and the Administrative Agent (which consents shall not
be unreasonably withheld); provided, however, that no such assignment shall be
effective unless and until (x) a Notice of Assignment with respect thereto, duly
executed by the assignor and the assignee, shall have been given to the Borrower
and the Administrative Agent and (y) except in the case of an assignment by any
Bank to an Affiliate of such Bank, the Administrative Agent shall have been paid
an assignment fee of $2,500; provided further, however, that, unless the
Borrower and the Administrative Agent shall have otherwise consented, no such
partial assignment, other than a partial assignment by any Bank to an Affiliate
of such Bank, shall be made or shall be effective unless (1) if such assignment
is made other than to another Bank, the amount thereof is not less than
$5,000,000 and (2) after giving effect to such assignment and all other
assignments made and participations granted by such Bank, the Commitment (or, if
the Total Commitment shall have terminated, the Loans), net of
64
the amount of such participations, retained by such Bank is not less than (aa)
in the case of each Arranging Agent, $35,000,000, (bb) in the case of each
Managing Agent, $30,000,000 and (cc) in the case of each other Bank, 50% of the
Commitment of such Bank hereunder in effect on the Agreement Date or, if such
Bank became a Bank pursuant to an assignment, on the day it became a Bank. Any
such assignment by a Bank of any or all of its obligations under the Borrower
Loan Documents shall release such Bank therefrom. No such assignment by a Bank
of any or all of its obligations under the Borrower Loan Documents to any
Affiliate of such Bank shall obligate the Borrower to pay any amount to the
assignee Bank under Section 1.12, make operable the provisions of Section
7.01(c) or (d) or entitle such assignee Bank to make a claim under Section 7.02
or 7.03 if such obligation, the operability of such clause or such claim results
solely from such assignment and not from a Regulatory Change subsequent to such
assignment. In the event of any such assignment by a Bank, the Borrower shall
issue new Notes to the assignee Bank (against, other than in the case of a
partial assignment, receipt of the applicable existing Note of the assignor
Bank). Nothing in this Section 9.10 shall limit the right of any Bank to assign
its interest in the Loans and Notes to a Federal Reserve Bank as collateral
security under Regulation A of the Board of Governors of the Federal Reserve
System, but no such assignment shall release such Bank from its obligations
hereunder.
(b) Participations. Each Bank may from time to time sell or
otherwise grant participations in any or all of its rights and obligations under
the Borrower Loan Documents and with respect to the Collateral without the
consent of the Borrower, the Administrative Agent or any other Bank; provided,
however, that, unless the Borrower and the Administrative Agent shall have
otherwise consented, no such participation, other than a participation sold or
granted by any Bank to an Affiliate of such Bank, shall be made or shall be
effective unless (i) the amount thereof is not less than $5,000,000 and (ii)
after giving effect to such participation and all other participations granted
and assignments made by such Bank, the Commitment (or, if the Total Commitment
shall have terminated, the Loans), net of the amount of such participations,
retained by such Bank is not less than (1) in the case of each Arranging Agent,
$35,000,000, (2) in the case of each Managing Agent, $30,000,000 and (3) in the
case of each other Bank, 50% of the Commitment of such Bank hereunder in effect
on the Agreement Date or, if such Bank became a Bank pursuant to an assignment,
on the day it became a Bank. No sale by a Bank of any participation shall
relieve such Bank of any of its obligations to the Borrower hereunder.
(c) Rights of Assignees and Participants. Each assignee of,
and each holder of a participation in, the rights of any Bank under the Borrower
Loan Documents and with respect to the Collateral, if and to the extent the
applicable assignment or participation agreement so provides, (i) shall, in the
case of
65
assignees and with respect to its assignment, be entitled to all of the rights
of a Bank and (ii) may exercise any and all rights of set-off or banker's lien
with respect thereto (as fully, in the case of a holder of a participation, as
though the Borrower were directly indebted to such holder for amounts payable
under the Borrower Loan Documents to which such holder is entitled under the
applicable participation agreement); provided, however, that each such
participation agreement shall provide that the Bank that shall have sold or
granted the participation shall retain the sole right to take or refrain from
taking any action under the Loan Documents except that such participation
agreement may provide that such Bank shall not, without the consent of the
participant, agree to any amendment or waiver that would have any of the effects
described in the proviso to the first sentence of Section 9.07, to the extent
that the participant would be affected thereby. All amounts payable to any Bank
under Section 1.12 or Article 7 shall be determined as if such Bank had not sold
any participations. Each Bank that sells or grants a participation shall (A)
withhold or deduct from each payment to the holder of such participation the
amount of any Tax required under Applicable Law to be withheld or deducted from
such payment and not withheld or deducted therefrom by the Borrower or the
Administrative Agent, (B) pay any Tax so withheld or deducted by it to the
appropriate taxing authority in accordance with Applicable Law and (C) indemnify
the Borrower and the Administrative Agent for any losses, costs and expenses
that they may incur as a result of any failure to so withhold or deduct and pay
such Tax.
(d) Assignments and Transfers of Registered Notes. In addition
to the requirements set forth in this Section 9.10, any assignment or transfer
of a Registered Note shall be subject to the requirements and limitations set
forth in Section 1.15.
Section 9.11. Governing Law. This Agreement and the Notes
(including matters relating to the Maximum Permissible Rate) shall be construed
in accordance with and governed by the law of the State of New York (without
giving effect to its choice of law principles).
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. Any
judicial proceeding brought against the Borrower with respect to any Loan
Document Related Claim may be brought in any court of competent jurisdiction in
the City of New York, and, by execution and delivery of this Agreement, the
Borrower (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any Loan
Document Related Claim and (b) irrevocably waives any objection it may now or
hereafter have as to the venue of any such proceeding brought in such a court or
that such a court is an inconvenient forum. The Borrower hereby waives personal
service of process and consents that service of
66
process upon it may be made by certified or registered mail, return receipt
requested, at its address specified or determined in accordance with the
provisions of Section 9.01(b)(i), and service so made shall be deemed completed
on the third Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Agent or Bank or any other Indemnified
Person to serve process in any other manner permitted by law or shall limit the
right of any Agent or Bank or any other Indemnified Person to bring proceedings
against the Borrower in the courts of any other jurisdiction. To the extent
permitted in accordance with Applicable Law (including Applicable Law relating
to jurisdiction and venue), any judicial proceeding by the Borrower against the
Administrative Agent or any Bank involving any Loan Document Related Claim shall
be brought only in a court located in the City and State of New York. THE
BORROWER, THE AGENTS AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
Section 9.13. Severability of Provisions. Any provision of the
Borrower Loan Documents that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.14. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument.
Section 9.15. Survival of Obligations. Except as otherwise
expressly provided therein, the obligations of the Borrower under Sections 1.12,
7.02, 7.03, 7.04 and 9.02, and the obligations of the Banks under Section 8.05,
shall survive the Repayment Date and the termination of the Security Interest.
Section 9.16. Entire Agreement. This Agreement, the Notes and
the other Loan Documents embody the entire agreement among the Borrower, the
Administrative Agent and the Banks relating to the subject matter hereof and
supersede all prior agreements, representations and understandings, if any,
relating to the subject matter hereof.
Section 9.17. Successors and Assigns. All of the provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 9.18. Reference Banks. Each Reference Bank shall
furnish to the Administrative Agent timely information for the purpose of
determining the Eurodollar Rate. If any Reference Bank shall notify the
Administrative Agent that thenceforth it
67
shall not be able to furnish such information in a timely manner or shall assign
all of its Loans or Commitment to a Person that is not an Affiliate of such
Reference Bank, the Administrative Agent shall, with the consent of the Required
Banks and after consultation with the Borrower, appoint another Bank (which
Bank, or, in the event that the long-term debt securities of such Bank shall not
be rated by a nationally-recognized credit rating agency, the parent holding
company in the corporate group of which such Bank is a member, shall have a
credit rating with respect to long-term debt securities from a
nationally-recognized credit rating agency substantially equivalent to the Bank,
or the parent holding company in the corporate group of which such Bank is a
member, being replaced) as a Reference Bank in place of such Reference Bank.
ARTICLE 10
INTERPRETATION
--------------
Section 10.01. Definitional Provisions. (a) Defined
Terms. For the purposes of this Agreement:
"Accrued Management Fees" has the meaning ascribed to
such term in Section 4.11(b).
"Accumulated Funding Deficiency" has the meaning ascribed to
such term in Section 302 of ERISA.
"Adjusted Eurodollar Rate" means, for any Interest Period, a
rate per annum (rounded upward, if necessary, to the next higher 1/100 of 1%)
equal to the rate obtained by dividing (i) the Eurodollar Rate for such Interest
Period by (ii) a percentage equal to 1 minus the Reserve Requirement in effect
from time to time during such Interest Period.
"Administrative Agent" means Toronto Dominion (Texas), Inc.,
as Administrative Agent for the Banks under the Loan Documents, and any
successor Administrative Agent appointed pursuant to Section 8.07.
"Administrative Agent's Office" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 9.01(b)(ii).
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower. As used in
this definition, "control" (including, with correlative meanings, "controlled
by" and "under common control with") means possession, directly or indirectly,
of power to direct or cause
68
the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by Contract or otherwise);
provided, however, that, in any event, any Person that owns directly or
indirectly Capital Securities having 15% or more of the ordinary voting power
for the election of directors or other governing body of a corporation or 15% or
more of the partnership or other ownership interests in any other Person (other
than as a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, no individual shall
be deemed to be an Affiliate of a Person solely by reason of such individual
being an officer or director of such Person.
"Affiliate Subordinated Obligations" has the meaning ascribed
to such term in the Affiliate Subordination Agreement, and, as provided therein,
includes accrued Management Fees, Junior Subordinated Indebtedness and Senior
Subordinated Indebtedness.
"Affiliate Subordination Agreement" means the Affiliate
Subordination Agreement among the Borrower, Comcast, Comcast Financial
Corporation, Affiliates of the Borrower from time to time party thereto and the
Administrative Agent, in the form attached hereto as Exhibit B.
"Agent" means the Administrative Agent or any of the
Arranging Agents or Managing Agents.
"Agreement" means this Agreement, including all
Schedules, Annexes and Exhibits hereto.
"Agreement Date" means the date set forth as such on the last
signature page hereof, which date is the date that executed copies of this
Agreement were delivered by all parties hereto and, accordingly, this Agreement
became effective.
"Amcell" means American Cellular Network Corp., a New
Jersey corporation.
"Annualized Cash Flow" means, as of any date of determination,
Cash Flow of the Borrower and the Consolidated Subsidiaries for the period of
two consecutive fiscal quarters of the Borrower ending on, or most recently
ended prior to, such date multiplied by two. For purposes of determining
Annualized Cash Flow, Cash Flow with respect to any Person, Cellular System, any
interest therein or other assets for any period shall be adjusted by (i)
deducting therefrom an amount to reflect, as if such Person, Cellular System,
interest or other assets were not owned for any portion of such period, the
reduction in Cash Flow associated with the Person, Cellular System, interest or
assets sold, exchanged or otherwise disposed of pursuant to Section 4.08(g)
hereof during such period and (ii) adding thereto an amount to reflect, as if
such Person, Cellular Systems, interest
69
or other assets were owned for the entire period, the addition to Cash Flow
associated with the acquisition of Persons, Cellular Systems or other assets
during such period acquired pursuant to Section 4.07(d) or (e).
"Applicable Law" means, anything in Section 9.11 to the
contrary notwithstanding, (i) all applicable common law and principles of equity
and (ii) all applicable provisions of all (A) constitutions, statutes, rules,
regulations and orders of governmental bodies, (B) Governmental Approvals and
(C) orders, decisions, judgments and decrees of all courts (whether at law or in
equity or admiralty) and arbitrators.
"Applicable Margin" means, at any time, (a) in the case of
Tranche A Loans, the respective percentage set forth below under the caption for
such Type of Loan opposite the applicable Leverage Ratio at such time set forth
below:
Eurodollar
Leverage Ratio Base Rate Rate
-------------- --------- ---------
Greater than 9.50 to 1 1.000% 2.000%
Less than or equal to 9.50 to 1 and
greater than 9.00 to 1 0.875% 1.875%
Less than or equal to 9.00 to 1 and
greater than 8.00 to 1 0.625% 1.625%
Less than or equal to 8.00 to 1 and
greater than 7.00 to 1 0.500% 1.500%
Less than or equal to 7.00 to 1 and
greater than 6.00 to 1 0.375% 1.375%
Less than or equal to 6.00 to 1 and
greater than 5.00 to 1 0.250% 1.250%
Less than or equal to 5.00 to 1 and
greater than 4.00 to 1 0.000% 1.000%
Less than or equal to 4.00 to 1 0.000% 0.875%
(b) in the case of Tranche B Loans, (i) during the period from
the Closing Date to the date that is the earlier of (A) the date that is three
months after the Closing Date and (B) the date upon which any or all of the
Comcast Cellular Zeros are redeemed, the respective percentage set forth in
clause (a) above under the caption for such Type of Loan opposite the applicable
Leverage Ratio at such time and (ii) thereafter, (A) the respective percentage
set forth in clause (a) above under the caption for such Type of Loan opposite
the applicable Leverage
70
Ratio at such time plus (B) 0.375%;
provided, however, that the Applicable Margin with respect to any Loan will be
increased by 0.250% during any period in which (x) Permitted Additional
Non-Facility Indebtedness of Holdco is outstanding if such Indebtedness is
excluded from the calculation of the Leverage Ratio by operation of the
definition of the term "Leverage Ratio" or (y) any Comcast Cellular Zeros are
outstanding.
The Leverage Ratio shall be determined initially on the basis of the certificate
provided for in Section 2.01(a)(viii) and subsequently on the basis of the most
recent financial statements delivered pursuant to Section 5.01. Any change in
the Applicable Margin as a result of a change in the Leverage Ratio shall be
effective as of the third Business Day after the day on which financial
statements are delivered to the Administrative Agent pursuant to Section 5.01
that indicate such change in the Leverage Ratio.
"Arranging Agents" means The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank, N.A., PNC Bank, National Association, and The
Toronto-Dominion Bank, as Arranging Agents for the Banks under the Loan
Documents, and, in the event that any such Bank elects not to continue to serve
as an Arranging Agent or merges into or otherwise consolidates with any other
Arranging Agent, any successor to such Bank in its role as an Arranging Agent
designated by the Borrower and agreed to by each of the other Arranging Agents.
"AWACS" means AWACS, Inc., a Pennsylvania corporation.
"Bank" means (i) any Person listed as such on the signature
pages hereof and (ii) any Person that has been assigned any or all of the rights
or obligations of a Bank pursuant to Section 9.10(a).
"Bank Tax" means any Tax based on or measured by net income,
any franchise Tax and any doing business Tax (including any gross receipts Tax
in the nature of a doing business Tax) imposed upon any Bank or any Agent by any
jurisdiction (or any political subdivision thereof) in which such Bank, such
Agent or any Lending Office is located.
"Base Financial Statements" means the consolidated balance
sheet of the Borrower and the Consolidated Subsidiaries as of December 31, 1994
and the related statements of income, retained earnings and cash flows for the
fiscal year ended with the date of such balance sheet.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Rate in effect on such day plus 0.5%.
71
"Base Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Base Rate.
"Benefit Plan" means, with respect to any Person at any time,
any employee pension benefit plan (including a Multiemployer Benefit Plan) which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code, the funding requirements of which (under Section
302 of ERISA or Section 412 of the Code) are, or at any time within five years
preceding the time in question were, in whole or in part, the responsibility of
such Person.
"Borrower" means Comcast Cellular Communications, Inc.,
a Delaware corporation, or, subject to Section 9.10(a)(i), any
Permitted Successor.
"Borrower Loan Documents" means the Loan Documents to
which the Borrower is a party.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to close.
"Capital Security" means, with respect to any Person, (i) any
share of capital stock of such Person or (ii) any security convertible into, or
any option, warrant or other right to acquire, any share of capital stock of
such Person.
"Cash Flow" means, with respect to any Person, Cellular
System, any interest therein or other assets for any period, (i) the net income
(which shall be consolidated, as appropriate) attributable to such Person,
Cellular System, interest or other assets for such period, adjusted to exclude
(A) gains and losses from unusual or extraordinary items, (B) interest income
and (C) the amount of any restoration of any charge to or other reserve against
revenues taken during any prior period, in each case for such period plus (ii)
income or gross receipts taxes (whether or not deferred), Cash Interest Expense
of the Borrower and the Consolidated Subsidiaries (which for this purpose shall
include, to the extent deducted in determining net income, interest on Junior
Subordinated Indebtedness), Current Management Fees accrued and not paid in
cash, bank fees and expenses, depreciation, amortization and other non-cash
charges to income, in each case for such period minus (iii) except to the extent
deducted in determining such net income, Current Management Fees paid in cash
with respect to such period.
"Cash Flow Percentage" means, as of the date of any sale or
exchange of capital stock, assets, or Cellular System or any interest therein,
the ratio, expressed as a percentage, derived by dividing (a) Cash Flow
attributable thereto for the
72
four consecutive fiscal quarters of the Borrower ending on, or most recently
ended prior to, such date for which financial information is available and has
been delivered to the Banks hereunder prior to such date of sale or exchange by
(b) Cash Flow of the Borrower and its Consolidated Subsidiaries for such period.
"Cash Interest Expense" means, for any Person, Cellular
System, any interest therein or other assets for any period, without
duplication, (i) all interest on Indebtedness (other than Junior Subordinated
Indebtedness) of such Person, or attributable to such Cellular System, interest
therein or other assets, and commitment fees in respect of such Indebtedness,
accrued or to accrue during such period and, in each case, payable in cash plus
(ii) the net amount payable accrued or to accrue by such Person, or attributable
to such Cellular System, interest therein or other assets, pursuant to any
Interest Rate Protection Agreement during such period (or minus the net amount
receivable accrued or to accrue by such Person, or attributable to such Cellular
System, interest therein or other assets, thereunder during such period) plus
(iii) the amount of all Restricted Payments made or to be made during such
period contemplated by Sections 4.06(d) and (j).
"Cellular License" means any license issued or granted by the
FCC to operate a Cellular System.
"Cellular System" means any wireline or non-wireline
cellular telephone system.
"Closing Date" means the date of the making of the
initial Loans hereunder.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property in which a Lien is
created pursuant to the Loan Documents.
"Comcast" means Comcast Corporation, a Pennsylvania
corporation.
"Comcast Cellular Corporation" means Comcast Cellular
Corporation, a Delaware corporation.
"Comcast Cellular Zeros" means the Comcast Cellular
Corporation Series A and Series B Senior Participating Redeemable Zero Coupon
Notes Due 2000.
"Commitment" means, with respect to any Bank, its Tranche A
Commitment and its Tranche B Commitment.
"Consolidated Indebtedness" means, at any time, the
consolidated Indebtedness of the Borrower and the Consolidated
73
Subsidiaries as of such time.
"Consolidated Subsidiary" means, with respect to any Person at
any time, any Subsidiary or other Person the accounts of which would be
consolidated with those of such first Person in its consolidated financial
statements as of such time; unless otherwise specified, "Consolidated
Subsidiary" means a Consolidated Subsidiary of the Borrower and excludes the
Excluded Subsidiaries.
"Contract" means (i) any agreement (whether executory or
non-executory and whether a Person entitled to rights thereunder is so entitled
directly or as a third-party beneficiary), including an indenture, lease or
license, (ii) any deed or other instrument of conveyance, (iii) any certificate
of incorporation or charter and (iv) any by-law.
"Cure Date" has the meaning ascribed to such term in
Section 6.03.
"Current Management Fees" has the meaning ascribed to
such term in Section 4.11(b).
"Debt" means any Liability that constitutes "debt" or "Debt"
under Section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"Default" means any condition or event that constitutes an
Event of Default or that with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Bank, (i)
the branch or office of such Bank set forth below such Bank's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Domestic Lending Office" in the Notice of Assignment
given to the Borrower and the Administrative Agent with respect to such
assignment or (ii) such other branch or office of such Bank designated by such
Bank from time to time as the branch or office at which its Base Rate Loans are
to be made or maintained.
"Environmental Laws" means any and all Federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants,
74
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment, including ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or waste.
"ERISA" means the Employee Retirement Income Security
Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other
Person, including a Subsidiary or other Affiliate of such first Person, that is
a member of any group of organizations within the meaning of Section 414(b),
(c), (m) or (o) of the Code of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which
dealings in Dollar deposits are carried on in the London interbank market and on
which commercial banks are open for domestic and international business
(including dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" means, with respect to any Bank,
(i) the branch or office of such Bank set forth below such Bank's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, the branch or office of such Bank set
forth under the heading "Eurodollar Lending Office" in the Notice of Assignment
given to the Borrower and the Administrative Agent with respect to such
assignment or (ii) such other branch or office of such Bank designated by such
Bank from time to time as the branch or office at which its Eurodollar Rate
Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate per
annum determined by the Administrative Agent to be the average (rounded upward,
if necessary, to the next higher 1/100 of 1%) of the rates per annum determined,
respectively, by each Reference Bank to be the rate at which such Reference Bank
offered or would have offered to place with first-class banks in the London
interbank market deposits in Dollars in amounts comparable to the Eurodollar
Rate Loan of such Reference Bank to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time) on the second
Eurodollar Business Day before the first day of such Interest Period. If any
Reference Bank is unable or otherwise fails to furnish the Administrative Agent
with appropriate rate information in a timely manner, the Administrative Agent
shall determine the Eurodollar Rate based on the rate information furnished by
the remaining Reference Banks.
"Eurodollar Rate Loan" means any Loan the interest on
which is, or is to be, as the context may require, computed on
75
the basis of the Adjusted Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 6.01.
"Excess Cash Flow" means, for any fiscal year, the amount, if
any, by which (a) Cash Flow of the Borrower and the Consolidated Subsidiaries
for such fiscal year exceeds (b) the sum of (i) the aggregate amount of Cash
Interest Expense of the Borrower and the Consolidated Subsidiaries for such
fiscal year, (ii) an amount equal to the amount of capital expenditures made or
incurred by the Borrower or any Consolidated Subsidiary during such fiscal year
(net of any after-tax proceeds realized in respect of damaged or destroyed
capital assets or from the disposition of obsolete or retired capital assets),
(iii) the amount of Required Repayments in respect of such fiscal year, the
amount of all payments of principal with respect to the Tranche B Loans made
during such fiscal year and all other payments of principal of Indebtedness
(other than Junior Subordinated Indebtedness) of the Borrower and the
Consolidated Subsidiaries required to be made in respect of such fiscal year,
(iv) the amount of income taxes, without duplication, paid or payable in cash
during such fiscal year, including (without duplication) the amount paid in
respect of income taxes pursuant to any Tax Sharing Agreement, by the Borrower
and the Consolidated Subsidiaries, (v) the amount of Restricted Payments
contemplated by Section 4.06 made during such year (other than any such
Restricted Payments contemplated by Section 4.06(d)) and (vi) $10,000,000.
"Excluded Subsidiary" means any of Comcast Publishing Holdings
Corp., a Pennsylvania corporation, Comcast Publishing Holdings Financial Corp.,
a Delaware corporation, AWACS Investment Holdings, Inc., a Delaware corporation,
AWACS Garden State, Inc., a Delaware corporation, and Garden State Cablevision,
L.P., a Delaware limited partnership, and any Subsidiary of any of the
foregoing.
"Existing Benefit Plan" means, with respect to any Person at
any time, any employee benefit plan (including a multiemployer benefit plan as
defined in Section 4001(a)(3) of ERISA), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, in whole or in
part, the responsibility of such Person.
"Existing Guaranty" means (i) any Guaranty outstanding on the
Agreement Date, to the extent set forth on Schedule 4.04, and (ii) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (A) at the time such Guaranty is entered into and after giving
effect thereto, no Default would exist, (B) such Guaranty is binding only on the
obligor or obligors under the Guaranty so renewed, extended or replaced, (C) the
principal amount of the obligations Guaranteed
76
by such Guaranty does not exceed the principal amount of the obligations
Guaranteed by the Guaranty so renewed, extended or replaced and (D) the
obligations Guaranteed by such Guaranty bear interest at a rate per annum not
exceeding the rate borne by the obligations Guaranteed by the Guaranty so
renewed, extended or replaced except for any increase that is commercially
reasonable at the time of such increase.
"Existing Investment" means any investment outstanding on the
Agreement Date, to the extent set forth on Schedule 4.14, and any renewal or
extension thereof not involving an increase therein as the result of an
additional investment by the Borrower or any Subsidiary.
"FCC" means the Federal Communications Commission.
"Federal Funds Rate" means, for any day, the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of quotations for such day on such
transactions received by Toronto Dominion (Texas), Inc., from three Federal
funds brokers of recognized standing selected by such bank.
"Funded Current Liability Percentage" has the meaning ascribed
to such term in Section 401(a)(29) of the Code.
"Generally Accepted Accounting Principles" means (i) in the
case of the Base Financial Statements, generally accepted accounting principles
at the time of the issuance of the Base Financial Statements and (ii) in all
other cases, the accounting principles followed in the preparation of the Base
Financial Statements, except as provided in Section 10.02.
"Governmental Approval" means any authorization, consent,
approval, license or exemption of, registration or filing with, or report or
notice to, any governmental unit.
"Guaranty" means, with respect to any Person, any contractual
obligation, contingent or otherwise, of such Person (i) to pay any Indebtedness
or other obligation of any other Person or to otherwise protect the holder of
any such Indebtedness or other obligation against loss (whether such obligation
arises by agreement to pay, to keep well, to purchase assets, goods, securities
or services or otherwise) or (ii) incurred in connection with the issuance by a
third Person of a Guaranty of any Indebtedness or other obligation of any other
Person (whether such obligation arises by agreement to reimburse or indemnify
such third Person or otherwise by Contract); provided, however, that the term
"Guaranty" shall not include an
77
endorsement for collection or deposit in the ordinary course of business. The
word "Guarantee" when used as a verb has the correlative meaning.
"Hazardous Material" means any oil, hazardous waste, hazardous
material or hazardous substance listed, defined or otherwise identified as
hazardous in the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6921 et
seq., the Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. ss. 9601 et seq., or any other Federal or state Environmental Law.
"Holdco" means Comcast Cellular Corporation, or other direct
owner of 100% of the equity ownership interest in the Borrower (or such lesser
interest, equal to or greater than 50.01% of such equity ownership interest, as
shall not constitute a Default under Section 6.01(l)).
"Indebtedness" means, with respect to any Person (in each
case, whether such obligation is with full or limited recourse), without
duplication, (i) any obligation of such Person for borrowed money, (ii) any
obligation of such Person evidenced by a bond, debenture, note or other similar
instrument, (iii) any obligation of such Person, whether or not owed to
Affiliates, to pay the deferred purchase price of property or services, except a
trade account payable that arises in the ordinary course of business but only
if, in the case of any such payable owed to Affiliates, it is payable on
customary trade terms, (iv) any obligation of such Person as lessee under a
capital lease, (v) any Mandatorily Redeemable Securities issued by such Person
owned by any Person other than such Person or a Wholly Owned Subsidiary of such
Person (the amount of such Mandatorily Redeemable Securities to be determined
for this purpose as the higher of the liquidation preference of and the amount
payable upon redemption of such Mandatorily Redeemable Securities), (vi) any
obligation of such Person to purchase securities or other property that arises
out of or in connection with the sale of the same or substantially similar
securities or property, (vii) any contractual obligation, contingent or
otherwise, of such Person to reimburse any other Person in respect of amounts
paid under a letter of credit or performance or other bond issued by such other
Person, (viii) any Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) a Lien on any asset of such Person and (ix) any Indebtedness of others
Guaranteed by such Person; provided, however, that the term "Indebtedness" with
respect to the Borrower shall not include the Borrower's Class B Participating
Redeemable Preferred Stock and with respect to the Borrower and the Consolidated
Subsidiaries shall not include Permitted Management Fees.
"Indemnified Person" means, at any time, any Person that is,
or at such time was, the Administrative Agent, any other Agent, a Bank, an
Affiliate of the Administrative Agent, any
78
other Agent or a Bank or a director, officer, employee or agent of any
such Person.
"Information" means written data, certificates, reports,
statements (excluding financial statements), documents and other written
information.
"Intellectual Property" means (i) (A) patents and patent
rights, (B) trademarks, trademark rights, trade names, trade name rights,
corporate names, business names, trade styles, service marks, logos and general
intangibles of like nature and (C) copyrights, in each case whether registered,
unregistered or under pending registration and, in the case of any such that are
registered or under pending registration, whether registered or under pending
registration under the laws of the United States or any other country, (ii)
reissues, continuations, continuations-in-part and extensions of any
Intellectual Property referred to in clause (i) above and (iii) rights relating
to any Intellectual Property referred to in clause (i) or (ii) above, including
rights under applications (whether pending under the laws of the United States
or any other country) or licenses relating thereto.
"Interest Coverage Ratio" means, as of any date of
determination, the ratio of (i) Cash Flow of the Borrower and the Consolidated
Subsidiaries for the period of four consecutive fiscal quarters of the Borrower
ending on, or most recently ended prior to, such date to (ii) Designated Cash
Interest Expense for such period. For purposes of this definition, "Designated
Cash Interest Expense" shall mean (A) at any time prior to December 31, 1995,
four times the Cash Interest Expense of the Borrower and the Consolidated
Subsidiaries for the most recently completed full fiscal quarter of the
Borrower, (B) at any time from and including December 31, 1995 to but excluding
March 31, 1996, two times the Cash Interest Expense of the Borrower and the
Consolidated Subsidiaries for the two most recently completed full fiscal
quarters of the Borrower, (C) at any time from and including March 31, 1996 to
but excluding June 30, 1996, Cash Interest Expense of the Borrower and the
Consolidated Subsidiaries for the three most recently completed full fiscal
quarters of the Borrower divided by 0.75 and (D) at any time on or after June
30, 1996, Cash Interest Expense of the Borrower and the Consolidated
Subsidiaries for the four consecutive fiscal quarters of the Borrower ending on,
or most recently ended prior to, such date.
"Interest Payment Date" means the last day of March, June,
September and December of each year.
"Interest Period" means a period commencing, in the case of
the first Interest Period applicable to a Eurodollar Rate Loan, on the day of
the making of, or conversion into, such Loan, and, in the case of each
subsequent, successive Interest Period
79
applicable thereto, on the last day of the next preceding Interest Period, and
ending, depending on the Type of Loan, on the same day in the first, second,
third, sixth or, if made available by each of the Banks, ninth or twelfth
calendar month thereafter, except that (i) any Interest Period that would
otherwise end on a day that is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day, unless such Eurodollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Eurodollar Business Day and (ii) any Interest Period
that begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month in
which such Interest Period ends) shall end on the last Eurodollar Business Day
of a calendar month.
"Interest Rate Protection Agreements" means, for any Person,
an interest rate swap, cap or collar agreement or similar arrangement between
such Person and a Bank or other financial institution having combined capital
and surplus of at least $200,000,000 or that has (or that is a subsidiary of a
bank holding company that has) publicly traded unsecured long-term debt
securities given a rating of A- (or the equivalent rating then in effect) or
better by Standard & Poor's Ratings Services, a Division of the McGraw Hill
Companies, Inc., or a rating of A3 (or the equivalent rating then in effect) or
better by Xxxxx'x Investors Service, Inc., providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"Junior Subordinated Indebtedness" means Affiliate
Subordinated Obligations (other than Senior Subordinated Indebtedness and
accrued Management Fees) advanced to the Borrower by Comcast (or any Affiliate
of the Borrower that is or shall have become a party to the Affiliate
Subordination Agreement).
"Lending Office" means, with respect to any Bank, the Domestic
Lending Office or the Eurodollar Lending Office of such Bank.
"Leverage Ratio" means, as of any date of determination, the
ratio of (i) the sum of (A) Consolidated Indebtedness (other than Junior
Subordinated Indebtedness) on such date and (B) Permitted Additional
Non-Facility Indebtedness of Holdco (other than any such Indebtedness the terms
and conditions of which did not and do not require any cash interest payments
thereon at any time within the three-year period immediately following the
incurrence thereof, other than customary charges, not to exceed $2,750,000 in
any year, payable in connection with Permitted Additional Non-Facility
Indebtedness of Holdco) on such date to (ii) Annualized Cash Flow as of such
date.
80
"Liability" means, with respect to any Person, any
indebtedness, liability or obligation of or binding upon such Person or any of
its assets.
"Lien" means, with respect to any property or asset (or any
income or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by Contract, operation of law, legal
process or otherwise), (i) any mortgage, lien, pledge, attachment, levy or other
security interest of any kind thereupon or in respect thereof or (ii) any other
arrangement under which the same is transferred, sequestered or otherwise
identified with the intention of subjecting the same to, or making the same
available for, the payment or performance of any Liability in priority to the
payment of the ordinary, unsecured creditors of such Person. For the purposes of
this Agreement, a Person shall be deemed to own subject to a Lien any asset that
it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Tranche A Loan or a Tranche B Loan.
"Loan Document Related Claim" means any claim (whether civil,
criminal or administrative and whether sounding in tort, contract or otherwise)
arising out of, related to, or connected with, the Loan Documents, whether such
claim arises or is asserted before or after the Agreement Date or before or
after the Repayment Date.
"Loan Document Representation and Warranty" means any
"Representation and Warranty" as defined in any Loan Document and any other
representation or warranty made or deemed made pursuant to the terms of any Loan
Document.
"Loan Documents" means (i) this Agreement, the Notes, the
Pledge Agreement and the Affiliate Subordination Agreement and (ii) all other
agreements, documents and instruments (other than the assumption agreements
referred to in Section 4.09(e)(i) and any promissory notes payable to the
Borrower and executed in connection therewith) arising out of (A) any agreement,
document or instrument referred to in clause (i) above, (B) any other agreement,
document or instrument referred to in this clause (ii) or (C) any of the
transactions pursuant to any agreement, document or instrument referred to in
clause (i) above or in this clause (ii).
"Loan Parties" means the Borrower, Comcast and any Affiliate
of the Borrower from time to time party to the Affiliate Subordination Agreement
(until such time as such Affiliate shall be released therefrom in the manner
provided therein).
81
"Management Agreement" means (a) the Management Agreement
dated as of March 5, 1992 between the Borrower and Comcast and (b) if executed
after the date upon which all of the Comcast Cellular Zeros are redeemed, the
Management Agreement in the form attached hereto as Exhibit C.
"Management Fees" means all fees and other amounts payable
under the Management Agreement, including but not limited to overhead and
administrative costs allocated by Comcast to the Subsidiaries of the Borrower
party thereto but excluding amounts paid in reimbursement of out-of-pocket costs
and expenses incurred on behalf of such Subsidiaries.
"Managing Agents" means The Bank of Nova Scotia, CIBC Inc.,
Chemical Bank, Credit Lyonnais Cayman Island Branch, The Industrial Bank of
Japan, Limited, Xxxxxx Guaranty Trust Company of New York, and NationsBank of
Texas, N.A., as Managing Agents for the Banks under the Loan Documents.
"Mandatorily Redeemable Securities" means, with respect to any
Person, any Capital Securities issued by such Person to the extent that they are
(i) redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other Liability of such
Person, (A) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (B) at the option of any Person other than such Person or (C)
upon the occurrence of a condition not solely within the control of such Person,
such as a redemption required to be made out of future earnings or (ii)
convertible into Mandatorily Redeemable Securities.
"Material Loan Documents" means this Agreement, the Notes, the
Pledge Agreement and the Affiliate Subordination Agreement.
"Materially Adverse Effect" means, (i) with respect to any
Person, any materially adverse effect on such Person's business, assets,
Liabilities, financial condition or results of operations, (ii) with respect to
a group of Persons "taken as a whole," any materially adverse effect on such
Persons' business, assets, Liabilities, financial condition or results of
operations taken as a whole on, where appropriate, a consolidated basis in
accordance with Generally Accepted Accounting Principles, (iii) with respect to
any Loan Document, any material adverse effect on the binding nature, validity
or enforceability thereof as an obligation of any Loan Party that is a party
thereto and (iv) with respect to any Collateral, or any category of Collateral,
pledged by any Loan Party, a materially adverse effect on the validity,
perfection, priority or enforceability of the Security Interest therein.
"Maximum Permissible Rate" means, with respect to
82
interest payable on any amount, the rate of interest on such amount that, if
exceeded, could, under Applicable Law, result in (i) civil or criminal penalties
being imposed on the payee or (ii) the payee's being unable to enforce payment
of (or, if collected, to retain) all or any part of such amount or the interest
payable thereon.
"MSA" means a "Metropolitan Statistical Area" as such term is
defined and modified by the FCC for purposes of licensing Cellular Systems.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any sale or
disposition (including an exchange) of assets, the gross amount of consideration
(other than consideration in the form of Indebtedness and other Liabilities
assumed directly or indirectly by the purchaser of such assets) or other amounts
including condemnation awards and insurance settlements paid to or received by
the Borrower or any Subsidiary in respect of such sale or disposition (including
only the cash component and/or the component constituting Permitted Securities
(valued as provided in the definition thereof), if any, of exchanges of assets),
less the sum of (a) reasonable and customary fees, costs and expenses incurred
in connection with such sale or disposition and payable by or on behalf of the
seller or the transferor of the assets to which such sale or disposition
relates, (b) the amount, reasonably estimated by the Borrower, of taxes payable
to federal, state and local taxing authorities by such seller or transferor in
connection with such sale or disposition and (c) the amount of the Indebtedness
and other liabilities attributable to or associated with such assets (other than
any such Indebtedness or liability owed to the Borrower or any Subsidiary)
required to be paid or repaid or, in the case of any such liability, retained on
a primary obligor basis by the Borrower or any Subsidiary in connection with
such sale or disposition. For purposes hereof, the value of any noncash
consideration received from purchasers of assets shall be the fair market value
thereof, as determined in good faith by the Borrower.
"Non-U.S. Bank" has the meaning set forth in Section 1.15.
"Note" means any Tranche A Note and any Tranche B Note.
"Notice of Assignment" means any notice to the Borrower and
the Administrative Agent with respect to an assignment pursuant to Section
9.10(a) in the form of Schedule 9.10(a).
"PBGC" means the Pension Benefit Guaranty Corporation.
83
"Permitted Additional Facility Indebtedness" means
Indebtedness of the Borrower incurred under this Agreement pursuant to increases
in the Commitments of one or more of the Banks and/or new commitments to lend
hereunder of one or more Banks or other lenders, so long as (a) the aggregate
principal amount of such Indebtedness outstanding at any time shall not exceed
the lesser of (i) $150,000,000 and (ii) $750,000,000 minus the aggregate
principal amount of Permitted Additional Non-Facility Indebtedness outstanding
at such time, and (b) the incurrence of such Indebtedness and the terms and
conditions thereof shall have been consented to by the Required Banks.
"Permitted Additional Indebtedness" means Permitted Additional
Facility Indebtedness and Permitted Additional Non-Facility Indebtedness.
"Permitted Additional Non-Facility Indebtedness" means
Indebtedness of the Borrower and/or Holdco (a) in an aggregate principal amount
outstanding at any time not in excess of $750,000,000 minus the aggregate
principal amount of Permitted Additional Facility Indebtedness outstanding at
such time, provided that, to the extent that any such Indebtedness is incurred
and, after giving effect to such incurrence, the aggregate principal amount of
Permitted Additional Indebtedness outstanding at such time exceeds $550,000,000,
the Tranche B Loans shall have been prepaid and the Total Tranche A Commitment
shall have been reduced, collectively by the amount of such excess, as provided
in Section 1.05(b)(v) and 1.07(c), (b) the terms and conditions of which (i) do
not provide for any scheduled repayments or mandatory prepayments of the
principal thereof prior to the first anniversary of the Termination Date, (ii)
are no more onerous on the Borrower (whether the Borrower is bound by such terms
and conditions directly or such terms and conditions apply to the Borrower as a
Subsidiary of Holdco) than the terms and conditions of this Agreement and (iii)
are reasonably satisfactory to no fewer than four of the Arranging Agents, (c)
with respect to which the Borrower shall have delivered to the Banks, prior to
the incurrence of such Indebtedness, the financial projections referred to in
Section 2.01(a)(xiii), revised to reflect (i) operating performance since the
date of such financial projections and (ii) the incurrence of such Indebtedness
and the application of the proceeds thereof and demonstrating pro forma
compliance with the terms of this Agreement through the Termination Date and (d)
that, in the case of any such Indebtedness of the Borrower, is unsecured, not
senior in right of payment to the Loans and not entitled to the benefit of any
Guaranty.
"Permitted Guaranty" means (i) any Guaranty to which Section
4.09 is by its express terms inapplicable by virtue of clauses (e) or (g)
thereof and (ii) any Guaranty of obligations of the Borrower or any Subsidiary
so long as such obligations do not constitute Indebtedness and have been
incurred in the
84
ordinary course of business.
"Permitted Lien" means (i) the Security Interest; (ii) any
Lien securing the obligations of the obligor in respect of Indebtedness to which
Section 4.09 is by its express terms inapplicable by virtue of clause (g)
thereof; (iii) any right of set-off arising under law and not under Contract,
any Lien securing a tax, assessment or other governmental charge or levy or the
claim of a materialman, mechanic, carrier, warehouseman or landlord for labor,
materials, supplies or rentals incurred in the ordinary course of business, but
only if payment thereof shall not at the time be required to be made in
accordance with Section 4.01(d) and foreclosure, distraint, sale or other
similar proceedings shall not have been commenced and remained unstayed or
undismissed for more than 30 days; (iv) any Lien on the properties and assets of
a Subsidiary securing an obligation owing to the Borrower or a Wholly Owned
Subsidiary; (v) any Lien consisting of a deposit or pledge made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation; (vi)
any Lien (other than a Lien on the Collateral) arising pursuant to an order of
attachment, distraint or similar legal process arising in connection with legal
proceedings, but only if and so long as, in the case of any such Lien arising in
connection with a judgment, no Event of Default set forth in Section 6.01(g)
shall exist and, in each other case, the execution or other enforcement thereof
is not unstayed for more than 20 days; (vii) any Lien existing on (A) any
property or asset of any Person at the time such Person becomes a Subsidiary or
(B) any property or asset at the time such property or asset is acquired by the
Borrower or a Subsidiary, but only, in the case of either (A) or (B), if and so
long as (w) such Lien was not created in contemplation of such Person becoming a
Subsidiary or such property or asset being acquired, (x) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Subsidiary or such property or asset is acquired and to fixed
improvements thereafter erected on such property or asset, (y) such Lien secures
only the obligation secured thereby at the time such Person becomes a Subsidiary
or such property or asset is acquired and (z) the obligation secured by such
Lien is not in default; (viii) any Lien in existence on the Agreement Date to
the extent set forth on Schedule 4.05, but only, in the case of each such Lien,
to the extent it secures an obligation outstanding on the Agreement Date to the
extent set forth on such Schedule; or (ix) any Lien constituting a renewal,
extension or replacement of a Lien constituting a Permitted Lien by virtue of
clause (vii), (viii) or (ix) above, but only if (A) at the time such Lien is
granted and after giving effect thereto, no Default would exist, (B) such Lien
is limited to all or a part of the property or asset that was subject to the
Lien so renewed, extended or replaced and to fixed improvements thereafter
erected on such property or asset, (C) the principal amount of the obligations
secured by such Lien does not exceed the principal
85
amount of the obligations secured by the Lien so renewed, extended or replaced
and (D) the obligations secured by such Lien bear interest at a rate per annum
not exceeding the rate borne by the obligations secured by the Lien so renewed,
extended or replaced except for any increase that is commercially reasonable at
the time of such increase.
"Permitted Management Fees" has the meaning ascribed to such
term in Section 4.11(b).
"Permitted Restrictive Covenant" means (i) any covenant or
restriction contained in any Loan Document or, so long as any such covenants or
restrictions are no more restrictive than those contained in the Loan Documents,
any document governing the terms of Permitted Additional Non-Facility
Indebtedness, (ii) any covenant or restriction binding upon any Person at the
time such Person becomes a Subsidiary of the Borrower if the same is not created
in contemplation thereof, (iii) any covenant or restriction described in
Schedule 4.12, but only to the extent such covenant or restriction is there
identified by specific reference to the provision of the Contract in which such
covenant or restriction is contained or (iv) any covenant or restriction that
(A) is not more burdensome than an existing Permitted Restrictive Covenant that
is such by virtue of clause (ii), (iii) or (iv) above, (B) is contained in a
Contract constituting a renewal, extension or replacement of the Contract in
which such existing Permitted Restrictive Covenant is contained and (C) is
binding only on the Person or Persons bound by such existing Permitted
Restrictive Covenant.
"Permitted Securities" means any equity security listed on a
national securities exchange (including, for this purpose, the automated
quotation system of the National Association of Securities Dealers, Inc.), the
fair market value (determined, for any such Permitted Security, as of the day on
which such Permitted Security is received by the Borrower or any Subsidiary in
connection with an exchange contemplated by Section 4.08(g)(ii)) of which shall
not exceed $15,000,000 in the aggregate for all such Permitted Securities
received by the Borrower and the Subsidiaries after the Agreement Date in
connection with any disposition (including an exchange) of assets of the
Borrower or any Subsidiary.
"Permitted Successor" means any entity that will, immediately
after giving effect to any assignment contemplated by Section 9.10(a)(i), own
all of the direct or indirect interests in Cellular Systems that were owned by
the Borrower immediately prior to such assignment.
"Person" means any individual, sole proprietorship,
corporation, partnership, trust, unincorporated organization, mutual company,
joint stock company, estate, union, employee organization, government or any
agency or political subdivision
86
thereof or, for the purpose of the definition of "ERISA Affiliate," any trade or
business.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, between the Borrower and the Secured Party and any successor pledge
agreement entered into pursuant to and in accordance with Section 9.10(a)(i).
"Pledged Securities" has the meaning ascribed to such term in
the Pledge Agreement.
"Pledgor" has the meaning ascribed to such term in the Pledge
Agreement.
"Pops" means, with respect to any Cellular System, the
aggregate number of individuals resident in the MSA or RSA (as the case may be)
in which such Cellular System is licensed to operate, as reflected in the
population estimates most recently published by the Pops Information Service.
"Pops Information Service" means (a) any of Xxxxxxxx Marketing
Service, Rand XxXxxxx or the United States Census Bureau as shall be selected by
the Borrower as the source for the population information in the first quarterly
or annual report required to be delivered by the Borrower under Section 5.01(f)
and (b) if such Person as shall have been selected by the Borrower shall cease
to publish such estimates, either of the other two Persons referred to in clause
(a) above.
"Post-Default Rate" means the rate otherwise applicable under
Section 1.03(a) plus 2% or, if there is no such rate, the Base Rate plus the
Applicable Margin plus 2%.
"Predecessor Indebtedness" means Indebtedness set forth on
Schedule 10.01.
"Prime Rate" means the rate of interest adopted by The
Toronto-Dominion Bank in New York, New York from time to time as its reference
rate for the determination of interest rates on loans of varying maturities in
Dollars to United States residents of varying degrees of creditworthiness and
being quoted at such time by The Toronto-Dominion Bank as its "prime rate",
which rate is not necessarily the lowest rate of interest of The
Toronto-Dominion Bank.
"Pro Forma Debt Service" means, as of any date of
determination, the sum of (i) all Required Repayments, all scheduled payments of
principal of the Loans and all other payments of principal of Indebtedness
(other than Junior Subordinated Indebtedness) of the Borrower and the
Consolidated Subsidiaries (including all payments in respect of capitalized
leases) scheduled to be made, during the period commencing with the day next
succeeding such date and ending on the date
87
corresponding to such date of determination in the following calendar year and
(ii) Cash Interest Expense of the Borrower and the Consolidated Subsidiaries for
such period; provided, however, that Cash Interest Expense shall be calculated,
for purposes of this definition, (1) on the basis of (A) in the case of
Eurodollar Rate Loans, the interest rate or rates then in effect with respect to
such Eurodollar Rate Loans, (B) in the case of Base Rate Loans, the average
interest rate applicable to such Loans during the period of 90 days preceding
the date of determination and (C) in the case of all Indebtedness of the
Borrower (other than the Loans) or Holdco bearing interest at a floating rate,
the interest rate or rates then in effect with respect to such Indebtedness and
(2) on the assumption that the entire amount of cash interest required to be
paid on Permitted Additional Non-Facility Indebtedness of Holdco during such
period will be funded by Restricted Payments contemplated by Section 4.06(d).
"Pro Forma Debt Service Ratio" means, as of any date of
determination, the ratio of (i) Annualized Cash Flow as of such date to (ii) Pro
Forma Debt Service as of such date.
"Prohibited Transaction" means any transaction that is
prohibited under Section 4975 of the Code or Section 406 of ERISA and not exempt
under Section 4975 of the Code or Section 408 of ERISA.
"Reference Banks" means each of the Arranging Agents and any
replacement Reference Bank appointed pursuant to Section 9.18.
"Register" has the meaning set forth in Section 1.15.
"Registered Note" has the meaning set forth in Section 1.15.
"Registered Noteholder" has the meaning set forth in Section
1.15.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or any
change therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the Agreement Date (including any Applicable Law that shall have become
such as the result of any act or omission of the Borrower or any of its
Affiliates, without regard to when such Applicable Law shall have been enacted
or implemented), whether the same is (i) the result of an enactment by a
government or any agency or political subdivision thereof, a determination of a
88
court or regulatory authority or otherwise or (ii) enacted, adopted, issued or
proposed before or after the Agreement Date, including any such that imposes,
increases or modifies any Tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement, but excluding
any such that imposes, increases or modifies any Bank Tax.
"Repayment Date" means the later of (i) the termination of the
Total Commitment (whether as a result of the occurrence of the Commitment
Termination Date, the reduction to zero pursuant to Section 1.07 or termination
pursuant to Section 6.02) and (ii) the payment in full of the Loans and all
other amounts payable or accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of
any Person, (i) the occurrence of any of the events set forth in ERISA Section
4043(c), other than an event as to which the requirement of 30 days' notice, or
the penalty for failure to provide such notice, has been waived by the PBGC,
(ii) the existence of conditions sufficient to require advance notice to the
PBGC pursuant to ERISA Section 4043(b), (iii) the occurrence of any of the
events set forth in ERISA Sections 4062(e) or 4063(a) or the regulations
thereunder, (iv) any event requiring such Person or any of its ERISA Affiliates
to provide security to such Benefit Plan under Section 401(a)(29) of the Code or
(v) any failure to make a payment required by Section 412(m) of the Code with
respect to such Benefit Plan.
"Representation and Warranty" means any written representation
or warranty made pursuant to or under (i) Section 2.02, Article 3, Section 5.02
or any other provision of this Agreement or (ii) any amendment to, or waiver of
rights under, this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION
OR WARRANTY REFERRED TO IN CLAUSE (i) OR (ii) ABOVE (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Agents" means Arranging Agents and Managing Agents
comprising a majority of the total number of Arranging Agents and Managing
Agents.
"Required Banks" means, at any time, Banks having at least 51%
of the sum of (i) the Loans outstanding and (ii) without duplication, the
Commitments then in effect.
"Required Repayments" means, for any period, the excess, if
any, of (i) the outstanding amount of Tranche A Loans and Senior Subordinated
Indebtedness at the beginning of such period over (ii) the Total Tranche A
Commitment at the end of such period.
89
"Reserve Requirement" means, at any time, the then current
maximum rate for which reserves (including any marginal, supplemental or
emergency reserve) are required to be maintained under Regulation D by member
banks of the Federal Reserve System in New York City with deposits exceeding
five billion Dollars against "Eurocurrency liabilities," as such term is used in
Regulation D. The Adjusted Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in the applicable Reserve
Requirement.
"Responsible Officer" means, with respect to any Loan Party,
the chairman, vice chairman, president, any senior vice president or the chief
financial officer of such Loan Party.
"Restricted Payment" means (i) (A) any dividend or other
distribution on account of any Capital Securities issued by the Borrower or any
Subsidiary (other than dividends payable solely in such Capital Securities other
than Mandatorily Redeemable Securities and other than dividends and other
distributions payable to the Borrower or any Subsidiary), (B) any payment on
account of the principal of or premium, if any, on any Indebtedness convertible
into Capital Securities issued by the Borrower or any Subsidiary (other than any
such payment to the Borrower or any Subsidiary) or (C) any payment on account of
any purchase, redemption, retirement, exchange or conversion of any Capital
Securities issued by the Borrower or any Subsidiary (other than any such payment
to the Borrower or any Subsidiary) and (ii) payments of interest on, or payments
or prepayments of principal of, or the setting apart of money for a sinking or
other analogous fund for, the purchase, redemption, retirement or other
acquisition of, any principal of or interest on Junior Subordinated
Indebtedness. For the purposes of this definition, a "payment" or "prepayment"
shall include the transfer of any asset or the issuance of any Indebtedness or
other obligation (the amount of any such payment to be the fair market value of
such asset or the amount of such obligation, respectively) but shall not include
the issuance of any Capital Securities other than Mandatorily Redeemable
Securities.
"RSA" means a "Rural Service Area" as such term is defined and
modified by the FCC for purposes of licensing Cellular Systems.
"Secured Party" has the meaning ascribed to such term in the
Pledge Agreement.
"Security Interest" means the Liens created, or purported to
be created, by the Loan Documents.
"Senior Subordinated Indebtedness" means Affiliate
Subordinated Obligations advanced to the Borrower by Comcast (or any Affiliate
of the Borrower that is or shall have become a party to the Affiliate
Subordination Agreement), bearing interest
90
at a rate per annum, for any fiscal quarter of the Borrower, not in excess of
the rate that is 1/2% below the weighted average interest rate applicable to the
Tranche A Loans hereunder during such fiscal quarter and in an aggregate
principal amount not in excess of the lesser of the Maximum Senior Subordinated
Indebtedness Amount and the unused portion, if any, of the Total Tranche A
Commitment at such time. As used herein, "Maximum Senior Subordinated
Indebtedness Amount" means, at any time prior to December 31, 1998, $200,000,000
and, at any time thereafter, an amount equal to the product of $200,000,000 and
a fraction, the numerator of which is equal to the Total Tranche A Commitment
that was in effect on the most recent December 31 (after giving effect to any
reductions to the Total Tranche A Commitment to be made on such December 31) and
the denominator of which is $1,000,000,000. Obligations treated as Junior
Subordinated Indebtedness by the lender and borrower thereof shall not be deemed
Senior Subordinated Indebtedness irrespective of the interest rate or other
terms applicable thereto.
"Subscribers" has the meaning ascribed to such term in Section
5.01(f).
"Subsidiary" means, with respect to any Person, any other
Person (i) Capital Securities of which having ordinary voting power to elect a
majority of the board of directors (or other persons having similar functions)
of such Person or (ii) other ownership interests, including partnership
interests, of which ordinarily constituting a majority voting interest are at
the time, directly or indirectly, owned or controlled by such first Person, or
by one or more of its Subsidiaries, or by such first Person and one or more of
its Subsidiaries; unless otherwise specified, "Subsidiary" means a Subsidiary of
the Borrower and excludes the Excluded Subsidiaries.
"Tax" means any Federal, State or foreign tax, assessment or
other governmental charge or levy (including any withholding tax) upon a Person
or upon its assets, revenues, income or profits.
"Tax Sharing Agreement" means (a) the Tax Sharing Agreement,
dated as of March 5, 1992 among the Borrower, Comcast Cellular Corporation and
Comcast and (b) if executed after the date upon which all of the Comcast
Cellular Zeros are redeemed, the Tax Sharing Agreement in the form attached
hereto as Exhibit D.
"Termination Date" means September 30, 2004.
"Termination Event" means, with respect to any Benefit Plan,
(i) any Reportable Event with respect to such Benefit Plan, (ii) the termination
of such Benefit Plan, or the filing of a notice of intent to terminate such
Benefit Plan, or the treatment of any amendment to such Benefit Plan as a
termination under
91
Section 4041(c) of ERISA, (iii) the institution of proceedings to terminate such
Benefit Plan under Section 4042 of ERISA or (iv) the appointment of a trustee to
administer such Benefit Plan under Section 4042 of ERISA.
"Total Commitment" means the aggregate amount of the Total
Tranche A Commitment, as the same may be reduced from time to time pursuant to
Section 1.07, and Total Tranche B Commitment.
"Total Revenue" has the meaning ascribed to such term in
Section 4.11(b).
"Total Tranche A Commitment" means the aggregate amount of the
Tranche A Commitments, as the same may be reduced from time to time pursuant to
Section 1.07.
"Total Tranche B Commitment" means the aggregate amount of the
Tranche B Commitments.
"Tranche A Commitment" means, with respect to any Bank, (i)
the amount set forth opposite such Bank's name under the heading "Tranche A
Commitment" on Annex A or, in the case of a Bank that becomes a Bank pursuant to
an assignment, the amount of the assignor's Tranche A Commitment assigned to
such Bank, in either case as the same may be reduced from time to time pursuant
to Section 1.07 or increased or reduced from time to time pursuant to
assignments in accordance with Section 9.10(a) or (ii) as the context may
require, the obligation of such Bank to make Tranche A Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Tranche A Commitment Termination Date" means September 30,
2003.
"Tranche A Loan" means any amount advanced by a Bank with
respect to its Tranche A Commitment pursuant to Section 1.01(a).
" Tranche A Note" means any promissory note in the form of
Exhibit A-1.
"Tranche A Share" means, at any time, a fraction, the
numerator of which is the Total Tranche A Commitment at such time and the
denominator of which is the sum of the Total Tranche A Commitment at such time
and the aggregate principal amount of Tranche B Loans outstanding at such time.
"Tranche B Commitment" means, with respect to any Bank, (i)
the amount set forth opposite such Bank's name under the heading "Tranche B
Commitment" on Annex A or (ii) as the context may require, the obligation of
such Bank to make a Tranche B Loan in a principal amount not exceeding such
amount.
92
"Tranche B Loan" means any amount advanced by a Bank with
respect to its Tranche B Commitment pursuant to Section 1.01(a).
" Tranche B Note" means any promissory note in the form of
Exhibit A-2.
"Tranche B Share" means, at any time, a fraction, the
numerator of which is the aggregate principal amount of Tranche B Loans
outstanding at such time and the denominator of which is the sum of such
aggregate outstanding principal amount and the Total Tranche A Commitment at
such time.
"Type" means, with respect to Loans, any of the following,
each of which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate Loans
having a two-month Interest Period, Eurodollar Rate Loans having a three-month
Interest Period, Eurodollar Rate Loans having a six-month Interest Period and,
if made available by each of the Banks, Eurodollar Rate Loans having a
nine-month Interest Period and Eurodollar Rate Loans having a twelve-month
Interest Period. Any Eurodollar Rate Loan having an Interest Period with a
duration that differs from the duration specified for a Type of Eurodollar Rate
Loan listed above solely as a result of the operation of clauses (i) and (ii) of
the definition of "Interest Period" shall be deemed to be a Loan of such Type
notwithstanding such difference in duration of Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to any
Benefit Plan at any time, the amount of unfunded benefit liabilities of such
Benefit Plan at such time as determined under Section 4001 (a) (18) of ERISA.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect from time to time in the State of New York.
"United States person" has the meaning ascribed to such term
in Section 1.12(a).
"U.S. Person" means a citizen or resident of the United States
of America, a corporation, partnership or other entity created or organized in
or under any laws of the United States of America, or any estate or trust that
is subject to Federal income taxation regardless of the source of its income.
"U.S. Taxes" means any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof.
"Wholly Owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person all of the Capital Securities and all other
ownership interests and rights to
93
acquire ownership interests of which (except directors' qualifying shares) are,
directly or indirectly, owned or controlled by such Person or one or more Wholly
Owned Subsidiaries of such Person or by such Person and one or more of such
Subsidiaries; unless otherwise specified, "Wholly Owned Subsidiary" means a
Wholly Owned Subsidiary of the Borrower.
(b) Other Definitional Provisions. (i) Except as otherwise
specified herein, all references herein (A) to any Person shall be deemed to
include such Person's successors and assigns, (B) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (C) to any Loan Document or Contract defined
or referred to herein shall be deemed references to such Loan Document or
Contract (and, in the case of any Note or any other instrument, any instrument
issued in substitution therefor) as the terms thereof may have been or may be
amended, supplemented, waived or otherwise modified from time to time.
(ii) When used in this Agreement, the words "herein," "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article,"
"Section," "Annex," "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(iii) Whenever the context so requires, the singular number
includes the plural and vice versa.
(iv) Any item or list of items set forth following the word
"including," "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included," such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(v) Each authorization in favor of the Administrative Agent,
the Banks, the Borrower or any other Person granted by or pursuant to this
Agreement shall be deemed to be irrevocable and coupled with an interest.
(vi) Except as otherwise specified herein, all references
herein to the Administrative Agent, any Bank or any Loan Party shall be deemed
to refer to such Person however designated in the Loan Documents, so that (A) a
reference to rights or duties of the Administrative Agent under the Loan
Documents shall be deemed to include the rights or duties of such Person as the
Secured Party under the Pledge Agreement and as a
94
party under the Affiliate Subordination Agreement, (B) a reference to costs
incurred by a Bank in connection with the Loan Documents shall be deemed to
include costs incurred by such Person as a beneficiary of the Security Interest
under the Pledge Agreement and as a beneficiary of the terms of the Affiliate
Subordination Agreement and (C) a reference to the obligations of the Loan
Parties (other than the Borrower) under the Loan Documents shall be deemed to
include the obligations of such Persons as parties under the Affiliate
Subordination Agreement and, in the case of the Borrower, as Pledgor under the
Pledge Agreement.
(vii) Except as otherwise specified therein, all terms
defined in this Agreement shall have the meanings herein ascribed to them when
used in the Notes or any certificate, opinion or other document delivered
pursuant hereto or thereto.
Section 10.02. Accounting Matters. Unless otherwise specified
herein, all accounting determinations hereunder and all computations utilized by
the Borrower in complying with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
Generally Accepted Accounting Principles, except for such departures from
Generally Accepted Accounting Principles so long as (a) the Borrower shall have
delivered to the Administrative Agent, with sufficient copies for each of the
Banks, not later than the first time that such financial statements or
computations are prepared or made on the basis of such departures, a notice
setting forth in reasonable detail the nature and substance of such departures
and the application thereof to such financial statements or computations and (b)
the Required Banks shall not have notified the Borrower within 60 days of the
receipt of the Borrower's notice that such financial statements or computations
may not be prepared or made in accordance with or on the basis of such
departures.
Section 10.03. Representations and Warranties. Except to the
extent that any Representation or Warranty is expressly stated to be made only
at or as of a specified time or times, all Representations and Warranties shall
be deemed made (a) in the case of any Representation and Warranty contained in
this Agreement at the time of its initial execution and delivery, at and as of
the Agreement Date, (b) in the case of any Representation and Warranty contained
in this Agreement or any other document at the time any Loan is made, at and as
of such time and (c) in the case of any particular Representation and Warranty,
wherever contained, at such other time or times as such Representation and
Warranty is made or deemed made in accordance with the provisions of this
Agreement or the document pursuant to, under or in connection with which such
Representation and Warranty is made or deemed made.
95
Section 10.04. Captions. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.
96
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
COMCAST CELLULAR COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Arranging
Agent and a Bank
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
BARCLAYS BANK PLC, as Arranging Agent
and a Bank
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
THE CHASE MANHATTAN BANK, N.A., as
Arranging Agent and a Bank
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Arranging Agent and a Bank
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE TORONTO-DOMINION BANK, as Arranging
Agent and a Bank
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Mgr. Syndications & Credit
Admin.
Managing Agents
THE BANK OF NOVA SCOTIA, as Managing
Agent and a Bank
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
CIBC, INC.,
as Managing Agent and a Bank
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHEMICAL BANK, as Managing Agent
and a Bank
By: /s/ Xxxx X. Xxxxx III
---------------------------------
Name: Xxxx X. Xxxxx III
Title: Managing Director
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as Managing Agent and a Bank
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signature
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
Managing Agent and a Bank
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Managing Agent and a Bank
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
NATIONSBANK OF TEXAS, N.A., as Managing
Agent and a Bank
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Agreement Date: September 14, 1995
