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FORM 10-K
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED
DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ___________ TO ____________
Commission file number 333-31009
COMCAST CELLULAR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 23-2687447
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1105 North Market Street, Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (302) 427-8991
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NONE
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SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
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Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No ____
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendments to
this Form 10-K.
[Not applicable]
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As of January 30, 1998, there were 100 shares of Common Stock outstanding.
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The Registrant meets the conditions set forth in General Instructions I(1)(a)
and (b) of Form 10-K and is therefore filing this form with the reduced
disclosure format.
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DOCUMENTS INCORPORATED BY REFERENCE
NONE
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<PAGE>
COMCAST CELLULAR CORPORATION
1997 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I
Item 1 Business.............................................................1
Item 2 Properties...........................................................6
Item 3 Legal Proceedings....................................................7
Item 4 Submission of Matters to a Vote of Security Holders..................7
PART II
Item 5 Market for the Registrant's Common Equity and
Related Stockholder Matters......................................7
Item 6 Selected Financial Data..............................................7
Item 7 Management's Discussion and Analysis of
Financial Condition and Results of Operations....................8
Item 8 Financial Statements and Supplementary Data.........................11
Item 9 Changes in and Disagreements with
Accountants on Accounting and Financial Disclosure..............25
PART III
Item 10 Directors and Executive Officers of the Registrant..................25
Item 11 Executive Compensation..............................................25
Item 12 Security Ownership of Certain Beneficial
Owners and Management...........................................25
Item 13 Certain Relationships and Related Transactions......................25
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports
on Form 8-K.....................................................26
SIGNATURES....................................................................27
This Annual Report on Form 10-K for the year ended December 31, 1997, at the
time of filing with the Securities and Exchange Commission, modifies and
supersedes all prior documents filed pursuant to Sections 13, 14 and 15(d) of
the Securities Exchange Act of 1934 for purposes of any offers or sales of any
securities after the date of such filing pursuant to any Registration Statement
or Prospectus filed pursuant to the Securities Act of 1933 which incorporates by
reference this Annual Report.
This Annual Report on Form 10-K contains forward looking statements made
pursuant to the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. Readers are cautioned that such forward looking statements
involve risks and uncertainties which could significantly affect expected
results in the future from those expressed in any such forward looking
statements made by, or on behalf of the Company. Certain factors that could
cause actual results to differ materially include, without limitation, the
effects of legislative and regulatory changes; the potential for increased
competition; technological changes; the need to generate substantial growth in
the subscriber base by successfully launching, marketing and providing services
in identified markets; pricing pressures which could affect demand for the
Company's services; the Company's ability to expand its distribution; changes in
labor, equipment and capital costs; future acquisitions, strategic partnerships
and divestitures; general business and economic conditions; and other risks
detailed from time to time in the Company's periodic reports filed with the
Securities and Exchange Commission.
<PAGE>
PART I
ITEM 1 BUSINESS
Comcast Cellular Corporation ("the Company")(see Note 1 to the Company's
consolidated financial statements) is a direct wholly owned subsidiary of
Comcast Corporation ("Comcast") and is a holding company that conducts all of
its operations through its wholly owned subsidiary, Comcast Cellular
Communications, Inc. ("CCCI") and CCCI's subsidiaries.
The Company provides cellular telephone communications services pursuant to
licenses granted by the Federal Communications Commission ("FCC") in markets
with a population ("Pops") of more than 8.2 million, including the area in and
around the City of Philadelphia, Pennsylvania, the State of Delaware and a
significant portion of the State of New Jersey.
The Company is a Delaware corporation organized in 1992 and has its principal
executive offices at 1105 North Market Street, Wilmington, Delaware, 19801,
(302) 427-8991.
GENERAL DEVELOPMENTS OF BUSINESS
Senior Notes Offering
In May 1997, the Company sold $1.0 billion principal amount of senior debt with
an interest rate of 9 1/2% and a maturity date of 2007. The Company used the net
proceeds from the offering to redeem its senior participating redeemable zero
coupon notes and to repay certain subsidiary indebtedness (see Note 4 to the
Company's consolidated financial statements in Item 8).
DESCRIPTION OF THE COMPANY'S BUSINESS
Company's Systems
The Company is engaged in the development, management and operation of cellular
telephone communications systems in various service areas pursuant to licenses
granted by the FCC.
The table below sets forth summary information regarding the ownership and total
Pops, in the markets served by the Company's systems by service area, as of
December 31, 1997 (in thousands):
Market Ownership Pops (1)
Consolidated Systems
Philadelphia, PA 100.0% 4,898.5
New Brunswick, NJ 100.0% 709.7
Wilmington, DE 100.0% 622.2
Long Branch, NJ 100.0% 600.3
Ocean County, NJ 100.0% 484.9
Atlantic City, NJ 97.4% 336.6
Trenton, NJ 85.7% 331.3
Vineland, NJ 94.6% 134.1
Aurora-Elgin, IL 81.7% 49.1
Joliet, IL 84.0% 36.0
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Consolidated Pops 8,202.7
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Managed System
Delaware 1 RSA 50.0% 261.4
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Total Pops 8,464.1
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(1) Source: 1998 Rand McNally Commercial Atlas & Marketing Guide.
<PAGE>
The following table sets forth the aggregate number of subscribers and
penetration in the Company's consolidated systems as of December 31 (subscribers
in thousands):
1997 1996 1995 1994 1993
Subscribers..............................783 762 665 501 323
Penetration..............................9.5% 9.3% 8.5% 6.8% 4.4%
The Company holds twelve 10-MHz personal communications services ("PCS")
licenses which cover the Philadelphia and Allentown, PA markets. Such licenses
were acquired in November 1997 from Comcast at Comcast's historical cost of
$18.9 million.
Revenue Sources
The Company provides services to its cellular telephone subscribers similar to
those provided by conventional landline telephone systems, including custom
calling features such as call forwarding, call waiting, conference calling,
directory assistance and voice mail. The Company is responsible for the quality,
pricing and packaging of cellular telephone service for each of the systems it
owns or controls. The Company charges its customers for service activation,
monthly access, per-minute airtime and custom calling features, and generally
offers a variety of pricing options, most of which combine a fixed monthly
access fee and per-minute charges. The Company pays the local telephone service
company directly for interconnection of cellular networks with the wireline
telephone network.
The Company offers products and services to increase the value to the customer
of the basic telephony service and to increase airtime revenues. Such products
include paging services, enhanced directory assistance and concierge services,
voice activated dialing, enhanced voice mail and prepaid calling. The deployment
of digital technology (see "Technology and Capital Improvements") has allowed
the Company to offer additional services such as caller identification, short
messaging, message waiting indicators and enhanced call privacy through
encryption. In addition, the Company offers data transmission over its existing
cellular network, which allows the rapid transfer of data to and from personal
computers, personal digital assistants and other devices.
The Company currently markets its services under the Comcast MetrophoneSM brand
name in the Philadelphia, PA metropolitan statistical area ("MSA") and under the
Comcast CELLULARONE(R) brand name in its other markets in New Jersey and
Delaware. The Company markets its products and services through multiple
distribution channels throughout its contiguous markets. These channels include
direct channels, such as its direct sales force, retail stores and
telemarketing, and indirect channels, such as national and local retailers and
automotive dealers. The Company's long-term emphasis is on the development of
its direct distribution channels, particularly its own retail outlets and
telemarketing, as a means to reduce the cost to acquire subscribers and improve
the quality of new subscribers. The Company operates 54 retail outlets in its
markets and anticipates building additional retail outlets, as well as upgrading
its existing retail outlets in the future.
The Company sells cellular telephone equipment to its customers in order to
encourage use of its services. The Company's practice, as is typical in the
industry, is to sell telephones at or below cost in response to competitive
pressures.
Technology and Capital Improvements
Each of the Company's service areas is divided into segments referred to as
"cells" equipped with a receiver, signaling equipment and a low-power
transmitter. The use of low-power transmitters and the placement of cells close
to one another permits re-use of frequencies, thus substantially increasing the
volume of calls capable of being handled simultaneously over the number handled
by prior generation systems. Each cell has a coverage area generally ranging
from one to more than 300 square miles. A cellular telephone system includes one
or more computerized central switching facilities known as mobile switching
centers ("MSC") which control the automatic transfer of calls, coordinate calls
to and from cellular telephones and connect calls to the local exchange carrier
("LEC") or to an interexchange carrier. An MSC also records information on
system usage and subscriber statistics.
Each cell's facilities monitor the strength of the signal returned from the
subscriber's cellular telephone. When the signal strength declines to a
predetermined level and the transmission strength is greater at another cell in
or interconnected with the system, the MSC automatically and instantaneously
passes the mobile user's call in progress to the other cell without
disconnecting the call ("hand off"). Interconnection agreements between cellular
telephone system operators and
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<PAGE>
various LECs and interexchange carriers establish the manner in which the
cellular telephone system integrates with other telecommunications systems.
As required by the FCC, all cellular telephones are designed so that a cellular
telephone may be used wherever cellular service is available within the United
States ("US"). Each cellular telephone system in the US uses one of two groups
of channels, termed "Block A" and "Block B," which the FCC has allotted for
cellular service. Minor adjustments to cellular telephones may be required to
enable the subscriber to change from a cellular system on one frequency block to
a cellular system on the other frequency block.
While most MSCs process information digitally, most radio transmission of
cellular telephone calls historically has been done on an analog basis. Digital
transmission of cellular telephone calls offers advantages, including larger
system capacity and the potential for lower incremental costs for additional
subscribers. The FCC allows carriers to provide digital service and requires
cellular carriers to provide analog service.
The Company's significant investment in switching and cell site equipment
manufactured by Lucent Technologies, Inc. enabled it to deploy Time Division
Multiple Access ("TDMA") digital cellular technology throughout its
Pennsylvania/New Jersey and Delaware network. This technology was implemented at
the beginning of the fourth quarter of 1997. The deployment of this technology
permits the Company's subscribers and roamers to use both analog and TDMA
services throughout the Company's coverage area. The Company believes that it
will have sufficient capacity to accommodate both continued subscriber growth
and growth in subscriber minutes for the foreseeable future.
Roaming and Interconnection
Reciprocal agreements among cellular telephone system operators allow their
respective subscribers ("roamers") to place and receive calls in most service
areas throughout the country. Roamers are charged rates which are generally at a
premium to the regular service rate. The Company also offers various service
plans which allow customers who roam out of the Company's service area to pay
the same rates charged for local service in the Company's service area, rather
than passing through higher roaming rates customarily charged by many cellular
carriers. This billing practice provides the customer, in effect, with a broader
local service area but results in increased costs for the Company. The Company
has been reducing these costs through the continued negotiation of more
favorable roaming agreements with cellular service providers in relevant
markets.
In recent years, cellular carriers have experienced increased fraud associated
with roamer service, including Electronic Serial Number ("ESN") cloning. The
Company and other carriers have implemented a number of features which have
decreased the incidents of fraudulent use of their systems. Among these are
Personal Identification Numbers ("PINs") and the Company's Security Zone feature
which restricts certain customer usage outside of the Company's service areas.
In addition, the Company has implemented authentication and radiofrequency
("RF") fingerprinting technologies which associate ESN/mobile number
combinations with particular cellular telephone units. While the use of digital
radio technology is expected to make it more difficult to commit cellular fraud,
fraudulent use of the Company's systems remains a significant concern.
Customer Service
In 1997 and 1996, the Company consolidated its New Jersey and Delaware
operations, respectively, including customer care operations, into the
operations of the Philadelphia market. The Company's sales and marketing
presence (including through the Company's direct sales group and retail stores)
and customer and dealer support are maintained throughout the systems. In
addition to overall reductions in operating costs and increases in operational
efficiencies, such consolidation permits an increased emphasis by the Company
upon more uniform, efficient and cost effective delivery of customer service and
support.
The Company utilizes the MacroCell(R) billing and customer care platform
developed and licensed by Cincinnati Bell Information Systems, Inc. ("CBIS").
Customer service representatives are able to access current billing information
in order to respond to customer inquiries. To supplement the Company's customer
service operations, Company telemarketers contact customers periodically to
determine their satisfaction with the Company's service and to identify problems
that can lead to subscriber cancellations.
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<PAGE>
Licensing
The FCC generally grants two licenses to operate cellular telephone systems in
each market. The other cellular licensee in the Company's principal markets is
Bell Atlantic Mobile Systems, Inc. ("BAMS"). In addition to BAMS, the Company
competes for wireless customers with affiliates of AT&T Corporation, the Sprint
Corporation ("Sprint") and Omnipoint Communications, Inc. ("Omnipoint") (which
operate PCS networks) and Nextel Communications, Inc. ("Nextel") (which operates
Specialized Mobile Radio ("SMR") networks).
Competition
In recent years, new mobile telecommunications service providers have entered
the market and have created additional competition in the cellular/PCS
telecommunications industry. Many of such providers have access to substantial
capital resources and operate, or through affiliates operate, wireless telephone
systems, bringing significant wireless experience to the new marketplace.
Accordingly, while there are only two cellular providers licensed in a given
area, new competitors continue to emerge utilizing different frequencies and new
technologies. Competition between wireless operators in each market is
principally on the basis of services and enhancements offered, technical quality
of the system, quality and responsiveness of customer service, price and
coverage area.
The most prominent new providers are the PCS operators. PCS is used to describe
a variety of digital, wireless communications systems which are currently best
suited for use in densely populated areas. Broadband PCS service is a direct
competitor to cellular service. In the Company's Philadelphia market, AT&T
Wireless Services, Inc., Omnipoint and PhillieCo, L.P., an affiliate of Sprint
Spectrum Holdings Company, L.P., have authorizations for broadband PCS systems.
The FCC recently modified the rules applicable to "C Block" broadband PCS
licenses held by small businesses, minorities and women (known as "designated
entities") to reduce the government debt now owed by these entities, and is
considering further modifications to those rules. "Designated entities," such as
Omnipoint in the Philadelphia market, compete with the Company.
Cellular telephone systems, including the Company's systems, also face actual or
potential competition from other current and developing technologies. In
addition to SMR systems, one-way paging or beeper services that feature voice
message, data services and tones are also available in the Company's markets.
These services may provide adequate capacity and sufficient mobile capabilities
for some potential cellular subscribers, thus providing additional competition
to the Company's systems. Nextel uses its available SMR spectrum in markets
where the Company provides wireless service.
The FCC requires cellular licensees to provide service to resellers who purchase
cellular service from licensees, usually in the form of blocks of numbers, then
resell the service to the public. Thus, a reseller may be both a customer and a
competitor of a licensed cellular operator. The FCC currently is seeking comment
on whether resellers should be permitted to install separate switching
facilities in cellular systems, although it has tentatively concluded not to
require such interconnections. The FCC is also considering whether resellers
should receive direct assignments of telephone numbers from LECs.
It is likely that the FCC will offer additional spectrum for wireless mobile
licenses in the future. Applicants also have received and others are seeking FCC
authorization to construct and operate global satellite networks to provide
domestic and international mobile communications services from geostationary and
low earth orbit satellites. In addition, the Omnibus Budget Reconciliation Act
of 1993 (the "1993 Budget Act") provided, among other things, for the release of
200-MHz of Federal government spectrum for commercial use over a fifteen year
period. Also, the World Trade Organization agreement with respect to
telecommunications, which became effective on February 5, 1998, is intended to
increase competition and reduce barriers to entry by telecommunications firms in
foreign and domestic markets, and may lead to greater foreign investment and
participation in the US cellular/PCS telecommunications industry. These
developments and further technological advances and regulatory changes may make
available other alternatives to cellular service, thereby creating additional
sources of competition.
LEGISLATION AND REGULATION
FCC Regulation
The FCC regulates the licensing, construction, operation and acquisition of
wireless telephone systems, including the Company's cellular systems, pursuant
to the Communications Act of 1934 (as amended, the "Communications Act").
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<PAGE>
Under the Communications Act, no party may transfer control of or assign a
cellular license without first obtaining FCC consent. FCC rules (i) prohibit an
entity controlling one system in a market from holding any interest in the
competing cellular system in the market, (ii) prohibit an entity from holding
non-controlling interests in more than one system in any market, if the common
ownership interests present anti-competitive concerns under FCC policies, and
(iii) restrict the amount of commercial mobile radio spectrum that a single
entity may hold in any particular area. Cellular radio licenses generally expire
ten years following grant of the license in the particular market and are
renewable for periods of ten years upon application to the FCC. Licenses may be
revoked for cause and license renewal applications denied if the FCC determines
that a renewal would not serve the public interest. FCC rules provide that
competing renewal applications for cellular licenses will be considered in
comparative hearings, and establish the qualifications for competing
applications and the standards to be applied in such hearings. Under current
policies, the FCC will grant incumbent cellular licensees a "renewal expectancy"
if the licensee has provided substantial service to the public, substantially
complied with applicable FCC rules and policies and the Communications Act and
is otherwise qualified to hold an FCC license. The FCC has granted renewal of
the Company's licenses for the Philadelphia, PA, Wilmington, DE and New
Brunswick, Long Branch and Trenton, NJ. The licenses for the Aurora/Elgin, IL,
Joliet, IL, Vineland, NJ and Atlantic City, NJ expire in 1998. The balance of
the Company's licenses expire from 1999 through 2007.
The FCC regulates the ability of cellular operators to bundle the provision of
service with hardware, the resale of cellular service by third parties and the
coordination of frequency usage with other cellular licensees. The FCC also
regulates the height and power of base station transmitting facilities and
signal emissions in the cellular system. Cellular systems also are subject to
Federal Aviation Administration and FCC regulations concerning the siting,
construction, marking and lighting of cellular transmitter towers and antennae.
In addition, the FCC also regulates the employment practices of cellular
operators.
Allegations of harmful effects from the use of hand-held cellular phones have
caused the cellular industry to fund additional research to review and update
previous studies concerning the safety of the emissions of electromagnetic
energy from cellular phones. The FCC also has adopted standards for limiting
human exposure to RF energy from cellular/PCS telecommunications facilities. The
FCC has determined that these standards preempt state and local regulation of RF
exposure.
The FCC also requires LECs in each market to offer reasonable terms and
facilities for the interconnection of wireless telephone systems in that market
to the LECs' landline network. In June 1996, the FCC adopted a national
regulatory framework for implementing the local competition provision of the
1996 Telecom Act, including adoption of rules delineating interconnection
obligations of incumbent LECs, unbundling requirements for incumbent LECs,
network elements, requirements for access to local rights of way, dialing parity
and telephone numbering and number portability, and requirements for resale of
and nondiscriminatory access to incumbent LEC services. The FCC established a
national regulatory framework that sets pricing standards and negotiations and
arbitration guidelines. However, the US Court of Appeals for the Eighth Circuit
vacated certain of these standards and guidelines, on the grounds that the FCC
lacked the authority to bind state regulators on the matter of local pricing of
interconnection. As a result, landline interconnection pricing will be left to
state-by-state determinations. The Eighth Circuit also determined that the FCC
has special authority over Commercial Mobile Radio Services ("CMRS") carriers,
which include the Company's wireless operations and their interconnection to
incumbent LECs. Accordingly, national interconnection rules will be maintained
for the Company's CMRS operations. In January 1998, the US Supreme Court agreed
to review the Eighth Circuit decision. The Company cannot predict the outcome of
this litigation or the FCC rulemakings, and the ultimate impact of any final FCC
regulations on the Company or its businesses cannot be determined at this time.
Notwithstanding the federal court stay of certain FCC interconnection
regulations, a subsidiary of the Company has renegotiated its interconnection
contracts with Bell Atlantic Corporation pursuant to the Telecommunications Act
of 1996 (the "1996 Telecom Act"). The agreements, covering Pennsylvania, New
Jersey, Delaware and Maryland, provide for the reciprocal transport and
termination of CMRS traffic by Bell Atlantic and the Company at substantially
reduced rates.
The FCC changes its regulations from time to time in response to competitive
developments in the telecommunications marketplace or new federal legislation.
For instance, the FCC is considering whether all CMRS providers should provide
interconnection to all other CMRS providers. In its implementation of the 1996
Telecom Act, the FCC recently established new federal universal service rules,
under which wireless service providers are eligible to receive universal service
subsidies for the first time, but also are required to contribute to both
federal and state universal service funds.
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<PAGE>
The Company began making its contributions to the federal universal service
programs in February 1998. For the first quarter of 1998, the FCC's current
universal service assessments amount to 0.72% of all telecommunications revenues
and an additional 3.19% of all interstate and international telecommunications
revenues. Various parties have challenged the FCC's universal service rules and
the cases have been consolidated in the US Court of Appeals for the Fifth
Circuit. The Company cannot predict the outcome of this proceeding.
Finally, the 1996 Telecom Act relieves Regional Bell Operating Company ("RBOC")
affiliated cellular providers of their obligations to provide equal access to
long distance carriers. RBOC-affiliated carriers are now afforded greater
flexibility in contracting with interexchange carriers for the provision of long
distance services. Nevertheless, the FCC retains authority to require all CMRS
operators to provide unblocked access through the use of other mechanisms if
customers are being denied access to the telephone toll service providers of
their choice, and if such denial is contrary to the public interest. In October
1997, the FCC released an order establishing uniform rules governing incumbent
LEC participation in broadband CMRS within each LEC's landline telephone region.
These rules will expire in January 2002, unless extended by the FCC. While the
FCC eliminated the requirements in its cellular rules for full structural
separation of the incumbent LEC cellular affiliate from the LEC landline
affiliate, the FCC adopted new rules designed to address incentives incumbent
LECs may have to engage in anti-competitive practices against CMRS providers,
such as discriminatory interconnection, cost-shifting and anti-competitive
pricing. Specifically, the FCC will require incumbent LECs to create separate
corporations for their in-region broadband CMRS operation (whether cellular, PCS
or other) and to apply existing FCC rules on affiliate transactions and use of
customer proprietary network information to LEC- CMRS operations. Additionally,
the order addressed provisions of the 1996 Telecom Act that govern incumbent LEC
joint marketing of CMRS and landline services, as well as LEC obligations to
disclose material changes in their networks. The FCC also recently released a
notice of inquiry on calling party pays, a mechanism that would allow CMRS
providers to offer service plans under which callers to CMRS customers would pay
for the calls that they make.
State Regulation and Local Approvals
Except for the State of Illinois, the states in which the Company presently
operates currently do not regulate cellular telephone service. In the 1993
Budget Act, Congress gave the FCC the authority to preempt states from
regulating rates or entry into CMRS, including cellular. In the CMRS order
described above, the FCC preempted the states and established a procedure for
states to petition the FCC for authority to regulate rates and entry into CMRS.
The FCC, to date, has denied all state petitions to regulate the rates charged
by CMRS providers.
The scope of the allowable level of state regulation of CMRS, however, remains
unclear. The 1993 Budget Act does not identify the "other terms and conditions"
of CMRS service that can be regulated by the states. Moreover, the extent to
which states may regulate intrastate LEC-CMRS interconnection remains
unresolved. The resolution of this issue will determine the extent to which
cellular providers will be subject to state regulation of CMRS interconnection
to the LECs. The siting of cells also remains subject to state and local
jurisdiction although petitions seeking clarification of states' siting
authority are currently pending at the FCC.
EMPLOYEES
As of December 31, 1997, the Company had approximately 1,600 employees. The
Company believes that its relationships with its employees are good.
ITEM 2 PROPERTIES
The principal physical assets of a cellular telephone communications system
include cell sites and central switching equipment. The Company primarily leases
its sites used for its transmission facilities, retail stores and its
administrative offices. The physical components of a cellular telephone
communications system require maintenance and upgrading to keep pace with
technological advances. During 1997, the Company's systems, including its cell
sites and switching equipment were upgraded with TDMA digital cellular
technology, permitting its subscribers and roamers to use both analog and TDMA
services throughout the Company's coverage area.
The Company's management believes that substantially all of its physical assets
are in good operating condition.
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<PAGE>
ITEM 3 LEGAL PROCEEDINGS
The Company is subject to claims which arise in the ordinary course of its
business. In the opinion of management, the amount of ultimate liability with
respect to these actions will not materially affect the financial position,
results of operations or liquidity of the Company.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Information for this item is omitted pursuant to Securities and Exchange
Commission ("SEC") General Instruction I to Form 10-K.
PART II
ITEM 5 MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Common Stock
Absence of Trading Market
The common stock of the Company is not publicly traded. Therefore, there is no
established public trading market for the common stock, and none is expected to
develop in the foreseeable future.
Holder
All of the shares of common stock of the Company, $.01 par value, are owned by
Comcast.
Dividends
None.
ITEM 6 SELECTED FINANCIAL DATA
Information for this item is omitted pursuant to SEC General Instruction I to
Form 10-K.
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<PAGE>
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Information for this item is omitted pursuant to Securities and Exchange
Commission ("SEC") General Instruction I to Form 10-K, except as noted below.
Results of Operations
Summarized consolidated financial information for Comcast Cellular Corporation
(the "Company")(see Note 1 to the Company's consolidated financial statements)
for the years ended December 31, 1997 and 1996 is as follows (dollars in
millions, "NM" denotes percentage is not meaningful):
<TABLE>
<CAPTION>
Year Ended
December 31, Increase / (Decrease)
1997 1996 $ %
<S> <C> <C> <C> <C>
Service income, net.............................. $444.9 $426.1 $18.8 4.4%
Operating, selling, general and administrative
expenses.................................... 274.9 272.1 2.8 1.0
------ ------
Operating income before depreciation and
amortization (1)............................ 170.0 154.0 16.0 10.4
Depreciation and amortization.................... 109.8 117.2 (7.4) (6.3)
------ ------
Operating income................................. 60.2 36.8 23.4 63.6
------ ------
Interest expense................................. 117.8 116.3 1.5 1.3
Investment income................................ (2.7) (2.5) 0.2 8.0
Equity in net losses of affiliates............... 6.6 6.6
Litigation settlement............................ 21.6 (21.6) NM
Other............................................ 1.3 2.5 (1.2) (48.0)
Income tax benefit............................... (22.9) (38.1) (15.2) (39.9)
Extraordinary item............................... (10.7) 10.7 NM
------ ------
Net loss.................................... ($50.6) ($69.6) ($19.0) (27.3%)
====== ======
<FN>
- ----------
(1) Operating income before depreciation and amortization is commonly referred
to in the cellular industry as "operating cash flow." Operating cash flow
is a measure of a company's ability to generate cash to service its
obligations, including debt service obligations, and to finance capital and
other expenditures. In part due to the capital intensive nature of the
cellular industry and the resulting significant level of non-cash
depreciation and amortization expense, operating cash flow is frequently
used as one of the bases for evaluating cellular businesses, although the
Company's measure of operating cash flow may not be comparable to similarly
titled measures of other companies. Operating cash flow does not purport to
represent net income or net cash provided by operating activities, as those
terms are defined under generally accepted accounting principles, and
should not be considered as an alternative to such measurements as an
indicator of the Company's performance.
</FN>
</TABLE>
Service Income, net
Of the $18.8 million increase in service income for the year ended December 31,
1997, $18.2 million is attributable to the Company's subscriber growth and $15.4
million is attributable to roamer growth. Offsetting the increases is a decrease
of $14.8 million, resulting primarily from a reduction in the average rate per
minute of use as a result of promotional and free minutes provided to customers.
Operating, Selling, General and Administrative Expenses
The $2.8 million increase in operating, selling, general and administrative
expenses from 1996 to 1997 is primarily attributable to a $10.5 million increase
in fixed costs related to retail centers. Offsetting this increase is a decrease
of $7.7 million primarily attributable to expense reductions achieved through
implementation of fraud management programs, improved bad debt experience as a
result of stronger credit procedures and a reduction in commission costs
resulting from fewer gross subscriber additions in 1997.
- 8 -
<PAGE>
Comcast Corporation ("Comcast"), the Company's parent, and Comcast Cellular
Communications, Inc. ("CCCI"), a wholly owned subsidiary of the Company, were
parties to a management agreement (the "Old Management Agreement") pursuant to
which Comcast managed the business and operations of CCCI. In May 1997,
subsequent to the redemption of the Company's senior participating redeemable
zero coupon notes, the Old Management Agreement was terminated and replaced with
a new management agreement (the "New Management Agreement") which provides for
an annual management fee of 1.5% of revenues. The New Management Agreement
eliminated the prior management fee which was limited to $5.0 million, subject
to annual increases based on the consumer price index. The New Management
Agreement has a ten year term. Management fees of $6.4 million and $5.5 million
were charged to selling, general and administrative expenses during the years
ended December 31, 1997 and 1996, respectively (on a pro forma basis, giving
effect to the New Management Agreement, management fees for the years ended
December 31, 1997 and 1996 would have been $6.7 million and $6.4 million,
respectively). As of December 31, 1996, deferred management fees payable, which
are included in long-term investment in and due to affiliates in the Company's
consolidated balance sheet, totaled $14.7 million. In November 1997, the Company
repaid $17.0 million of previously deferred management fees to Comcast with a
portion of the proceeds from the initial borrowings under a new $400.0 million
revolving credit facility.
Depreciation and Amortization Expense
The $7.4 million decrease in depreciation and amortization expense from 1996 to
1997 is primarily due to a decrease in amortization expense as a result of
certain intangible assets becoming fully amortized in 1997.
Interest Expense
In 1992, a subsidiary of AWACS, Inc., an indirect subsidiary of the Company,
issued a note (the "AWACS Note") with an initial principal amount of $51.0
million to purchase, from a subsidiary of Comcast, a 40% limited partnership
interest in Garden State Cablevision L.P. ("Garden State Cablevision"). The
AWACS Note bears interest at a rate of 11% per annum. Interest is payable on a
quarterly basis to the extent of available cash, with any unpaid interest added
to principal. Interest expense on the AWACS Note was $5.2 million and $8.2
million for the years ended December 31, 1997 and 1996, respectively. From the
date of issuance through December 31, 1997, $35.5 million of principal and
interest has been paid on the AWACS Note with the proceeds from distributions
from Garden State Cablevision. The balance of the AWACS Note is due on demand.
Accordingly, such balance has been classified as current in the Company's
consolidated balance sheet as of December 31, 1997.
Equity in Net Losses of Affiliates
Under the terms of the partnership agreement, 49.5% of Garden State
Cablevision's net losses are allocated to the Company. During the years ended
December 31, 1997 and 1996, the Company recognized equity in net losses of
Garden State Cablevision of $5.4 million and $6.8 million, respectively. While
no assurances can be given, the Company expects to transfer its interest in
Garden State Cablevision to Comcast during the second quarter of 1998.
Litigation Settlement
The Company was involved in various civil lawsuits and administrative
proceedings regarding the ownership, operation and transfer of the license for
the Atlantic City, NJ metropolitan statistical area. In March 1995, the Company,
Comcast, Telephone and Data Systems, Inc. ("TDS"), United States Cellular
Corporation, Ellis Thompson and Ellis Thompson Corporation entered into a
Settlement Agreement (the "Settlement Agreement") with respect to outstanding
civil litigation. In June 1996, the Company paid $21.6 million to TDS under the
Settlement Agreement. The Company recorded the expenses related to the
Settlement Agreement in its 1996 consolidated statement of operations.
Income Tax Benefit
The $15.2 million decrease in income tax benefit from 1996 to 1997 is primarily
attributable to the decrease of $44.8 million in loss before income tax benefit
and extraordinary items.
Extraordinary Items
Extraordinary items for the year ended December 31, 1997 of $10.7 million
consist of unamortized debt acquisition costs and debt extinguishment costs of
$16.4 million, net of related tax benefit of $5.7 million, expensed in
connection with the refinancing of the Company's existing credit facility with
the proceeds from the offering of the Company's $1.0 billion principal amount 9
1/2% senior notes due 2007 in May 1997 and borrowings under the Company's new
$400.0 million revolving credit facility in November 1997.
- 9 -
<PAGE>
Earnings to Fixed Charges
For the years ended December 31, 1997 and 1996, the Company's distributions from
Garden State Cablevision and income before extraordinary items, income tax
benefit, equity in net losses of affiliates and fixed charges (interest expense)
was $61.6 million and $50.7 million, respectively. Such amounts were not
adequate to cover the Company's fixed charges of $117.8 million and $116.3
million for these periods, respectively. Fixed charges include non-cash interest
expense of $30.7 million and $69.4 million for the years ended December 31, 1997
and 1996, respectively. The inadequacy of the Company's distributions from
Garden State Cablevision and income to cover fixed charges is primarily due to
substantial non-cash charges for depreciation and amortization expense of $109.8
million and $117.2 million during the years ended December 31, 1997 and 1996,
respectively.
The Company anticipates that, for the foreseeable future, depreciation,
amortization and interest expense will continue to be significant and will have
a significant adverse effect on the Company's ability to realize net earnings.
The Company believes that its losses will not significantly affect the
performance of its normal business activities because of its existing cash and
cash equivalents, its ability to generate operating income before depreciation
and amortization and its ability to obtain external financing.
The Company believes that its operations are not materially affected by
inflation.
----------------------------
Year 2000 Issue
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Certain of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000 (the "Year 2000 Issue"). If this
situation occurs, the potential exists for computer system failure or
miscalculations by computer programs, which could cause disruption of
operations.
Based on an inventory conducted in 1997, the Company has identified computer
systems that will require modification or replacement so that they will properly
utilize dates beyond December 31, 1999. The Company presently believes that with
modifications to existing software and conversions to new software, the Year
2000 Issue can be mitigated. However, if such modifications and conversions are
not made, or are not completed within an adequate time frame, the Year 2000
Issue could have a material impact on the operations of the Company.
The Company has initiated communications with all of its significant software
suppliers and service bureaus to determine their plans for remediating the Year
2000 Issue in their software which the Company uses or relies upon. The
Company's estimate to complete the remediation plan includes the estimated time
associated with mitigating the Year 2000 Issue for third party software.
However, there can be no guarantee that the systems of other companies on which
the Company relies will be converted on a timely basis, or that a failure to
convert by another company would not have material adverse effect on the
Company.
The Company continues to use both internal and external resources to reprogram
or replace software for Year 2000 modifications. Management of the Company will
also continue to periodically report the progress of its Year 2000 remediation
plan to the Audit Committee of Comcast's Board of Directors. The Company plans
to complete the Year 2000 mitigation in 1999. The costs directly attributable to
the Year 2000 Issue are not expected to have a material effect on the Company's
results of operations.
The costs of the project and the date on which the Company plans to complete the
Year 2000 modifications and replacements are based on management's best
estimates, which were derived using assumptions of future events including the
continued availability of resources and the reliability of third party
modification plans. However, there can be no guarantee that these estimates will
be achieved and actual results could differ materially from those plans.
Specific factors that might cause such material differences include, but are not
limited to, the availability and cost of personnel with appropriate necessary
skills, the ability to locate and correct all relevant computer code and similar
uncertainties.
- 10 -
<PAGE>
ITEM 8 FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholder
Comcast Cellular Corporation
Wilmington, Delaware
We have audited the accompanying consolidated balance sheet of Comcast Cellular
Corporation (the "Company"), the successor to a merger between the Company and
Comcast Cellular Holdings, Inc., (a wholly owned subsidiary of Comcast
Corporation) and its subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of operations, stockholder's deficiency and of
cash flows for each of the three years in the period ended December 31, 1997.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Comcast Cellular Corporation and
its subsidiaries as of December 31, 1997 and 1996 and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997 in conformity with generally accepted accounting principles.
/s/ DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
February 23, 1998
- 11 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(Dollars in thousands, except share data)
<TABLE>
<CAPTION>
December 31,
ASSETS 1997 1996
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents............................................. $4,692 $4,980
Accounts receivable, less allowance for doubtful accounts
of $6,356 and $3,148................................................ 59,252 66,425
Inventories........................................................... 14,154 10,458
Other current assets.................................................. 3,147 3,470
---------- ----------
Total current assets.............................................. 81,245 85,333
---------- ----------
INVESTMENT IN AFFILIATE.................................................. 28,570 29,823
---------- ----------
PROPERTY AND EQUIPMENT................................................... 595,861 467,558
Accumulated depreciation.............................................. (182,632) (114,144)
---------- ----------
Property and equipment, net........................................... 413,229 353,414
---------- ----------
DEFERRED CHARGES AND OTHER............................................... 1,275,861 1,245,283
Accumulated amortization.............................................. (321,450) (285,671)
---------- ----------
Deferred charges and other, net....................................... 954,411 959,612
---------- ----------
$1,477,455 $1,428,182
========== ==========
LIABILITIES AND STOCKHOLDER'S DEFICIENCY
CURRENT LIABILITIES
Accounts payable and accrued expenses................................. $100,159 $100,958
Accrued interest...................................................... 17,388 3,166
Current portion of long-term debt..................................... 430 1,902
Due to affiliates..................................................... 47,116 46,275
---------- ----------
Total current liabilities........................................... 165,093 152,301
---------- ----------
LONG-TERM DEBT, less current portion..................................... 1,224,511 1,259,325
---------- ----------
INVESTMENT IN AND DUE TO AFFILIATES...................................... 99,014 108,455
---------- ----------
DEFERRED INCOME TAXES.................................................... 227,944 256,737
---------- ----------
MINORITY INTEREST AND OTHER.............................................. 5,878 7,219
---------- ----------
COMMITMENTS AND CONTINGENCIES
MANDATORILY REDEEMABLE PREFERRED STOCK HELD BY AFFILIATE................. 173,602
---------- ----------
STOCKHOLDER'S DEFICIENCY
Common stock, $.01 par value - authorized, 1,000 shares;
issued, 100 shares .................................................
Additional capital.................................................... 488,301 500,425
Accumulated deficit................................................... (906,888) (856,280)
---------- ----------
Total stockholder's deficiency...................................... (418,587) (355,855)
---------- ----------
$1,477,455 $1,428,182
========== ==========
</TABLE>
See notes to consolidated financial statements.
- 12 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
SERVICE INCOME, net........................................... $444,946 $426,053 $ 374,880
-------- -------- ---------
COSTS AND EXPENSES
Operating.................................................. 35,525 36,876 28,923
Selling, general and administrative........................ 239,383 235,176 212,657
Depreciation and amortization.............................. 109,820 117,225 205,733
-------- -------- ---------
384,728 389,277 447,313
-------- -------- ---------
OPERATING INCOME (LOSS)....................................... 60,218 36,776 (72,433)
OTHER (INCOME) EXPENSE
Interest expense........................................... 117,756 116,297 97,694
Investment income.......................................... (2,696) (2,525) (3,288)
Equity in net losses of affiliates......................... 6,603 6,559 9,600
Litigation settlement...................................... 21,647
Other...................................................... 1,359 2,449 (3,716)
-------- -------- ---------
123,022 144,427 100,290
-------- -------- ---------
LOSS BEFORE INCOME TAX BENEFIT
AND EXTRAORDINARY ITEMS.................................... (62,804) (107,651) (172,723)
INCOME TAX BENEFIT............................................ (22,867) (38,067) (62,944)
-------- -------- ---------
LOSS BEFORE EXTRAORDINARY ITEMS............................... (39,937) (69,584) (109,779)
EXTRAORDINARY ITEMS........................................... (10,671) (3,047)
-------- -------- ---------
NET LOSS...................................................... (50,608) (69,584) (112,826)
PREFERRED DIVIDENDS........................................... (12,124)
-------- -------- ---------
NET LOSS FOR COMMON STOCKHOLDER............................... ($62,732) ($69,584) ($112,826)
======== ======== =========
</TABLE>
See notes to consolidated financial statements.
- 13 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss................................................... ($50,608) ($69,584) ($112,826)
Adjustments to reconcile net loss to net cash provided
by operating activities:
Extraordinary items...................................... 10,671 3,047
Depreciation and amortization............................ 109,820 117,225 205,733
Non-cash interest expense................................ 30,714 69,400 62,461
Equity in net losses of affiliates....................... 6,603 6,559 9,600
Minority interest........................................ 1,157 773 1,099
Deferred management fees................................. 2,211 5,545 6,746
Deferred income taxes and other.......................... (25,545) (38,070) (80,335)
-------- -------- ---------
85,023 91,848 95,525
Decrease (increase) in net accounts receivable,
inventories and other current assets................... 3,800 22,726 (15,752)
Increase (decrease) in accrued interest.................. 14,222 (1,853) 1,498
(Decrease) increase in accounts payable and
accrued expenses....................................... (799) 9,375 (11,931)
-------- -------- ---------
Net cash provided by operating activities.............. 102,246 122,096 69,340
-------- -------- ---------
FINANCING ACTIVITIES
Proceeds from borrowings of long-term debt................. 1,243,370 166,908 553,618
Repayments of long-term debt............................... (1,305,180) (36,500) (423,438)
Deferred financing costs................................... (28,912) (20,350)
(Repayments) borrowings under deferred payment plan........ (120,177) 134,636
Repayment of long-term due to affiliate.................... (35,479)
Proceeds from issuance of mandatorily redeemable
preferred stock held by affiliate........................ 161,478
Net transactions with affiliates........................... (21,351) 7,100 (12,035)
-------- -------- ---------
Net cash provided by (used in) financing
activities............................................... 49,405 (18,148) 232,431
-------- -------- ---------
INVESTING ACTIVITIES
Acquisitions, net of cash acquired......................... (18,918) (13,958) (75,755)
Capital expenditures....................................... (130,021) (116,018) (228,706)
Proceeds from sale of equipment and other.................. 256 17,872
Purchase of minority interests, license acquisition
costs and other.......................................... (3,000) (24,367) (3,601)
Distributions from Garden State Cablevision................ 35,479
-------- -------- ---------
Net cash used in investing activities.................. (151,939) (118,608) (290,190)
-------- -------- ---------
(DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS................................................ (288) (14,660) 11,581
CASH AND CASH EQUIVALENTS, beginning of year.................. 4,980 19,640 8,059
-------- -------- ---------
CASH AND CASH EQUIVALENTS, end of year........................ $4,692 $4,980 $19,640
======== ======== =========
</TABLE>
See notes to consolidated financial statements.
- 14 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDER'S DEFICIENCY
(Dollars in thousands)
<TABLE>
<CAPTION>
Common Additional Accumulated
Stock Capital Deficit Total
<S> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1995............................ $ $500,425 ($673,870) ($173,445)
Net loss......................................... (112,826) (112,826)
--------- -------- --------- ---------
BALANCE, DECEMBER 31, 1995.......................... 500,425 (786,696) (286,271)
Net loss......................................... (69,584) (69,584)
--------- -------- --------- ---------
BALANCE, DECEMBER 31, 1996.......................... 500,425 (856,280) (355,855)
Net loss......................................... (50,608) (50,608)
Preferred dividends.............................. (12,124) (12,124)
--------- -------- --------- ---------
BALANCE, DECEMBER 31, 1997.......................... $ $488,301 ($906,888) ($418,587)
========= ======== ========= =========
</TABLE>
See notes to consolidated financial statements.
- 15 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
1. BUSINESS
Comcast Cellular Corporation ("the Company")(the successor to a merger
between the Company and Comcast Cellular Holdings, Inc.), is a direct
wholly owned subsidiary of Comcast Corporation ("Comcast") and is a holding
company that conducts all of its operations through its wholly owned
subsidiary, Comcast Cellular Communications, Inc. ("CCCI") and CCCI's
subsidiaries.
The Company provides cellular telephone communications services pursuant to
licenses granted by the Federal Communications Commission ("FCC") in
markets with a population of more than 8.2 million, including the area in
and around the City of Philadelphia, Pennsylvania, the State of Delaware
and a significant portion of the State of New Jersey.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and its wholly owned or controlled subsidiaries. All significant
intercompany accounts and transactions among consolidated entities have
been eliminated.
Management's Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Fair Values
The estimated fair value amounts presented in these notes to consolidated
financial statements have been determined by the Company using available
market information and appropriate methodologies. However, considerable
judgment is required in interpreting market data to develop the estimates
of fair value. The estimates presented herein are not necessarily
indicative of the amounts that the Company could realize in a current
market exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value
amounts. Such fair value estimates are based on pertinent information
available to management as of December 31, 1997 and 1996, and have not been
comprehensively revalued for purposes of these consolidated financial
statements since such dates.
A reasonable estimate of fair values of the due to affiliates in the
Company's consolidated balance sheet is not practicable to obtain because
of the related party nature of these items and the lack of quoted market
prices.
Cash Equivalents
Cash equivalents consist principally of overnight investments in money
market funds with maturities of three months or less when purchased. The
carrying amounts of the Company's cash equivalents, classified as available
for sale securities, approximate their fair values as of December 31, 1997
and 1996.
Inventories
Inventories, which include products held for sale, materials and supplies,
are stated at the lower of cost or market. Cost for products held for sale
is stated at weighted average cost, which approximates market.
Investments
Investments in entities in which the Company has the ability to exercise
significant influence over the operating and financial policies of the
investee are accounted for under the equity method. Equity method
investments are recorded at original cost and adjusted periodically to
recognize the Company's proportionate share of the investees' net income or
losses after the date of investment, additional contributions made and
dividends received. Investments in privately held companies are stated at
cost, adjusted for any known diminution in value.
- 16 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Property and Equipment
Property and equipment are stated at cost. Depreciation is provided by the
straight-line method over estimated useful lives as follows:
Buildings........................................... 10-40 years
Operating facilities................................ 8-12 years
Other equipment..................................... 2-8 years
Improvements that extend asset lives are capitalized; other repairs and
maintenance charges are expensed as incurred. The cost and related
accumulated depreciation applicable to assets sold or retired are removed
from the accounts and the gain or loss on disposition is recognized as a
component of depreciation expense.
Deferred Charges and Other
Deferred charges consist principally of license acquisition costs and debt
acquisition costs. License acquisition costs are being amortized on a
straight-line basis over the estimated useful lives of the licenses of up
to 40 years. Debt acquisition costs are being amortized on a straight-line
basis over the term of the related debt, ranging from five to ten years.
Valuation of Long-Lived Assets
The Company periodically evaluates the recoverability of its long-lived
assets, including property and equipment and deferred charges using
objective methodologies. Such methodologies include evaluations based on
the cash flows generated by the underlying assets or other determinants of
fair value.
Revenue Recognition
Service income is recognized as service is provided and is recorded net of
long distance and roaming incollect charges. Credit risk is managed by
disconnecting services to customers who are delinquent.
Postretirement and Postemployment Benefits
The estimated costs of retiree benefits and benefits for former or inactive
employees, after employment but before retirement, are accrued and recorded
as a charge to operations during the years the employees provide services.
The Company's retiree benefit obligation is unfunded and all benefits are
paid by Comcast.
Income Taxes
The Company recognizes deferred tax assets and liabilities for temporary
differences between the financial reporting basis and the tax basis of the
Company's assets and liabilities and expected benefits of utilizing net
operating loss carryforwards. The impact on deferred taxes of changes in
tax rates and laws, if any, applied to the years during which temporary
differences are expected to be settled, are reflected in the consolidated
financial statements in the period of enactment.
Derivative Financial Instruments
The Company uses derivative financial instruments, including interest rate
exchange agreements ("Swaps") and interest rate collar agreements
("Collars") to manage its exposure to fluctuations in interest rates. Swaps
and Collars are matched with either fixed or variable rate debt and
periodic cash payments are accrued on a settlement basis as an adjustment
to interest expense. Any premiums associated with these instruments are
amortized over their term and realized gains or losses as a result of the
termination of the instruments are deferred and amortized over the
remaining term of the underlying debt. Unrealized gains and losses as a
result of these instruments are recognized when the underlying hedged item
is extinguished or otherwise terminated.
Those instruments that have been entered into by the Company to hedge
exposure to interest rate risks are periodically examined by the Company to
ensure that the instruments are matched with underlying liabilities, reduce
the Company's risks relating to interest rates and, through market value
and sensitivity analysis, maintain a high correlation to the interest
expense or underlying value of the hedged item. For those instruments that
do not meet the above criteria, variations in their fair value are
marked-to-market on a current basis in the Company's consolidated statement
of operations.
- 17 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
The Company does not hold or issue any derivative financial instruments for
trading purposes and is not a party to leveraged instruments (see Note 4).
The credit risks associated with the Company's derivative financial
instruments are controlled through the evaluation and monitoring of the
creditworthiness of the counterparties. Although the Company may be exposed
to losses in the event of nonperformance by the counterparties, the Company
does not expect such losses, if any, to be significant.
Reclassifications
Certain reclassifications have been made to the prior years' consolidated
financial statements to conform to those classifications used in 1997.
3. ACQUISITIONS AND OTHER SIGNIFICANT EVENTS
PCS License Acquisition
In November 1997, the Company acquired twelve 10-MHz personal
communications services ("PCS") licenses covering the Philadelphia and
Allentown, PA markets from Comcast at Comcast's historical cost of $18.9
million. The cost of this acquisition was funded with proceeds from
borrowings under the New Bank Facility (see Note 4). This acquisition was
accounted for under the purchase method.
Cellular Retail Stores
In August 1996, the Company acquired twelve cellular retail stores and
direct sales locations in Pennsylvania, New Jersey and Delaware, and
related assets from Advanced Telecomm, Inc. for $6.5 million in cash. The
Company accounted for the acquisition under the purchase method.
Delaware 1 RSA
In May 1996, the Company and Southwestern Bell Mobile Systems, through a
partnership owned 50% by each of them, purchased the remaining 84% limited
partnership interests of the Delaware 1 Rural Statistical Area ("RSA")
Limited Partnership, the licensee of the non-wireline cellular license for
the Kent and Sussex, DE RSA (the "Delaware 1 RSA") for $44.1 million in
cash, of which the Company's share was $22.1 million. The surviving entity,
C-SW Cellular Partnership, a Delaware general partnership, now holds the
cellular license for the Delaware 1 RSA. American Cellular Network
Corporation, an indirect wholly owned subsidiary of the Company, manages
the daily operations of the C-SW Cellular Partnership's interest in the
Delaware 1 RSA. The Company's investment of $28.6 million and $29.8 million
as of December 31, 1997 and 1996, respectively, is accounted for under the
equity method and is classified as investment in affiliate in the Company's
consolidated balance sheet.
Ocean County RSA
In 1995, the Company completed its exchange agreement with McCaw Cellular
Communications, Inc. whereby the Company acquired a 100% interest in the
entity that held the Ocean County, NJ RSA (the "Ocean County RSA")
non-wireline cellular license in exchange for the Company's Hunterdon
County, NJ RSA cellular license and related assets, and $55.2 million in
cash.
Vineland/Atlantic City MSA
In June 1995, the Company purchased all of the outstanding stock of United
States Cellular Operating Company of Vineland, Inc. ("USCC/Vineland") from
United States Cellular Corporation ("USCC") for $21.2 million in cash.
USCC/Vineland held an approximate 80.4% interest in the Vineland Cellular
Telephone Company, Inc. ("VCTC"), which holds the license to operate the
non-wireline cellular telephone system serving the Vineland, NJ
Metropolitan Statistical Area ("MSA"), and an approximate 9.3% interest in
the non-wireline cellular telephone system for the Atlantic City, NJ MSA
(the "Atlantic City Cellular System"). The entire cost of the acquisition
of these interests was funded with the proceeds of a loan from Comcast,
which was repaid during 1995. As of June 30, 1995, the Company began
consolidating VCTC.
In June 1996, the Company completed the acquisition of the license to
operate the Atlantic City Cellular System and paid $7.5 million in cash.
The Company began consolidating the Atlantic City Cellular System effective
June 1, 1996. The Company accounted for the acquisitions under the purchase
method.
- 18 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Litigation Settlement
The Company was involved in various civil lawsuits and administrative
proceedings regarding the ownership, operation and transfer of the license
for the Atlantic City Cellular System. In March 1995, the Company, Comcast,
Telephone and Data Systems, Inc. ("TDS"), USCC, Ellis Thompson and Ellis
Thompson Corporation entered into a Settlement Agreement (the "Settlement
Agreement") with respect to outstanding civil litigation. In June 1996, the
Company paid $21.6 million to TDS under the Settlement Agreement. The
Company recorded the expenses related to the Settlement Agreement in its
1996 consolidated statement of operations.
Cellular Rebuild
In 1995, the Company purchased $172.0 million of switching and cell site
equipment which replaced the existing switching and cell site equipment
(the "Cellular Rebuild"). The Company substantially completed the Cellular
Rebuild during 1995. Accordingly, during 1995, the Company charged $110.0
million to depreciation expense, which represented the difference between
the net book value of the equipment replaced and the residual value
realized upon its disposal.
4. LONG-TERM DEBT
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
9 1/2% Senior Notes due 2007................................. $998,435 $
New Bank Facility............................................ 225,000
Zero Coupon Notes............................................ 602,819
Term Loan.................................................... 300,000
Revolving Credit Loan........................................ 355,000
Other, due through 2001...................................... 1,506 3,408
---------- ----------
1,224,941 1,261,227
Less current portion......................................... 430 1,902
---------- ----------
$1,224,511 $1,259,325
========== ==========
</TABLE>
Maturities of long-term debt outstanding as of December 31, 1997 for the
four years after 1998 are as follows (dollars in thousands):
1999................................................. $461
2000................................................. 495
2001................................................. 120
2002................................................. --
As of December 31, 1997 and 1996, the Company's effective weighted average
interest rate on its long-term debt outstanding was 8.88% and 9.09%,
respectively.
Senior Notes Offering
In May 1997, the Company completed the sale of $1.0 billion principal
amount of 9 1/2% Senior Notes due 2007 (the "Senior Notes") through a
private offering with registration rights (the "Offering"). The Company
used the net proceeds from the Offering to redeem its senior participating
redeemable zero coupon notes (see "Redemption of Zero Coupon Notes" below)
and to repay certain subsidiary indebtedness.
Interest on the Senior Notes is payable in cash semi-annually on May 1 and
November 1 of each year, commencing on November 1, 1997. The Senior Notes
are redeemable, in whole or in part, at the option of the Company, at any
time on or after May 1, 2002 at a redemption price, initially of 104.75% of
the principal amount of the Senior Notes and declining annually to 100% on
May 1, 2005, plus accrued and unpaid interest, if any, to the date of
redemption. In addition, prior to May 1, 2000, the Company may redeem the
Senior Notes at a price equal to 108.5% of the principal amount, plus
accrued and unpaid interest, if any, to the redemption date, with the net
cash proceeds from one or more Public Equity Offerings (as defined);
provided, however, that at least 65% of the originally issued
- 19 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
principal amount of the Senior Notes would remain outstanding after giving
effect to any such redemption. Upon the occurrence of a Change of Control
Triggering Event (as defined), each holder of the Senior Notes will have
the right to require the Company to repurchase such holder's Senior Notes
at 101% of the principal amount, plus accrued and unpaid interest, if any,
to the repurchase date.
The Senior Notes are general unsecured obligations of the Company ranking
senior to all subordinated Indebtedness (as defined) of the Company and
pari passu in right of payment with all other existing and future unsecured
unsubordinated Indebtedness (as defined) and other liabilities of the
Company. The Senior Notes are subordinate to all liabilities, including
trade payables, of the Company's subsidiaries.
The indenture for the Senior Notes imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries (as defined) to,
among other things, incur Indebtedness (as defined), make Restricted
Payments (as defined), including the payment of cash dividends on the
Company's Series A Preferred Stock (see Note 6), effect certain Asset Sales
(as defined), enter into certain transactions with affiliates, merge or
consolidate with any other person or transfer all or substantially all of
their properties and assets.
In October 1997, the Company completed an exchange of 100% of the Senior
Notes for new notes (having the terms described above) which were
registered under the Securities Act of 1933, as amended.
Redemption of Zero Coupon Notes
In May 1997, the Company used the net proceeds from the sale of the Senior
Notes to redeem all of its Series A Senior Participating Redeemable Zero
Coupon Notes Due 2000 and Series B Senior Participating Redeemable Zero
Coupon Notes Due 2000 (together, the "Zero Coupon Notes"), including the
Zero Coupon Notes held by CCCI, and Comcast Financial Corporation ("CFC"),
a wholly owned subsidiary of Comcast. Unamortized debt acquisition costs
related to the Zero Coupon Notes were not significant. As of the redemption
date, the Zero Coupon Notes had an aggregate accreted value of $742.4
million, including the Zero Coupon Notes held by CCCI and CFC with accreted
values of $114.1 million and $161.5 million, respectively. On the
redemption date, CFC used the $161.5 million received upon redemption of
the Zero Coupon Notes held by it to purchase 1,614.775 shares of the
Company's newly authorized $.01 par value, Series A Preferred Stock (see
Note 6). The Company contributed the $161.5 million received from the sale
of its Series A Preferred Stock and the remaining net proceeds from the
Offering, totaling $228.8 million, to CCCI to repay a portion of the
amounts outstanding under its $1.3 billion credit agreement with certain
banks (the "Credit Agreement").
Repayment of Term Loan and Revolving Credit Loan
The Credit Agreement provided for a term loan in the principal amount of
$300.0 million due 2004 (the "Term Loan") and a reducing revolving credit
facility of up to $1.0 billion (the "Revolving Credit Loan"). In May 1997,
subsequent to the Offering, CCCI canceled $575.0 million of its Revolving
Credit Loan, thereby reducing the $1.0 billion commitment to $425.0
million. CCCI used the amounts contributed by the Company and the proceeds
received upon redemption of the Zero Coupon Notes held by it (aggregating
$504.4 million), as well as available cash, to repay the Term Loan and
$205.0 million under the Revolving Credit Loan.
In October 1997, the Company refinanced the Revolving Credit Loan with the
proceeds from borrowings under a new $400.0 million credit agreement (the
"New Bank Facility") with certain banks, which consists of a $300.0 million
five and one-quarter year revolving credit facility (the "Tranche A
Facility") and a $100.0 million 364-day revolving credit facility (the
"Tranche B Facility"). Amounts outstanding under the Tranche B Facility at
the end of the 364-day period are convertible, at the Company's option,
into a four and one-quarter year term loan. Borrowings under the New Bank
Facility bear interest at a rate equal to, at the option of the Company,
either (a) the greater of the (i) prime rate or (ii) the federal funds rate
plus 1/2% or (b) the Applicable Margin, as defined based on CCCI's leverage
ratio, plus the London Interbank Offered Rate. Initial borrowings under the
Tranche A Facility were used principally to repay existing debt, to pay
interest on the Senior Notes, to purchase twelve 10-MHz PCS licenses from
Comcast (see Note 3), and to repay previously deferred management fees to
Comcast (see Note 7). As of December 31, 1997, the Company had outstanding
$225.0 million under the New Bank Facility.
- 20 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
Borrowings under the New Bank Facility are senior to the Senior Notes. The
New Bank Facility contains various covenants, including financial covenants
restricting changes in control (or making such an event of default) and
limiting the payment of dividends, distributions and loans and advances to
the Company.
Extraordinary Items
Extraordinary items for the year ended December 31, 1997 of $10.7 million
consist of unamortized debt acquisition costs and debt extinguishment costs
of $16.4 million, net of related tax benefit of $5.7 million, expensed in
connection with the refinancing of the Company's existing credit facility
with the proceeds from the offering of the Senior Notes in May 1997 and
borrowings under the New Bank Facility in November 1997.
Extraordinary items for the year ended December 31, 1995 of $3.0 million
consist of unamortized debt acquisition costs of $4.7 million, net of
related tax benefit of $1.7 million, expensed in connection with the
refinancing of a portion of its outstanding debt with the proceeds from
borrowings under the Credit Agreement.
Interest Rate Risk Management
The Company is exposed to market risk including changes in interest rates.
To manage the volatility relating to these exposures, the Company enters
into various derivative transactions pursuant to the Company's policies in
areas such as counterparty exposure and hedging practices. Positions are
monitored using techniques including market value and sensitivity analyses.
The use of interest rate risk management instruments, such as Swaps and
Collars, was required under the terms of certain of the Company's
previously outstanding debt agreements. The Company's policy is to manage
interest costs using a mix of fixed and variable rate debt. Using Swaps,
the Company agrees to exchange, at specified intervals, the difference
between fixed and variable interest amounts calculated by reference to an
agreed-upon notional principal amount. Collars limit the Company's
exposures to and benefits from interest rate fluctuations on variable rate
debt to within a range of rates.
The following table summarizes the terms of the Company's existing Swap and
Collars as of December 31, 1997 and 1996 (dollars in thousands):
<TABLE>
<CAPTION>
Notional Average
Amount Maturities Interest Rate
<S> <C> <C> <C>
As of December 31, 1997
Variable to Fixed Swap.......................... $50,000 1998 5.65%
As of December 31, 1996
Variable to Fixed Swap.......................... $50,000 1998 5.65%
Collars......................................... 220,000 1997 6.78% / 5.38%
</TABLE>
The notional amounts of interest rate instruments, as presented in the
above table, are used to measure interest to be paid or received and do not
represent the amount of exposure to credit loss. While Swaps and Collars
represent an integral part of the Company's interest rate risk management
program, their incremental effect on interest expense for the years ended
December 31, 1997, 1996 and 1995 was not significant.
Estimated Fair Value
The Company's long-term debt had carrying amounts of $1.225 billion and
$1.261 billion and estimated fair values of $1.274 billion and $1.113
billion as of December 31, 1997 and 1996, respectively. The estimated fair
value of the Company's publicly traded debt is based on quoted market
prices for that debt. Interest rates that are currently available to the
Company for issuance of debt with similar terms and remaining maturities
are used to estimate fair value for debt issues for which quoted market
prices are not available.
The difference between the carrying values and estimated fair values of the
Company's derivative financial instruments was not significant as of
December 31, 1997 and 1996, and has been estimated based upon amounts at
which such items could be settled.
- 21 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
5. INVESTMENT IN AND DUE TO AFFILIATES
In 1992, a subsidiary of AWACS, Inc., an indirect subsidiary of the
Company, issued a note (the "AWACS Note") with an initial principal amount
of $51.0 million to purchase, from a subsidiary of Comcast, a 40% limited
partnership interest in Garden State Cablevision L.P. ("Garden State
Cablevision"). The AWACS Note bears interest at a rate of 11% per annum.
Interest is payable on a quarterly basis to the extent of available cash,
with any unpaid interest added to principal. Interest expense on the AWACS
Note was $5.2 million, $8.2 million, and $7.5 million for the years ended
December 31, 1997, 1996 and 1995, respectively. From the date of issuance
through December 31, 1997, $35.5 million of principal and interest has been
paid on the AWACS Note with the proceeds from distributions from Garden
State Cablevision. The balance of the AWACS Note is due on demand.
Accordingly, such balance has been classified as current in the Company's
consolidated balance sheet as of December 31, 1997.
6. MANDATORILY REDEEMABLE PREFERRED STOCK
During 1997, the Company authorized 10,000 shares of $.01 par value
preferred stock and designated 5,200 of such shares as Series A Preferred
Stock. In May 1997, the Company issued 1,614.775 shares of its mandatorily
redeemable Series A Preferred Stock to CFC. Each holder of the Series A
Preferred Stock is entitled to receive cumulative cash dividends at the
annual rate of $12,000 per share, payable semi-annually on May 1 and
November 1 each year, in arrears. At the option of the Company, by
declaration of the Company's Board of Directors, dividends may be paid in
additional shares of Series A Preferred Stock (the "Additional Shares")
instead of cash through May 1, 2007. To the extent dividends are paid in
Additional Shares, such Additional Shares shall be valued at $100,000 per
share with a liquidation value of $100,000 per share. The Series A
Preferred Stock is redeemable, at the option of the Company, at any time
prior to May 2, 2007, at a redemption price of $100,000 per share, plus
accrued and unpaid dividends, and is mandatorily redeemable on May 2, 2007
after final maturity of the Senior Notes, subject to certain conditions.
The Series A Preferred Stock is generally non-voting.
7. RELATED PARTY TRANSACTIONS
Comcast and CCCI were parties to a management agreement (the "Old
Management Agreement") pursuant to which Comcast managed the business and
operations of CCCI. In May 1997, subsequent to the redemption of the Zero
Coupon Notes, the Old Management Agreement was terminated and replaced with
a new management agreement (the "New Management Agreement") which provides
for an annual management fee of 1.5% of revenues. The New Management
Agreement eliminated the prior management fee which was limited to $5.0
million, subject to annual increases based on the consumer price index. The
New Management Agreement has a ten year term. Management fees of $6.4
million, $5.5 million and $5.5 million were charged to selling, general and
administrative expenses during the years ended December 31, 1997, 1996 and
1995, respectively (on a pro forma basis, giving effect to the New
Management Agreement, management fees for the years ended December 31,
1997, 1996 and 1995 would have been $6.7 million, $6.4 million and $5.6
million, respectively). For the year ended December 31, 1995, CCCI was
charged additional management fees of $2.7 million pursuant to the Old
Management Agreement. As of December 31, 1996, deferred management fees
payable, which are included in long-term investment in and due to
affiliates in the Company's consolidated balance sheet, totaled $14.7
million. In November 1997, the Company repaid $17.0 million of previously
deferred management fees to Comcast with a portion of the proceeds from the
initial borrowings under the New Bank Facility (see Note 4).
8. INCOME TAXES
Comcast, the Company and CCCI have entered into a tax sharing agreement
(the "Tax Sharing Agreement") whereby, the Company joins with Comcast in
filing a consolidated federal income tax return. Comcast allocates income
tax expense or benefit to the Company as if the Company was filing a
separate federal income tax return. Tax benefits from both losses and tax
credits are made available to the Company as it is able to realize such
benefits on a separate return basis. The Company is required to pay to
Comcast for income taxes an amount equal to that amount of tax the Company
would pay if it filed a separate tax return. Subsidiaries which were less
than 80% owned
- 22 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Continued)
have been excluded from the Tax Sharing Agreement, as they were not members
of the Comcast consolidated group for tax purposes. Accordingly, their tax
liabilities have been determined on a separate company basis.
Significant components of the Company's net deferred tax liability are as
follows (dollars in thousands):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Deferred tax liabilities:
Difference between book and tax basis of property and equipment........ $397,658 $394,308
-------- --------
Deferred tax assets:
Net operating loss carryforwards....................................... 180,096 147,953
Difference between book and tax basis of property and equipment and
deferred charges..................................................... 24,911 24,911
Less valuation allowance............................................... (35,293) (35,293)
-------- --------
169,714 137,571
-------- --------
Net deferred tax liability............................................. $227,944 $256,737
======== ========
</TABLE>
Income tax benefit consists of the following components (dollars in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Current expense
Federal.......................................... $ $ $1,932
State............................................ 180 313 921
-------- -------- --------
180 313 2,853
-------- -------- --------
Deferred benefit
Federal.......................................... (20,714) (36,836) (60,571)
State............................................ (2,333) (1,544) (5,226)
-------- -------- --------
(23,047) (38,380) (65,797)
-------- -------- --------
Income tax benefit................................... ($22,867) ($38,067) ($62,944)
======== ======== ========
</TABLE>
The effective income tax benefit of the Company differs from the statutory
amount because of the effect of the following items (dollars in thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Federal tax at statutory rate........................ ($21,981) ($37,678) ($60,453)
State income taxes, net of federal benefit........... (1,400) (800) (2,798)
Other, net........................................... 514 411 307
-------- -------- --------
Income tax benefit................................... ($22,867) ($38,067) ($62,944)
======== ======== ========
</TABLE>
As of December 31, 1997, the Company has available net operating loss
carryforwards of approximately $459.0 million for which a deferred tax
asset has been recorded and which expire through the year 2012.
9. STATEMENT OF CASH FLOWS - SUPPLEMENTAL INFORMATION
The Company made cash payments for interest of $72.8 million, $48.7 million
and $33.7 million during the years ended December 31, 1997, 1996 and 1995,
respectively.
The Company made cash payments for income taxes of $0.4 million, $0.8
million and $7.5 million during the years ended December 31, 1997, 1996 and
1995, respectively.
- 23 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995 (Concluded)
10. COMMITMENTS AND CONTINGENCIES
The Company leases certain office and transmissions facilities under
noncancellable operating leases expiring on various dates through 2039. The
leases generally provide for fixed annual rentals plus certain real estate
taxes and other costs. Rental expense of $11.5 million, $10.5 million and
$7.6 million for 1997, 1996 and 1995, respectively, has been charged to
operations.
As of December 31, 1997, the minimum rental commitments under
noncancellable operating leases are as follows (dollars in thousands):
1998................................................... $11,575
1999................................................... 10,341
2000................................................... 9,055
2001................................................... 6,903
2002................................................... 6,212
Thereafter............................................. 24,930
The Company is subject to claims which arise in the ordinary course of its
business. In the opinion of management, the amount of ultimate liability
with respect to these actions will not materially affect the financial
position, results of operations or liquidity of the Company.
- 24 -
<PAGE>
ITEM 9 CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
The information called for by Item 10, Directors and Executive Officers of the
Registrant, Item 11, Executive Compensation, Item 12, Security Ownership of
Certain Beneficial Owners and Management, and Item 13, Certain Relationships and
Related Transactions is omitted pursuant to Securities and Exchange Commission
General Instruction I of Form 10-K.
- 25 -
<PAGE>
PART IV
ITEM 14 EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following consolidated financial statements of the Company are
included in Part II, Item 8:
Independent Auditors' Report.........................................11
Consolidated Balance Sheet--December 31, 1997 and 1996...............12
Consolidated Statement of Operations--Years
Ended December 31, 1997, 1996 and 1995.............................13
Consolidated Statement of Cash Flows--Years
Ended December 31, 1997, 1996 and 1995.............................14
Consolidated Statement of Stockholder's Deficiency--Years
Ended December 31, 1997, 1996 and 1995.............................15
Notes to Consolidated Financial Statements...........................16
(b) (i) The following financial statement schedule required to be filed
by Item 14(d) of Form 10-K is included in Part IV:
Schedule II - Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable,
not required or the required information is included in the
consolidated financial statements or notes thereto.
(c) Reports on Form 8-K
(i) The Company filed a Current Report on Form 8-K under Item 5 on
October 27, 1997 relating to the change in control of the
Registrant.
(d) Exhibits required to be filed by Item 601 of Regulation S-K:
3.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement S-4, as amended, filed on September
30, 1997).
3.2 By-laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement S-4, as amended,
filed on September 30, 1997).
4.1 Indenture dated as of May 8, 1997 by and between the Company
and The Bank of New York, as Trustee, in respect of the 9
1/2% Senior Notes due 2007 (including the form of Notes)
(incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement S-4, as amended, filed on September
30, 1997).
10.1 Management Agreement dated as of May 20, 1997 by and between
Comcast Corporation ("Comcast") and CCCI (incorporated by
reference to Exhibit 10.1 to the Company's Registration
Statement S-4, as amended, filed on September 30, 1997).
10.2 Tax Sharing Agreement dated as of March 5, 1992 by and among
the Company, Comcast Cellular Corporation, Comcast and CCCI,
as amended May 20, 1997 (incorporated by reference to
Exhibit 10.2 to the Company's Registration Statement S-4, as
amended, filed on September 30, 1997).
10.3 Credit Agreement dated as of October 14, 1997 among the
Company, the banks listed therein, 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.
12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.
27.1 Financial Data Schedule.
- 26 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized in Philadelphia,
Pennsylvania on March 25,1998.
Comcast Cellular Corporation
By: /s/ Brian L. Roberts
-------------------------------
Brian L. Roberts
President and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Ralph J. Roberts
- ---------------------------
Ralph J. Roberts Chairman; Director March 25,1998
/s/ Julian A. Brodsky
- ---------------------------
Julian A. Brodsky Vice Chairman; Director March 25,1998
/s/ Brian L. Roberts
- ---------------------------
Brian L. Roberts President; Director March 25,1998
(Principal Executive Officer)
/s/ Lawrence S. Smith
- ---------------------------
Lawrence S. Smith Executive Vice President March 25,1998
(Principal Accounting Officer)
/s/ John R. Alchin
- ---------------------------
John R. Alchin Senior Vice President, Treasurer March 25,1998
(Principal Financial Officer)
/s/ Stanley L. Wang
- ---------------------------
Stanley L. Wang Senior Vice President, Secretary; March 25,1998
Director
- 27 -
<PAGE>
INDEPENDENT AUDITORS' REPORT ON FINANCIAL STATEMENT SCHEDULE
Board of Directors and Stockholder
Comcast Cellular Corporation
Wilmington, Delaware
We have audited the consolidated financial statements of Comcast Cellular
Corporation (the "Company"), the successor to a merger between the Company and
Comcast Cellular Holdings, Inc., (a wholly owned subsidiary of Comcast
Corporation) and its subsidiaries as of December 31, 1997 and 1996, and for each
of the three years in the period ended December 31, 1997, and have issued our
report thereon dated February 23, 1998; such report is included elsewhere in
this Form 10-K. Our audits also included the financial statement schedule of the
Company, listed in Item 14. This financial statement schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion based on our audits. In our opinion, such financial statement schedule,
when considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
/s/ DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
February 23, 1998
- 28 -
<PAGE>
COMCAST CELLULAR CORPORATION AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(In thousands)
<TABLE>
<CAPTION>
Additions
Balance at Charged to Deductions Balance
Beginning Costs and from at End
of Year Expenses Reserves(A) of Year
<S> <C> <C> <C> <C>
Allowance for Doubtful Accounts
1997..................................... $3,148 $9,502 $6,294 $6,356
1996..................................... 3,264 14,032 14,148 3,148
1995..................................... 2,796 7,268 6,800 3,264
</TABLE>
(A) Uncollectible accounts written off.
- 29 -
EXECUTION COPY
-----------------------------------------------------------------
$300,000,000
CREDIT AGREEMENT
Dated as of October 14, 1997
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,
PNC BANK, NATIONAL ASSOCIATION,
and
THE TORONTO-DOMINION BANK,
as Arranging Agents,
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
-----------------------------------------------------------------
<PAGE>
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..........................................-4-
Section 1.05. Prepayments........................................-4-
(a) Optional Prepayments..........................-4-
(b) Mandatory Prepayments.........................-5-
(c) Application and Timing........................-5-
Section 1.06. Limitation on Types of Loans.......................-5-
Section 1.07. Reductions of Commitments..........................-5-
(a) Optional Reductions...........................-5-
(b) No Reinstatement..............................-5-
Section 1.08. Commitment Fees....................................-5-
Section 1.09. Computation of Interest and Fees...................-6-
Section 1.10. Payments by the Borrower...........................-6-
(a) Time, Place and Manner........................-6-
(b) No Reductions.................................-7-
(c) Authorization to Charge Accounts..............-7-
(d) Extension of Payment Dates....................-7-
Section 1.11. Distribution of Payments by the Administrative
Agent..............................................-7-
Section 1.12. Taxes on Payments..................................-8-
(a) Taxes Payable by the Borrower.................-8-
(b) Taxes Payable by any Bank or Agent............-8-
(c) Exemption from U.S. Withholding Taxes.........-8-
-i-
<PAGE>
(d) Credits and Deductions........................-9-
Section 1.13. Evidence of Indebtedness..........................-10-
Section 1.14. Pro Rata Treatment................................-10-
Section 1.15. Registered Notes..................................-10-
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans.......................-12-
Section 2.02. Conditions to Each Loan...........................-13-
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Power; Qualification................-14-
Section 3.02. Capitalization; Subsidiaries......................-14-
Section 3.03. Authorization; Enforceability; Required Consents;
Absence of Conflicts...........................-15-
Section 3.04. Litigation........................................-15-
Section 3.05. Burdensome Provisions.............................-16-
Section 3.06. No Adverse Change or Event........................-16-
Section 3.07. Taxes.............................................-16-
Section 3.08. No Default........................................-17-
Section 3.09. Wireless Licenses and Related Matters.............-17-
Section 3.10. Not an Investment Company.........................-17-
Section 3.11. Hazardous Materials...............................-17-
Section 3.12. Senior Obligations................................-18-
Section 3.13. Benefit Plans.....................................-18-
ARTICLE 4
CERTAIN COVENANTS
Section 4.01. (a) Preservation of Existence and Properties, Compliance
with Law, Payment of Taxes and Claims, Preservation
of Enforceability................................-18-
(b) Subsidiary Matters...........................-19-
Section 4.02. Insurance.........................................-19-
Section 4.03. Use of Proceeds...................................-20-
Section 4.04. Guaranties........................................-20-
Section 4.05. Liens.............................................-20-
-ii-
<PAGE>
Section 4.06. Restricted Payments...............................-21-
Section 4.07. Merger or Consolidation; Acquisitions.............-21-
Section 4.08. Disposition of Assets.............................-21-
Section 4.09. Indebtedness......................................-24-
Section 4.10. Transactions with Affiliates......................-24-
Section 4.11. Management........................................-24-
(a) Management Agreement.........................-24-
(b) Management Fees..............................-24-
Section 4.12. Limitation on Restrictive Covenants...............-25-
Section 4.13. Issuance or Disposition of Capital Securities.....-25-
Section 4.14. Investments.......................................-25-
Section 4.15. Leverage Ratio....................................-26-
Section 4.16. Interest Coverage Ratio...........................-26-
Section 4.17. Revenues..........................................-26-
Section 4.18. Tax Sharing Agreement and Management Agreement....-26-
Section 4.19. Senior Subordinated Indebtedness..................-27-
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION
Section 5.01. Financial Statements and Information to Be
Furnished..........................................-27-
(a) Quarterly Financial Statements; Officer's
Certificate..................................-27-
(b) Year-End Financial Statements; Accountants' and
Officer's Certificates.......................-27-
(c) Reports and Filings............................-28-
(d) Requested Information..........................-28-
(e) Notice of Defaults and Other Matters...........-28-
(f) Wireless System Information....................-29-
Section 5.02. Accuracy of Financial Statements and Information....-29-
(a) Historical Financial Statements................-29-
(b) Future Financial Statements....................-29-
(c) Historical Information.........................-30-
(d) Future Information.............................-30-
Section 5.03. Additional Covenants Relating to Disclosure.........-31-
(a) Accounting Methods and Financial Records.......-31-
(b) Fiscal Year....................................-31-
(c) Visits, Inspections and Discussions............-31-
Section 5.04. Authorization of Third Parties to Deliver
Information.........................................-31-
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<PAGE>
ARTICLE 6
DEFAULT
Section 6.01. Events of Default.................................-32-
Section 6.02. Remedies Upon Event of Default....................-35-
Section 6.03. Certain Cure Rights...............................-35-
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate
Loans..........................................-36-
Section 7.02. Regulatory Changes................................-37-
Section 7.03. Capital Requirements..............................-38-
Section 7.04. Funding Losses....................................-39-
Section 7.05. Determinations....................................-39-
Section 7.06. Change of Lending Office..........................-39-
Section 7.07. Replacement of Banks..............................-40-
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Powers............................-40-
Section 8.02. Limitation on Agents' Liability...................-41-
Section 8.03. Defaults..........................................-41-
Section 8.04. Rights as a Bank..................................-41-
Section 8.05. Indemnification...................................-42-
Section 8.06. Non-Reliance on Agents and Other Banks............-42-
Section 8.07. Resignation of the Administrative Agent...........-42-
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries............................-43-
(a) Manner of Delivery...........................-43-
(b) Addresses....................................-43-
(c) Effectiveness................................-44-
Section 9.02. Expenses; Indemnification.........................-45-
Section 9.03. Amounts Payable Due Upon Request for Payment......-46-
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<PAGE>
Section 9.04. Remedies of the Essence...........................-46-
Section 9.05. Rights Cumulative.................................-46-
Section 9.06. Confidentiality...................................-46-
Section 9.07. Amendments; Waivers...............................-46-
Section 9.08. Set-Off; Suspension of Payment and Performance....-47-
Section 9.09. Sharing of Recoveries.............................-47-
Section 9.10. Assignments and Participations....................-48-
(a) Assignments...................................-48-
(b) Participations................................-49-
(c) Rights of Assignees and Participants..........-49-
Section 9.11. Governing Law.....................................-50-
Section 9.12. Judicial Proceedings; Waiver of Jury Trial........-50-
Section 9.13. Severability of Provisions........................-51-
Section 9.14. Counterparts......................................-51-
Section 9.15. Survival of Obligations...........................-51-
Section 9.16. Entire Agreement..................................-51-
Section 9.17. Successors and Assigns............................-51-
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions..........................-51-
(a) Defined Terms................................-51-
(b) Other Definitional Provisions................-71-
Section 10.02. Accounting Matters...............................-72-
Section 10.03. Representations and Warranties...................-72-
Section 10.04. Captions.........................................-72-
SCHEDULES AND EXHIBITS
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(a) - Form of Certificate as to Resolutions, etc.
Schedule 2.01(d)-1 - Form of Opinion of Counsel for the Borrower and each other
Loan Party
Schedule 2.01(d)-2 - Form of Opinion of Counsel for the Borrower and each Other
Loan Party
Schedule 2.01(e)-1 - Form of Opinion of Special FCC Counsel for the Borrower
and the Restricted Subsidiaries
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<PAGE>
Schedule 2.01(f) - Form of Opinion of Special Counsel for the Arranging
Agents
Schedule 3.02 - Capitalization and Subsidiaries
Schedule 3.03 - Required Consents and Governmental Approvals
Schedule 3.04 - Material Litigation
Schedule 3.09 - Wireless Licenses and Related Matters
Schedule 3.13 - Existing Benefit Plans
Schedule 4.04 - Existing Guaranties
Schedule 4.05 - Existing Liens
Schedule 4.12 - Permitted Restrictive Covenants
Schedule 4.14 - 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 Wireless System Information
Schedule 5.02(a) - Historical Financial Statements
Schedule 9.10(a) - Form of Notice of Assignment
Schedule 10.01 - Predecessor Indebtedness
Exhibit A - Form of Note
-vi-
<PAGE>
CREDIT AGREEMENT
Dated as of October 14, 1997
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, 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, from
time to time during the period from the Agreement Date through the Commitment
Termination Date, one or more Loans to the Borrower in an aggregate unpaid
principal amount not exceeding at any time such Bank's Commitment at such time;
provided, however, that no Loan shall be requested or made if, after giving
effect to the making thereof and the making of each other Loan requested to be
made at such time, the aggregate principal amount of all Loans outstanding at
such time, together with the aggregate principal amount of all Senior
Subordinated Indebtedness outstanding at such time, would exceed the Total
Commitment at such time.
The Total 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) 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
<PAGE>
Business Day, (ii) the Type or Types of Loans requested and (iii) the amount of
each such Type of Loan, the aggregate amount of which shall be $2,000,000 or any
integral multiple of $500,000 in excess thereof or the amount of the unused
Total Commitment. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of the amount and
Type of each Loan to be made by such Bank on the requested date specified
therein.
(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 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.
-2-
<PAGE>
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 Eurodollar Rate Loan, the applicable
Adjusted Eurodollar Rate plus the Applicable Margin and (ii) so long as it is a
Base Rate Loan, the Base Rate as in effect from time to time. 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.
(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 2/3% of the Loans outstanding (or, if there are no
Loans outstanding, more than 66 2/3% 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
-3-
<PAGE>
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) 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 (C) 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 (x) the contents
thereof, (y) 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, 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 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. The aggregate outstanding principal
amount of the Loans shall mature and become due and payable, and shall be repaid
by the Borrower, on the Commitment Termination Date Term Maturity Date.
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 $2,000,000 or any integral multiple
of $500,000 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) the date such prepayment is to be made
and (ii) 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
-4-
<PAGE>
specified in the applicable notice of prepayment, together with interest thereon
as provided in Section 1.03(b).
(b) Mandatory Prepayments. If, after giving effect to any
reduction of the Total Commitment pursuant to Section 1.07, the aggregate
outstanding principal amount of the Loans exceeds the Total Commitment, the
Borrower shall prepay the Loans in an amount equal to the amount of such excess,
together with interest thereon as provided in Section 1.03(b), and the amount,
if any, required to be paid in respect thereof pursuant to Section 7.04, on the
date of such reduction.
(c) Application and Timing. Prepayments of Loans made pursuant
to Section 1.05(b) shall be applied first to prepay Base Rate Loans and then to
prepay Eurodollar Rate Loans in the order that the Interest Periods for such
Loans end. Amounts to be so prepaid shall be paid on the date specified
therefor, whether or not such payment would require a prepayment of any
Eurodollar Rate Loans prior to the last day of the applicable Interest Periods
therefor or would result in losses, costs or expenses compensable under Section
7.04.
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 $2,000,000, (b) there shall not be, at any one
time, more than six 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 Commitments. (a) Optional
Reductions. The Borrower may reduce the Total Commitment by giving the
Administrative Agent notice (which shall be irrevocable) thereof no later than
11:00 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 $2,000,000 or any integral multiple of $500,000 in excess
thereof and that no reduction shall reduce the Total Commitment to an amount
less than the aggregate principal amount of all Loans 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 Commitment is to be reduced.
(b) No Reinstatement. No reduction of the Total 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 Commitment for each day from the Agreement
Date through the Commitment Termination Date at the rate per annum set forth
below opposite the applicable Leverage Ratio set forth below for such day,
payable in arrears on successive Interest
-5-
<PAGE>
Payment Dates, on the date of any reduction of the Total Commitment (to the
extent accrued and unpaid on the amount of such reduction) and on the Commitment
Termination Date:
Leverage Ratio Commitment Fee Rate
Greater than 3.50 to 1 0.225%
Less than or equal to 3.50 to 1 and 0.200%
greater than 3.00 to 1
Less than or equal to 3.00 to 1 and 0.175%
greater than 2.50 to 1
Less than or equal to 2.50 to 1 and 0.150%
greater than 1.50 to 1
Less than or equal to 1.50 to 1 0.125%
The Leverage Ratio shall be determined initially on the basis
of the certificate provided for in Section 2.01(h) and subsequently on the basis
of the most recent financial statements delivered pursuant to Section 5.01. Any
change in the commitment fee rate 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.
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. Interest calculated on the basis of the Prime
Rate and commitment fees 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.
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
-6-
<PAGE>
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
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.
-7-
<PAGE>
(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 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
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(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 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).
(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 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
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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 a single Note payable to the order of such Bank. The records of
each Bank shall be prima facie evidence of such Bank's Loans and accrued
interest thereon and of all payments made in respect thereof.
Section 1.14. Pro Rata Treatment. Except to the extent
otherwise provided herein, (a) Loans shall be made by the Banks pro rata in
accordance with their respective Commitments, (b) Loans of the Banks shall be
converted and continued pro rata in accordance with their respective amounts of
Loans of the Type and, in the case of Eurodollar Rate Loans, having the Interest
Period being so converted or continued, (c) each reduction of the Total
Commitment shall be applied to the Commitments of the Banks pro rata in
accordance with the respective amounts thereof and (d) 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 Note, evidencing such
Loans, or to exchange such Note for a new Note, 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)
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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 (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.
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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 Arranging Agents' receipt
of each of the following, in form and substance and, in the case of the
materials referred to in clauses (a), (b), (c), (g), (h), (j) and (k) below,
certified in a manner satisfactory to the Arranging Agents:
(a) 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), to
which shall be attached copies of the resolutions and by-laws referred to in
such certificate;
(b) 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;
(c) a good standing or subsistence certificate with respect to
the Borrower, each Restricted Subsidiary and each other Loan Party (in each
case, other than partnerships, to the extent such certificate is not customarily
available with respect to partnerships), 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;
(d) opinions of counsel for the Borrower and each other Loan
Party, each dated the requested date for the making of such Loan, in the form of
Schedules 2.01(d)-1 and 2.01(d)-2, respectively, with such changes as the
Arranging Agents shall approve;
(e) an opinion of special FCC counsel for the Borrower and the
Restricted Subsidiaries, dated the requested date for the making of such Loan,
in the form of Schedule 2.01(e), with such changes as the Arranging Agents shall
approve;
(f) an opinion of Winthrop, Stimson, Putnam & Roberts, special
counsel for the Arranging Agents, dated the requested date for the making of
such Loan, in the form of Schedule 2.01(f);
(g) a copy of each Governmental Approval and other consent or
approval listed on Schedule 3.03;
(h) 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;
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(i) a duly executed Note for each Bank and a duly executed
copy of each of the other Loan Documents;
(j) copies of the Management Agreement and the Tax Sharing
Agreement, each of which shall be in form and substance satisfactory to the
Arranging Agents;
(k) a certificate of a Responsible Officer of the Borrower,
dated the requested date for the making of such Loan, to which shall be attached
a pro forma balance sheet of the Borrower and the Restricted Subsidiaries as at
June 30, 1997, reflecting the making of the initial Loans and the repayment or
satisfaction of the Predecessor Indebtedness, which shall be in reasonable
detail and in form satisfactory to the Arranging Agents;
(l) 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 and disbursements of Winthrop, Stimson, Putnam &
Roberts, special counsel for the Arranging Agents, in connection with the
negotiation, preparation, execution and delivery of the Loan Documents and the
making of the initial Loans;
(m) 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 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 shall have been made;
and
(n) evidence that the conditions to the making of the initial
Additional Facility Loans specified in Sections 2.01 and 2.02 of the Additional
Facility Credit Agreement shall have been satisfied, or shall be satisfied
substantially simultaneously with the making of the initial Loans hereunder.
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 (it being acknowledged that certain Loan Document Representations and
Warranties expressly relate to an earlier date and that such Loan Document
Representations and Warranties shall continue to be true and correct as of such
earlier date), 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
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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 (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 Arranging Agents, by the
application of the proceeds of such Loans 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.
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 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 decline to 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 Restricted 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 the Borrower and the
Restricted Subsidiaries taken as a whole.
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
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Securities owned by the Borrower or another Subsidiary. As of the Agreement
Date, all such Subsidiaries (other than the Excluded Subsidiaries) are
Restricted Subsidiaries. As of the Agreement Date, the Borrower or another
Restricted 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 Restricted Subsidiary. All such
Capital Securities have been duly authorized and issued and 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 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 the Borrower, 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 Restricted Subsidiaries taken as a whole or (y) any
Material Loan Document.
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-
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governmental body, any actions, suits or proceedings pending or, to the
knowledge of the Borrower and the Restricted Subsidiaries, threatened against or
in any other way relating to or affecting (i) the Borrower or any Restricted
Subsidiary or any of their respective businesses or properties or (ii) any
Material Loan Document (except actions, suits or proceedings that may affect the
wireless telephone industry generally but with respect to which neither the
Borrower or any Restricted 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 Restricted Subsidiary that, if adversely
determined, would, singly or in the aggregate, have a Materially Adverse Effect
on (A) the Borrower and the Restricted Subsidiaries taken as a whole or (B) any
Material Loan Document.
Section 3.05. Burdensome Provisions. As of the Agreement Date
and as of the Closing Date, neither the Borrower nor any Restricted Subsidiary
is a party to or bound by any Contract or Applicable Law (other than Applicable
Law affecting the wireless 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 Restricted Subsidiaries taken as a
whole or (b) any Material Loan Document.
Section 3.06. No Adverse Change or Event. Except for events
affecting the wireless telephone industry generally, since December 31, 1996, no
change in the business, assets, Liabilities, financial condition or results of
operations of the Borrower or any Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan
Document. 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 Restricted
Subsidiaries has filed (either directly or indirectly through the Affiliate of
the Borrower or such Restricted 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 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 Restricted 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 Restricted
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 Restricted 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 Restricted Subsidiaries
taken as a
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whole or (b) any Material Loan Document. The charges, accruals and reserves on
the books of the Borrower and each of the Restricted 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
Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan Document.
Section 3.09. Wireless 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 Restricted
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 other
Governmental Approvals, necessary for the ownership and operation of the
Wireless Systems owned or operated by the Borrower or any Restricted Subsidiary,
and the ownership and operation of such Wireless Systems by the Borrower and the
Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan Document.
Section 3.10. Not an Investment Company. Neither the Borrower
nor any of the Restricted 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 Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan
Document. The Borrower and each of the Restricted Subsidiaries are in compliance
with the
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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 would
not have a Materially Adverse Effect on (i) the Borrower and the Restricted
Subsidiaries taken as a whole or (ii) any Material Loan Document. 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 Restricted Subsidiaries to have any
permit, license or authorization required in connection with the conduct of the
business of the Borrower or any of the Restricted 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 Restricted
Subsidiaries, the consequences of any of which would have a Materially Adverse
Effect on (x) the Borrower and the Restricted Subsidiaries taken as a whole or
(y) any Material Loan Document.
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 Restricted Subsidiary has any Existing Benefit Plans other
than those listed on Schedule 3.13.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Restricted Subsidiary to:
Section 4.01. (a) Preservation of Existence and Properties,
Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. (i) 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 Restricted 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
all of its other franchises, licenses, rights and privileges, including Wireless
Licenses, (ii) 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, (iii) comply with
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Applicable Law, including, but not limited to, all laws applicable to the
construction, ownership and operation of a Wireless System or the ownership and
use of a Wireless License (including, but not limited to, the Communications Act
of 1934, and all rules and regulations of the FCC thereunder), (iv) pay or
discharge when due all Taxes and all Liabilities that are or might become a Lien
on any of its properties and (v) take all action and obtain all consents and
Governmental Approvals required so that its obligations under the Loan Documents
will at 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(a) (other than clause (i) above (insofar as it requires the Borrower to
preserve its corporate or partnership existence, as the case may be) and clause
(v) 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 (A) the Borrower and the Restricted Subsidiaries taken as a
whole or (B) any Material Loan Document.
(b) Subsidiary Matters. (i) Ensure that no payment is made or
required to be made by the Borrower or a Restricted Subsidiary to a creditor of
an Unrestricted Subsidiary in respect of any Indebtedness or other contractual
liability of such Unrestricted Subsidiary, keep the bank accounts of the
Borrower and the Restricted Subsidiaries separate from and not commingled with
the bank accounts of any Unrestricted Subsidiary, and ensure that no action is
taken by it, and that its affairs are not conducted in a manner, which is likely
to result in the corporate existence of any Unrestricted Subsidiary that is a
direct Subsidiary of the Borrower or any Restricted Subsidiary being ignored, or
in the assets or Liabilities of the Borrower or any Restricted Subsidiary being
substantively consolidated with those of any Unrestricted Subsidiary in a
bankruptcy, reorganization or other insolvency proceeding.
(ii) In the case of the Borrower and each Restricted
Subsidiary which directly owns the issued and outstanding Capital Securities of
any Restricted Subsidiary, whether such Restricted Subsidiary (A) is owned by
the Borrower or such Restricted Subsidiary as of the Agreement Date or (B) is
formed, created or acquired by the Borrower or any Subsidiary after the
Agreement Date and is not designated by the Borrower as an Unrestricted
Subsidiary pursuant to the definition of "Restricted Subsidiary" herein on or
prior to the tenth day following such formation, creation or acquisition, for so
long as such Restricted Subsidiary is a direct Restricted Subsidiary of the
Borrower or such Restricted Subsidiary, own not less than 80% of the issued and
outstanding Capital Securities of such Restricted Subsidiary.
(iii) If an Unrestricted Subsidiary will file a consolidated
tax return with the Borrower, deliver to the Administrative Agent, on or prior
to the date on which such Unrestricted Subsidiary shall have been designated as
an Unrestricted Subsidiary pursuant to the definition of "Restricted Subsidiary"
herein, and maintain in full force and effect a tax sharing agreement, in form
and substance reasonably satisfactory to the Arranging Agents and duly executed
by such Unrestricted Subsidiary and the Borrower.
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
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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 Restricted Subsidiaries taken as a whole or (ii) any Material
Loan Document. Whether or not customarily maintained by similar businesses, the
Borrower shall, and shall cause the Restricted Subsidiaries to, maintain
business interruption insurance, so long as such insurance is available on
commercially reasonable terms.
Section 4.03. Use of Proceeds. Use the proceeds of the Loans
only to (a) subject to Section 4.14, make investments, (b) subject to Section
4.07, make acquisitions, (c) fund working capital and capital expenditure
requirements and other general corporate purposes, (d) subject to Section 4.06,
make Restricted Payments, (e) to the extent permitted hereunder, make payments
of principal and interest in respect of Senior Subordinated Indebtedness, (f)
repay the Predecessor Indebtedness (it being intended that this Agreement and
the Loans hereunder, together with the Additional Facility Credit Agreement and
the Additional Facility Loans thereunder, replace and refinance the Predecessor
Indebtedness), (g) pay transaction costs incurred in connection with the
execution and delivery of the Loan Documents and the Additional Facility Loan
Documents and (h) subject to Section 4.11(b), make payments of Permitted
Management Fees. 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
Restricted Subsidiary to, directly or indirectly:
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 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.
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Section 4.06. Restricted Payments. Make or declare or
otherwise become obligated to make any Restricted Payment, if, at either the
time of the declaration or other incurrence, if any, of such Restricted Payment,
or the time of the making thereof, or immediately after giving effect thereto,
any Default shall have occurred and be continuing.
Section 4.07. Merger or Consolidation; Acquisitions. Merge or
consolidate with any Person, or acquire any assets or business from or 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) (i) any merger or
consolidation of the Borrower with any one or more Restricted Subsidiaries or
with any Person acquired as provided in clause (d) below, provided that the
Borrower shall be the continuing Person or (ii) 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 Arranging Agents, (b) any
merger or consolidation of any Restricted Subsidiary with any one or more other
Restricted Subsidiaries or with any Person acquired as provided in clause (d)
below, (c) any acquisition of assets in the ordinary course of business or
contemplated by Section 4.08(c) and (d) any acquisition (whether effected by
merger, consolidation, acquisition of Capital Securities, exchanges permitted
under Section 4.08(f)(ii), joint venture or otherwise) of one or more wireless
telephone or other communications businesses.
Section 4.08. Disposition of Assets. Sell, lease, license,
transfer or otherwise dispose (which shall include, for purposes of this Section
4.08, any redesignation of any Restricted Subsidiary as an Unrestricted
Subsidiary pursuant to the definition of "Restricted Subsidiary" herein) of any
asset (which shall include, but not be limited to, for purposes of this
Agreement, any Capital Securities or other ownership interests) 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 any obsolete
or retired property not used or required in its business, (c) any disposition of
any asset or any interest therein by a Restricted Subsidiary to the Borrower or
a Restricted Subsidiary or any disposition of any asset or any interest therein
by the Borrower to a Restricted Subsidiary, (d) any sale or assignment of
delinquent accounts receivable or other 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
and (f) any other disposition (including any such redesignation), 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
or other marketable consideration (which shall include the cash portion
of an exchange of assets by the Borrower or a Restricted Subsidiary
pursuant to clause (ii) below) in an amount not less than the fair
market value of the assets sold net of the liabilities assumed, as
determined in the good faith judgment of the Board of Directors of the
Borrower or the applicable Restricted Subsidiary, and
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(A) unless the Required Agents shall have
otherwise consented in writing, the percentage equal to the
sum of
(1) the Cash Flow Percentage
attributable to such assets (or, in the case of any
such redesignation, such Restricted Subsidiary),
(2) plus the Cash Flow Percentage
(determined, with respect to prior sales or
redesignation of Restricted Subsidiaries, at the time
of each such sale or redesignation) attributable to
all other assets sold (and Restricted Subsidiaries so
redesignated) by the Borrower and its Restricted
Subsidiaries pursuant to this clause (i) within the
prior twelve calendar month period (or, if shorter,
the period from the Closing Date),
(3) plus (without duplication), with
respect to all Cash Portion Exchanges by the Borrower
and the Restricted Subsidiaries within the prior
twelve calendar month period (or, if shorter, the
period from the Closing Date), the aggregate of the
Net Cash Flow Percentages with respect to such Cash
Portion Exchanges,
(4) minus the Cash Flow Percentage
attributable to any Unrestricted Subsidiary (that had
formerly been a Restricted Subsidiary) redesignated
as a Restricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein within the prior
twelve calendar month period (or, if shorter, the
period from the Closing Date) (such subtracted Cash
Flow Percentage to be determined as of the date of
such redesignation after giving effect thereto),
does not exceed 25%, and
(B) the percentage equal to the sum of
(1) the Cash Flow Percentage
attributable to such assets (or, in the case of any
such redesignation, such Restricted Subsidiary),
(2) plus the Cash Flow Percentage
(determined, with respect to prior sales or
redesignation of Restricted Subsidiaries, at the time
of each such sale or redesignation) attributable to
all other assets sold (and Restricted Subsidiaries so
redesignated) by the Borrower and its Restricted
Subsidiaries pursuant to this clause (i) since the
Closing Date,
(3) plus (without duplication), with
respect to all Cash Portion Exchanges by the Borrower
and the Restricted Subsidiaries since the Closing
Date, the aggregate of the Net Cash Flow Percentages
with respect to such Cash Portion Exchanges,
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(4) minus the Cash Flow Percentage
attributable to any Unrestricted Subsidiary (that had
formerly been a Restricted Subsidiary) redesignated
as a Restricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein since the Closing
Date (such subtracted Cash Flow Percentage to be
determined as of the date of such redesignation after
giving effect thereto),
does not exceed 50%, or
(ii) such disposition is an exchange, with any Person, of
assets exchanged by the Borrower or the applicable Restricted
Subsidiary for assets (together with any cash consideration) of equal
or greater value, as determined in the good faith judgment of the Board
of Directors of the Borrower or the applicable Restricted Subsidiary,
and (A) if the Cash Flow Percentage attributable to such assets
exchanged by the Borrower or applicable Restricted Subsidiary together
with the Cash Flow Percentage attributable to all other assets
exchanged by the Borrower and its Restricted Subsidiaries pursuant to
this clause (ii) within the prior twelve calendar month period (or, if
shorter, the period from the Closing Date) exceeds 20%, the Borrower
shall have notified the Administrative Agent of such exchange not later
than the third Business Day following the consummation of such exchange
and shall have provided to the Administrative Agent, together with such
notice, historical financial information in form and content reasonably
satisfactory to the Administrative Agent with respect to the assets
disposed of and acquired pursuant to such exchange and (B) if the
assets so exchanged are assets of or interests in wireless telephone or
related businesses, such assets shall be exchanged principally for
assets of or interests in wireless telephone or related businesses
located in the United States; provided that any sale of assets (which
shall include the cash portion of an exchange of assets by the Borrower
or a Restricted Subsidiary pursuant to this clause (ii)) by the
Borrower or any of the Restricted Subsidiaries pursuant to clause (i)
above shall, to the extent of the reinvestment hereinafter referred to,
be deemed an exchange for purposes of this clause (ii) and no longer
deemed a sale for purposes of clause (i) above if, within 15 months
after such sale, the Borrower or the applicable Restricted Subsidiary
shall have reinvested, or shall have entered into a binding agreement
to reinvest, all or any portion of the net proceeds of such sale in an
acquisition permitted by Section 4.07(d);
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) unless
the Required Agents shall have otherwise consented in writing, the Cash Flow
Percentage attributable to the assets sold or exchanged, together with the Cash
Flow Percentage of all other assets sold to or exchanged with Affiliates since
the Closing Date, shall not exceed 10%, and (z) such Board of Directors shall
have determined, in its good faith judgment, that such sale or exchange is for
consideration or in exchange for assets reflecting the fair market value of the
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 cellular telephone or wireless
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telecommunications 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, (b) Indebtedness under the Additional
Facility Loan Documents, (c) Junior Subordinated Indebtedness, (d) Senior
Subordinated Indebtedness, (e) Indebtedness to which Section 4.14 is by its
express terms inapplicable by virtue of clause (f) thereof, (f) other
Indebtedness of the Borrower, provided that (i) such Indebtedness is not senior
in right of payment to the Loans, is unsecured and is not entitled to the
benefit of any Guaranty, (ii) the final maturity of such Indebtedness is no
earlier than the date that is six months after the Commitment Termination Date
and (iii) no more than 50% of the principal amount of such Indebtedness shall be
scheduled or otherwise required to be repaid or prepaid (and no more than 50% of
any commitments in respect thereof shall be scheduled or otherwise required to
be reduced) earlier than the date that is six months after the Commitment
Termination Date, (g) additional Indebtedness in an aggregate principal amount
at any time outstanding not in excess of $35,000,000 and (h) assumptions by
certain Restricted Subsidiaries of portions of the Indebtedness of the Borrower
described in clauses (a) and (b) 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 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.
Section 4.10. Transactions with Affiliates. Effect any
material transaction with any Affiliate (other than the Borrower or any
Restricted 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, (c) the Tax Sharing Agreement, and (d) any other such transaction
that would not, either singly, or together with all other such transactions,
reasonably be expected to have a Materially Adverse Effect on (i) the Borrower
and the Restricted Subsidiaries taken as a whole or (ii) any Material Loan
Document.
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
Restricted Subsidiaries to Comcast or any Subsidiary of Comcast or any other
Person for the supervision and management of the Borrower and the Restricted
Subsidiaries (other than amounts paid in reimbursement of out- of-pocket costs
and expenses incurred on behalf of the Borrower or the Restricted 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 Restricted
Subsidiaries.
(b) Management Fees. Make payments in respect of, or accrue,
Management Fees at any time other than Permitted Management Fees, provided that
Permitted Management Fees shall not be paid at any time when a Default exists
or, immediately after giving effect thereto, would exist. For purposes of this
Agreement, "Permitted Management Fees" means, at any time during any fiscal year
of the Borrower, (i) Management Fees in an amount up to 6% of Total Revenue at
such time, which may be paid in cash or accrued to
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the extent not currently paid in cash as provided below and (ii) the accrued and
unpaid portion of Management Fees from prior fiscal years. For purposes of this
Section 4.11, "Total Revenue" means, at any time during any fiscal year of the
Borrower, consolidated gross operating revenue of the Borrower and the
Restricted Subsidiaries (excluding interest income and unusual or extraordinary
items) during the period commencing with the first day of such fiscal year and
ending at such time.
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 Restricted
Subsidiary to (a) pay dividends or make any other distributions on shares of its
Capital Securities held by the Borrower or any other Restricted Subsidiary, (b)
pay any obligation owed to the Borrower or any other Restricted Subsidiary, (c)
make any loans or advances to or investments in the Borrower or in any other
Restricted Subsidiary, (d) transfer any of its property or assets (other than
property or assets subject to Permitted Liens) to the Borrower or any other
Restricted Subsidiary, except for contracts, leases or licenses which by their
terms are non-assignable or (e) create any Lien upon its property or assets
(other than property or assets subject to Permitted Liens) whether now owned or
hereafter acquired or upon any income or profits therefrom (other than
contracts, leases or other 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 with respect to Wireless 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 Restricted Subsidiary of any of its
Capital Securities to the Borrower or a Restricted Subsidiary, (b) any issuance
by a Restricted Subsidiary of any of its Capital Securities to the holders of
the common stock or other ownership interests of such Restricted Subsidiary made
pro rata to the relative amounts of such common stock or other ownership
interests, respectively, held by such holders, (c) any disposition by the
Borrower or any Restricted Subsidiary of any Capital Securities issued by a
Subsidiary (i) to the Borrower or a Restricted 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 ("S&P") or
P-1 by Moody's 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
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equivalent rating) by a nationally recognized investment rating agency, (d)
repurchase agreements with any Bank or other financial institution which are for
periods not in excess of 180 days and are 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 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 Restricted Subsidiaries, provided that no such loans or
advances to a Restricted Subsidiary shall remain outstanding after any sale,
exchange or disposition of such Restricted Subsidiary or any redesignation of
such Restricted Subsidiary as an Unrestricted Subsidiary pursuant to the
definition of "Restricted Subsidiary" herein, (g) acquisitions referred to in
Section 4.07, whether of the whole or any part of a business or business unit or
any ownership interest therein, (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) Interest Rate Protection Agreements having a designated
notional amount not exceeding, at the time entered into, 100% of the Additional
Facility Total Commitment then in effect, having a maturity not later than the
Additional Facility Term Maturity Date, (j) Existing Investments and (k) other
investments at any time owned by the Borrower and the Restricted Subsidiaries
and acquired for an aggregate purchase price not in excess of $25,000,000,
provided, however, that in the event that any such obligation, Capital Security
or interest is purchased, or loan is made by, a custodian or other agent on
behalf of the Borrower, the Borrower shall insure that such custodial or agency
arrangement shall not in any way impair the Borrower's ownership interest in
such obligation, Capital Security, interest or loan.
C. The Borrower shall not:
Section 4.15. Leverage Ratio. Permit the Leverage Ratio to be
greater than 4.50 to 1 at any time.
Section 4.16. Interest Coverage Ratio. Permit the Interest
Coverage Ratio to be less than 2.0 to 1 at any time.
Section 4.17. Revenues. Permit at any time the portion of
consolidated gross operating revenues of the Borrower and the Restricted
Subsidiaries derived from their wireless telephone and related businesses for
any fiscal quarter of the Borrower to be less than 80% of the total consolidated
gross operating revenues of the Borrower and the Restricted Subsidiaries for
such fiscal quarter.
Section 4.18. Tax Sharing Agreement and Management Agreement.
(a) 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 or to the
Restricted Subsidiaries taken as a whole.
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(b) Without limiting Section 4.11, amend, modify, or waive any
provision of the Management Agreement if the result of such amendment,
modification or waiver is materially adverse to the Borrower or to the
Restricted Subsidiaries taken as a whole.
Section 4.19. Senior Subordinated Indebtedness. Make payments
of principal or interest in respect of Senior Subordinated Indebtedness, except
that this Section 4.19 shall not apply to any such payments so long as (i) no
Default shall have occurred and be continuing at the time of such payment 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 ended September 30, 1997:
(i) a consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as at the end of such quarterly period and
the related consolidated statements of operations and retained earnings
and of cash flows of the Borrower and the Restricted 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
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, 1997:
(i) a consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as at the end of such fiscal year and the
related consolidated statements of operations and retained earnings and
of cash flows of the Borrower and the Restricted 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;
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(ii) an audit report of Deloitte & Touche, LLP, or
other independent certified public accountants of nationally recognized
standing, 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 Restricted
Subsidiaries in conformity with Generally Accepted Accounting
Principles (except for the exclusion of the Unrestricted Subsidiaries)
as at the end of and for such fiscal year;
(iii) a certificate of the accountants referred to in
clause (ii) above addressed to the Banks and in form satisfactory to
the Arranging 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 Restricted 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 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 Restricted Subsidiary, or the Board of
Directors of the Borrower or any Restricted 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 Restricted Subsidiary shall send to its stockholders (other
than, in the case of the Borrower or any Restricted Subsidiary, its Affiliates)
and of all registration statements and all regular or periodic reports that the
Borrower or any Restricted 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
Restricted 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
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such time and (iii) any material amendment to the certificate of incorporation
or by-laws of the Borrower.
(f) Wireless 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 Wireless
System owned or controlled by the Borrower or any of the Restricted
Subsidiaries, the aggregate number of subscribers served by such
Wireless 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 Wireless System owned or controlled by
the Borrower or any of the Restricted Subsidiaries, (A) the aggregate
percentage ownership held by the Borrower and the Restricted
Subsidiaries in such Wireless System and (B) the Pops of such Wireless
System, in each case, as at the last day of such fourth fiscal quarter.
Section 5.02. Accuracy of Financial Statements and Information.
(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 that is audited is, and
(B) each of such financial statements that is unaudited is, in all material
respects, complete and correct and presents fairly, in accordance with Generally
Accepted Accounting Principles (except as noted in the auditor's report thereon
and except for the absence of footnotes in unaudited financial statements and
normal year-end audit adjustments and any pro forma balance sheets), the
financial position of the Persons to which such financial statements relate as
at their respective dates and the results of operations and retained earnings
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 December 31, 1996, 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 Restricted 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 Unrestricted Subsidiaries),
the consolidated financial position of the Borrower and the Restricted
Subsidiaries as at their respective dates and the consolidated results of
operations, retained earnings and cash flows of the Borrower and such Restricted
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
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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 Restricted 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 Restricted Subsidiaries taken as a whole.
(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 Restricted
Subsidiary and concerning such Person, and not the wireless 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) to the Borrower's best knowledge, 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 the final financial projections furnished to
the Administrative Agent or the Banks in writing by or on behalf of the Borrower
or any Restricted Subsidiary prior to the Agreement Date, which are not to be
construed as guaranties of the financial performance of the Borrower and the
Restricted 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 Restricted Subsidiaries for such period or
periods, and no fact is known to the Borrower on the Agreement 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 Restricted Subsidiary and concerning such Person, and not the wireless
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, not contain any untrue statement of a material fact, and , to the
Borrower's best knowledge, 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
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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 Restricted 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
Restricted Subsidiaries with the terms of the Loan Documents.
(b) Fiscal Year. Unless the Arranging 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
Restricted 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 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 and
the Banks.
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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 Restricted 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 Section 4.01(a)(i) (insofar as such
Section requires the preservation of the corporate existence
of the Borrower), 4.01(a)(v), 4.01(b), 4.03 through 4.19,
5.01(e)(i), 5.03(b) or 5.03(c) of this Agreement; or
(B) any term, covenant, condition or
agreement contained in (x) this 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
(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 other Loan
Document;
(d) (i) The Borrower or any Restricted 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
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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 Restricted 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 or any Restricted Subsidiary, 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 Restricted Subsidiaries
taken as a whole or (ii) any Material Loan Document;
(f) (i) The Borrower or any Restricted Subsidiary 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
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 or any Restricted Subsidiary 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 or any Restricted
Subsidiary, or of all or any substantial part of the assets, domestic or
foreign, of the Borrower or any Restricted Subsidiary, 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 or any Restricted Subsidiary (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 Restricted 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
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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 Restricted Subsidiaries taken
as a whole;
(h) (i) Any Termination Event shall occur with respect to any
Benefit Plan of the Borrower or any Restricted 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 Restricted 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
Restricted 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 Restricted
Subsidiary or any of their respective ERISA Affiliates to enforce Section 515 of
ERISA and such proceeding shall not have been dismissed within 60 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 Restricted
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 Restricted
Subsidiaries taken as a whole or (y) any Material Loan Document;
(i) Any Loan Party asserts, or any Loan Party institutes any
proceedings seeking to establish, that any provision of the Loan Documents is
invalid, not binding or unenforceable;
(j) One or more Wireless Licenses held by the Borrower or any
of the Restricted Subsidiaries shall be terminated or revoked such that the
Borrower and the Restricted Subsidiaries are no longer able to operate the
related Wireless Systems and retain the revenue received therefrom or the
Borrower and the Restricted Subsidiaries or the grantors of any such Wireless
License shall fail to renew any such Wireless License at the stated expiration
thereof such that the Borrower and the Restricted Subsidiaries are no longer
able to operate the related Wireless 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 (i) 10% or more,
unless the Borrower shall have delivered a certificate of a Responsible Officer
of the Borrower to the Administrative Agent within ten Business Days of such
termination, revocation or failure to renew having such effect demonstrating
that the Borrower would have been in compliance at all times with the
requirements of Sections 4.15 and 4.16 on a pro forma basis determined as if all
such terminations, revocations and failures to renew had occurred on the first
day of, in the case of Section 4.15, the most recently completed two fiscal
quarters of the Borrower and, in the case of Section 4.16, the most recently
completed four fiscal quarters of the Borrower or (ii) 25% or more;
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(k) Any of the parties to the Affiliate Subordination
Agreement (other than the Administrative Agent) shall have 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 (a) 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 (b)
representing not less than 51% 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 shall at any time fail to
manage and supervise pursuant to the Management Agreement each Wireless System
of the Borrower and the Restricted Subsidiaries in a manner consistent with good
industry practices;
(n) 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
(o) Any Event of Default (as defined in the Additional
Facility Credit Agreement) shall have occurred and be continuing.
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 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, and 4.16, if the Borrower shall default in the
performance or observance of any term, covenant, condition or agreement
contained in Sections 4.15 or 4.16, 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:
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(a) With respect to Section 4.15, the Borrower shall have
prepaid Loans and/or Additional Facility Loans, either from cash on hand or the
proceeds of new capital contributions or the proceeds of 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, the Borrower shall have
prepaid Loans and/or Additional Facility Loans, either from the proceeds of new
capital contributions or the proceeds of Junior Subordinated Indebtedness, in an
aggregate amount sufficient so that if the ratio set forth in Section 4.16 as at
the date of receipt of such proceeds were recalculated in a manner which would
include as additional Cash Flow the amount of such proceeds, the Borrower would
be in compliance with the Section 4.16 as at such date; provided that such
addition to Cash Flow shall be attributed to the Cash Flow for the third most
recent of the four consecutive fiscal quarters of the Borrower used to calculate
the Interest Coverage Ratio so that such addition to Cash Flow shall continue to
be given effect for purposes of determining compliance with Section 4.16 as of
the end of the next following fiscal quarter of the Borrower;
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 five 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
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 commitment fees under Section 1.08 or 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 and 4.16, 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
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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 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)
or (b) 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 (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,
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(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 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.
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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 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
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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.
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 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 Affiliate Subordination Agreement if,
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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, or (c) 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 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
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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 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 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. 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 or the Loan
Documents 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 successor Administrative Agent, such
Person shall
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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:
1500 Market Street
Philadelphia, PA 19102
Telecopier No.: (215) 981-7744
Telephone No.: (215) 981-7503
Attention: John R. Alchin, Senior
Vice President and
Treasurer
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(ii) if to the Administrative Agent, to it at:
909 Fannin Street
Suite 1700
Houston, Texas 77010
Telecopier No.: (713) 951-9921
Telephone No.: (713) 653-8235
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 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
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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 any portion thereof (other than an assignment pursuant
to Section 7.07 hereof);
(b) pay or reimburse the Arranging Agents for all reasonable
out-of-pocket costs and expenses (including reasonable fees and disbursements of
legal counsel collectively retained by the Arranging Agents or, other than with
respect to clause (i) below, appraisers, accountants and other experts employed
or retained collectively by the Arranging Agents) incurred by the Arranging
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,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent or the Banks in, under or related to the Loan Documents during a Default
or (B) the performance of any of the obligations of the Administrative Agent or
the Banks under or related to the Loan Documents, or (iv) protecting,
preserving, exercising or enforcing any of the rights of the Administrative
Agent or the Banks in, under or related to the Loan Documents during a Default;
(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 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
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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.
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)
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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, (i) any scheduled payment of interest on such Bank's
Loans or Notes or any fees payable to such Bank hereunder or (ii) any repayment
of principal of such Bank's Loans or Notes, (d) waives any material condition
precedent under Section 2.01 or 2.02 (as Section 2.02 applies to the initial
Loans hereunder) or (e) 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 or amends the definition of "Required 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 owing to such
Person (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 so long as, in each such
case, such deposit shall constitute, in the reasonable judgment of such Person,
an operating account of the Borrower) and (b) during any Event of Default, to
suspend the payment and performance of such Liabilities owing by such Person
and, in the case of Liabilities that are deposits, to 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 the Borrower, including a claim deemed secured
under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by
the Administrative Agent or the Borrower 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
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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 the Borrower 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 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.
(ii) Each Bank may from time to time assign any or all of
its rights and obligations under the Loan Documents 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 the Bank that is the
Administrative Agent or an assignment by any Bank to an Affiliate of such Bank,
the Administrative Agent shall have been paid an assignment fee of $3,500;
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
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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 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;
provided, further, however, that, unless the Borrower shall have otherwise
consented, no such assignment, other than an assignment by any Bank to an
Affiliate of such Bank, shall be made or be effective unless, substantially
contemporaneously therewith, the assigning Bank assigns, in the case of a
complete assignment, all, or, in the case of a partial assignment, a ratable
portion, of its rights and obligations under the Additional Facility Loan
Documents to the same assignee. 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 a new Note to the assignee Bank
(against, other than in the case of a partial assignment, receipt of the
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 without the consent of the Borrower, the
Administrative Agent or any other Bank; provided, further, 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 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; provided, further, however, that, unless the Borrower
shall have otherwise consented, no such participation, other than a
participation by any Bank to an Affiliate of such Bank, shall be sold or be
effective unless, substantially contemporaneously therewith, the selling Bank
sells, in the case of a complete participation, all, or, in the case of a
partial participation, a ratable portion, of its rights and obligations under
the Additional Facility Loan Documents to the same participant. 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, if and to the extent the applicable assignment or participation
agreement so provides, (i) shall, in the case of 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
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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.
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 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.
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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 Sections 8.05
and 9.06, shall survive the Repayment Date.
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.
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions. (a) Defined Terms. For
the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to
such term in Section 302 of ERISA.
"Additional Facility Credit Agreement" means the $100,000,000
Credit Agreement dated as of the date hereof among the Borrower, the banks
listed on the signature pages thereof, The Bank of New York, Barclays Bank PLC,
The Chase Manhattan Bank, PNC Bank National Association and The Toronto-Dominion
Bank, as arranging agents, and Toronto Dominion (Texas), Inc., as administrative
agent.
"Additional Facility Loan" means a "Loan" as such term is
defined in the Additional Facility Credit Agreement.
"Additional Facility Loan Documents" means the "Loan
Documents" as such term is defined in the Additional Facility Credit Agreement.
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"Additional Facility Term Maturity Date" means the "Term
Maturity Date" as such term is defined in the Additional Facility Credit
Agreement.
"Additional Facility Total Commitment" means the "Total
Commitment" as such term is defined in the Additional Facility Credit Agreement.
"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 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 dated as of the date hereof among the Borrower, Comcast,
Affiliates of the Borrower from time to time party thereto and the
Administrative Agent.
"Agent" means the Administrative Agent or any of the Arranging
Agents.
"Agreement" means this Agreement, including all Schedules,
Annexes and Exhibits hereto.
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"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. If no such date is there set forth, the Agreement Date shall
be the date as of which this Agreement is dated.
"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 Restricted 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, Wireless System, interest
therein or other assets for any period shall be adjusted by (i) deducting
therefrom an amount to reflect, as if such Person, Wireless System, interest
therein or other assets were not owned (or, in the case of any Restricted
Subsidiary redesignated as an Unrestricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein during such period, such Restricted Subsidiary
were not a Restricted Subsidiary) for any portion of such period, the reduction
in Cash Flow associated with any Person, Wireless System, interest therein or
assets sold, exchanged or otherwise disposed of pursuant to Section 4.08(f)
hereof (or Restricted Subsidiary so redesignated) during such period and (ii)
adding thereto an amount to reflect, as if such Person, Wireless Systems,
interest therein or other assets were owned (or, in the case of any Unrestricted
Subsidiary redesignated as a Restricted Subsidiary pursuant to the definition of
"Restricted Subsidiary" herein during such period, such Unrestricted Subsidiary
were a Restricted Subsidiary) for the entire period, the addition to Cash Flow
associated with any Person, Wireless Systems, interest therein or other assets
acquired during such period pursuant to Section 4.07(d) (or Unrestricted
Subsidiary so redesignated).
"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, subject to the last
sentence of this definition, the respective percentage set forth below opposite
the applicable Leverage Ratio at such time set forth below:
Leverage Ratio Applicable Margin
Greater than 3.50 to 1 0.500%
Less than or equal to 3.50 to 1 0.450%
and greater than 3.00 to 1
Less than or equal to 3.00 to 1 0.400%
and greater than 2.50 to 1
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Less than or equal to 2.50 to 1 0.375%
and greater than 2.00 to 1
Less than or equal to 2.00 to 1 0.325%
and greater than 1.50 to 1
Less than or equal to 1.50 to 1 0.300%
The Leverage Ratio shall be determined initially on the basis
of the certificate provided for in Section 2.01(h) 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, 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 (i) any Tax based on or measured by net
income, any franchise Tax and any 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 organized, located or doing
business and (ii) for the purposes of Section 1.12, any other Tax imposed by a
jurisdiction other than the United States or a political subdivision thereof
that would not have been imposed but for a present or former connection between
the Bank, Agent or Lending Office (as the case may be) and such jurisdiction.
"Base Financial Statements" means the consolidated balance
sheet of Comcast and its Consolidated Subsidiaries as of December 31, 1996 and
the related statements of operations and retained earnings and of 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%.
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"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.
"Borrower Loan Documents" means the Loan Documents to which
the Borrower is a party.
"BTA" means a "Basic Trading Area" as such term is defined and
modified by the FCC for purposes of licensing PCS Systems.
"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, Wireless
System, interest therein or other assets for any period, (i) the net income
(which shall be consolidated, as appropriate) attributable to such Person,
Wireless System, interest therein 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), Interest
Expense (which for this purpose shall include, to the extent deducted in
determining net income, interest on Junior Subordinated Indebtedness),
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, Management Fees paid in cash during such period (other than
Management Fees paid in cash on the Agreement Date in an aggregate amount not
exceeding $17,000,000).
"Cash Flow Percentage" means, as of the date of any sale or
exchange of capital stock, assets, or a Wireless System, or of any redesignation
of any Restricted Subsidiary or Unrestricted Subsidiary pursuant to the
definition of "Restricted Subsidiary" herein, the ratio, expressed as a
percentage, derived by dividing (a) Cash Flow attributable thereto 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
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to the Banks hereunder prior to such date of sale or exchange by (b) Cash Flow
of the Borrower and its Restricted Subsidiaries for such period.
"Cash Portion Exchange" means any exchange of assets by the
Borrower or any Restricted Subsidiary with any Person pursuant to Section
4.08(ii) in which the Borrower or the applicable Restricted Subsidiary receives,
in addition to the assets exchanged by such Person, consideration in the form of
cash or cash equivalents in excess of $5,000,000.
"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.
"Comcast" means Comcast Corporation, a Pennsylvania
corporation.
"Comcast Cellular Holdings" means Comcast Cellular Holdings,
Inc., a Delaware corporation.
"Commitment" means, with respect to any Bank, (i) the amount
set forth opposite such Bank's name under the heading "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 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
Loans in an aggregate unpaid principal amount not exceeding such amount.
"Commitment Termination Date" means January 31, 2003.
"Consolidated Indebtedness" means, at any time, the
consolidated Indebtedness of the Borrower and the Restricted 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.
"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.
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"Debt" means any Liability that constitutes "debt" or "Debt"
under Section 101(12) 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, 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
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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 by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by the Agent that has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to the relevant Interest Period
(rounded upward, if necessary, to the next higher 1/16 of 1%), as of 11:00 a.m.
(London time) on the second Eurodollar Business Day before the first day of such
Interest Period; provided that to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Eurodollar Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the rate (rounded upward, if necessary to next higher
1/16 of 1% per annum) at which deposits in Dollars are offered to major banks in
the London interbank market in London, England by the Administrative Agent, as
of approximately 11:00 a.m. (London time) on the second Eurodollar Business Day
before the first day of such Interest Period.
"Eurodollar 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
Adjusted Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 6.01.
"Excluded Subsidiary" means any of Comcast Directory Services,
Inc., Comcast Publishing Holdings Corp., Comcast Publishing Holdings Financial
Corp., Amcell of Hunterdon, Inc., AWACS Investment Holdings, Inc., AWACS Garden
State, Inc., Garden State Cablevision L.P. and the Subsidiaries 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 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.
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"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 Restricted 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 The Toronto-Dominion Bank, 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 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.
"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
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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 and the Restricted Subsidiaries shall not include (x)
letters of credit or performance or other bonds up to an aggregate outstanding
face amount of $10,000,000 or (y) 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 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 Restricted
Subsidiaries for the period of four consecutive fiscal quarters of the Borrower
ending on, or most recently ended prior to, such date to (ii) Interest Expense
of the Borrower and the Restricted Subsidiaries for such period.
"Interest Expense" means, for any Person, Wireless System,
interest therein or other assets for any period, without duplication, (i) all
interest on Indebtedness of such Person, or attributable to such Wireless
System, interest therein or assets, and commitment
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fees in respect thereof, accrued (other than, in the case of the Borrower and
the Restricted Subsidiaries, interest on Junior Subordinated Indebtedness),
whether or not actually paid, during such period plus (ii) the net amount
accrued, whether or not actually paid, by such Person, or attributable to such
Wireless System, interest therein or assets, pursuant to any Interest Rate
Protection Agreement during such period (or minus the net amount receivable,
whether or not actually received, by such Person, or attributable to such
Wireless System, interest therein or assets, thereunder during such period).
"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 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 Group or a rating of A3 (or the equivalent
rating then in effect) or better by Moody's 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) Consolidated Indebtedness (other than Junior Subordinated
Indebtedness) on such date to (ii) Annualized Cash Flow as of such date.
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"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 any amount advanced by a Bank pursuant to Section
1.01(a) with respect to its Commitment.
"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 and the
Affiliate Subordination Agreement and (ii) all other agreements, documents and
instruments (other than the assumption agreements referred to in Section
4.09(g)(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).
"Management Agreement" means the Management Agreement dated as
of May 20, 1997 between the Borrower and Comcast.
"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 Restricted Subsidiaries of the
Borrower party thereto but
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excluding amounts paid in reimbursement of out-of-pocket costs and expenses
incurred on behalf of such Restricted Subsidiaries.
"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 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 and (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.
"Maximum Permissible Rate" means, with respect to 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.
"MTA" means a "Major Trading Area" as such term is defined and
modified by the FCC for purposes of licensing PCS Systems.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Flow Percentage" means, with respect to any Cash
Portion Exchange, the Cash Flow Percentage (determined as of the date of such
exchange before giving effect thereto) of the excess of (i) the Cash Flow
attributable to the assets disposed of by the Borrower or the applicable
Restricted Subsidiary in such exchange 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 over (ii) the Cash Flow attributable to the assets received
by the Borrower or the applicable Restricted Subsidiary in such exchange for the
four consecutive
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fiscal quarters of the Person so exchanging such assets 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.
"Non-U.S. Bank" has the meaning set forth in Section 1.15.
"Note" means any promissory note in the form of Exhibit A.
"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.
"PCS License" means any license issued or granted by the FCC
to operate a PCS System.
"PCS System" means any personal communications services
telephone system.
"Permitted Guaranty" means (i) any Guaranty to which Section
4.09 is by its express terms inapplicable by virtue of clauses (d) or (e)
thereof and (ii) any Guaranty of obligations of the Borrower or any Restricted
Subsidiary so long as such obligations do not constitute Indebtedness and have
been incurred in the ordinary course of business.
"Permitted Lien" means (i) 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(a)(iv) and
foreclosure, distraint, sale or other similar proceedings shall not have been
commenced and remained unstayed or undismissed for more than 30 days; (ii) any
Lien on the properties and assets of a Restricted Subsidiary securing an
obligation owing to the Borrower or a Restricted Subsidiary; (iii) 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; (iv) any Lien
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; (v) any Lien
existing on (A) any property or asset of any Person at the time such Person
becomes a Restricted Subsidiary or (B) any property or asset at the time such
property or asset is acquired by the Borrower or a Restricted 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 Restricted 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 Restricted
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
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obligation secured thereby at the time such Person becomes a Restricted
Subsidiary or such property or asset is acquired and (z) the obligation secured
by such Lien is not in default; (vi) 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; (vii) any Lien constituting a renewal,
extension or replacement of a Lien constituting a Permitted Lien by virtue of
clause (v), (vi) or (vii) of this definition, 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 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; or (viii) 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.
"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 any Additional Facility Loan
Document, (ii) any covenant or restriction binding upon any Person at the time
such Person becomes a Restricted 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.
"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 thereof or, for the purpose of the definition of
"ERISA Affiliate," any trade or business.
"Pops" means (i) 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, (ii) with respect to any
PCS System, the aggregate number of individuals resident in the BTA or MTA (as
the case may be) in which such PCS System is licensed to operate and (iii) with
respect to any other Wireless System, the aggregate number of individuals
(without duplication) resident in the analogous statistical area or areas (as
defined and modified by the FCC for purposes of licensing such Wireless System)
in which
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such Wireless System is licensed to operate, in each case as reflected in the
population estimates most recently published by the Pops Information Service.
"Pops Information Service" means (a) any of Donnelly Marketing
Service, Rand McNally 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 2%.
"Predecessor Indebtedness" means Indebtedness set forth on
Schedule 10.01.
"Pre-existing Default" has the meaning ascribed to such term
in the definition of "Restricted Subsidiary" herein.
"Prime Rate" means the prime commercial lending rate of The
Toronto- Dominion Bank, as publicly announced to be in effect from time to time.
The Prime Rate shall be adjusted automatically, without notice, on the effective
date of any change in such prime commercial lending rate. The Prime Rate is not
necessarily the lowest rate of interest of The Toronto-Dominion Bank.
"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.
"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
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,
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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 no fewer than four out of five of the
Arranging Agents.
"Required Banks" means, at any time, Banks having at least 51%
of the Loans outstanding or, if there are no Loans outstanding, at least 51% of
the Total Commitment.
"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, the chief
financial officer, the treasurer or any assistant treasurer 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
Restricted Subsidiary (other than dividends payable solely in such Capital
Securities other than Mandatorily Redeemable
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Securities and other than dividends and other distributions payable to the
Borrower or a Restricted Subsidiary that is a Wholly Owned 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 Restricted
Subsidiary (other than any such payment to the Borrower or a Restricted
Subsidiary that is a Wholly Owned 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 Restricted Subsidiary (other than any
such payment to the Borrower or a Restricted Subsidiary that is a Wholly Owned
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.
"Restricted Subsidiary" means (a) each Subsidiary of the
Borrower (other than the Excluded Subsidiaries) in existence on the Agreement
Date and (b) each Subsidiary of the Borrower formed, created or acquired by the
Borrower or a Restricted Subsidiary after the Agreement Date, unless such
Subsidiary is designated by the Borrower as an Unrestricted Subsidiary in a
notice to the Administrative Agent given on or prior to the tenth day following
such formation, creation or acquisition (such designation to be effective on the
date of receipt of such notice by the Administrative Agent and only so long as
neither the Borrower nor any Restricted Subsidiary shall have sold, leased,
licensed, transferred or otherwise disposed of any material assets or interests
therein to such Subsidiary during the period, if any, from the date of
formation, creation or acquisition of such Subsidiary to the date of receipt of
such notice by the Administrative Agent); provided that (A) any Subsidiary which
owns, directly or indirectly, the Capital Securities of any Restricted
Subsidiary shall, for so long as it is a Subsidiary, be a Restricted Subsidiary
and (B) at least 80% of the issued and outstanding capital securities of each
Restricted Subsidiary shall, for so long as it is a Restricted Subsidiary, be
directly owned by the Borrower or another Restricted Subsidiary; provided,
further, that any such Restricted Subsidiary may be redesignated by the Borrower
as an Unrestricted Subsidiary, effective on the date specified by the Borrower
in a notice to the Administrative Agent and the Banks given not less than five
Business Days prior to such specified date, so long as (1) no Default, including
but not limited to a Default under Section 4.08(f), shall have occurred and be
continuing both before and after giving effect to such redesignation (and by
delivering such notice the Borrower shall be deemed to have made a
Representation and Warranty to such effect) and (2) such notice shall be
accompanied by a certificate of a Responsible Officer of the Borrower, in form
and content satisfactory to the Arranging Agents, demonstrating that, on a pro
forma basis determined as if such redesignation had been consummated on the
first day of the most recently completed two fiscal quarters of the Borrower,
the Borrower would have been in compliance at all times with the requirements of
Sections 4.15 and 4.16; provided, further, that any Unrestricted Subsidiary may
be redesignated by the Borrower as a Restricted Subsidiary, effective on the
date specified by the Borrower in a notice to the Administrative Agent and the
Banks given not less than five Business Days prior to such specified date, so
long as (1) no Default (other
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than any Default that shall have occurred and be continuing immediately before
giving effect to such redesignation (a "Pre-existing Default")) shall have
occurred and be continuing after giving effect to such redesignation, and, with
respect to any Pre-existing Default, such redesignation shall not have increased
the degree of the Borrower's non-compliance with the terms of this Agreement
(and by delivering such notice the Borrower shall be deemed to have made a
Representation and Warranty to the effect set forth in this clause (1)) and (2)
such notice shall be accompanied by a certificate of a Responsible Officer of
the Borrower, in form and content satisfactory to the Arranging Agents,
demonstrating that, on a pro forma basis determined as if such redesignation had
been consummated on the first day of the most recently completed two fiscal
quarters of the Borrower, such redesignation would not have resulted in (A) a
failure by the Borrower to be in compliance at all times with the requirements
of Sections 4.15 and 4.16 or (B) if a Pre-existing Default with respect to
either such Section shall exist, an increase in the degree of the Borrower's
non-compliance with the terms of this Agreement in respect of such Pre-existing
Default.
"RSA" means a "Rural Service Area" as such term is defined and
modified by the FCC for purposes of licensing Cellular Systems.
"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 at a rate per annum, for any fiscal
quarter of the Borrower, not in excess of the rate that is 1/4% below the
weighted average interest rate applicable to the Loans hereunder at the
beginning of such fiscal quarter and in an aggregate principal amount not in
excess of the unused portion, if any, of the Total Commitment at such time.
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.
"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.
"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 the Tax Sharing Agreement dated
as of May 20, 1997 among the Comcast, Comcast Cellular Holdings, Comcast
Cellular Corporation and the Borrower.
"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
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<PAGE>
amendment to such Benefit Plan as a termination under 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
Commitments, as the same may be reduced from time to time pursuant to Section
1.07.
"Total Revenue" has the meaning ascribed to such term in
Section 4.11(b).
"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).
"Unrestricted Subsidiary" means any Subsidiary of the Borrower
that is not a Restricted Subsidiary.
"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 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
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<PAGE>
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.
"Wireless License" means any Cellular License, PCS License or
other license issued or granted by the FCC to operate a Wireless System.
"Wireless System" means any Cellular System, PCS System or
other wireless telecommunications system.
(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 a party under the
Affiliate Subordination Agreement, (B) a reference to costs incurred by
a Bank in connection with the Loan
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Documents shall be deemed to include costs incurred by such Person 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.
(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 (a) the exclusion of the
Unrestricted Subsidiaries and (b) such departures from Generally Accepted
Accounting Principles so long as (i) 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 (ii) 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.
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.
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<PAGE>
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/ John R. Alchin
Name: John R. Alchin
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK, as
an Arranging Agent and a Bank
By: /s/ James W. Whitaker
Name: James W. Whitaker
Title: Vice President
BARCLAYS BANK PLC, as
an Arranging Agent and a Bank
By: /s/ Andrew Wynn
Name: Andrew Wynn
Title: Managing Director
THE CHASE MANHATTAN BANK, as
an Arranging Agent and a Bank
By: /s/ Tracey A. Navin
Name: Tracey A. Navin
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
PNC BANK, NATIONAL ASSOCIATION, as
an Arranging Agent and a Bank
By: /s/ Daniel E. Hopkins
Name: Daniel E. Hopkins
Title: Vice President
THE TORONTO-DOMINION BANK, as
an Arranging Agent and a Bank
By: /s/ Jane Mott
Name: Jane Mott
Title: Mgr. Syndications & Credit Administration
BANK OF AMERICA NT&SA
By: /s/ Cynthia E. Sachs
Name: Cynthia E. Sachs
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Keith M. Wilson
Name: Keith M. Wilson
Title: Vice President
MITSUBISHI TRUST AND BANKING CORPORATION (U.S.A.)
By: /s/ Shinichi Nakakubo
Name: Shinichi Nakakubo
Title: Executive Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Janey P. Sammons
Name: Janey P. Sammons
Title: Vice President
MELLON BANK, N.A.
By: /s/ Nathan H. Kelm
Name: Nathan H. Kelm
Title: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., NEW YORK BRANCH
By: /s/ Shuighi Tajima
Name: Shuighi Tajima
Title: Deputy General Manager
FIRST NATIONAL BANK OF MARYLAND
By: /s/ Timothy A. Knabe
Name: Timothy A. Knabe
Title: Vice President
RIGGS BANK N.A.
By: /s/ David H. Olson
Name: David H. Olson
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
CITIBANK, N.A.
By: /s/ Carolyn Lee
Name: Carolyn Lee
Title: AS-ATTORNEY-IN-FACT
BANK OF MONTREAL
By: /s/ W. T. Calder
Name: W. T. Calder
Title: Director
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Masahiro Watanabe
Name: Masahiro Watanabe
Title: Joint General Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Alan E. McLintock
Name: Alan E. McLintock
Title: Vice President
By: /s/ W. Pieter C. Kodde
Name: W. Pieter C. Kodde
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Robert Grella
Name: Robert Grella
Title: Vice President
By: /s/ Brian Haughney
Name: Brian Haughney
Title: Assistant Treasurer
CORESTATES BANK, N.A.
By: /s/ Elizabeth Elmore
Name: Elizabeth Elmore
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Nancy Stenger
Name: Nancy Stenger
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Glen B. Echert, CFA
Name: Glen B. Echert, CFA
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
ROYAL BANK OF CANADA
By: /s/ John P. Page
Name: John P. Page
Title: Senior Manager
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ David V. Fox
Name: David V. Fox
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Vice President
THE FUJI BANK LIMITED, NEW YORK BRANCH
By: /s/ Feiji Teramoto
Name: Feiji Teramoto
Title: Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ John McCloskey
Name: John McCloskey
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
TORONTO DOMINION (TEXAS), INC. as
Administrative Agent
By: /s/ Jano Mott
Name: Jano Mott
Title: Vice President
$300,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
ANNEX A
Banks, Lending Offices Commitment
and Notice Addresses
THE BANK OF NEW YORK $15,000,000
Domestic Lending Office:
One Wall Street, 16th Floor
New York, New York 10286
Eurodollar Lending Office:
One Wall Street, 16th Floor
New York, New York 10286
Notice Address for Credit Issues:
One Wall Street, 16th Floor
New York, New York 10286
Telecopier No.: 212-635-8595/3
Telephone No.: 212-635-8843
Attention: James Whitaker, Vice President
Communications, Entertainment and Publishing
Division
Notice Address for Administrative, Operations and Other Issues:
One Wall Street, 18th Floor
New York, New York 10286
Telecopier No.: 212-916-7845
Telephone No.: 212-916-7930
Attention: Pilar Kinzie
<PAGE>
BARCLAYS BANK PLC $15,000,000
Domestic Lending Office:
75 Wall Street, 11th Floor
New York, New York 10265
Eurodollar Lending Office:
75 Wall Street, 11th Floor
New York, New York 10265
Notice Address for Credit Issues:
388 Market Street, Suite 1700
San Francisco, California 94111
Telecopier No.: 415-765-4760
Telephone No.: 415-765-4702
Attention: Matthew Traina
Notice Address for Administrative, Operations and Other Issues:
75 Wall Street, 11th Floor/CSU
New York, New York 10265
Telecopier No.: 212-412-5306/5307
Telephone No.: 212-412-3701
Attention: Warren Walker
<PAGE>
THE CHASE MANHATTAN BANK $15,000,000
Domestic Lending Office:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Eurodollar Lending Office:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Notice Address for Credit Issues:
Global Media & Telecommunications
270 Park Avenue, 37th Floor
New York, New York 10017
Telecopier No.: 212-270-4164
Telephone No.: 212-270-8916
Attention: Tracey Navin, Vice President
Notice Address for Administrative, Operations and Other Issues:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Telecopier No.: 212-552-5700
Telephone No.: 212-552-7447
Attention: Ganesh Persaud, Account Manager
<PAGE>
PNC BANK, NATIONAL ASSOCIATION $15,000,000
Domestic Lending Office:
1600 Market Street
Philadelphia, Pennsylvania 19103
Eurodollar Lending Office:
Notice Address for Credit Issues:
1600 Market Street
Philadelphia, Pennsylvania 19103
Telecopier No.: 215-585-6680
Telephone No.: 215-585-7468
Attention: Daniel E. Hopkins, Vice President
Telecopier No.: 215-585-6680
Telephone No.: 215-585-6014
Attention: Scott C. Meves, Senior Vice President
Notice Address for Administrative, Operations and Other Issues:
1600 Market Street
Philadelphia, Pennsylvania 19103
Telecopier No.: 215-585-7485
Telephone No.: 215-585-6809
Attention: Joanne Kane, Loan Originator
Telecopier No.: 215-585-7485
Telephone No.: 215-585-7457
Attention: Diane Flannery, Vice President
<PAGE>
THE TORONTO-DOMINION BANK $15,000,000
Domestic Lending Office:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Eurodollar Lending Office:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Notice Address for Credit Issues:
31 West 52nd Street
New York, NY 10019
Telecopier No.: 212-262-1928
Telephone No.: 212-468-0732
Attention: Bernadette Collins
Notice Address for Administrative, Operations and Other Issues:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Telecopier No.: 713-951-9921
Telephone No.: 713-653-8235
Attention: Sophia Sgarbi
<PAGE>
BANK OF AMERICA NT&SA $12,750,000
Domestic Lending Office:
1850 Gateway Blvd.
Concord, California 94520
Eurodollar Lending Office:
1850 Gateway Blvd.
Concord, California 94520
Notice Address for Credit Issues:
335 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 503-7137
Telephone No.: (212) 503-8409
Attention: Cynthia Sachs
Notice Address for Administrative, Operations and Other Issues:
335 Madison Avenue
New York, New York 10017
Telecopier No.: (510) 603-7297
Telephone No.: (510) 675-7119
Attention: Stephanie Aragon
<PAGE>
NATIONSBANK OF TEXAS, N.A. $12,750,000
Domestic Lending Office:
901 Main Street, 64th Floor
Dallas, Texas 75202
Eurodollar Lending Office:
901 Main Street, 64th Floor
Dallas, Texas 75202
Notice Address for Credit Issues:
901 Main Street, 64th Floor
Dallas, Texas 75202
Telecopier No.: (214) 508-2576
Telephone No.: (214) 508-0988
Attention: Keith Wilson
Notice Address for Administrative, Operations and Other Issues:
901 Main Street, 64th Floor
Dallas, Texas 75202
Telecopier No.: (214) 508-2020
Telephone No.: (214) 508-2151
Attention: Jean North
<PAGE>
MITSUBISHI TRUST & BANKING $10,500,000
CORPORATION (U.S.A.)
Domestic Lending Office:
520 Madison Avenue, 39th Floor
New York, New York 10022
Eurodollar Lending Office:
520 Madison Avenue, 39th Floor
New York, New York 10022
Notice Address for Credit Issues:
520 Madison Avenue, 39th Floor
New York, New York 10022
Telecopier No.: (212) 838-6838
Telephone No.: (212) 891-8547
Attention: Gary Maciak
Notice Address for Administrative, Operations and Other Issues:
520 Madison Avenue, 39th Floor
New York, New York 10022
Telecopier No.: (212) 838-6838
Telephone No.: (212) 891-8549
Attention: Hemlata Shah
<PAGE>
SUNTRUST BANK, CENTRAL $10,500,000.00
FLORIDA, N.A.
Domestic Lending Office:
200 South Orange Avenue
Orlando, Florida 32801
Eurodollar Lending Office:
200 South Orange Avenue
Orlando, Florida 32801
Notice Address for Credit Issues:
200 South Orange Avenue
Orlando, Florida 32801
Telecopier No.: (407) 237-4253
Telephone No.: (407) 237-4299
Attention: David Miller
Notice Address for Administrative, Operations and Other Issues:
200 South Orange Avenue
Orlando, Florida 32801
Telecopier No.: (407) 237-4253
Telephone No.: (407) 237-5209
Attention: Debbie Torres
<PAGE>
MELLON BANK, N.A. $10,500,000.00
Domestic Lending Office:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Eurodollar Lending Office:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Notice Address for Credit Related Issues:
1735 Market Street
Philadelphia, PA 19103
Telecopier No.: (215) 553-4899
Telephone No.: (215) 553-2906
Attention: David B. Crawford
Notice Address for Administrative, Operations and Other Issues:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Telecopier No.: (412) 236-2027
Telephone No.: (412) 234-4749
Attention: Carol Bufalini
<PAGE>
THE LONG-TERM CREDIT BANK OF $10,500,000.00
JAPAN, LTD., NEW YORK BRANCH
Domestic Lending Office:
165 Broadway
New York, New York 10006
Eurodollar Lending Office:
165 Broadway
New York, New York 10006
Notice Address for Credit Related Issues:
Telecopier No.: (212) 608-2371
Telephone No.: (212) 335-4561
Attention: Jeffrey L. Kaufman
Notice Address for Administrative, Operations and Other Issues:
Telecopier No.: (212) 608-3452
Telephone No.: (212) 335-4801
Attention: Robert Pacifici
<PAGE>
FIRST NATIONAL BANK OF MARYLAND $10,500,000.00
Domestic Lending Office:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Eurodollar Lending Office:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Notice Address for Credit Related Issues:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Telecopier No.: (410) 244-4920
Telephone No.: (410) 244-4350
Attention: Timothy A. Knabe
Notice Address for Administrative, Operations and Other Issues:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Telecopier No.: (410) 244-4920
Telephone No.: (410) 244-4051
Attention: Darla Holbrook
<PAGE>
RIGGS BANK N.A. $10,500,000.00
Domestic Lending Office:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Eurodollar Lending Office:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Notice Address for Credit Related Issues:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Telecopier No.: (202) 835-5977
Telephone No.: (202) 835-5105
Attention: David Olson
Notice Address for Administrative, Operations and Other Issues:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Telecopier No.: (202) 835-5977
Telephone No.: (202) 835-5136
Attention: Mamduh Abutaa
<PAGE>
CITIBANK, N.A. $10,500,000.00
Domestic Lending Office:
399 Park Avenue
New York, New York 10043
Eurodollar Lending Office:
399 Park Avenue
New York, New York 10043
Notice Address for Credit Related Issues:
399 Park Avenue
New York, New York 10043
Telecopier No.: (212) 793-6873
Telephone No.: (212) 559-8564
Attention: Eric Huttner
Notice Address for Administrative, Operations and Other Issues:
2 Penns Way
New Castle, Delaware 19702
Telecopier No.: (302) 894-6120
Telephone No.: (302) 894-6010
Attention: Annmarie Pavco
<PAGE>
BANK OF MONTREAL $10,500,000.00
Domestic Lending Office:
430 Park Avenue
New York, New York 10022
Eurodollar Lending Office:
430 Park Avenue
New York, New York 10022
Notice Address for Credit Related Issues:
430 Park Avenue
New York, New York 10022
Telecopier No.: (212) 605-1621
Telephone No.: (212) 605-1664
Attention: Sarah Kim
Telecopier No.: (212) 605-1621
Telephone No.: (212) 605-1426
Attention: Allegra Griffths
Notice Address for Administrative, Operations and Other Issues:
115 South LaSalle Street
Chicago, Illinois 60603
Telecopier No.: (312) 750-4345
Telephone No.: (312) 750-3722
Attention: Nilda Diaz
<PAGE>
THE INDUSTRIAL BANK $10,500,000.00
OF JAPAN, LIMITED
Domestic Lending Office:
1251 Avenue of the Americas
New York, New York 10020-1104
Eurodollar Lending Office:
1251 Avenue of the Americas
New York, New York 10020-1104
Notice Address for Credit Related Issues:
1251 Avenue of the Americas
New York, New York 10020-1104
Telecopier No.: (212) 282-4490
Telephone No.: (212) 282-3515
Attention: Christian Gioidano, Assistant Vice President
Notice Address for Administrative, Operations and Other Issues:
1251 Avenue of the Americas
New York, New York 10020-1104
Telecopier No.: (212) 282-4480
Telephone No.: (212) 282-4060
Attention: A. Kawai
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-- $10,500,000.00
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
Domestic Lending Office:
245 Park Avenue
New York, New York 10167
Eurodollar Lending Office:
245 Park Avenue
New York, New York 10167
Notice Address for Credit Related Issues:
300 South Wacker Drive
Suite 3500
Chicago, Illinois 60606
Telecopier No.: (312) 786-0052
Telephone No.: (312) 408-8253
Attention: Alan E. McLintock
245 Park Avenue
New York, New York 10167
Telecopier No.: (212) 916-78
Telephone No.: (212) 808-2513
Attention: Andrew Sherman
Notice Address for Administrative, Operations and Other Issues:
Corporate Services
245 Park Avenue
New York, New York 10167
Telecopier No.: (212) 916-7930
Telephone No.: (212) 916-7845
Attention: Debra Rivers
<PAGE>
DRESDNER BANK AG NEW YORK $10,500,000.00
AND GRAND CAYMAN BRANCHES
Domestic Lending Office:
75 Wall Street
New York, New York 10005-2889
Eurodollar Lending Office:
75 Wall Street
New York, New York 10005-2889
Notice Address for Credit Related Issues:
75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 429-2129
Telephone No.: (212) 429-2252
Attention: Robert Grella
Notice Address for Administrative, Operations and Other Issues:
75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 429-2130
Telephone No.: (212) 429-2288
Attention: Laura Lam
<PAGE>
CORESTATES BANK, NA $10,500,000.00
Domestic Lending Office:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Eurodollar Lending Office:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Notice Address for Credit Related Issues:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Telecopier No.: (215) 786-7721
Telephone No.: (215) 786-4321
Attention: Elizabeth Elmore
Notice Address for Administrative, Operations and Other Issues:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Telecopier No.: (215) 786-4313
Telephone No.: (215) 786-7721
Attention: Mary Lockhart
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD. $10,500,000.00
Domestic Lending Office:
1 World Trade Center, Suite 4911
New York, New York 10048
Eurodollar Lending Office:
1 World Trade Center, Suite 4911
New York, New York 10048
Notice Address for Credit Related Issues:
1 World Trade Center, Suite 4911
New York, New York 10048
Telecopier No.: (212) 524-0579
Telephone No.: (212) 432-8748
Attention: Nancy Stengel
Notice Address for Administrative, Operations and Other Issues:
1 World Trade Center, Suite 4911
New York, New York 10048
Telecopier No.: (212) 432-0194
Telephone No.: (212) 432-8441
Attention: Christine Dell'Aira
<PAGE>
THE BANK OF TOKYO-MITSUBISHI $10,500,000.00
TRUST COMPANY
Domestic Lending Office:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Eurodollar Lending Office:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Notice Address for Credit Related Issues:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Telecopier No.: (212) 782-4935
Telephone No.: (212) 782-4310
Attention: Emile Elnems
Notice Address for Administrative, Operations and Other Issues:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Telecopier No.: (212) 766-3127
Telephone No.: (201) 413-8570
Attention: Rolando Uy
<PAGE>
ROYAL BANK OF CANADA $10,500,000.00
Domestic Lending Office:
Financial Square, 23rd Floor
New York, New York 10005
Eurodollar Lending Office:
Financial Square, 23rd Floor
New York, New York 10005
Notice Address for Credit Related Issues:
Financial Square, 23rd Floor
New York, New York 10005
Telecopier No.: (212) 428-6460
Telephone No.: (212) 428-6552
Attention: Andy Cozewith
Notice Address for Administrative, Operations and Other Issues:
Financial Square, 23rd Floor
New York, New York 10005
Telecopier No.: (212) 428-2372
Telephone No.: (212) 428-6321
Attention: Jewel Haines
<PAGE>
MORGAN GUARANTY TRUST $10,500,000.00
COMPANY OF NEW YORK
Domestic Lending Office:
60 Wall Street
New York, New York 10260-0060
Eurodollar Lending Office:
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christina Road, 3rd Floor
Newark, Delaware 19713
Notice Address for Credit Related Issues:
60 Wall Street
New York, New York 10260-0060
Telecopier No.: (212) 648-5014
Telephone No.: (212) 648-4833
Attention: David Fox
Notice Address for Administrative, Operations and Other Issues:
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christina Road, 3rd Floor
Newark, Delaware 19713
Telecopier No.: (302) 634-1094
Telephone No.: (302) 634-4218
Attention: Mark Connor
<PAGE>
CREDIT LYONNAIS $10,500,000.00
NEW YORK BRANCH
Domestic Lending Office:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Eurodollar Lending Office:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Notice Address for Credit Related Issues:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Telecopier No.: (212) 261-3288
Telephone No.: (212) 261-7852
Attention: Mark Thorsheim
Notice Address for Administrative, Operations and Other Issues:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Telecopier No.: (212) 261-3318
Telephone No.: (212) 261-7741
Attention: Debbie Vellozzi
<PAGE>
THE FUJI BANK, LIMITED, $10,500,000.00
NEW YORK BRANCH
Domestic Lending Office:
2 World Trade Center, 79th Floor
New York, New York 10048
Eurodollar Lending Office:
2 World Trade Center, 79th Floor
New York, New York 10048
Notice Address for Credit Related Issues:
2 World Trade Center, 79th Floor
New York, New York 10048
Telecopier No.: (212) 898-2399
Telephone No.: (212) 898-2082
Attention: Mark Gronich
Telecopier No.: (212) 898-2399
Telephone No.: (212) 898-2061
Attention: Brian Carlson
Notice Address for Administrative, Operations and Other Issues:
2 World Trade Center, 79th Floor
New York, New York 10048
Telecopier No.: (212) 488-8216
Telephone No.: (212) 898-2099
Attention: Tina Catapano
<PAGE>
CAISSE NATIONALE DE CREDIT AGRICOLE $10,500,000.00
Domestic Lending Office:
55 East Monroe Street, Suite 47
Chicago, Illinois 60603
Eurodollar Lending Office:
55 East Monroe Street, Suite 47
Chicago, Illiois 60603
Notice Address for Credit Related Issues:
520 Madison Avenue
New York, New York 10022
Telecopier No.: (212) 418-2228
Telephone No.: (212) 418-2217
Attention: John McCloskey
Notice Address for Administrative, Operations and Other Issues:
55 E. Monroe Street, Suite 4700
Chicago, Illinois 60603
Telecopier No.: (312) 372-4421
Telephone No.: (312) 917-7420
Attention: Karen Bergstrom
<PAGE>
Schedule 1.02
FORM OF NOTICE OF BORROWING
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.02 of the Credit
Agreement of its request to have the following Loans made to it on [insert
requested date of borrowing]:
Type of Loan1 Amount
--------------------------------- --------------
--------------------------------- --------------
--------------------------------- --------------
[Please disburse the proceeds of the Loans by [insert requested method
of disbursement]].2
The undersigned represents and warrants that (a) the borrowing
requested hereby complies with the requirements of Section 1.02 of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]3 (i) each
Loan Document Representation and Warranty is true and correct in all material
respects at and as of the date hereof and (except to the extent the undersigned
gives notice to the Banks to the contrary prior to 5:00 p.m.
<PAGE>
(New York time) on the Business Day before the requested date for the making of
the Loans) will be true and correct in all material respects at and as of the
time the Loans are made, in each case both with and without giving effect to the
Loans and the application of the proceeds thereof, and (ii) no Default,
including a Default under Section 4.15 or 4.16 (other than a Default meeting the
requirements of the parenthetical provision set forth in Section 2.02(c) of the
Credit Agreement), has occurred and is continuing as of the date hereof or would
result from the making of the Loans or from the application of the proceeds
thereof if the Loans were made on the date hereof, and (except to the extent the
undersigned gives notice to the Banks to the contrary prior to 5:00 p.m. (New
York time) on the Business Day before the requested date for the making of the
Loans) no Default (other than a Default meeting the requirements of the
parenthetical provision set forth in Section 2.02(c) of the Credit Agreement)
will have occurred and be continuing at the time the Loans are to be made or
would result from the making of the Loans or from the application of the
proceeds thereof.
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar
Rate Loans (e.g., one-month Eurodollar Rate).
2. Include and complete this sentence if the proceeds of the requested
Loans are to be disbursed in a manner other than by credit to an
account of the Borrower at the Administrative Agent's Office.
3. If the representation and warranty in either clause (b)(i) or (b)(ii)
would be incorrect, include the material in brackets and set forth the
reasons such representation and warranty would be incorrect on an
attachment labeled Annex A.
<PAGE>
Schedule 1.03(c)(iv)
FORM OF NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.03(c)(iv) of the
Credit Agreement of its desire to convert or continue the Loans specified below
into or as Loans of the Types and in the amounts specified below on [insert date
of conversion or continuation]:
<TABLE>
<CAPTION>
Loans to be Converted or
Converted or Continued Continued Loans
Last Day of Date of
Type Current Conversion or Type
of Loan1 Interest Period Amount Continuation of Loan1 Amount
<S> <C> <C> <C> <C> <C> <C>
--------- --------------- -------- ------------ -------- -------
--------- --------------- -------- ------------ -------- -------
--------- --------------- -------- ------------ -------- -------
</TABLE>
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar Rate
Loans (e.g., one-month Eurodollar Rate).
<PAGE>
Schedule 1.05
FORM OF NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.05 of the Credit
Agreement that it will prepay the Loans specified below on [insert date of
prepayment]:
Last Day of
Current
Type of Loan1 Interest Period Amount
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar Rate
Loans (e.g., one-month Eurodollar Rate).
<PAGE>
Schedule 2.01(a)
FORM OF CERTIFICATE AS TO RESOLUTIONS, ETC.
[NAME OF LOAN PARTY]
I, ________________, [Secretary/Assistant Secretary/Responsible
Officer] of [NAME OF LOAN PARTY], a __________ corporation (the "Company"),
hereby certify, pursuant to Section 2.01(a) of the Credit Agreement (the "Credit
Agreement"), dated as of October 14, 1997, among COMCAST CELLULAR
COMMUNICATIONS, INC., the banks listed on the signature pages thereof, The Bank
of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank, National
Association and The Toronto-Dominion Bank, as Arranging Agents, and Toronto
Dominion (Texas), Inc., as Administrative Agent (capitalized terms used herein
but not otherwise defined herein shall have the meanings given to them in the
Credit Agreement):
1. The below named persons have been duly elected (or appointed)
and have duly qualified as, and on this day are, officers of the Company holding
the respective offices below set opposite their names, and the signatures below
set opposite their names are their genuine signatures:
Name Office Signature
[ ] [ ]
[ ] [ ]
[ ] [ ]
2. Attached as Annex A is a true and correct copy of resolutions
duly adopted by the Board of Directors of the Company. Such resolutions have not
been amended, modified or revoked and are in full force and effect on the date
hereof.
3. [List the Loan Documents to which the Company is a party], in
each case as executed and delivered on behalf of the Company, are substantially
in the forms thereof approved by the Board of Directors of the Company, except
for such changes as have been approved by the officer or officers of the Company
executing such documents.
4. There has been no amendment to the certificate of incorporation
of the Company since __________.
5. Attached as Annex B is a true and correct copy of the by-laws of
the Company as in effect on ________, 1997 and at all subsequent times to and
including the date hereof.
<PAGE>
IN WITNESS WHEREOF, I have signed this certificate this __ day of
_____, 1997.
By: ____________________________
Name:
Title:
I, __________, __________ of the Company, hereby certify that
__________ has been duly elected or appointed and has been duly qualified as,
and on this day is, [Secretary/Assistant Secretary/Responsible Officer] of the
Company, and the signature in paragraph 1 above is such individual's genuine
signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
___, 1997.
By: ____________________________
Name:
Title:
<PAGE>
Schedule 2.01(d)-1
FORM OF OPINION OF COUNSEL FOR
THE BORROWER AND EACH OTHER LOAN PARTY
[Letterhead of Drinker, Biddle & Reath]
___________________, 1997
To the Banks party to the Credit
Agreement referred to below
on the date hereof and
Toronto Dominion (Texas), Inc., as
Administrative Agent.
Re: Comcast Cellular Communications, Inc./Communications
Corporation/Comcast Financial Corporation
Ladies and Gentlemen:
We have acted as special counsel to Comcast Cellular Communications,
Inc., a Delaware corporation (the "Company"), Comcast Corporation, a
Pennsylvania corporation ("Comcast") and Comcast Financial Corporation, a
Delaware corporation ("Comcast Financial"), in connection with the execution and
delivery of the $300,000,000.00 Credit Agreement dated as of __________________,
1997 (the "Credit Agreement"), among (A) the Company, (B) each of the banks
which is a signatory thereto (individually a "Bank" and, collectively, the
"Banks"), (C) The Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank,
PNC Bank, National Association, and The Toronto-Dominion Bank, as Arranging
Agents, and (D) Toronto Dominion (Texas), Inc., as Administrative Agent. This
opinion is being delivered to you pursuant to Section 2.01(d) of the Credit
Agreement. Capitalized terms not defined herein shall have the meanings ascribed
to them in the Credit Agreement.
<PAGE>
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter, those documents, together with the Exhibits and
Schedules appended thereto or referred to therein, are collectively referred to
as the "Loan Documents"):
(1) the Credit Agreement;
(2) the Notes delivered on the date hereof;
(3) the Affiliate Subordination Agreement; and
(4) the Company's officer's certificate delivered pursuant to
Section 2.01(a) of the Credit Agreement.
In addition, we have examined such corporate records (consisting of Certificates
or Articles of Incorporation, by-laws and resolutions respecting the subject
transactions) of the Company, Comcast and Comcast Financial (individually, a
"Loan Party" and collectively, the "Loan Parties"), the originals, or copies
certified to our satisfaction, of certificates of public officials, including
without limitation, W a Certificate of Good Standing issued by the Secretary of
State of the State of Delaware on October 10, 1997 for the Company (the "Company
Good Standing Certificate"), (ii) a Subsistence Certificate issued by the Office
of the Secretary of the Commonwealth of Pennsylvania on October 9, 1997 for
Comcast (the "Comcast Good Standing Certificate"), and a Certificate of Good
Standing issued by the Secretary of State of the State of Delaware on October
10, 1997 for Comcast Financial (the "Comcast Financial Good Standing
Certificate") and such other agreements, documents and instruments as we have
deemed appropriate as the basis for the opinions hereinafter set forth.
In all cases, we have assumed the genuineness of all signatures (other
than those of the signatures of officers of the Loan Parties on the Loan
Documents), the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of documents submitted to us as
copies. As to questions of fact material to this opinion, we have relied with
your permission upon the accuracy of the representations and warranties made by
the parties in the Loan Documents and of certificates and other comparable
documents of
<PAGE>
appropriate officers and representatives of the Loan Parties and upon
certificates of public officials. We have not undertaken any independent
investigation of factual matters.
Opinions of separate counsel of the Loan Parties are being delivered to
you under Section 2.01(d) of the Credit Agreement contemporaneously herewith
with respect to, among other things, the corporate status and power of Comcast,
the Company and Comcast Financial, as applicable; the authorization, execution
and delivery of documents by Comcast, the Company and Comcast Financial, as
applicable; the absence of conflict with (a) the charter or by-laws of Comcast,
the Company and Comcast Financial, as applicable or (b) certain laws, orders or
agreements; the absence of certain litigation; and certain regulatory matters.
In rendering the opinions herein, we have assumed, without investigation, the
accuracy of such other opinions and we express no opinion with respect to any
such matters.
In addition, in rendering the opinions set forth herein, we have
assumed (except to the extent specifically opined on below with respect to
certain Loan Parties) without investigation, with respect to all of the
documents referred to in this opinion letter and the transactions contemplated
therein, that:
(A) each party to such documents and transactions (1) has
satisfied and will satisfy those legal requirements that are applicable to it to
the extent necessary to make such documents enforceable against it and (2) has
complied and will comply with all legal requirements pertaining to its status as
such status relates to its rights to enforce the documents; and
(B) the execution, delivery and performance in accordance
with their respective terms by each of the parties of the Loan Documents to
which it is a party do not and will not (1) require any Governmental Approval or
any other consent or approval, other than Governmental Approvals and other
consents or approvals that have been obtained, are final and not subject to
review or collateral attack and are in full force and effect, or -(2) violate or
conflict with, result in a breach of, or constitute a default under (a) any
Contract to which any of such parties may be bound or (b) any Applicable Law
referred to in
<PAGE>
clause (ii)(B) or (C) of the definition thereof contained in the Credit
Agreement.
When we state herein that matters are to our "knowledge," we mean that
we have no actual knowledge of facts which are contrary to the opinion rendered,
without having undertaken independent investigation or verification of any such
facts. The words "actual knowledge,, mean the conscious attention to such
information by the Primary Lawyer Group. The phrase "Primary Lawyer Group"
includes only attorneys who are currently members of or employed by this firm
who have been involved in the preparation of this letter and such other
attorneys as have been involved in the representation of the Loan Parties in
connection with the transaction that is the subject of this letter.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in our opinion:
1. The Company is a corporation validly existing and, based solely on
the Company Good Standing Certificates, in good standing under the laws of the
State of Delaware. The Company has the corporate power and authority to own its
properties and to conduct its business as, to the best of our knowledge, it is
now conducted, and to consummate the loan transactions contemplated by the Loan
Documents.
2. Comcast is a corporation validly existing and, based solely on the
Comcast Good Standing Certificates, is subsisting under the laws of the
Commonwealth of Pennsylvania. Comcast has the corporate power and authority to
own its properties and to conduct its business as, to the best of our knowledge,
it is now conducted, and to consummate the loan transactions contemplated by the
Loan Documents.
3. Comcast Financial is a corporation validly existing and, based
solely on the Comcast Financial Good Standing Certificates, in good standing
under the laws of the State of Delaware. Comcast Financial has the corporate
power and authority to own its properties and to conduct its business as, to the
best of our knowledge, it is now conducted, and to
<PAGE>
consummate the loan transactions contemplated by the Loan Documents.
4. The execution, delivery and performance by the Company of the Loan
Documents to which it is a party and the borrowings by the Company under the
Credit Agreement (A) have been duly authorized by all necessary corporate action
on the part of the Company and (B) do not violate the Certificate of
Incorporation or bylaws of the Company. Each of the Loan Documents to which the
Company is a party (X) has been duly executed and delivered by the Company and
(Y) constitutes a legal, valid and binding obligation of the Company enforceable
against it in accordance with its terms.
5. The execution, delivery and performance by Comcast of the Loan
Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast. Each of the Loan Documents to which
Comcast is a party has been duly executed and delivered by Comcast and
constitutes a legal, valid and binding obligation of Comcast enforceable against
it in accordance with its terms.
6. The execution, delivery and performance by Comcast Financial of the
Loan Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast. Each of the Loan Documents to which
Comcast Financial is a party has been duly executed and delivered by Comcast
Financial and constitutes a legal, valid and binding obligation of Comcast
Financial enforceable against it in accordance with its terms.
7. Neither the Company nor any of its Restricted Subsidiaries is (A) an
"investment company" within the meaning of the Investment Company Act of 1940,
or (B) a "holding company or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", or a "public utility" within the
meaning of the Public Utility Company Act of 1935, as amended.
8. Assuming the Company does not use the proceeds of the loans provided
in the Credit Agreement to purchase "margin securities" or "margin stock" within
the meanings of Regulations
<PAGE>
G, T, U, or X of the Federal Reserve Board and that any debt which is refinanced
with such proceeds did not constitute a "purpose credit" or "purpose loan"
within the meaning of such regulations, the Company's execution and performance
of the Loan Documents will not violate such regulations.
9. The obligations of the Company under the Loan Documents to which the
Company is a party are within the definitions of "Senior obligations" contained
in the Affiliate Subordination Agreement.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) We have assumed the legal capacity of all individuals
executing any of the Loan Documents.
(B) The validity and enforceability of the Loan Documents are
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and similar laws affecting the enforcement of creditors,
rights generally (including those relating to fraudulent conveyances and
transfers), principles of equity and to the equitable discretion of courts,
whether in proceedings at law or in equity.
(C) We express no opinion as to the enforceability of any
provisions in any Loan Document imposing penalties, forfeitures, late payment
charges, prepayment premiums, attorneys, commissions, or an increase in interest
rate upon the occurrence of a default or an event of default.
(D) Requirements in any Loan Document specifying that
provisions therein may only be waived in writing may be unenforceable if an oral
agreement modifying provisions of those documents has been performed.
(E) We express no opinion as to the enforceability of
provisions contained in any Loan Document which purport to constitute or provide
for the waiver and release of any rights, claims, defenses, counterclaims or
remedies of the Loan Parties, including, without limitation, the waiver and
release of (1) the
<PAGE>
benefit of statutes of limitation or moratoria, (2) errors, defects and
imperfections in proceedings, service of process or the establishment of
jurisdiction, (3) the benefits of any stay of execution, exemption from service
of process or extension of time for payment, (4) the benefits of laws requiring
the marshalling of assets or election of remedies, and (5) the benefits of laws,
regulations or judicial decisions exempting certain property and/or proceeds
from execution, attachment, levy or sale.
(F) We express no opinion concerning the financial condition
or solvency of the Loan Parties, nor do we express any opinion concerning the
effect of any action, suit, proceeding, litigation or transaction (including,
without limitation, the transactions contemplated in the Credit Agreement) upon
either (1) the financial condition of any of the Loan Parties or (2) any
financial covenants which the Loan Parties may have agreed to in the Loan
Documents or any other instrument executed and delivered in connection with the
transactions contemplated in the Credit Agreement or any other transaction.
(G) No opinion is expressed as to the enforceability of any
of the following kinds of provisions in the Loan Documents: (1) provisions for
self-help except as permitted by applicable law; (2) provisions which purport to
establish evidentiary standards; (3) provisions relating to the non-waiver of
your rights, discharge or waiver of defenses, liquidated damages, or
ratification of creditors' actions without consent of the Loan Parties or any
person secondarily liable; (4) provisions in the Loan Documents purporting to
waive statutory, constitutional or equitable rights which cannot by applicable
law be waived; (5) provisions containing powers of attorney or waiving
commercial reasonableness; (6) provisions which purport to retain a claim
against a guarantor where the primary debtor has been released; (7) provisions
for post-judgment interest in excess of the "legal rate" permitted on judgments
in Pennsylvania; (8) provisions which purport to create obligations to indemnify
you, except as permitted by applicable law; (9) provisions imposing penalties,
forfeitures, or (to the extent deemed to constitute penalties) increases in
interest rate upon the occurrence of a default or an event of default, provided
that
<PAGE>
the inclusion of such provisions does not affect the validity of the other
provisions of the Loan Documents.
(H) Pennsylvania law prohibits the imposition of interest at a
rate in excess of 25% per annum unless otherwise authorized by law. We express
no opinion concerning-the effect on the Loan Documents if (1) increases in the
interest rates as provided in the Loan Documents or (2) any fees, costs, charges
or expenses, in addition to the interest charged at the rates recited in the
Loan Documents cause the effective rate of interest payable under the Loan
Documents to increase to a rate in excess of 25% per a
(1) We express no opinion concerning the laws of any
jurisdiction other than the law of the Commonwealth of Pennsylvania, the federal
law of the United States of America and with respect to the opinions in
paragraph 1 hereof and the opinions in subparagraph 4(A) and 4(X), the General
Corporate Law of Delaware. In that connection, we note that the Loan Documents
provide that they are governed by the laws of the State of New York. We are not
expert regarding those laws and express no opinion about them. With your
permission, we have assumed, solely for purposes of this opinion, that the Loan
Documents will be governed by the laws of the Commonwealth of Pennsylvania
notwithstanding their express terms. We express no opinion concerning what law
will actually govern the Loan Documents or concerning the effectiveness of any
choice of law provision in the Loan Documents. Further, we express no opinion
concerning (1) the effects of any local law and regulation, or (2) federal or
state laws, rules or regulations governing securities, antitrust or unfair
competition, compliance with fiduciary duty, environmental liability, or any
aspect of the communications business.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks only in connection with the transactions contemplated by the
Loan Documents and may not be disclosed to, quoted from or relied upon by any
other person for 'any purpose, except that future holders of the Notes may rely
on this opinion and you and such future holders may make the opinion available
for inspection by regulatory authorities having
<PAGE>
jurisdiction over your affairs. This opinion is rendered as of the date hereof,
is based upon and relies upon the current status of law and in all respects is
subject to and may be limited by future legislation, as well as future case law.
We assume no responsibility to advise you as to any matters after the date
hereof.
Very truly yours,
DRINKER BIDDLE & REATH LLP
<PAGE>
Schedule 2.01(d)-2
FORM OF OPINION OF COUNSEL FOR
THE BORROWER AND EACH OTHER LOAN PARTY
[Letterhead of Arthur R. Block]
____________________, 1997
To the Banks party to the Credit
Agreement referred to below
on the date hereof and
Toronto Dominion (Texas), Inc., as
Administrative Agent.
Re: Comcast Cellular Communications, Inc./ Comcast
Corporation/Comcast Financial Corporation
Ladies and Gentlemen:
I am Senior Deputy General Counsel of Comcast Corporation, a
Pennsylvania corporation ("Comcast"), Comcast Cellular Communications, Inc., a
Delaware corporation (the "Company") and Comcast Financial Corporation, a
Delaware corporation ("Comcast Financial") and, as such am familiar with the
$300,000,000.00 Credit Agreement dated as of ___________________, 1997 (the
"Credit Agreement"), among (A) the Company, (B) each of the banks which is a
signatory thereto (individually a "Bank" and, collectively, the "Banks"), (C)
The Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank,
National Association and The Toronto-Dominion Bank, as Arranging Agents and
Toronto Dominion (Texas), Inc., as Administrative Agent. This opinion is being
delivered to you pursuant to Section 2.01(d) of the Credit Agreement.
Capitalized terms not defined herein shall have the
<PAGE>
meanings ascribed to them in the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following documents
(hereinafter, those documents, together with the Exhibits and Schedules appended
thereto or referred to therein, are collectively referred to as the "Loan
Documents"):
(1) the Credit Agreement;
(2) the Notes delivered on the date hereof;
(3) the Affiliate Subordination Agreement; and
(4) the Company's officer's certificate delivered pursuant to
Section 2.01(a) of the Credit Agreement.
In addition, I have examined such corporate records (consisting of Certificates
or Articles of Incorporation, by-laws and resolutions respecting the subject
transactions) of Comcast, the Company and Comcast Financial (individually, a
"Loan Party" and collectively, the "Loan Parties"), the originals, or copies
certified to my satisfaction, of certificates of public officials, including
without limitation, (i) a Subsistence Certificate issued by the Office of the
Secretary of the Commonwealth of Pennsylvania on October 9, 1997 for Comcast
(the "Comcast Good Standing Certificate"), (ii) a Certificate of Good Standing
issued by the Secretary of State of the State of Delaware on October 10, 1997
for the Company the "Company Good Standing Certificate") and (iii) a Certificate
of Good Standing issued by the Secretary of State of the State of Delaware on
October 10, 1997 for Comcast Financial (the "Comcast Financial Good Standing
Certificate") and such other agreements, documents and instruments as I have
deemed appropriate as the basis for the opinions hereinafter set forth.
In all cases, I have assumed the genuineness of all signatures (other
than those of the signatures of officers of the Loan Parties on the Loan
Documents), the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of documents submitted to us as
copies. As to questions of fact material to this opinion, I have relied with
your permission upon the accuracy of the representations and warranties made by
the parties in the Loan Documents and of certificates and other comparable
documents of appropriate officers and representatives of the Loan Parties and
upon certificates of public officials. I have not undertaken any independent
investigation of factual matters.
<PAGE>
In addition, in rendering the opinions set forth herein, I
have assumed (except to the extent specifically opined on below with respect to
certain Loan Parties) without investigation, with respect to all of the
documents referred to in this opinion letter and the transactions contemplated
therein, that:
(A) each party to such documents and transactions (1) has
satisfied and will satisfy those legal requirements that are applicable to it to
the extent necessary to make such documents enforceable against it and (2) has
complied and will comply with all legal requirements pertaining to its status as
such status relates to its rights to enforce the documents; and
(B) the execution, delivery and performance in accordance
with their respective terms by each of the parties of the Loan Documents to
which it is a party do not and will not (1) require any Governmental Approval or
any other consent or approval, other than Governmental Approvals and other
consents or approvals that have been obtained, are final and not subject to
review or collateral attack and are in full force and effect, or (2) violate or
conflict with, result in a breach of, or constitute a default under any Contract
to which any of such parties may be bound or (3) any Applicable Law referred to
in clause (ii)(B) or (C) of the definition thereof contained in the Credit
Agreement.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in my opinion:
1. The Company is a corporation validly existing and, based solely on
the Company Good Standing Certificate, in good standing under the laws of the
State of Delaware and has the corporate power and authority to own its
properties and to conduct its business as it is now conducted, and to consummate
the loan transactions contemplated by the Loan Documents. To my knowledge, the
Company is not required to be qualified as a foreign corporation or authorized
to do business in any other jurisdiction; provided that this opinion only speaks
to the extent that the failure to obtain any such qualification or authorization
would have a Materially Adverse Effect on the Company and the Restricted
Subsidiaries taken as whole.
2. Comcast is a corporation validly existing and, based solely on the
Comcast Good Standing Certificate, subsisting under the laws of the Commonwealth
of Pennsylvania and has the corporate power and authority to own its properties
and to
<PAGE>
conduct its business as it is now conducted, and to consummate the loan
transactions contemplated by the Loan Documents. To my knowledge, Comcast is not
required to be qualified as a foreign corporation or authorized to do business
in any other jurisdiction; provided that this opinion only speaks to the extent
that the failure to obtain any such qualification or authorization would have a
Materially Adverse Effect on the Company and the Restricted Subsidiaries taken
as whole.
3. Comcast Financial is a corporation validly existing and, based
solely on the Comcast Financial Good Standing Certificate, in good standing
under the laws of the State of Delaware and has the corporate power and
authority to own its properties and to conduct its business as it is now
conducted, and to consummate the loan transactions contemplated by the Loan
Documents. To my knowledge, Comcast Financial is not required to be qualified as
a foreign corporation or authorized to do business in any other jurisdiction;
provided that this opinion only speaks to the extent that the failure to obtain
any such qualification or authorization would have a Materially Adverse Effect
on the Company and the Restricted Subsidiaries taken as whole.
4. The execution, delivery and performance by the Company of the Loan
Documents to which it is a party and the borrowings under the Credit Agreement
(A) have been duly authorized by all necessary corporate action on the part of
the Company and (B) do not violate the Certificate of Incorporation or by-laws
of the Company. Each of the Loan Documents to which the Company is a party (X)
has been duly executed and delivered by the Company and (Y) constitutes a legal,
valid and binding obligation of the Company enforceable against it in accordance
with its terms.
5. The execution, delivery and performance by Comcast of the Loan
Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast and do not violate the Articles of
incorporation or bylaws of Comcast. Each of the Loan Documents to which Comcast
is a party has been duly executed and delivered by Comcast and constitutes a
legal, valid and binding obligation of Comcast enforceable against it in
accordance with its terms.
6. The execution, delivery and performance by Comcast Financial of the
Loan Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast Financial and do not violate the
Certificate of Incorporation or by-laws of Comcast Financial. Each of the Loan
<PAGE>
Documents to which Comcast Financial is a party has been duly executed and
delivered by Comcast Financial and constitutes a legal, valid and binding
obligation of Comcast Financial enforceable against it in accordance with its
terms.
7. The execution, delivery and performance by each of the Loan Parties
of the Loan Documents to which each of them is a party in accordance with their
respective terms and each borrowing thereunder do not and (absent any change
after the date hereof in any Applicable Law (as hereinafter defined) or
applicable Contract) will not (A) require any Governmental Approval under
Applicable Law or any other material consent or approval, other than
Governmental Approvals and other consents and approvals that have been obtained
and are in full force and effect 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 Company or any Restricted Subsidiary under, (1)
any Contract to which any Loan Party is a party or by which any Loan Party or
any of their respective properties may be bound, or any Applicable Law, except I
render no opinion as to any such violations, breaches or defaults of or under
Contracts or Applicable Law, if in the case of Contracts, both (a) such Contract
is not expressly identified or contemplated in the Credit Agreement or in any
other Loan Document and (b) no Loan Party is party thereto, or, if in the case
of Applicable Law, such Applicable Law is not applicable to any of the Loan
Parties, which could not reasonably be expected to expose any Agent or Bank to
any liability, loss, cost or expense, and which, either alone or in conjunction
with all other such violations, breaches or defaults, could not have a
Materially Adverse Effect on W the Company and the Restricted Subsidiaries taken
as a whole, or (ii) any Loan Document. As used herein, "Applicable Law" shall
mean those statutes and regulations of the Commonwealth of Pennsylvania,
Delaware General Corporate Law and the Federal law of the United States of
America which, if violated, would subject the Loan Parties to a fine, penalty or
other similar sanction or would materially impair any material rights or
remedies explicitly provided to the Agents and the Banks in the Loan Documents,
and which a Pennsylvania lawyer exercising customary professional diligence
would reasonably recognize as being directly applicable to the Loan Parties, the
subject loan transaction or both, provided, however, Applicable Law shall not
include reference to any law, including Federal law, governing communications or
securities regulation.
8. 1 confirm to you that, except as set forth on Schedule 3.04 of the
Credit Agreement, to my knowledge, there are no
<PAGE>
lawsuits or other proceedings pending or threatened against or affecting (A) the
Company or any of its Subsidiaries, or any of their respective properties or
businesses, or (B) any Loan Documents, before any court or arbitrator of any
kind or by or before any governmental or non-governmental body, except actions,
suits or proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Materially Adverse Effect on (1) the Company and the
Restricted Subsidiaries taken as a whole, or (2) any Loan Document.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) I have assumed the legal capacity of all individuals
executing any of the Loan Documents.
(B) The validity and enforceability of the Loan Documents are
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and similar laws affecting the enforcement of creditors'
rights generally (including those relating to fraudulent conveyances and
transfers), principles of equity and to the equitable discretion of courts,
whether in proceedings at law or in equity.
(C) I express no opinion as to the enforceability of any
provisions in any Loan Document imposing penalties, forfeitures, late payment
charges, prepayment premiums, attorneys' commissions, or an increase in interest
rate upon the occurrence of a default or an event of default.
(D) Requirements in any Loan Document specifying that
provisions therein may only be waived in writing may be unenforceable if an oral
agreement modifying provisions of those documents has been performed.
(E) I express no opinion as to the enforceability of
provisions contained in any Loan Document which purport to constitute or provide
for the waiver and release of any rights, claims, defenses, counterclaims or
remedies of the Loan Parties, including, without limitation, the waiver and
release of (1) the benefit of statutes of limitation or moratoria, (2) errors,
defects and imperfections in proceedings, service of process or the
establishment of jurisdiction, (3) the benefits of any stay of execution,
exemption from service of process or extension of time for payment, (4) the
benefits of laws requiring the marshalling of assets or election of remedies,
and (5) the benefits of laws, regulations or judicial decisions exempting
<PAGE>
certain property and/or proceeds from execution, attachment, levy or sale.
(F) I express no opinion concerning the financial condition
or solvency of the Loan Parties, nor, except as provided in paragraph 6 above,
do we express any opinion concerning the effect of any action, suit, proceeding,
litigation or transaction (including, without limitation, the transactions
contemplated in the Credit Agreement) upon either (1) the financial condition of
any of the Loan Parties or (2) any financial covenants which the Loan Parties
may have agreed to in the Loan Documents or any other instrument executed and
delivered in connection with the transactions contemplated in the Credit
Agreement or any other transaction.
(G) No opinion is expressed as to the enforceability of any
of the following kinds of provisions in the Loan Documents: (1) provisions for
self-help except as permitted by applicable law; (2) provisions which purport to
establish evidentiary standards; (3) provisions relating to the non-waiver of
your rights, discharge or waiver of defenses, liquidated damages, or
ratification of creditors' actions without consent of the companies or any
person secondarily liable; (4) provisions in the Loan Documents purporting to
waive statutory, constitutional or equitable rights which cannot by applicable
law be waived; (5) provisions containing powers of attorney or waiving
commercial reasonableness; (6) provisions which purport to retain a claim
against a guarantor where the primary debtor has been released; (7) provisions
for post-judgment interest in excess of the "legal rate" permitted on judgments
in Pennsylvania; (8) provisions which purport to create obligations to indemnify
you, except as permitted by applicable law; (9) provisions imposing penalties,
forfeitures, or (to the extent deemed to constitute penalties) increases in
interest rate upon the occurrence of a default or an event of default provided
that the inclusion of such provisions does not affect the validity of the other
provisions of the Loan Documents.
(H) Pennsylvania law prohibits the imposition of interest at
a rate in excess of 25% per annum unless otherwise authorized by law. We express
no opinion concerning the effect on the Loan Documents if (1) increases in the
interest rates as provided in the Loan Documents or (2) any fees, costs, charges
or expenses, in addition to the interest charged at the rates recited in the
Loan Documents cause the effective rate of interest payable under the Loan
Documents to increase to a rate in excess of 25% per annum.
<PAGE>
(I) I express no opinion concerning the laws of any
jurisdiction other than the law of the Commonwealth of Pennsylvania, the federal
law of the United States of America and, with respect to the opinions in the
first sentence of paragraph 1 hereof and the opinions in Subparagraph 3(A) and
3(X), the law of Delaware. In that connection, we note that the Loan Documents
provide that they are governed by the laws of the State of New York. I am not
expert regarding those laws and express no opinion about them. With your
permission, I have assumed, solely for purposes of this opinion, that the Loan
Documents will be governed by the laws of the Commonwealth of Pennsylvania
notwithstanding their express terms. I express no opinion concerning what law
will actually govern the Loan Documents or concerning the effectiveness of any
choice of law provision in the Loan Documents. Further, I express no opinion
concerning (1) the effects of any local law and regulation, or (2) federal or
state laws, rules or regulations governing securities, antitrust or unfair
competition, compliance with fiduciary duty, environmental liability, or any
aspect of the communications business.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks only in connection with the transactions contemplated by the
Loan Documents and may not be disclosed to, quoted from or relied upon by any
other person for any purpose, except that future holders of the Notes may rely
on this opinion and you and such future holders may make the opinion available
for inspection by regulatory authorities having jurisdiction over your affairs.
This opinion is rendered as of the date hereof, is based upon and relies upon
the current status of law and in all respects is subject to and may be limited
by future legislation, as well as future case law. I assume no responsibility to
advise you as to any matters after the date hereof.
Very truly yours,
Arthur R. Block
Senior Deputy General Counsel
<PAGE>
Schedule 2.01(e)
FORM OF OPINION OF SPECIAL
FCC COUNSEL FOR THE BORROWER
[Letterhead of Dow, Lohnes & Albertson, PLLC]
To: The Administrative Agent and Each Bank Listed on
the Signature Pages to the Credit Agreement Described Below
Re: Credit Agreement dated as of ___________, 1997, among
Comcast Cellular Communications Inc.. as Borrower, The
Chase Manhattan Bank, PNC Bank. National Association and
The Toronto-Dominion Bank as Arranging Agents. Toronto
Dominion (Texas). Inc. as Administrative Agent and the
Banks listed on the signature pages thereof
We are acting as special communications counsel to Comcast Cellular
Communications, Inc. (the "Borrower: in connection with the negotiation.
execution and delivery of that certain Credit Agreement("Credit Agreement")
dated as of _____________, 1997. by and among Comcast Cellular Communications.
Inc.. as Borrower (the "Borrower"): The Chase Manhattan Bank. PNC Bank, National
Association and The Toronto-Dominion Bank as Arranging Agents; Toronto Dominion
(Texas). Inc., as Administrative Agent; and the Banks listed on the signature
pages thereof. Our representation of the Company in connection with the Credit
Agreement is limited to specific matters before the Federal Communications
Commission (the "FCC") concerning those licenses issued by the FCC that are
listed on Annex I hereto (the "FCC Licenses"). We are delivering this opinion at
the request of the Company pursuant to Section 2.01 (e) of the Credit Agreement.
Unless otherwise defined herein, terms which are defined in the Credit Agreement
shall have the same meaning in this opinion.
To provide the opinions rendered herein in our capacity as special
communications counsel, we have reviewed the Credit Agreement and those
documents listed in Annex 2 hereto in the form described in Annex 2 (including
the Credit Agreement. the "Reviewed Documents"). We assume that each of the
Reviewed Documents. as executed in final form, will conform in all respects
material to our opinions rendered herein with the drafts of these documents that
we have reviewed. Our opinion is limited solely to matters arising under the
Communications Act of 1934, as amended (the "Communications Act"), and the
rules. regulations, and published and publicly available policy statements of
the FCC ("FCC Rules"). We have not reviewed any other agreement, contract or
other similar document in connection with the opinions expressed herein.
As to questions of fact in connection with our opinions, we have relied
solely upon (a) the representations and warranties set forth in the Credit
Agreement and the other Reviewed Documents, (b) certificates provided to us or
statements made to us by officers or representatives
<PAGE>
of the Borrower or any of the Subsidiaries of the Borrower, and (c) our review
as of October 10, 1997, of the FCCs publicly available facilities records in
Washington, D.C., for the FCC Licenses listed in Annex 1 and an inquiry to the
FCC's Compliance and Information Bureau with respect to the licensees for the
FCC Licenses listed in Annex 1, which records and information we assume to have
been accurate and complete at the time of our examination and to be unchanged
between the date of our examination and the date of this opinion. We have not
made inquiry as to any complaints pending before the Enforcement Division of the
Wireless Telecommunications Bureau, given that the substance of any such
complaints would, by policy, not be made available until the completion of
processing by the Enforcement Division. It is possible that there may be matters
pending before the FCC relating to the FCC Licenses that have not been
incorporated into the publicly available files of the FCC reviewed by us and are
therefore beyond the scope of this opinion. We render no opinion as to whether
any application pending before the FCC will be granted.
In rendering the opinions herein expressed. we have assumed: (i) the
genuineness of all signatures on documents submitted to us; (ii) the legal
capacity of natural persons; (iii) the conformity with original documents of all
documents submitted to us as certified. conformed or photostatic copies or
facsimiles; (iv) the authority of the person or persons who executed any such
documents on behalf of any person or entity; (v) that such person or entity has
all the requisite power and authority and has fulfilled all necessary procedures
to take and adopt the actions. or enter into the agreements. set forth in such
documents executed by him or it or on his or its behalf and to effect the
actions contemplated thereby; and (vii) that such agreements constitute the
legal. valid and binding obligations of such parties. We have not conducted an
independent field investigation of the Borrower or any of its Subsidiaries. nor
have we examined their actual day-to-day operations. We have not examined the
docket or records of any court or federal administrative agency, other than the
FCC. Whenever any statement in this opinion is indicated to be based on our
knowledge, it is intended to signify that, during the course of our
representation of the Borrower in connection herewith, no information has come
to the attention of the attorneys in our firm involved in the preparation of
this opinion that gives those attorneys current actual knowledge of the
inaccuracy of such statement. Our engagement by the Borrower has been limited to
matters as to which we have been consulted, we do not routinely represent the
Borrower on federal licensing matters, and the Company may employ other counsel
from time to time, including its own internal counsel. Accordingly, no inference
as to our knowledge of the existence or absence of facts should be drawn from
our serving as special counsel to the Borrower.
Based upon the foregoing, and subject to the assumptions. limitations
and exceptions contained herein. it is our opinion that:
<PAGE>
1. The execution and delivery by the Borrower of the Credit Agreement
and the other Reviewed Documents to which it is a party and the performance by
the Borrower of its obligations under the Credit Agreement and the other
Reviewed Documents do not require the prior consent or approval of the FCC and
do not violate the Communications Act or the FCC Rules, except that any exercise
of control over, or transfer of control of any license, permit or other
authorization issued bv the FCC in connection with the exercise by or on behalf
of the Lenders under the Credit Agreement or the other Reviewed Documents upon
the occurrence of an event of default may require the prior consent of the FCC
of any proposed assignment or transfer of control of such licenses, permits or
other authorizations, and we render no opinion as to whether any such consent
would be granted.
2. Based upon our above-described review of the publicly available
records of the FCC, each of the FCC Licenses is held by the entity designated on
Annex I hereto, has the expiration date set forth on Annex 1, and, except as may
be set forth in Annex 1, is in effect in accordance with its terms.
3. To our knowledge, based solely upon inquiry to the Borrower and upon
our above-described review of certain publicly available files and records of
the FCC, there is no proceeding pending before the FCC against the Borrower or
the Subsidiaries listed on Annex 1 hereof with regard to the FCC Licenses, which
reasonably could be expected to result in the revocation, rescission or
non-renewal of any of the FCC Licenses. In rendering this opinion, we have not
considered rule making proceedings for the formulation of policies that affect
the cellular industry. The PCS industry and/or the microwave common carrier
industry generally.
The opinions and statements set forth herein are as of the date hereof,
and we assume no obligation to advise you of changes which may hereafter be
brought to our attention. This letter is solely for your benefit as lenders
under the above-referenced Credit Agreement and it may not be relied upon by you
for any other purpose, nor may it be released to or relied upon by any other
person without the express written consent of this firm.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By:
<PAGE>
ANNEX 1
<PAGE>
Cellular System Licenses
Call Sign Licensee Expiration Date
KNKA382 AWACS, Inc. 02/09/06
KNKA353 Wilmington Cellular Telephone 02/09/06
Company
KNKA311 Long Branch Cellular Telephone 12/17/06
Company
KNKA319 New Brunswick Cellular Telephone 12/17/06
Company
KNKA513 CellSouth of New Jersey, Inc. 10/01/97
KNKA625 Joliet Cellular Telephone 10/01/98
Company, Inc.
KNKA760 Aurora Elgin Cellular Telephone 10/01/98
Company, Inc.
KNKN836 Ocean County Cellular Telephone 10/01/00
Company
KNKA652 Vineland Cellular Telephone 10/01/98
Company, Inc.
KNKA791 Amcell of Atlantic City, Inc. 10/01/98
KNKN720 C-SW Cellular Partnership 10/01/00
_____________
*/ The Borrower has confirmed to us that a renewal application was filed for
this license on September 16, 1997. As of October 10, 1997, the FCC's records
did not yet reflect that the renewal application had been filed. The FCC
released a public notice on October 16, 1997, indicating that this renewal
application had been accepted for filing by the FCC.
<PAGE>
Point-to-Point Common Carrier Microwave Licenses
1) American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WLN998 Millstone, NJ 02/01/01
WLN999 Freehold, NJ 02/01/01
WLU865 Perth Amboy, NJ 02/01/01
WLS552 Edison, NJ 02/01/01
WLS556 Old Bridge, NJ 02/01/01
WMJ742 Hazlet, NJ 02/01/01
WMN881 Gibson Point, PA 02/01/01
WMN882 Spectrum, PA 02/01/01
WPJF575 Philadelphia, PA 02/01/01
WPJF574 Hahneman Univ., PA 02/01/01
<PAGE>
2) Wilmington Cellular Telephone Company
Call Sign Location Expiration Date
WLK631 Theodore, MD 02/01/01
WLK632 Iron Hill, DE 02/01/01
WLK638 South Gate, DE 02/01/01
WLK640 Mannington, NJ 02/01/01
WHF558 Pine Tree, DE 02/01/01
WHF560 Dover, DE 02/01/01
WMR677 Woodstown, NJ 02/01/01
WPJF792 Elmer, NJ 02/01/01
WPJF793 Elwood, NJ 02/01/01
3) Ocean County Cellular Telephone Company
Call Sign Location Expiration Date
WLS721 Toms River, NJ 02/01/01
<PAGE>
38 GHz Licenses
1. American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WMW543 Allentown, PA 02/01/01
WMW544 Long Branch, NJ 02/01/01
WMW545 West Chester, PA 02/01/01
WMW546 Philadelphia, PA 02/01/01
WPJC701 Wilmington, DE 02/01/01
WPNA363 New Brunswick, NJ 02/01/01
<PAGE>
ANNEX 2
1. Credit Agreement dated as of October 14, 1997 among Comcast Cellular
Communications, Inc., Toronto Dominion (Texas), Inc. as Arranging Agent, et
al. (Draft dated October 13, 1997).
2. Form of Promissory Note (included in Exhibit A to the above-referenced
draft Credit Agreement).
<PAGE>
Schedule 2.01(f)
FORM OF OPINION OF SPECIAL
COUNSEL FOR THE ARRANGING AGENTS
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________, 1997
To the Administrative Agent and each Bank party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank PNC Bank, National Association and The
Toronto-Dominion Bank, as Arranging Agents, in connection with the negotiation,
execution and delivery of the Credit Agreement, dated as of October 14, 1997,
among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the signature
pages thereof, The Bank of New York, Barclays Bank PLC, The Chase Manhattan
Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as Arranging
Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent (the "Credit
Agreement"). Terms defined in the Credit Agreement that are not otherwise
defined herein are used herein with the meanings therein ascribed to them.
For the purposes of rendering the opinions contained in this
letter, we have examined executed counterparts of the Credit Agreement, the
Notes delivered on the date hereof and the Affiliate Subordination Agreement
(collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i) the
authenticity of all such documents submitted to us as originals, (ii) the due
authorization, execution and delivery by the Administrative Agent and the Banks
of the Loan Documents to which they are parties, (iii) that each of the Loan
Parties has the corporate power, and has taken all necessary corporate action to
authorize it, to execute, deliver and perform each of the Loan Documents to
which it is a party, (iv) that the Loan Documents have been duly executed and
delivered by each of the Loan Parties and (v) that the execution, delivery and
performance in accordance with their respective terms by each of the Loan
Parties of the Loan Documents to which it is a party do not and will not (A)
require any Governmental Approval or any other consent or approval, other than
Governmental Approvals and other consents or approvals that have been obtained,
are final and not subject to review or collateral attack and are in full force
and effect, or (B) violate or conflict with, result in a breach of, or
constitute a default under (1) any Contract to
<PAGE>
which any of the Loan Parties is a party or by which it or its properties may be
bound or (2) any Applicable Law referred to in clause (ii)(B) or (C) of the
definition thereof contained in the Credit Agreement.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that the Loan Documents are
legal, valid and binding obligations of the Loan Parties party thereto,
enforceable against such Loan Parties in accordance with their respective terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting the
enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at law).
Such principles applied by a court might include a requirement that a creditor
act with reasonableness and good faith. Furthermore, a court may refuse to
enforce a covenant where a court deems such covenant to be violative of
applicable public policy.
(b) Our opinions are limited to the law of the State of New York
and the Federal law of the United States. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Bank may be located or wherein
enforcement of the Loan Documents may be sought that limits the rates of
interest legally chargeable or collectable.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks and no other Person shall be entitled to rely hereon for any
purpose.
Very truly yours,
<PAGE>
Schedule 3.02: Capital Securities
<TABLE>
<CAPTION>
Jurisdication of
Name Organization Ownership
<S> <C> <C>
Comcast Cellular Communications, Inc. Delaware Comcast Cellular Corp. - 100% Common
Subsidiaries
Unless otherwise indicated, a) all entitites listed below
are Subsidiaries of the Borrower and b) 100% of their common
stock or partnership interests, as applicable, is owned by
the entity or entities listed under the heading "Ownership".
Jurisdication of
Name Organization Ownership
American Cellular Network Corp. (AMCELL) New Jersey Borrower
AWACS, Inc. (AWACS) Pennsylvania Borrower
Comcast Directory Services, Inc. Delaware Borrower
Comcast Publishing Holdings Corporation (1) Pennsylvania Borrower
Comcast Central NJ Holding Company, Inc. Delaware AMCELL
American Cellular Network Corp. of Delaware Delaware AMCELL
Amcell of Atlantic City, Inc. New Jersey AMCELL
Amcell of Ocean County, Inc. Delaware AMCELL
Amcell of Trenton, Inc. New Jersey AMCELL
Amcell of Vineland Holdings, Inc. Delaware AMCELL
American Cellular Network Corp. of
Pennsylvania (1) Pennsylvania AMCELL
Comcast Cellular Communications Inc. Pennsylvania AMCELL
Amcell of Pennsylvania Holdings, Inc. Delaware AMCELL
Amcell of Hunterdon, Inc. (1) New Jersey AMCELL
Cell South of New Jersey, Inc. New Jersey Amcell of Trenton, Inc. - approx. 85.31%
Other - 14.69%
Aurora/Elgin Cellular Telephone Company, Inc. Illinois AMCELL - approx. 81.43%
Other - 18.57%
Joliet Cellular Telephone Company, Inc. Illinois AMCELL - approx. 83.44%
Other - 16.56%
Vineland Cellular Telephone Company, Inc. Delaware Amcell of Vineland Holdings, Inc. - 94.57%
Other - 5.43%
Long Branch Cellular Telephone Company Delaware AMCELL - 91.67%
Comcast Central NJ Holding Company, Inc-8.33%
New Brunswick Cellular Telephone Company Delaware AMCELL - 63.15%
Comcast Central NJ Holding Company, Inc-36.85%
Comcast Directory Assistance Partnership Delaware Comcast Directory Services, Inc. 51%
Hebenstreit Communications of Phil-Wilm LP-49%
Ocean County Cellular Telephone Company Washington Amcell of Ocean County, Inc. - 75%
Comcast Central NJ Holding Company - 25%
Wilmington Cellular Telephone Company Delaware AMCELL - 41.176%
American Cellular Network Corp of
Delaware-58.824%
AWACS Financial Corporation Delaware AWACS
AWACS Purchasing Corporation Delaware AWACS
AWACS Investment Holdings, Inc. Delaware AWACS
AWACS Retail Stores, Inc. Delaware AWACS
Comcast Publishing Holdings Financial
Corporation (1) Delaware Comcast Publishing Holdings Corporation
AWACS Garden State, Inc. Delaware AWACS Investment Holdings, Inc.
Garden State Cablevision, L.P. Delaware Comcast Garden State - 10.005%
AWACS Garden State, Inc. - 39.995%
Lenfest Jersey, Inc. - 50.00%
Other Interests
C-SW Cellular Partnership Delaware AMCELL - 50%
SW Bell Mobile Systems, Inc. 50%
<FN>
(1) - Currently inactive. Scheduled to be dissolved.
</FN>
</TABLE>
<PAGE>
Schedule 3.03 List of Governmental Approvals and approvals or consents of other
Persons
None.
<PAGE>
Schedule 3.04: Litigation
None.
<PAGE>
SCHEDULE 3.09
Wireless Licenses and Related Matters
Cellular System Licenses
Call Sign Licensee Expiration Date
KNKA382 AWACS, Inc. 02/09/06
KNKA353 Wilmington Cellular Telephone 02/09/06
Company
KNKA311 Long Branch Cellular Telephone 12/17/06
Company
KNKA319 New Brunswick Cellular Telephone 12/17/06
Company
KNKA513 CellSouth of New Jersey, Inc. 10/01/97*
KNKA625 Joliet Cellular Telephone 10/01/98
Company, Inc.
KNKA760 Aurora/Elgin Cellular Telephone 10/01/98
Company, Inc.
KNKN836 Ocean County Cellular Telephone 10/01/00
Company
KNKA652 Vineland Cellular Telephone 10/01/98
Company, Inc.
KNKA791 Amcell of Atlantic City, Inc. 10/01/98
KNKN720 C-SW Cellular Partnership 10/01/00
_____________
*. A renewal application was filed for this license on September 16, 1997.
<PAGE>
Point-to-Point Common Carrier Microwave Licenses
1) American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WLN998 Millstone, NJ 02/01/01
WLN999 Freehold, NJ 02/01/01
WLU865 Perth Amboy, NJ 02/01/01
WLS552 Edison, NJ 02/01/01
WLS556 Old Bridge, NJ 02/01/01
WMJ742 Hazlet, NJ 02/01/01
WMN881 Gibson Point, PA 02/01/01
WMN882 Spectrum, PA 02/01/01
WPJF575 Philadelphia, PA 02/01/01
WPJF574 Hahneman Univ., PA 02/01/01
2) Wilmington Cellular Telephone Company
Call Sign Location Expiration Date
WLK631 Theodore, MD 02/01/01
WLK632 Iron Hill, DE 02/01/01
WLK638 South Gate, DE 02/01/01
WLK640 Mannington, NJ 02/01/01
WHF558 Pine Tree, DE 02/01/01
WHF560 Dover, DE 02/01/01
WMR677 Woodstown, NJ 02/01/01
WPJF792 Elmer, NJ 02/01/01
WPJF793 Elwood, NJ 02/01/01
3) Ocean County Cellular Telephone Company
Call Sign Location Expiration Date
WLS721 Toms River, NJ 02/01/01
<PAGE>
38 GHz Licenses
1. American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WMW543 Allentown, PA 02/01/01
WMW544 Long Branch, NJ 02/01/01
WMW545 West Chester, PA 02/01/01
WMW546 Philadelphia, PA 02/01/01
WPJC701 Wilmington, DE 02/01/01
WPNA363 New Brunswick, NJ 02/01/01
<PAGE>
Schedule 3.13: Benefit Plans
None.
<PAGE>
Schedule 4.04: Existing Guaranties
None.
<PAGE>
Schedule 4.05: Existing Liens
Those liens respecting Predecessor Indebtedness being paid off at Closing, and:
In connection with the due diligence performed by the Borrower, the following
encumbrance was found.
A lien filed in the office of the Secretary of the Commonwealth of Pennsylvania
against AWACS, Inc. granting Neopost Leasing a lien of mailing, shipping,
computing and other equipment under lease from Neopost Leasing.
<PAGE>
Schedule 4.12
Permitted Restrictive Covenants
Restrictions on the granting of Liens set forth in Section 4.17 of the Indenture
dated as of May 8, 1997 (the "Indenture") between Comcast Cellular Holdings,
Inc., as issuer, and The Bank of New York, as trustee, provided, however that,
such restriction does not prohibit the Borrower or its Restricted Subsidiaries
from granting Liens securing Indebtedness under this Agreement, the Additional
Facility Credit Agreement, or any deferrals, renewals, extensions, replacements,
refinancings or refundings thereof, or amendments, modifications or supplements
thereto.
<PAGE>
Schedule 4.14: Existing Investments
1) Comcast Cellular Communications, Inc. ("CCCI") is party to an interest rate
swap with The Bank of Montreal effective through November 23, 1998 whereby CCCI
pays a fixed rate of 5.65% vs. 3 Month LIBOR on a notional amount of
$50,000,000.
2) Comcast Cellular Communications, Inc. ("CCCI") is party to an interest rate
collar with Barclays Bank effective through November 3, 1997 whereby 3 Month
LIBOR for CCCI is capped at 5.2% with a floor of 5.00% on a notional amount of
$50,000,000.
3) Amcell owns a 3.40% interest in the non-wireline license for Bloomington,
Indiana RSA.
4) Amcell owns a 10.07% interest in the non-wireline license for the Kanakee,
Illinois RSA.
5) Amcell owns a 50% interest in the C-SW Partnership, which owns the
non-wireline license for the Delaware 1 RSA.
Note: The information presented in items 3&$ is subject to minor variances
<PAGE>
Schedule 5.01(a)
FORM OF CERTIFICATE AS TO QUARTERLY FINANCIAL STATEMENTS
COMCAST CELLULAR COMMUNICATIONS, INC.
I, _______________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(a) of the Credit Agreement, dated as of October 14,
1997, among the Borrower, the banks listed on the signature pages thereof, The
Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank,
National Association and The Toronto- Dominion Bank, as Arranging Agents, and
Toronto Dominion (Texas), Inc., as Administrative Agent (the "Credit
Agreement"), that (terms defined in the Credit Agreement that are not otherwise
defined herein are used herein with the meanings therein ascribed to them):
1. (a) The accompanying unaudited consolidated financial statements of
the Borrower and the Restricted Subsidiaries as at ______________ and for the
quarterly accounting period ending _______________, 19__, present fairly, in
accordance with Generally Accepted Accounting Principles (except for changes
therein or departures therefrom described below that have been explained in the
financial statements, and except for the exclusion of the Unrestricted
Subsidiaries), the consolidated financial position of the Borrower and the
Restricted Subsidiaries as at the end of such quarterly period, and the
consolidated results of operations and cash flows for such quarterly period, and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, in each case on the basis presented and subject only to normal
year-end auditing adjustments.
(b) Except as disclosed or reflected in such financial statements, as
at __________, neither the Borrower nor any Restricted Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, have had or, insofar as can reasonably be foreseen
by the Borrower, might have a Materially Adverse Effect on the Borrower and the
Restricted Subsidiaries taken as a whole.
2. The changes in and departures from Generally Accepted Accounting
Principles, and the amount of any charges to or other reserves against revenues
of the Borrower and the Restricted Subsidiaries taken during such quarterly
period, are as follows:
3. The calculations required to establish whether or not the
Borrower was in compliance with the following Sections of the Credit Agreement
are as follows:
(a) Section 4.15.
(b) Section 4.16.
<PAGE>
4. Based on an examination sufficient in my judgment to enable me
to make an informed statement, no Default exists, including, in particular, any
such arising under the provisions of Article 4 of the Credit Agreement, except
the following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Borrower or a Subsidiary with respect thereto.]
Dated:
[Responsible Officer]
-2-
<PAGE>
Schedule 5.01(b)
FORM OF CERTIFICATE AS TO YEAR-END FINANCIAL STATEMENTS
COMCAST CELLULAR COMMUNICATIONS, INC.
I, _____________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(b) of the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them.
1. (a) The accompanying consolidated financial statements of the
Borrower and the Restricted Subsidiaries as at _____________ and for the fiscal
year ending _____________, 19__, present fairly, in accordance with Generally
Accepted Accounting Principles (except for changes therein or departures
therefrom described below, that have been explained in the financial statements,
and except for the exclusion of the Unrestricted Subsidiaries), the consolidated
financial position of the Borrower and the Restricted Subsidiaries as at the end
of such fiscal [year] [period], and the consolidated results of operations and
cash flows for such fiscal [year] [period], in each case on the basis presented.
(b) Except as disclosed or reflected in such financial statements, as
at _____________, neither the Borrower nor any Restricted Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, have had or, insofar as can reasonably be foreseen
by the Borrower, might have a Materially Adverse Effect on the Borrower and the
Restricted Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles, and the amount of any charges to or other reserves
against revenues of the Borrower and the Restricted Subsidiaries taken during
such fiscal [year] [period], are as follows:
3. The calculations required to establish whether or not the
Borrower was in compliance with the following Sections of the Credit Agreement
are as follows:
(a) Section 4.15.
(b) Section 4.16.
<PAGE>
4. Based on an examination sufficient to enable me to make an
informed statement, no Default exists, including, in particular, any such
arising under the provisions of Article 4 of the Credit Agreement, except the
following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Borrower or a Subsidiary with respect thereto.]
Dated:
[Responsible Officer]
-2-
<PAGE>
Schedule 5.01(f)
FORM OF CERTIFICATE AS TO CELLULAR SYSTEM INFORMATION
COMCAST CELLULAR COMMUNICATIONS, INC.
Fiscal quarter ended: __________, 19__
I, _______________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(f) of the Credit Agreement, dated as of October 14,
1997, among Comcast Cellular Communications, Inc., the banks listed on the
signature pages thereof, 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 (the "Credit Agreement"), that as at the end of the fiscal quarter
referred to above:
To the best of my knowledge, the information included in the report
attached hereto as Schedule I accurately reflects the books and records of the
Borrower and the Restricted Subsidiaries (as defined in the Credit Agreement).
-----------------------
Responsible Officer
Dated: ____________, 19__
<PAGE>
SCHEDULE I
COMCAST CELLULAR COMMUNICATIONS, INC.
FORM OF CERTIFICATE AS TO WIRELESS SYSTEM INFORMATION
FOR THE FISCAL QUARTER ENDED ___________, 19__
<TABLE>
<CAPTION>
Subscribers Aggregate Percentage
at End of the Ownership at End of the Pops at End of the
Wireless System Fiscal Quarter Fiscal Quarter 1 Fiscal Quarter *
<S> <C> <C> <C> <C> <C> <C>
- --------
1 To be completed only in the case of a certificate delivered with
respect to financial statements covering the fourth fiscal quarter of
any fiscal year of the Borrower.
</TABLE>
<PAGE>
Schedule 5.02(1): Historial Financial Statements
For Comcast Cellular Communications, Inc.
1) Consolidated Financial Statements for the Years Ended December 31, 1996 and
1995 and Independent Auditors' Report
2) Consolidated Financial Statements for the Quarter Ended June 30, 1997
unaudited
3) Pro Forma Consolidated Balance Sheet as of June 30, 1997
<PAGE>
Schedule 9.10(a)
FORM OF NOTICE OF ASSIGNMENT
[Name and address
of Borrower in accordance with
Section 9.01(b)(i)]
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October
14, 1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby give notice pursuant to Section 9.10(a) of the
Credit Agreement that [name of Assignor] [(the "Assignor")] has made the
following assignment to [name of Assignee] [(the "Assignee")]:
Amount of rights and obligations assigned:
Effective date of
assignment:
[The Assignee's Lending Offices and address for notices
are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice address:]1
<PAGE>
The Assignor hereby requests that the Borrower and the
Administrative Agent consent to the assignment described above by signing a copy
of this letter in the space provided below and returning it to the Assignor.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Assignment consented to:
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent
By:
Name:
Title:
1. Omit if the Assignee is a Bank prior to such assignment.
-2-
<PAGE>
Schedule 10.01: Predecessor Indebtedness
1) Debt arising from the credit agreement dated September 14, 1995 between
Comcast Cellular Communications, Inc. and The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank, N.A., PNC Bank, National Association and The
Toronto Dominion Bank (collectively, the Arranging Agents).
It is anticipated that this debt will be $140,294,738.89, including Accrued
interest, at Closing.
<PAGE>
EXHIBIT A
FORM OF PROMISSORY NOTE
COMCAST CELLULAR COMMUNICATIONS, INC.
_________ , 1997
FOR VALUE RECEIVED, COMCAST CELLULAR COMMUNICATIONS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
____________________ (the "Bank") the principal amount of the Loans of the Bank
outstanding on the date specified in Section 1.04 of the Credit Agreement
referred to below, and to pay interest on such principal amount on the dates and
at the rates specified in Section 1.03 of such Credit Agreement. All payments
due the Bank hereunder shall be made to the Bank at the place, in the type of
money and funds and in the manner specified in Section 1.10 of such Credit
Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Loan of the Bank and each payment,
prepayment or conversion with respect thereto.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the benefits
of, the Credit Agreement, dated as of October 14, 1997, among the Borrower, the
Banks listed on the signature pages thereof, The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank, PNC Bank, National Association and The
Toronto-Dominion Bank, as Arranging Agents, and Toronto Dominion (Texas) Inc.,
as Administrative Agent, as the same may be amended from time to time. Reference
is made to such Credit Agreement, as so amended, for provisions relating to the
prepayment and the acceleration of the maturity of, and for the respective
meanings assigned to the capitalized terms used and not otherwise defined in,
this Note.
<PAGE>
This Note 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).
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
[This is a Registered Note, and this Registered Note and the Loans
evidenced hereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer on the Register, together
with compliance with all other requirements provided for in the Credit
Agreement.] [INSERT THE FOREGOING IN ALL REGISTERED NOTES]
<PAGE>
GRID
NOTE
- --------------------------------------------------------------------------------
Amount of
Principal Paid, Unpaid
Amount of Prepaid or Principal Amount Notation
Date Loan Converted of Note Made By
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
<PAGE>
EXECUTION COPY
-----------------------------------------------------------------
$100,000,000
CREDIT AGREEMENT
Dated as of October 14, 1997
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,
PNC BANK, NATIONAL ASSOCIATION,
and
THE TORONTO-DOMINION BANK,
as Arranging Agents,
and
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
-----------------------------------------------------------------
<PAGE>
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..........................................-4-
Section 1.05. Prepayments........................................-4-
(a) Optional Prepayments..........................-4-
(b) Mandatory Prepayments.........................-5-
(c) Application and Timing........................-5-
Section 1.06. Limitation on Types of Loans.......................-5-
Section 1.07. Reductions of Commitments..........................-5-
(a) Optional Reductions...........................-5-
(b) No Reinstatement..............................-5-
Section 1.08. Commitment Fees....................................-5-
Section 1.09. Computation of Interest and Fees...................-6-
Section 1.10. Payments by the Borrower...........................-6-
(a) Time, Place and Manner........................-6-
(b) No Reductions.................................-7-
(c) Authorization to Charge Accounts..............-7-
(d) Extension of Payment Dates....................-7-
Section 1.11. Distribution of Payments by the Administrative
Agent..............................................-7-
Section 1.12. Taxes on Payments..................................-8-
(a) Taxes Payable by the Borrower.................-8-
(b) Taxes Payable by any Bank or Agent............-8-
(c) Exemption from U.S. Withholding Taxes.........-8-
-i-
<PAGE>
(d) Credits and Deductions........................-9-
Section 1.13. Evidence of Indebtedness..........................-10-
Section 1.14. Pro Rata Treatment................................-10-
Section 1.15. Registered Notes..................................-10-
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans.......................-12-
Section 2.02. Conditions to Each Loan...........................-13-
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Power; Qualification................-14-
Section 3.02. Capitalization; Subsidiaries......................-14-
Section 3.03. Authorization; Enforceability; Required Consents;
Absence of Conflicts...........................-15-
Section 3.04. Litigation........................................-15-
Section 3.05. Burdensome Provisions.............................-16-
Section 3.06. No Adverse Change or Event........................-16-
Section 3.07. Taxes.............................................-16-
Section 3.08. No Default........................................-17-
Section 3.09. Wireless Licenses and Related Matters.............-17-
Section 3.10. Not an Investment Company.........................-17-
Section 3.11. Hazardous Materials...............................-17-
Section 3.12. Senior Obligations................................-18-
Section 3.13. Benefit Plans.....................................-18-
ARTICLE 4
CERTAIN COVENANTS
Section 4.01. (a) Preservation of Existence and Properties, Compliance
with Law, Payment of Taxes and Claims, Preservation
of Enforceability................................-18-
(b) Subsidiary Matters...........................-19-
Section 4.02. Insurance.........................................-19-
Section 4.03. Use of Proceeds...................................-20-
Section 4.04. Guaranties........................................-20-
Section 4.05. Liens.............................................-20-
-ii-
<PAGE>
Section 4.06. Restricted Payments...............................-21-
Section 4.07. Merger or Consolidation; Acquisitions.............-21-
Section 4.08. Disposition of Assets.............................-21-
Section 4.09. Indebtedness......................................-24-
Section 4.10. Transactions with Affiliates......................-24-
Section 4.11. Management........................................-24-
(a) Management Agreement.........................-24-
(b) Management Fees..............................-24-
Section 4.12. Limitation on Restrictive Covenants...............-25-
Section 4.13. Issuance or Disposition of Capital Securities.....-25-
Section 4.14. Investments.......................................-25-
Section 4.15. Leverage Ratio....................................-26-
Section 4.16. Interest Coverage Ratio...........................-26-
Section 4.17. Revenues..........................................-26-
Section 4.18. Tax Sharing Agreement and Management Agreement....-26-
Section 4.19. Senior Subordinated Indebtedness..................-27-
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION
Section 5.01. Financial Statements and Information to Be
Furnished..........................................-27-
(a) Quarterly Financial Statements; Officer's
Certificate..................................-27-
(b) Year-End Financial Statements; Accountants' and
Officer's Certificates.......................-27-
(c) Reports and Filings............................-28-
(d) Requested Information..........................-28-
(e) Notice of Defaults and Other Matters...........-28-
(f) Wireless System Information....................-29-
Section 5.02. Accuracy of Financial Statements and Information....-29-
(a) Historical Financial Statements................-29-
(b) Future Financial Statements....................-29-
(c) Historical Information.........................-30-
(d) Future Information.............................-30-
Section 5.03. Additional Covenants Relating to Disclosure.........-31-
(a) Accounting Methods and Financial Records.......-31-
(b) Fiscal Year....................................-31-
(c) Visits, Inspections and Discussions............-31-
Section 5.04. Authorization of Third Parties to Deliver
Information.........................................-31-
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<PAGE>
ARTICLE 6
DEFAULT
Section 6.01. Events of Default.................................-32-
Section 6.02. Remedies Upon Event of Default....................-35-
Section 6.03. Certain Cure Rights...............................-35-
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate
Loans..........................................-36-
Section 7.02. Regulatory Changes................................-37-
Section 7.03. Capital Requirements..............................-38-
Section 7.04. Funding Losses....................................-39-
Section 7.05. Determinations....................................-39-
Section 7.06. Change of Lending Office..........................-39-
Section 7.07. Replacement of Banks..............................-40-
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Powers............................-40-
Section 8.02. Limitation on Agents' Liability...................-41-
Section 8.03. Defaults..........................................-41-
Section 8.04. Rights as a Bank..................................-41-
Section 8.05. Indemnification...................................-42-
Section 8.06. Non-Reliance on Agents and Other Banks............-42-
Section 8.07. Resignation of the Administrative Agent...........-42-
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries............................-43-
(a) Manner of Delivery...........................-43-
(b) Addresses....................................-43-
(c) Effectiveness................................-44-
Section 9.02. Expenses; Indemnification.........................-45-
Section 9.03. Amounts Payable Due Upon Request for Payment......-46-
-iv-
<PAGE>
Section 9.04. Remedies of the Essence...........................-46-
Section 9.05. Rights Cumulative.................................-46-
Section 9.06. Confidentiality...................................-46-
Section 9.07. Amendments; Waivers...............................-46-
Section 9.08. Set-Off; Suspension of Payment and Performance....-47-
Section 9.09. Sharing of Recoveries.............................-47-
Section 9.10. Assignments and Participations....................-48-
(a) Assignments...................................-48-
(b) Participations................................-49-
(c) Rights of Assignees and Participants..........-49-
Section 9.11. Governing Law.....................................-50-
Section 9.12. Judicial Proceedings; Waiver of Jury Trial........-50-
Section 9.13. Severability of Provisions........................-51-
Section 9.14. Counterparts......................................-51-
Section 9.15. Survival of Obligations...........................-51-
Section 9.16. Entire Agreement..................................-51-
Section 9.17. Successors and Assigns............................-51-
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions..........................-51-
(a) Defined Terms................................-51-
(b) Other Definitional Provisions................-71-
Section 10.02. Accounting Matters...............................-72-
Section 10.03. Representations and Warranties...................-72-
Section 10.04. Captions.........................................-72-
SCHEDULES AND EXHIBITS
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(a) - Form of Certificate as to Resolutions, etc.
Schedule 2.01(d)-1 - Form of Opinion of Counsel for the Borrower and each other
Loan Party
Schedule 2.01(d)-2 - Form of Opinion of Counsel for the Borrower and each Other
Loan Party
Schedule 2.01(e)-1 - Form of Opinion of Special FCC Counsel for the Borrower
and the Restricted Subsidiaries
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<PAGE>
Schedule 2.01(f) - Form of Opinion of Special Counsel for the Arranging
Agents
Schedule 3.02 - Capitalization and Subsidiaries
Schedule 3.03 - Required Consents and Governmental Approvals
Schedule 3.04 - Material Litigation
Schedule 3.09 - Wireless Licenses and Related Matters
Schedule 3.13 - Existing Benefit Plans
Schedule 4.04 - Existing Guaranties
Schedule 4.05 - Existing Liens
Schedule 4.12 - Permitted Restrictive Covenants
Schedule 4.14 - 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 Wireless System Information
Schedule 5.02(a) - Historical Financial Statements
Schedule 9.10(a) - Form of Notice of Assignment
Schedule 10.01 - Predecessor Indebtedness
Exhibit A - Form of Note
-vi-
<PAGE>
CREDIT AGREEMENT
Dated as of October 14, 1997
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, 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, from
time to time during the period from the Agreement Date through the Commitment
Termination Date, one or more Loans to the Borrower in an aggregate unpaid
principal amount not exceeding at any time such Bank's Commitment at such time;
provided, however, that no Loan shall be requested or made if, after giving
effect to the making thereof and the making of each other Loan requested to be
made at such time, the aggregate principal amount of all Loans outstanding at
such time, together with the aggregate principal amount of all Senior
Subordinated Indebtedness outstanding at such time, would exceed the Total
Commitment at such time.
The Total Commitment on the Agreement Date is $100,000,000.
(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) 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
<PAGE>
Business Day, (ii) the Type or Types of Loans requested and (iii) the amount of
each such Type of Loan, the aggregate amount of which shall be $2,000,000 or any
integral multiple of $500,000 in excess thereof or the amount of the unused
Total Commitment. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of the amount and
Type of each Loan to be made by such Bank on the requested date specified
therein.
(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 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.
-2-
<PAGE>
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 Eurodollar Rate Loan, the applicable
Adjusted Eurodollar Rate plus the Applicable Margin and (ii) so long as it is a
Base Rate Loan, the Base Rate as in effect from time to time. 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.
(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 662/3% of the Loans outstanding (or, if there are no Loans
outstanding, more than 662/3% 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
-3-
<PAGE>
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) 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 (C) 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 (x) the contents
thereof, (y) 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, 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 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. The aggregate outstanding principal
amount of the Loans shall mature and become due and payable, and shall be repaid
by the Borrower, on the Term Maturity Date.
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 $2,000,000 or any integral multiple
of $500,000 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) the date such prepayment is to be made
and (ii) 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
-4-
<PAGE>
specified in the applicable notice of prepayment, together with interest thereon
as provided in Section 1.03(b).
(b) Mandatory Prepayments. If, after giving effect to any
reduction of the Total Commitment pursuant to Section 1.07, the aggregate
outstanding principal amount of the Loans exceeds the Total Commitment, the
Borrower shall prepay the Loans in an amount equal to the amount of such excess,
together with interest thereon as provided in Section 1.03(b), and the amount,
if any, required to be paid in respect thereof pursuant to Section 7.04, on the
date of such reduction.
(c) Application and Timing. Prepayments of Loans made pursuant
to Section 1.05(b) shall be applied first to prepay Base Rate Loans and then to
prepay Eurodollar Rate Loans in the order that the Interest Periods for such
Loans end. Amounts to be so prepaid shall be paid on the date specified
therefor, whether or not such payment would require a prepayment of any
Eurodollar Rate Loans prior to the last day of the applicable Interest Periods
therefor or would result in losses, costs or expenses compensable under Section
7.04.
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 $2,000,000, (b) there shall not be, at any one
time, more than six 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 Commitments. (a) Optional
Reductions. The Borrower may reduce the Total Commitment by giving the
Administrative Agent notice (which shall be irrevocable) thereof no later than
11:00 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 $2,000,000 or any integral multiple of $500,000 in excess
thereof and that no reduction shall reduce the Total Commitment to an amount
less than the aggregate principal amount of all Loans 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 Commitment is to be reduced.
(b) No Reinstatement. No reduction of the Total 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 Commitment for each day from the Agreement
Date through the Commitment Termination Date at the rate per annum set forth
below opposite the applicable Leverage Ratio set forth below for such day,
payable in arrears on successive Interest
-5-
<PAGE>
Payment Dates, on the date of any reduction of the Total Commitment (to the
extent accrued and unpaid on the amount of such reduction) and on the Commitment
Termination Date:
Leverage Ratio Commitment Fee Rate
Greater than 3.50 to 1 0.200%
Less than or equal to 3.50 to 1 and 0.175%
greater than 3.00 to 1
Less than or equal to 3.00 to 1 and 0.150%
greater than 2.50 to 1
Less than or equal to 2.50 to 1 and 0.100%
greater than 1.50 to 1
Less than or equal to 1.50 to 1 0.090%
The Leverage Ratio shall be determined initially on the basis
of the certificate provided for in Section 2.01(h) and subsequently on the basis
of the most recent financial statements delivered pursuant to Section 5.01. Any
change in the commitment fee rate 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.
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. Interest calculated on the basis of the Prime
Rate and commitment fees 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.
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
-6-
<PAGE>
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
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.
-7-
<PAGE>
(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 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
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(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 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).
(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 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
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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 a single Note payable to the order of such Bank. The records of
each Bank shall be prima facie evidence of such Bank's Loans and accrued
interest thereon and of all payments made in respect thereof.
Section 1.14. Pro Rata Treatment. Except to the extent
otherwise provided herein, (a) Loans shall be made by the Banks pro rata in
accordance with their respective Commitments, (b) Loans of the Banks shall be
converted and continued pro rata in accordance with their respective amounts of
Loans of the Type and, in the case of Eurodollar Rate Loans, having the Interest
Period being so converted or continued, (c) each reduction of the Total
Commitment shall be applied to the Commitments of the Banks pro rata in
accordance with the respective amounts thereof and (d) 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 Note, evidencing such
Loans, or to exchange such Note for a new Note, 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)
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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 (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.
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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 Arranging Agents' receipt
of each of the following, in form and substance and, in the case of the
materials referred to in clauses (a), (b), (c), (g), (h), (j) and (k) below,
certified in a manner satisfactory to the Arranging Agents:
(a) 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), to
which shall be attached copies of the resolutions and by-laws referred to in
such certificate;
(b) 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;
(c) a good standing or subsistence certificate with respect to
the Borrower, each Restricted Subsidiary and each other Loan Party (in each
case, other than partnerships, to the extent such certificate is not customarily
available with respect to partnerships), 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;
(d) opinions of counsel for the Borrower and each other Loan
Party, each dated the requested date for the making of such Loan, in the form of
Schedules 2.01(d)-1 and 2.01(d)-2, respectively, with such changes as the
Arranging Agents shall approve;
(e) an opinion of special FCC counsel for the Borrower and the
Restricted Subsidiaries, dated the requested date for the making of such Loan,
in the form of Schedule 2.01(e), with such changes as the Arranging Agents shall
approve;
(f) an opinion of Winthrop, Stimson, Putnam & Roberts, special
counsel for the Arranging Agents, dated the requested date for the making of
such Loan, in the form of Schedule 2.01(f);
(g) a copy of each Governmental Approval and other consent or
approval listed on Schedule 3.03;
(h) 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;
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(i) a duly executed Note for each Bank and a duly executed
copy of each of the other Loan Documents;
(j) copies of the Management Agreement and the Tax Sharing
Agreement, each of which shall be in form and substance satisfactory to the
Arranging Agents;
(k) a certificate of a Responsible Officer of the Borrower,
dated the requested date for the making of such Loan, to which shall be attached
a pro forma balance sheet of the Borrower and the Restricted Subsidiaries as at
June 30, 1997, reflecting the making of the initial Loans and the repayment or
satisfaction of the Predecessor Indebtedness, which shall be in reasonable
detail and in form satisfactory to the Arranging Agents;
(l) 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 and disbursements of Winthrop, Stimson, Putnam &
Roberts, special counsel for the Arranging Agents, in connection with the
negotiation, preparation, execution and delivery of the Loan Documents and the
making of the initial Loans;
(m) 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 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 shall have been made;
and
(n) evidence that the conditions to the making of the initial
Additional Facility Loans specified in Sections 2.01 and 2.02 of the Additional
Facility Credit Agreement shall have been satisfied, or shall be satisfied
substantially simultaneously with the making of the initial Loans hereunder.
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 (it being acknowledged that certain Loan Document Representations and
Warranties expressly relate to an earlier date and that such Loan Document
Representations and Warranties shall continue to be true and correct as of such
earlier date), 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
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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 (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 Arranging Agents, by the
application of the proceeds of such Loans 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.
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 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 decline to 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 Restricted 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 the Borrower and the
Restricted Subsidiaries taken as a whole.
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
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Securities owned by the Borrower or another Subsidiary. As of the Agreement
Date, all such Subsidiaries (other than the Excluded Subsidiaries) are
Restricted Subsidiaries. As of the Agreement Date, the Borrower or another
Restricted 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 Restricted Subsidiary. All such
Capital Securities have been duly authorized and issued and 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 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 the Borrower, 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 Restricted Subsidiaries taken as a whole or (y) any
Material Loan Document.
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-
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governmental body, any actions, suits or proceedings pending or, to the
knowledge of the Borrower and the Restricted Subsidiaries, threatened against or
in any other way relating to or affecting (i) the Borrower or any Restricted
Subsidiary or any of their respective businesses or properties or (ii) any
Material Loan Document (except actions, suits or proceedings that may affect the
wireless telephone industry generally but with respect to which neither the
Borrower or any Restricted 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 Restricted Subsidiary that, if adversely
determined, would, singly or in the aggregate, have a Materially Adverse Effect
on (A) the Borrower and the Restricted Subsidiaries taken as a whole or (B) any
Material Loan Document.
Section 3.05. Burdensome Provisions. As of the Agreement Date
and as of the Closing Date, neither the Borrower nor any Restricted Subsidiary
is a party to or bound by any Contract or Applicable Law (other than Applicable
Law affecting the wireless 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 Restricted Subsidiaries taken as a
whole or (b) any Material Loan Document.
Section 3.06. No Adverse Change or Event. Except for events
affecting the wireless telephone industry generally, since December 31, 1996, no
change in the business, assets, Liabilities, financial condition or results of
operations of the Borrower or any Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan
Document. 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 Restricted
Subsidiaries has filed (either directly or indirectly through the Affiliate of
the Borrower or such Restricted 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 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 Restricted 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 Restricted
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 Restricted 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 Restricted Subsidiaries
taken as a
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whole or (b) any Material Loan Document. The charges, accruals and reserves on
the books of the Borrower and each of the Restricted 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
Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan Document.
Section 3.09. Wireless 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 Restricted
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 other
Governmental Approvals, necessary for the ownership and operation of the
Wireless Systems owned or operated by the Borrower or any Restricted Subsidiary,
and the ownership and operation of such Wireless Systems by the Borrower and the
Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan Document.
Section 3.10. Not an Investment Company. Neither the Borrower
nor any of the Restricted 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 Restricted 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 Restricted Subsidiaries taken as a whole or (b) any Material Loan
Document. The Borrower and each of the Restricted Subsidiaries are in compliance
with the
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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 would
not have a Materially Adverse Effect on (i) the Borrower and the Restricted
Subsidiaries taken as a whole or (ii) any Material Loan Document. 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 Restricted Subsidiaries to have any
permit, license or authorization required in connection with the conduct of the
business of the Borrower or any of the Restricted 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 Restricted
Subsidiaries, the consequences of any of which would have a Materially Adverse
Effect on (x) the Borrower and the Restricted Subsidiaries taken as a whole or
(y) any Material Loan Document.
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 Restricted Subsidiary has any Existing Benefit Plans other
than those listed on Schedule 3.13.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Restricted Subsidiary to:
Section 4.01. (a) Preservation of Existence and Properties,
Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. (i) 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 Restricted 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
all of its other franchises, licenses, rights and privileges, including Wireless
Licenses, (ii) 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, (iii) comply with
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Applicable Law, including, but not limited to, all laws applicable to the
construction, ownership and operation of a Wireless System or the ownership and
use of a Wireless License (including, but not limited to, the Communications Act
of 1934, and all rules and regulations of the FCC thereunder), (iv) pay or
discharge when due all Taxes and all Liabilities that are or might become a Lien
on any of its properties and (v) take all action and obtain all consents and
Governmental Approvals required so that its obligations under the Loan Documents
will at 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(a) (other than clause (i) above (insofar as it requires the Borrower to
preserve its corporate or partnership existence, as the case may be) and clause
(v) 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 (A) the Borrower and the Restricted Subsidiaries taken as a
whole or (B) any Material Loan Document.
(b) Subsidiary Matters. (i) Ensure that no payment is made or
required to be made by the Borrower or a Restricted Subsidiary to a creditor of
an Unrestricted Subsidiary in respect of any Indebtedness or other contractual
liability of such Unrestricted Subsidiary, keep the bank accounts of the
Borrower and the Restricted Subsidiaries separate from and not commingled with
the bank accounts of any Unrestricted Subsidiary, and ensure that no action is
taken by it, and that its affairs are not conducted in a manner, which is likely
to result in the corporate existence of any Unrestricted Subsidiary that is a
direct Subsidiary of the Borrower or any Restricted Subsidiary being ignored, or
in the assets or Liabilities of the Borrower or any Restricted Subsidiary being
substantively consolidated with those of any Unrestricted Subsidiary in a
bankruptcy, reorganization or other insolvency proceeding.
(ii) In the case of the Borrower and each Restricted
Subsidiary which directly owns the issued and outstanding Capital Securities of
any Restricted Subsidiary, whether such Restricted Subsidiary (A) is owned by
the Borrower or such Restricted Subsidiary as of the Agreement Date or (B) is
formed, created or acquired by the Borrower or any Subsidiary after the
Agreement Date and is not designated by the Borrower as an Unrestricted
Subsidiary pursuant to the definition of "Restricted Subsidiary" herein on or
prior to the tenth day following such formation, creation or acquisition, for so
long as such Restricted Subsidiary is a direct Restricted Subsidiary of the
Borrower or such Restricted Subsidiary, own not less than 80% of the issued and
outstanding Capital Securities of such Restricted Subsidiary.
(iii) If an Unrestricted Subsidiary will file a consolidated
tax return with the Borrower, deliver to the Administrative Agent, on or prior
to the date on which such Unrestricted Subsidiary shall have been designated as
an Unrestricted Subsidiary pursuant to the definition of "Restricted Subsidiary"
herein, and maintain in full force and effect a tax sharing agreement, in form
and substance reasonably satisfactory to the Arranging Agents and duly executed
by such Unrestricted Subsidiary and the Borrower.
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
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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 Restricted Subsidiaries taken as a whole or (ii) any Material
Loan Document. Whether or not customarily maintained by similar businesses, the
Borrower shall, and shall cause the Restricted Subsidiaries to, maintain
business interruption insurance, so long as such insurance is available on
commercially reasonable terms.
Section 4.03. Use of Proceeds. Use the proceeds of the Loans
only to (a) subject to Section 4.14, make investments, (b) subject to Section
4.07, make acquisitions, (c) fund working capital and capital expenditure
requirements and other general corporate purposes, (d) subject to Section 4.06,
make Restricted Payments, (e) to the extent permitted hereunder, make payments
of principal and interest in respect of Senior Subordinated Indebtedness, (f)
repay the Predecessor Indebtedness (it being intended that this Agreement and
the Loans hereunder, together with the Additional Facility Credit Agreement and
the Additional Facility Loans thereunder, replace and refinance the Predecessor
Indebtedness), (g) pay transaction costs incurred in connection with the
execution and delivery of the Loan Documents and the Additional Facility Loan
Documents and (h) subject to Section 4.11(b), make payments of Permitted
Management Fees. 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
Restricted Subsidiary to, directly or indirectly:
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 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.
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Section 4.06. Restricted Payments. Make or declare or
otherwise become obligated to make any Restricted Payment, if, at either the
time of the declaration or other incurrence, if any, of such Restricted Payment,
or the time of the making thereof, or immediately after giving effect thereto,
any Default shall have occurred and be continuing.
Section 4.07. Merger or Consolidation; Acquisitions. Merge or
consolidate with any Person, or acquire any assets or business from or 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) (i) any merger or
consolidation of the Borrower with any one or more Restricted Subsidiaries or
with any Person acquired as provided in clause (d) below, provided that the
Borrower shall be the continuing Person or (ii) 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 Arranging Agents, (b) any
merger or consolidation of any Restricted Subsidiary with any one or more other
Restricted Subsidiaries or with any Person acquired as provided in clause (d)
below, (c) any acquisition of assets in the ordinary course of business or
contemplated by Section 4.08(c) and (d) any acquisition (whether effected by
merger, consolidation, acquisition of Capital Securities, exchanges permitted
under Section 4.08(f)(ii), joint venture or otherwise) of one or more wireless
telephone or other communications businesses.
Section 4.08. Disposition of Assets. Sell, lease, license,
transfer or otherwise dispose (which shall include, for purposes of this Section
4.08, any redesignation of any Restricted Subsidiary as an Unrestricted
Subsidiary pursuant to the definition of "Restricted Subsidiary" herein) of any
asset (which shall include, but not be limited to, for purposes of this
Agreement, any Capital Securities or other ownership interests) 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 any obsolete
or retired property not used or required in its business, (c) any disposition of
any asset or any interest therein by a Restricted Subsidiary to the Borrower or
a Restricted Subsidiary or any disposition of any asset or any interest therein
by the Borrower to a Restricted Subsidiary, (d) any sale or assignment of
delinquent accounts receivable or other 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
and (f) any other disposition (including any such redesignation), 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
or other marketable consideration (which shall include the cash portion
of an exchange of assets by the Borrower or a Restricted Subsidiary
pursuant to clause (ii) below) in an amount not less than the fair
market value of the assets sold net of the liabilities assumed, as
determined in the good faith judgment of the Board of Directors of the
Borrower or the applicable Restricted Subsidiary, and
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(A) unless the Required Agents shall have
otherwise consented in writing, the percentage equal to the
sum of
(1) the Cash Flow Percentage
attributable to such assets (or, in the case of any
such redesignation, such Restricted Subsidiary),
(2) plus the Cash Flow Percentage
(determined, with respect to prior sales or
redesignation of Restricted Subsidiaries, at the time
of each such sale or redesignation) attributable to
all other assets sold (and Restricted Subsidiaries so
redesignated) by the Borrower and its Restricted
Subsidiaries pursuant to this clause (i) within the
prior twelve calendar month period (or, if shorter,
the period from the Closing Date),
(3) plus (without duplication), with
respect to all Cash Portion Exchanges by the Borrower
and the Restricted Subsidiaries within the prior
twelve calendar month period (or, if shorter, the
period from the Closing Date), the aggregate of the
Net Cash Flow Percentages with respect to such Cash
Portion Exchanges,
(4) minus the Cash Flow Percentage
attributable to any Unrestricted Subsidiary (that had
formerly been a Restricted Subsidiary) redesignated
as a Restricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein within the prior
twelve calendar month period (or, if shorter, the
period from the Closing Date) (such subtracted Cash
Flow Percentage to be determined as of the date of
such redesignation after giving effect thereto),
does not exceed 25%, and
(B) the percentage equal to the sum of
(1) the Cash Flow Percentage
attributable to such assets (or, in the case of any
such redesignation, such Restricted Subsidiary),
(2) plus the Cash Flow Percentage
(determined, with respect to prior sales or
redesignation of Restricted Subsidiaries, at the time
of each such sale or redesignation) attributable to
all other assets sold (and Restricted Subsidiaries so
redesignated) by the Borrower and its Restricted
Subsidiaries pursuant to this clause (i) since the
Closing Date,
(3) plus (without duplication), with
respect to all Cash Portion Exchanges by the Borrower
and the Restricted Subsidiaries since the Closing
Date, the aggregate of the Net Cash Flow Percentages
with respect to such Cash Portion Exchanges,
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(4) minus the Cash Flow Percentage
attributable to any Unrestricted Subsidiary (that had
formerly been a Restricted Subsidiary) redesignated
as a Restricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein since the Closing
Date (such subtracted Cash Flow Percentage to be
determined as of the date of such redesignation after
giving effect thereto),
does not exceed 50%, or
(ii) such disposition is an exchange, with any Person, of
assets exchanged by the Borrower or the applicable Restricted
Subsidiary for assets (together with any cash consideration) of equal
or greater value, as determined in the good faith judgment of the Board
of Directors of the Borrower or the applicable Restricted Subsidiary,
and (A) if the Cash Flow Percentage attributable to such assets
exchanged by the Borrower or applicable Restricted Subsidiary together
with the Cash Flow Percentage attributable to all other assets
exchanged by the Borrower and its Restricted Subsidiaries pursuant to
this clause (ii) within the prior twelve calendar month period (or, if
shorter, the period from the Closing Date) exceeds 20%, the Borrower
shall have notified the Administrative Agent of such exchange not later
than the third Business Day following the consummation of such exchange
and shall have provided to the Administrative Agent, together with such
notice, historical financial information in form and content reasonably
satisfactory to the Administrative Agent with respect to the assets
disposed of and acquired pursuant to such exchange and (B) if the
assets so exchanged are assets of or interests in wireless telephone or
related businesses, such assets shall be exchanged principally for
assets of or interests in wireless telephone or related businesses
located in the United States; provided that any sale of assets (which
shall include the cash portion of an exchange of assets by the Borrower
or a Restricted Subsidiary pursuant to this clause (ii)) by the
Borrower or any of the Restricted Subsidiaries pursuant to clause (i)
above shall, to the extent of the reinvestment hereinafter referred to,
be deemed an exchange for purposes of this clause (ii) and no longer
deemed a sale for purposes of clause (i) above if, within 15 months
after such sale, the Borrower or the applicable Restricted Subsidiary
shall have reinvested, or shall have entered into a binding agreement
to reinvest, all or any portion of the net proceeds of such sale in an
acquisition permitted by Section 4.07(d);
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) unless
the Required Agents shall have otherwise consented in writing, the Cash Flow
Percentage attributable to the assets sold or exchanged, together with the Cash
Flow Percentage of all other assets sold to or exchanged with Affiliates since
the Closing Date, shall not exceed 10%, and (z) such Board of Directors shall
have determined, in its good faith judgment, that such sale or exchange is for
consideration or in exchange for assets reflecting the fair market value of the
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 cellular telephone or wireless
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telecommunications 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, (b) Indebtedness under the Additional
Facility Loan Documents, (c) Junior Subordinated Indebtedness, (d) Senior
Subordinated Indebtedness, (e) Indebtedness to which Section 4.14 is by its
express terms inapplicable by virtue of clause (f) thereof, (f) other
Indebtedness of the Borrower, provided that (i) such Indebtedness is not senior
in right of payment to the Loans, is unsecured and is not entitled to the
benefit of any Guaranty, (ii) the final maturity of such Indebtedness is no
earlier than the date that is six months after the Term Maturity Date and (iii)
no more than 50% of the principal amount of such Indebtedness shall be scheduled
or otherwise required to be repaid or prepaid (and no more than 50% of any
commitments in respect thereof shall be scheduled or otherwise required to be
reduced) earlier than the date that is six months after the Term Maturity Date,
(g) additional Indebtedness in an aggregate principal amount at any time
outstanding not in excess of $35,000,000 and (h) assumptions by certain
Restricted Subsidiaries of portions of the Indebtedness of the Borrower
described in clauses (a) and (b) 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 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.
Section 4.10. Transactions with Affiliates. Effect any
material transaction with any Affiliate (other than the Borrower or any
Restricted 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, (c) the Tax Sharing Agreement, and (d) any other such transaction
that would not, either singly, or together with all other such transactions,
reasonably be expected to have a Materially Adverse Effect on (i) the Borrower
and the Restricted Subsidiaries taken as a whole or (ii) any Material Loan
Document.
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
Restricted Subsidiaries to Comcast or any Subsidiary of Comcast or any other
Person for the supervision and management of the Borrower and the Restricted
Subsidiaries (other than amounts paid in reimbursement of out- of-pocket costs
and expenses incurred on behalf of the Borrower or the Restricted 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 Restricted
Subsidiaries.
(b) Management Fees. Make payments in respect of, or accrue,
Management Fees at any time other than Permitted Management Fees, provided that
Permitted Management Fees shall not be paid at any time when a Default exists
or, immediately after giving effect thereto, would exist. For purposes of this
Agreement, "Permitted Management Fees" means, at any time during any fiscal year
of the Borrower, (i) Management Fees in an amount up to 6% of Total Revenue at
such time, which may be paid in cash or accrued to
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the extent not currently paid in cash as provided below and (ii) the accrued and
unpaid portion of Management Fees from prior fiscal years. For purposes of this
Section 4.11, "Total Revenue" means, at any time during any fiscal year of the
Borrower, consolidated gross operating revenue of the Borrower and the
Restricted Subsidiaries (excluding interest income and unusual or extraordinary
items) during the period commencing with the first day of such fiscal year and
ending at such time.
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 Restricted
Subsidiary to (a) pay dividends or make any other distributions on shares of its
Capital Securities held by the Borrower or any other Restricted Subsidiary, (b)
pay any obligation owed to the Borrower or any other Restricted Subsidiary, (c)
make any loans or advances to or investments in the Borrower or in any other
Restricted Subsidiary, (d) transfer any of its property or assets (other than
property or assets subject to Permitted Liens) to the Borrower or any other
Restricted Subsidiary, except for contracts, leases or licenses which by their
terms are non-assignable or (e) create any Lien upon its property or assets
(other than property or assets subject to Permitted Liens) whether now owned or
hereafter acquired or upon any income or profits therefrom (other than
contracts, leases or other 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 with respect to Wireless 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 Restricted Subsidiary of any of its
Capital Securities to the Borrower or a Restricted Subsidiary, (b) any issuance
by a Restricted Subsidiary of any of its Capital Securities to the holders of
the common stock or other ownership interests of such Restricted Subsidiary made
pro rata to the relative amounts of such common stock or other ownership
interests, respectively, held by such holders, (c) any disposition by the
Borrower or any Restricted Subsidiary of any Capital Securities issued by a
Subsidiary (i) to the Borrower or a Restricted 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 ("S&P") or
P-1 by Moody's 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
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equivalent rating) by a nationally recognized investment rating agency, (d)
repurchase agreements with any Bank or other financial institution which are for
periods not in excess of 180 days and are 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 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 Restricted Subsidiaries, provided that no such loans or
advances to a Restricted Subsidiary shall remain outstanding after any sale,
exchange or disposition of such Restricted Subsidiary or any redesignation of
such Restricted Subsidiary as an Unrestricted Subsidiary pursuant to the
definition of "Restricted Subsidiary" herein, (g) acquisitions referred to in
Section 4.07, whether of the whole or any part of a business or business unit or
any ownership interest therein, (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 Term
Maturity Date, (i) Interest Rate Protection Agreements having a designated
notional amount not exceeding, at the time entered into, 100% of the Additional
Facility Total Commitment then in effect, having a maturity not later than the
Additional Facility Commitment Termination Date, (j) Existing Investments and
(k) other investments at any time owned by the Borrower and the Restricted
Subsidiaries and acquired for an aggregate purchase price not in excess of
$25,000,000, provided, however, that in the event that any such obligation,
Capital Security or interest is purchased, or loan is made by, a custodian or
other agent on behalf of the Borrower, the Borrower shall insure that such
custodial or agency arrangement shall not in any way impair the Borrower's
ownership interest in such obligation, Capital Security, interest or loan.
C. The Borrower shall not:
Section 4.15. Leverage Ratio. Permit the Leverage Ratio to be
greater than 4.50 to 1 at any time.
Section 4.16. Interest Coverage Ratio. Permit the Interest
Coverage Ratio to be less than 2.0 to 1 at any time.
Section 4.17. Revenues. Permit at any time the portion of
consolidated gross operating revenues of the Borrower and the Restricted
Subsidiaries derived from their wireless telephone and related businesses for
any fiscal quarter of the Borrower to be less than 80% of the total consolidated
gross operating revenues of the Borrower and the Restricted Subsidiaries for
such fiscal quarter.
Section 4.18. Tax Sharing Agreement and Management Agreement.
(a) 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 or to the
Restricted Subsidiaries taken as a whole.
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(b) Without limiting Section 4.11, amend, modify, or waive any
provision of the Management Agreement if the result of such amendment,
modification or waiver is materially adverse to the Borrower or to the
Restricted Subsidiaries taken as a whole.
Section 4.19. Senior Subordinated Indebtedness. Make payments
of principal or interest in respect of Senior Subordinated Indebtedness, except
that this Section 4.19 shall not apply to any such payments so long as (i) no
Default shall have occurred and be continuing at the time of such payment 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 ended September 30, 1997:
(i) a consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as at the end of such quarterly period and
the related consolidated statements of operations and retained earnings
and of cash flows of the Borrower and the Restricted 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
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, 1997:
(i) a consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as at the end of such fiscal year and the
related consolidated statements of operations and retained earnings and
of cash flows of the Borrower and the Restricted 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;
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(ii) an audit report of Deloitte & Touche, LLP, or
other independent certified public accountants of nationally recognized
standing, 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 Restricted
Subsidiaries in conformity with Generally Accepted Accounting
Principles (except for the exclusion of the Unrestricted Subsidiaries)
as at the end of and for such fiscal year;
(iii) a certificate of the accountants referred to in
clause (ii) above addressed to the Banks and in form satisfactory to
the Arranging 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 Restricted 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 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 Restricted Subsidiary, or the Board of
Directors of the Borrower or any Restricted 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 Restricted Subsidiary shall send to its stockholders (other
than, in the case of the Borrower or any Restricted Subsidiary, its Affiliates)
and of all registration statements and all regular or periodic reports that the
Borrower or any Restricted 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
Restricted 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
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such time and (iii) any material amendment to the certificate of incorporation
or by-laws of the Borrower.
(f) Wireless 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 Wireless
System owned or controlled by the Borrower or any of the Restricted
Subsidiaries, the aggregate number of subscribers served by such
Wireless 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 Wireless System owned or controlled by
the Borrower or any of the Restricted Subsidiaries, (A) the aggregate
percentage ownership held by the Borrower and the Restricted
Subsidiaries in such Wireless System and (B) the Pops of such Wireless
System, in each case, as at the last day of such fourth fiscal quarter.
Section 5.02. Accuracy of Financial Statements and Information.
(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 that is audited is, and
(B) each of such financial statements that is unaudited is, in all material
respects, complete and correct and presents fairly, in accordance with Generally
Accepted Accounting Principles (except as noted in the auditor's report thereon
and except for the absence of footnotes in unaudited financial statements and
normal year-end audit adjustments and any pro forma balance sheets), the
financial position of the Persons to which such financial statements relate as
at their respective dates and the results of operations and retained earnings
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 December 31, 1996, 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 Restricted 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 Unrestricted Subsidiaries),
the consolidated financial position of the Borrower and the Restricted
Subsidiaries as at their respective dates and the consolidated results of
operations, retained earnings and cash flows of the Borrower and such Restricted
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
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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 Restricted 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 Restricted Subsidiaries taken as a whole.
(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 Restricted
Subsidiary and concerning such Person, and not the wireless 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) to the Borrower's best knowledge, 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 the final financial projections furnished to
the Administrative Agent or the Banks in writing by or on behalf of the Borrower
or any Restricted Subsidiary prior to the Agreement Date, which are not to be
construed as guaranties of the financial performance of the Borrower and the
Restricted 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 Restricted Subsidiaries for such period or
periods, and no fact is known to the Borrower on the Agreement 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 Restricted Subsidiary and concerning such Person, and not the wireless
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, not contain any untrue statement of a material fact, and , to the
Borrower's best knowledge, 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
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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 Restricted 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
Restricted Subsidiaries with the terms of the Loan Documents.
(b) Fiscal Year. Unless the Arranging 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
Restricted 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 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 and
the Banks.
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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 Restricted 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 Section 4.01(a)(i) (insofar as such
Section requires the preservation of the corporate existence
of the Borrower), 4.01(a)(v), 4.01(b), 4.03 through 4.19,
5.01(e)(i), 5.03(b) or 5.03(c) of this Agreement; or
(B) any term, covenant, condition or
agreement contained in (x) this 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
(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 other Loan
Document;
(d) (i) The Borrower or any Restricted 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
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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 Restricted 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 or any Restricted Subsidiary, 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 Restricted Subsidiaries
taken as a whole or (ii) any Material Loan Document;
(f) (i) The Borrower or any Restricted Subsidiary 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
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 or any Restricted Subsidiary 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 or any Restricted
Subsidiary, or of all or any substantial part of the assets, domestic or
foreign, of the Borrower or any Restricted Subsidiary, 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 or any Restricted Subsidiary (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 Restricted 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
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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 Restricted Subsidiaries taken
as a whole;
(h) (i) Any Termination Event shall occur with respect to any
Benefit Plan of the Borrower or any Restricted 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 Restricted 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
Restricted 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 Restricted
Subsidiary or any of their respective ERISA Affiliates to enforce Section 515 of
ERISA and such proceeding shall not have been dismissed within 60 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 Restricted
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 Restricted
Subsidiaries taken as a whole or (y) any Material Loan Document;
(i) Any Loan Party asserts, or any Loan Party institutes any
proceedings seeking to establish, that any provision of the Loan Documents is
invalid, not binding or unenforceable;
(j) One or more Wireless Licenses held by the Borrower or any
of the Restricted Subsidiaries shall be terminated or revoked such that the
Borrower and the Restricted Subsidiaries are no longer able to operate the
related Wireless Systems and retain the revenue received therefrom or the
Borrower and the Restricted Subsidiaries or the grantors of any such Wireless
License shall fail to renew any such Wireless License at the stated expiration
thereof such that the Borrower and the Restricted Subsidiaries are no longer
able to operate the related Wireless 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 (i) 10% or more,
unless the Borrower shall have delivered a certificate of a Responsible Officer
of the Borrower to the Administrative Agent within ten Business Days of such
termination, revocation or failure to renew having such effect demonstrating
that the Borrower would have been in compliance at all times with the
requirements of Sections 4.15 and 4.16 on a pro forma basis determined as if all
such terminations, revocations and failures to renew had occurred on the first
day of, in the case of Section 4.15, the most recently completed two fiscal
quarters of the Borrower and, in the case of Section 4.16, the most recently
completed four fiscal quarters of the Borrower or (ii) 25% or more;
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(k) Any of the parties to the Affiliate Subordination
Agreement (other than the Administrative Agent) shall have 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 (a) 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 (b)
representing not less than 51% 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 shall at any time fail to
manage and supervise pursuant to the Management Agreement each Wireless System
of the Borrower and the Restricted Subsidiaries in a manner consistent with good
industry practices;
(n) 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
(o) Any Event of Default (as defined in the Additional
Facility Credit Agreement) shall have occurred and be continuing.
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 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, and 4.16, if the Borrower shall default in the
performance or observance of any term, covenant, condition or agreement
contained in Sections 4.15 or 4.16, 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:
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(a) With respect to Section 4.15, the Borrower shall have
prepaid Loans and/or Additional Facility Loans, either from cash on hand or the
proceeds of new capital contributions or the proceeds of 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, the Borrower shall have
prepaid Loans and/or Additional Facility Loans, either from the proceeds of new
capital contributions or the proceeds of Junior Subordinated Indebtedness, in an
aggregate amount sufficient so that if the ratio set forth in Section 4.16 as at
the date of receipt of such proceeds were recalculated in a manner which would
include as additional Cash Flow the amount of such proceeds, the Borrower would
be in compliance with the Section 4.16 as at such date; provided that such
addition to Cash Flow shall be attributed to the Cash Flow for the third most
recent of the four consecutive fiscal quarters of the Borrower used to calculate
the Interest Coverage Ratio so that such addition to Cash Flow shall continue to
be given effect for purposes of determining compliance with Section 4.16 as of
the end of the next following fiscal quarter of the Borrower;
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 five 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
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 commitment fees under Section 1.08 or 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 and 4.16, 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
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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 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)
or (b) 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 (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,
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(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 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.
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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 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
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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.
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 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 Affiliate Subordination Agreement if,
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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, or (c) 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 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
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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 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 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. 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 or the Loan
Documents 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 successor Administrative Agent, such
Person shall
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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:
1500 Market Street
Philadelphia, PA 19102
Telecopier No.: (215) 981-7744
Telephone No.: (215) 981-7503
Attention: John R. Alchin, Senior
Vice President and
Treasurer
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(ii) if to the Administrative Agent, to it at:
909 Fannin Street
Suite 1700
Houston, Texas 77010
Telecopier No.: (713) 951-9921
Telephone No.: (713) 653-8235
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 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
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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 any portion thereof (other than an assignment pursuant
to Section 7.07 hereof);
(b) pay or reimburse the Arranging Agents for all reasonable
out-of-pocket costs and expenses (including reasonable fees and disbursements of
legal counsel collectively retained by the Arranging Agents or, other than with
respect to clause (i) below, appraisers, accountants and other experts employed
or retained collectively by the Arranging Agents) incurred by the Arranging
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,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent or the Banks in, under or related to the Loan Documents during a Default
or (B) the performance of any of the obligations of the Administrative Agent or
the Banks under or related to the Loan Documents, or (iv) protecting,
preserving, exercising or enforcing any of the rights of the Administrative
Agent or the Banks in, under or related to the Loan Documents during a Default;
(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 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
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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.
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)
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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, (i) any scheduled payment of interest on such Bank's
Loans or Notes or any fees payable to such Bank hereunder or (ii) any repayment
of principal of such Bank's Loans or Notes, (d) waives any material condition
precedent under Section 2.01 or 2.02 (as Section 2.02 applies to the initial
Loans hereunder) or (e) 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 or amends the definition of "Required 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 owing to such
Person (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 so long as, in each such
case, such deposit shall constitute, in the reasonable judgment of such Person,
an operating account of the Borrower) and (b) during any Event of Default, to
suspend the payment and performance of such Liabilities owing by such Person
and, in the case of Liabilities that are deposits, to 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 the Borrower, including a claim deemed secured
under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by
the Administrative Agent or the Borrower 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
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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 the Borrower 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 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.
(ii) Each Bank may from time to time assign any or all of its
rights and obligations under the Loan Documents 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 the Bank that is the Administrative Agent
or an assignment by any Bank to an Affiliate of such Bank, the Administrative
Agent shall have been paid an assignment fee of $3,500; 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
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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 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;
provided, further, however, that, unless the Borrower shall have otherwise
consented, no such assignment, other than an assignment by any Bank to an
Affiliate of such Bank, shall be made or be effective unless, substantially
contemporaneously therewith, the assigning Bank assigns, in the case of a
complete assignment, all, or, in the case of a partial assignment, a ratable
portion, of its rights and obligations under the Additional Facility Loan
Documents to the same assignee. 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 a new Note to the assignee Bank
(against, other than in the case of a partial assignment, receipt of the
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 without the consent of the Borrower, the
Administrative Agent or any other Bank; provided, further, 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 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; provided, further, however, that, unless the Borrower
shall have otherwise consented, no such participation, other than a
participation by any Bank to an Affiliate of such Bank, shall be sold or be
effective unless, substantially contemporaneously therewith, the selling Bank
sells, in the case of a complete participation, all, or, in the case of a
partial participation, a ratable portion, of its rights and obligations under
the Additional Facility Loan Documents to the same participant. 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, if and to the extent the applicable assignment or participation
agreement so provides, (i) shall, in the case of 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
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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.
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 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.
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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 Sections 8.05
and 9.06, shall survive the Repayment Date.
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.
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions. (a) Defined Terms. For
the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to
such term in Section 302 of ERISA.
"Additional Facility Commitment Termination Date" means the
"Commitment Termination Date" as such term is defined in the Additional Facility
Credit Agreement.
"Additional Facility Credit Agreement" means the $300,000,000
Credit Agreement dated as of the date hereof among the Borrower, the banks
listed on the signature pages thereof, The Bank of New York, Barclays Bank PLC,
The Chase Manhattan Bank, PNC Bank National Association and The Toronto-Dominion
Bank, as arranging agents, and Toronto Dominion (Texas), Inc., as administrative
agent.
"Additional Facility Loan" means a "Loan" as such term is
defined in the Additional Facility Credit Agreement.
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"Additional Facility Loan Documents" means the "Loan
Documents" as such term is defined in the Additional Facility Credit Agreement.
"Additional Facility Total Commitment" means the "Total
Commitment" as such term is defined in the Additional Facility Credit Agreement.
"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 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 dated as of the date hereof among the Borrower, Comcast,
Affiliates of the Borrower from time to time party thereto and the
Administrative Agent.
"Agent" means the Administrative Agent or any of the Arranging
Agents.
"Agreement" means this Agreement, including all Schedules,
Annexes and Exhibits hereto.
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"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. If no such date is there set forth, the Agreement Date shall
be the date as of which this Agreement is dated.
"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 Restricted 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, Wireless System, interest
therein or other assets for any period shall be adjusted by (i) deducting
therefrom an amount to reflect, as if such Person, Wireless System, interest
therein or other assets were not owned (or, in the case of any Restricted
Subsidiary redesignated as an Unrestricted Subsidiary pursuant to the definition
of "Restricted Subsidiary" herein during such period, such Restricted Subsidiary
were not a Restricted Subsidiary) for any portion of such period, the reduction
in Cash Flow associated with any Person, Wireless System, interest therein or
assets sold, exchanged or otherwise disposed of pursuant to Section 4.08(f)
hereof (or Restricted Subsidiary so redesignated) during such period and (ii)
adding thereto an amount to reflect, as if such Person, Wireless Systems,
interest therein or other assets were owned (or, in the case of any Unrestricted
Subsidiary redesignated as a Restricted Subsidiary pursuant to the definition of
"Restricted Subsidiary" herein during such period, such Unrestricted Subsidiary
were a Restricted Subsidiary) for the entire period, the addition to Cash Flow
associated with any Person, Wireless Systems, interest therein or other assets
acquired during such period pursuant to Section 4.07(d) (or Unrestricted
Subsidiary so redesignated).
"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, subject to the last
sentence of this definition, the respective percentage set forth below opposite
the applicable Leverage Ratio at such time set forth below:
Leverage Ratio Applicable Margin
Greater than 3.50 to 1 0.500%
Less than or equal to 3.50 to 1 0.450%
and greater than 3.00 to 1
Less than or equal to 3.00 to 1 0.400%
and greater than 2.50 to 1
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Less than or equal to 2.50 to 1 0.375%
and greater than 2.00 to 1
Less than or equal to 2.00 to 1 0.325%
and greater than 1.50 to 1
Less than or equal to 1.50 to 1 0.300%
The Leverage Ratio shall be determined initially on the basis
of the certificate provided for in Section 2.01(h) 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, 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 (i) any Tax based on or measured by net
income, any franchise Tax and any 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 organized, located or doing
business and (ii) for the purposes of Section 1.12, any other Tax imposed by a
jurisdiction other than the United States or a political subdivision thereof
that would not have been imposed but for a present or former connection between
the Bank, Agent or Lending Office (as the case may be) and such jurisdiction.
"Base Financial Statements" means the consolidated balance
sheet of Comcast and its Consolidated Subsidiaries as of December 31, 1996 and
the related statements of operations and retained earnings and of 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%.
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"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.
"Borrower Loan Documents" means the Loan Documents to which
the Borrower is a party.
"BTA" means a "Basic Trading Area" as such term is defined and
modified by the FCC for purposes of licensing PCS Systems.
"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, Wireless
System, interest therein or other assets for any period, (i) the net income
(which shall be consolidated, as appropriate) attributable to such Person,
Wireless System, interest therein 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), Interest
Expense (which for this purpose shall include, to the extent deducted in
determining net income, interest on Junior Subordinated Indebtedness),
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, Management Fees paid in cash during such period (other than
Management Fees paid in cash on the Agreement Date in an aggregate amount not
exceeding $17,000,000).
"Cash Flow Percentage" means, as of the date of any sale or
exchange of capital stock, assets, or a Wireless System, or of any redesignation
of any Restricted Subsidiary or Unrestricted Subsidiary pursuant to the
definition of "Restricted Subsidiary" herein, the ratio, expressed as a
percentage, derived by dividing (a) Cash Flow attributable thereto 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
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to the Banks hereunder prior to such date of sale or exchange by (b) Cash Flow
of the Borrower and its Restricted Subsidiaries for such period.
"Cash Portion Exchange" means any exchange of assets by the
Borrower or any Restricted Subsidiary with any Person pursuant to Section
4.08(ii) in which the Borrower or the applicable Restricted Subsidiary receives,
in addition to the assets exchanged by such Person, consideration in the form of
cash or cash equivalents in excess of $5,000,000.
"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.
"Comcast" means Comcast Corporation, a Pennsylvania
corporation.
"Comcast Cellular Holdings" means Comcast Cellular Holdings,
Inc., a Delaware corporation.
"Commitment" means, with respect to any Bank, (i) the amount
set forth opposite such Bank's name under the heading "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 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
Loans in an aggregate unpaid principal amount not exceeding such amount.
"Commitment Termination Date" means the date that is 364 days
after the Agreement Date.
"Consolidated Indebtedness" means, at any time, the
consolidated Indebtedness of the Borrower and the Restricted 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.
"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.
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"Cure Date" has the meaning ascribed to such term in Section
6.03.
"Debt" means any Liability that constitutes "debt" or "Debt"
under Section 101(12) 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, 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
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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 by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by the Agent that has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to the relevant Interest Period
(rounded upward, if necessary, to the next higher 1/16 of 1%), as of 11:00 a.m.
(London time) on the second Eurodollar Business Day before the first day of such
Interest Period; provided that to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Eurodollar Rate" shall be the interest rate per annum determined by the
Administrative Agent to be the rate (rounded upward, if necessary to next higher
1/16 of 1% per annum) at which deposits in Dollars are offered to major banks in
the London interbank market in London, England by the Administrative Agent, as
of approximately 11:00 a.m. (London time) on the second Eurodollar Business Day
before the first day of such Interest Period.
"Eurodollar 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
Adjusted Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 6.01.
"Excluded Subsidiary" means any of Comcast Directory Services,
Inc., Comcast Publishing Holdings Corp., Comcast Publishing Holdings Financial
Corp., Amcell of Hunterdon, Inc., AWACS Investment Holdings, Inc., AWACS Garden
State, Inc., Garden State Cablevision L.P. and the Subsidiaries 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 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.
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"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 Restricted 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 The Toronto-Dominion Bank, 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 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.
"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
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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 and the Restricted Subsidiaries shall not include (x)
letters of credit or performance or other bonds up to an aggregate outstanding
face amount of $10,000,000 or (y) 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 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 Restricted
Subsidiaries for the period of four consecutive fiscal quarters of the Borrower
ending on, or most recently ended prior to, such date to (ii) Interest Expense
of the Borrower and the Restricted Subsidiaries for such period.
"Interest Expense" means, for any Person, Wireless System,
interest therein or other assets for any period, without duplication, (i) all
interest on Indebtedness of such Person, or attributable to such Wireless
System, interest therein or assets, and commitment
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fees in respect thereof, accrued (other than, in the case of the Borrower and
the Restricted Subsidiaries, interest on Junior Subordinated Indebtedness),
whether or not actually paid, during such period plus (ii) the net amount
accrued, whether or not actually paid, by such Person, or attributable to such
Wireless System, interest therein or assets, pursuant to any Interest Rate
Protection Agreement during such period (or minus the net amount receivable,
whether or not actually received, by such Person, or attributable to such
Wireless System, interest therein or assets, thereunder during such period).
"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 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 Group or a rating of A3 (or the equivalent
rating then in effect) or better by Moody's 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) Consolidated Indebtedness (other than Junior Subordinated
Indebtedness) on such date to (ii) Annualized Cash Flow as of such date.
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"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 any amount advanced by a Bank pursuant to Section
1.01(a) with respect to its Commitment.
"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 and the
Affiliate Subordination Agreement and (ii) all other agreements, documents and
instruments (other than the assumption agreements referred to in Section
4.09(g)(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).
"Management Agreement" means the Management Agreement dated as
of May 20, 1997 between the Borrower and Comcast.
"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 Restricted Subsidiaries of the
Borrower party thereto but
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excluding amounts paid in reimbursement of out-of-pocket costs and expenses
incurred on behalf of such Restricted Subsidiaries.
"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 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 and (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.
"Maximum Permissible Rate" means, with respect to 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.
"MTA" means a "Major Trading Area" as such term is defined and
modified by the FCC for purposes of licensing PCS Systems.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Flow Percentage" means, with respect to any Cash
Portion Exchange, the Cash Flow Percentage (determined as of the date of such
exchange before giving effect thereto) of the excess of (i) the Cash Flow
attributable to the assets disposed of by the Borrower or the applicable
Restricted Subsidiary in such exchange 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 over (ii) the Cash Flow attributable to the assets received
by the Borrower or the applicable Restricted Subsidiary in such exchange for the
four consecutive
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fiscal quarters of the Person so exchanging such assets 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.
"Non-U.S. Bank" has the meaning set forth in Section 1.15.
"Note" means any promissory note in the form of Exhibit A.
"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.
"PCS License" means any license issued or granted by the FCC
to operate a PCS System.
"PCS System" means any personal communications services
telephone system.
"Permitted Guaranty" means (i) any Guaranty to which Section
4.09 is by its express terms inapplicable by virtue of clauses (d) or (e)
thereof and (ii) any Guaranty of obligations of the Borrower or any Restricted
Subsidiary so long as such obligations do not constitute Indebtedness and have
been incurred in the ordinary course of business.
"Permitted Lien" means (i) 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(a)(iv) and
foreclosure, distraint, sale or other similar proceedings shall not have been
commenced and remained unstayed or undismissed for more than 30 days; (ii) any
Lien on the properties and assets of a Restricted Subsidiary securing an
obligation owing to the Borrower or a Restricted Subsidiary; (iii) 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; (iv) any Lien
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; (v) any Lien
existing on (A) any property or asset of any Person at the time such Person
becomes a Restricted Subsidiary or (B) any property or asset at the time such
property or asset is acquired by the Borrower or a Restricted 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 Restricted 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 Restricted
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
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obligation secured thereby at the time such Person becomes a Restricted
Subsidiary or such property or asset is acquired and (z) the obligation secured
by such Lien is not in default; (vi) 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; (vii) any Lien constituting a renewal,
extension or replacement of a Lien constituting a Permitted Lien by virtue of
clause (v), (vi) or (vii) of this definition, 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 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; or (viii) 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.
"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 any Additional Facility Loan
Document, (ii) any covenant or restriction binding upon any Person at the time
such Person becomes a Restricted 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.
"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 thereof or, for the purpose of the definition of
"ERISA Affiliate," any trade or business.
"Pops" means (i) 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, (ii) with respect to any
PCS System, the aggregate number of individuals resident in the BTA or MTA (as
the case may be) in which such PCS System is licensed to operate and (iii) with
respect to any other Wireless System, the aggregate number of individuals
(without duplication) resident in the analogous statistical area or areas (as
defined and modified by the FCC for purposes of licensing such Wireless System)
in which
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such Wireless System is licensed to operate, in each case as reflected in the
population estimates most recently published by the Pops Information Service.
"Pops Information Service" means (a) any of Donnelly Marketing
Service, Rand McNally 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 2%.
"Predecessor Indebtedness" means Indebtedness set forth on
Schedule 10.01.
"Pre-existing Default" has the meaning ascribed to such term
in the definition of "Restricted Subsidiary" herein.
"Prime Rate" means the prime commercial lending rate of The
Toronto- Dominion Bank, as publicly announced to be in effect from time to time.
The Prime Rate shall be adjusted automatically, without notice, on the effective
date of any change in such prime commercial lending rate. The Prime Rate is not
necessarily the lowest rate of interest of The Toronto-Dominion Bank.
"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.
"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
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,
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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 no fewer than four out of five of the
Arranging Agents.
"Required Banks" means, at any time, Banks having at least 51%
of the Loans outstanding or, if there are no Loans outstanding, at least 51% of
the Total Commitment.
"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, the chief
financial officer, the treasurer or any assistant treasurer 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
Restricted Subsidiary (other than dividends payable solely in such Capital
Securities other than Mandatorily Redeemable
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Securities and other than dividends and other distributions payable to the
Borrower or a Restricted Subsidiary that is a Wholly Owned 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 Restricted
Subsidiary (other than any such payment to the Borrower or a Restricted
Subsidiary that is a Wholly Owned 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 Restricted Subsidiary (other than any
such payment to the Borrower or a Restricted Subsidiary that is a Wholly Owned
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.
"Restricted Subsidiary" means (a) each Subsidiary of the
Borrower (other than the Excluded Subsidiaries) in existence on the Agreement
Date and (b) each Subsidiary of the Borrower formed, created or acquired by the
Borrower or a Restricted Subsidiary after the Agreement Date, unless such
Subsidiary is designated by the Borrower as an Unrestricted Subsidiary in a
notice to the Administrative Agent given on or prior to the tenth day following
such formation, creation or acquisition (such designation to be effective on the
date of receipt of such notice by the Administrative Agent and only so long as
neither the Borrower nor any Restricted Subsidiary shall have sold, leased,
licensed, transferred or otherwise disposed of any material assets or interests
therein to such Subsidiary during the period, if any, from the date of
formation, creation or acquisition of such Subsidiary to the date of receipt of
such notice by the Administrative Agent); provided that (A) any Subsidiary which
owns, directly or indirectly, the Capital Securities of any Restricted
Subsidiary shall, for so long as it is a Subsidiary, be a Restricted Subsidiary
and (B) at least 80% of the issued and outstanding capital securities of each
Restricted Subsidiary shall, for so long as it is a Restricted Subsidiary, be
directly owned by the Borrower or another Restricted Subsidiary; provided,
further, that any such Restricted Subsidiary may be redesignated by the Borrower
as an Unrestricted Subsidiary, effective on the date specified by the Borrower
in a notice to the Administrative Agent and the Banks given not less than five
Business Days prior to such specified date, so long as (1) no Default, including
but not limited to a Default under Section 4.08(f), shall have occurred and be
continuing both before and after giving effect to such redesignation (and by
delivering such notice the Borrower shall be deemed to have made a
Representation and Warranty to such effect) and (2) such notice shall be
accompanied by a certificate of a Responsible Officer of the Borrower, in form
and content satisfactory to the Arranging Agents, demonstrating that, on a pro
forma basis determined as if such redesignation had been consummated on the
first day of the most recently completed two fiscal quarters of the Borrower,
the Borrower would have been in compliance at all times with the requirements of
Sections 4.15 and 4.16; provided, further, that any Unrestricted Subsidiary may
be redesignated by the Borrower as a Restricted Subsidiary, effective on the
date specified by the Borrower in a notice to the Administrative Agent and the
Banks given not less than five Business Days prior to such specified date, so
long as (1) no Default (other
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than any Default that shall have occurred and be continuing immediately before
giving effect to such redesignation (a "Pre-existing Default")) shall have
occurred and be continuing after giving effect to such redesignation, and, with
respect to any Pre-existing Default, such redesignation shall not have increased
the degree of the Borrower's non-compliance with the terms of this Agreement
(and by delivering such notice the Borrower shall be deemed to have made a
Representation and Warranty to the effect set forth in this clause (1)) and (2)
such notice shall be accompanied by a certificate of a Responsible Officer of
the Borrower, in form and content satisfactory to the Arranging Agents,
demonstrating that, on a pro forma basis determined as if such redesignation had
been consummated on the first day of the most recently completed two fiscal
quarters of the Borrower, such redesignation would not have resulted in (A) a
failure by the Borrower to be in compliance at all times with the requirements
of Sections 4.15 and 4.16 or (B) if a Pre-existing Default with respect to
either such Section shall exist, an increase in the degree of the Borrower's
non-compliance with the terms of this Agreement in respect of such Pre-existing
Default.
"RSA" means a "Rural Service Area" as such term is defined and
modified by the FCC for purposes of licensing Cellular Systems.
"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 at a rate per annum, for any fiscal
quarter of the Borrower, not in excess of the rate that is 1/4% below the
weighted average interest rate applicable to the Loans hereunder at the
beginning of such fiscal quarter and in an aggregate principal amount not in
excess of the unused portion, if any, of the Total Commitment at such time.
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.
"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.
"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 the Tax Sharing Agreement dated
as of May 20, 1997 among the Comcast, Comcast Cellular Holdings, Comcast
Cellular Corporation and the Borrower.
"Term Maturity Date" means January 31, 2003.
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<PAGE>
"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 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
Commitments, as the same may be reduced from time to time pursuant to Section
1.07.
"Total Revenue" has the meaning ascribed to such term in
Section 4.11(b).
"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).
"Unrestricted Subsidiary" means any Subsidiary of the Borrower
that is not a Restricted Subsidiary.
"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.
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<PAGE>
"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 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.
"Wireless License" means any Cellular License, PCS License or
other license issued or granted by the FCC to operate a Wireless System.
"Wireless System" means any Cellular System, PCS System or
other wireless telecommunications system.
(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
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<PAGE>
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 a 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 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.
(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 (a) the exclusion of the
Unrestricted Subsidiaries and (b) such departures from Generally Accepted
Accounting Principles so long as (i) 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 (ii) 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.
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.
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<PAGE>
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/ John R. Alchin
Name: John R. Alchin
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK, as
an Arranging Agent and a Bank
By: /s/ James W. Whitaker
Name: James W. Whitaker
Title: Vice President
BARCLAYS BANK PLC, as
an Arranging Agent and a Bank
By: /s/ Andrew Wynn
Name: Andrew Wynn
Title: Managing Director
THE CHASE MANHATTAN BANK, as
an Arranging Agent and a Bank
By: /s/ Tracey A. Navin
Name: Tracey A. Navin
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
PNC BANK, NATIONAL ASSOCIATION, as
an Arranging Agent and a Bank
By: /s/ Daniel E. Hopkins
Name: Daniel E. Hopkins
Title: Vice President
THE TORONTO-DOMINION BANK, as
an Arranging Agent and a Bank
By: /s/ Jane Mott
Name: Jane Mott
Title: Mgr. Syndications & Credit Administration
BANK OF AMERICA NT&SA
By: /s/ Cynthia E. Sachs
Name: Cynthia E. Sachs
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Keith M. Wilson
Name: Keith M. Wilson
Title: Vice President
MITSUBISHI TRUST AND BANKING CORPORATION (U.S.A.)
By: /s/ Shinichi Nakakubo
Name: Shinichi Nakakubo
Title: Executive Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Janey P. Sammons
Name: Janey P. Sammons
Title: Vice President
MELLON BANK, N.A.
By: /s/ Nathan H. Kelm
Name: Nathan H. Kelm
Title: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., NEW YORK BRANCH
By: /s/ Shuighi Tajima
Name: Shuighi Tajima
Title: Deputy General Manager
FIRST NATIONAL BANK OF MARYLAND
By: /s/ Timothy A. Knabe
Name: Timothy A. Knabe
Title: Vice President
RIGGS BANK N.A.
By: /s/ David H. Olson
Name: David H. Olson
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
CITIBANK, N.A.
By: /s/ Carolyn Lee
Name: Carolyn Lee
Title: AS-ATTORNEY-IN-FACT
BANK OF MONTREAL
By: /s/ W. T. Calder
Name: W. T. Calder
Title: Director
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Masahiro Watanabe
Name: Masahiro Watanabe
Title: Joint General Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Alan E. McLintock
Name: Alan E. McLintock
Title: Vice President
By: /s/ W. Pieter C. Kodde
Name: W. Pieter C. Kodde
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Robert Grella
Name: Robert Grella
Title: Vice President
By: /s/ Brian Haughney
Name: Brian Haughney
Title: Assistant Treasurer
CORESTATES BANK, N.A.
By: /s/ Elizabeth Elmore
Name: Elizabeth Elmore
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Nancy Stenger
Name: Nancy Stenger
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Glen B. Echert, CFA
Name: Glen B. Echert, CFA
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
ROYAL BANK OF CANADA
By: /s/ John P. Page
Name: John P. Page
Title: Senior Manager
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ David V. Fox
Name: David V. Fox
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Vice President
THE FUJI BANK LIMITED, NEW YORK BRANCH
By: /s/ Feiji Teramoto
Name: Feiji Teramoto
Title: Vice President & Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ John McCloskey
Name: John McCloskey
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
TORONTO DOMINION (TEXAS), INC. as
Administrative Agent
By: /s/ Jano Mott
Name: Jano Mott
Title: Vice President
$100,000,000 Credit Agreement for
Comcast Cellular Communications, Inc.
<PAGE>
ANNEX A
Banks, Lending Offices Commitment
and Notice Addresses
THE BANK OF NEW YORK $5,000,000
Domestic Lending Office:
One Wall Street, 16th Floor
New York, New York 10286
Eurodollar Lending Office:
One Wall Street, 16th Floor
New York, New York 10286
Notice Address for Credit Issues:
One Wall Street, 16th Floor
New York, New York 10286
Telecopier No.: 212-635-8595/3
Telephone No.: 212-635-8843
Attention: James Whitaker, Vice President
Communications, Entertainment and Publishing
Division
Notice Address for Administrative, Operations and Other Issues:
One Wall Street, 18th Floor
New York, New York 10286
Telecopier No.: 212-916-7845
Telephone No.: 212-916-7930
Attention: Pilar Kinzie
<PAGE>
BARCLAYS BANK PLC $5,000,000
Domestic Lending Office:
75 Wall Street, 11th Floor
New York, New York 10265
Eurodollar Lending Office:
75 Wall Street, 11th Floor
New York, New York 10265
Notice Address for Credit Issues:
388 Market Street, Suite 1700
San Francisco, California 94111
Telecopier No.: 415-765-4760
Telephone No.: 415-765-4702
Attention: Matthew Traina
Notice Address for Administrative, Operations and Other Issues:
75 Wall Street, 11th Floor/CSU
New York, New York 10265
Telecopier No.: 212-412-5306/5307
Telephone No.: 212-412-3701
Attention: Warren Walker
<PAGE>
THE CHASE MANHATTAN BANK $5,000,000
Domestic Lending Office:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Eurodollar Lending Office:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Notice Address for Credit Issues:
Global Media & Telecommunications
270 Park Avenue, 37th Floor
New York, New York 10017
Telecopier No.: 212-270-4164
Telephone No.: 212-270-8916
Attention: Tracey Navin, Vice President
Notice Address for Administrative, Operations and Other Issues:
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Telecopier No.: 212-552-5700
Telephone No.: 212-552-7447
Attention: Ganesh Persaud, Account Manager
<PAGE>
PNC BANK, NATIONAL ASSOCIATION $5,000,000
Domestic Lending Office:
1600 Market Street
Philadelphia, Pennsylvania 19103
Eurodollar Lending Office:
Notice Address for Credit Issues:
1600 Market Street
Philadelphia, Pennsylvania 19103
Telecopier No.: 215-585-6680
Telephone No.: 215-585-7468
Attention: Daniel E. Hopkins, Vice President
Telecopier No.: 215-585-6680
Telephone No.: 215-585-6014
Attention: Scott C. Meves, Senior Vice President
Notice Address for Administrative, Operations and Other Issues:
1600 Market Street
Philadelphia, Pennsylvania 19103
Telecopier No.: 215-585-7485
Telephone No.: 215-585-6809
Attention: Joanne Kane, Loan Originator
Telecopier No.: 215-585-7485
Telephone No.: 215-585-7457
Attention: Diane Flannery, Vice President
<PAGE>
THE TORONTO-DOMINION BANK $5,000,000
Domestic Lending Office:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Eurodollar Lending Office:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Notice Address for Credit Issues:
31 West 52nd Street
New York, NY 10019
Telecopier No.: 212-262-1928
Telephone No.: 212-468-0732
Attention: Bernadette Collins
Notice Address for Administrative, Operations and Other Issues:
909 Fannin Street, 17th Floor
Houston, Texas 77010
Telecopier No.: 713-951-9921
Telephone No.: 713-653-8245
Attention: Debbie A. Greene, Manager, Credit
Administration
<PAGE>
BANK OF AMERICA NT&SA $4,250,000
Domestic Lending Office:
1850 Gateway Blvd.
Concord, California 94520
Eurodollar Lending Office:
1850 Gateway Blvd.
Concord, California 94520
Notice Address for Credit Issues:
335 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 503-7137
Telephone No.: (212) 503-8409
Attention: Cynthia Sachs
Notice Address for Administrative, Operations and Other Issues:
335 Madison Avenue
New York, New York 10017
Telecopier No.: (510) 603-7297
Telephone No.: (510) 675-7119
Attention: Stephanie Aragon
<PAGE>
NATIONSBANK OF TEXAS, N.A. $4,250,000
Domestic Lending Office:
901 Main Street, 64th Floor
Dallas, Texas 75202
Eurodollar Lending Office:
901 Main Street, 64th Floor
Dallas, Texas 75202
Notice Address for Credit Issues:
901 Main Street, 64th Floor
Dallas, Texas 75202
Telecopier No.: (214) 508-2576
Telephone No.: (214) 508-0988
Attention: Keith Wilson
Notice Address for Administrative, Operations and Other Issues:
901 Main Street, 64th Floor
Dallas, Texas 75202
Telecopier No.: (214) 508-2020
Telephone No.: (214) 508-2151
Attention: Jean North
<PAGE>
MITSUBISHI TRUST & BANKING $3,500,000
CORPORATION (U.S.A.)
Domestic Lending Office:
520 Madison Avenue, 39th Floor
New York, New York 10022
Eurodollar Lending Office:
520 Madison Avenue, 39th Floor
New York, New York 10022
Notice Address for Credit Issues:
520 Madison Avenue, 39th Floor
New York, New York 10022
Telecopier No.: (212) 838-6838
Telephone No.: (212) 891-8547
Attention: Gary Maciak
Notice Address for Administrative, Operations and Other Issues:
520 Madison Avenue, 39th Floor
New York, New York 10022
Telecopier No.: (212) 838-6838
Telephone No.: (212) 891-8549
Attention: Hemlata Shah
<PAGE>
SUNTRUST BANK, CENTRAL $3,500,000
FLORIDA, N.A.
Domestic Lending Office:
200 South Orange Avenue
Orlando, Florida 32801
Eurodollar Lending Office:
200 South Orange Avenue
Orlando, Florida 32801
Notice Address for Credit Issues:
200 South Orange Avenue
Orlando, Florida 32801
Telecopier No.: (407) 237-4253
Telephone No.: (407) 237-4299
Attention: David Miller
Notice Address for Administrative, Operations and Other Issues:
200 South Orange Avenue
Orlando, Florida 32801
Telecopier No.: (407) 237-4253
Telephone No.: (407) 237-5209
Attention: Debbie Torres
<PAGE>
MELLON BANK, N.A. $3,500,000
Domestic Lending Office:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Eurodollar Lending Office:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Notice Address for Credit Related Issues:
1735 Market Street
Philadelphia, PA 19103
Telecopier No.: (215) 553-4899
Telephone No.: (215) 553-2906
Attention: David B. Crawford
Notice Address for Administrative, Operations and Other Issues:
One Mellon Bank Center
Room 4440
Pittsburgh, PA 15258
Telecopier No.: (412) 236-2027
Telephone No.: (412) 234-4749
Attention: Carol Bufalini
<PAGE>
THE LONG-TERM CREDIT BANK OF $3,500,000
JAPAN, LTD., NEW YORK BRANCH
Domestic Lending Office:
165 Broadway
New York, New York 10006
Eurodollar Lending Office:
165 Broadway
New York, New York 10006
Notice Address for Credit Related Issues:
Telecopier No.: (212) 608-2371
Telephone No.: (212) 335-4561
Attention: Jeffrey L. Kaufman
Notice Address for Administrative, Operations and Other Issues:
Telecopier No.: (212) 608-3452
Telephone No.: (212) 335-4801
Attention: Robert Pacifici
<PAGE>
FIRST NATIONAL BANK OF MARYLAND $3,500,000
Domestic Lending Office:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Eurodollar Lending Office:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Notice Address for Credit Related Issues:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Telecopier No.: (410) 244-4920
Telephone No.: (410) 244-4350
Attention: Timothy A. Knabe
Notice Address for Administrative, Operations and Other Issues:
25 South Charles Street, 18th Floor
Baltimore, MD 21201
Telecopier No.: (410) 244-4920
Telephone No.: (410) 244-4051
Attention: Darla Holbrook
<PAGE>
RIGGS BANK N.A. $3,500,000
Domestic Lending Office:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Eurodollar Lending Office:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Notice Address for Credit Related Issues:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Telecopier No.: (202) 835-5977
Telephone No.: (202) 835-5105
Attention: David Olson
Notice Address for Administrative, Operations and Other Issues:
808 17th Street N.W.
10th Floor
Washington, DC 20006
Telecopier No.: (202) 835-5977
Telephone No.: (202) 835-5136
Attention: Mamduh Abutaa
<PAGE>
CITIBANK, N.A. $3,500,000
Domestic Lending Office:
399 Park Avenue
New York, New York 10043
Eurodollar Lending Office:
399 Park Avenue
New York, New York 10043
Notice Address for Credit Related Issues:
399 Park Avenue
New York, New York 10043
Telecopier No.: (212) 793-6873
Telephone No.: (212) 559-8564
Attention: Eric Huttner
Notice Address for Administrative, Operations and Other Issues:
2 Penns Way
New Castle, Delaware 19702
Telecopier No.: (302) 894-6120
Telephone No.: (302) 894-6010
Attention: Annmarie Pavco
<PAGE>
BANK OF MONTREAL $3,500,000
Domestic Lending Office:
430 Park Avenue
New York, New York 10022
Eurodollar Lending Office:
430 Park Avenue
New York, New York 10022
Notice Address for Credit Related Issues:
430 Park Avenue
New York, New York 10022
Telecopier No.: (212) 605-1621
Telephone No.: (212) 605-1664
Attention: Sarah Kim
Telecopier No.: (212) 605-1621
Telephone No.: (212) 605-1426
Attention: Allegra Griffths
Notice Address for Administrative, Operations and Other Issues:
115 South LaSalle Street
Chicago, Illinois 60603
Telecopier No.: (312) 750-4345
Telephone No.: (312) 750-3722
Attention: Nilda Diaz
<PAGE>
THE INDUSTRIAL BANK $3,500,000
OF JAPAN, LIMITED
Domestic Lending Office:
1251 Avenue of the Americas
New York, New York 10020-1104
Eurodollar Lending Office:
1251 Avenue of the Americas
New York, New York 10020-1104
Notice Address for Credit Related Issues:
1251 Avenue of the Americas
New York, New York 10020-1104
Telecopier No.: (212) 282-4490
Telephone No.: (212) 282-3515
Attention: Christian Gioidano, Assistant Vice President
Notice Address for Administrative, Operations and Other Issues:
1251 Avenue of the Americas
New York, New York 10020-1104
Telecopier No.: (212) 282-4480
Telephone No.: (212) 282-4060
Attention: A. Kawai
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-- $3,500,000
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
Domestic Lending Office:
245 Park Avenue
New York, New York 10167
Eurodollar Lending Office:
245 Park Avenue
New York, New York 10167
Notice Address for Credit Related Issues:
300 South Wacker Drive
Suite 3500
Chicago, Illinois 60606
Telecopier No.: (312) 786-0052
Telephone No.: (312) 408-8253
Attention: Alan E. McLintock
245 Park Avenue
New York, New York 10167
Telecopier No.: (212) 916-78
Telephone No.: (212) 808-2513
Attention: Andrew Sherman
Notice Address for Administrative, Operations and Other Issues:
Corporate Services
245 Park Avenue
New York, New York 10167
Telecopier No.: (212) 916-7930
Telephone No.: (212) 916-7845
Attention: Debra Rivers
<PAGE>
DRESDNER BANK AG NEW YORK $3,500,000
AND GRAND CAYMAN BRANCHES
Domestic Lending Office:
75 Wall Street
New York, New York 10005-2889
Eurodollar Lending Office:
75 Wall Street
New York, New York 10005-2889
Notice Address for Credit Related Issues:
75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 429-2129
Telephone No.: (212) 429-2252
Attention: Robert Grella
Notice Address for Administrative, Operations and Other Issues:
75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 429-2130
Telephone No.: (212) 429-2288
Attention: Laura Lam
<PAGE>
CORESTATES BANK, NA $3,500,000
Domestic Lending Office:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Eurodollar Lending Office:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Notice Address for Credit Related Issues:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Telecopier No.: (215) 786-7721
Telephone No.: (215) 786-4321
Attention: Elizabeth Elmore
Notice Address for Administrative, Operations and Other Issues:
1333 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19103
Telecopier No.: (215) 786-4313
Telephone No.: (215) 786-7721
Attention: Mary Lockhart
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD. $3,500,000
Domestic Lending Office:
1 World Trade Center, Suite 4911
New York, New York 10048
Eurodollar Lending Office:
1 World Trade Center, Suite 4911
New York, New York 10048
Notice Address for Credit Related Issues:
1 World Trade Center, Suite 4911
New York, New York 10048
Telecopier No.: (212) 524-0579
Telephone No.: (212) 432-8748
Attention: Nancy Stengel
Notice Address for Administrative, Operations and Other Issues:
1 World Trade Center, Suite 4911
New York, New York 10048
Telecopier No.: (212) 432-0194
Telephone No.: (212) 432-8441
Attention: Christine Dell'Aira
<PAGE>
THE BANK OF TOKYO-MITSUBISHI $3,500,000
TRUST COMPANY
Domestic Lending Office:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Eurodollar Lending Office:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Notice Address for Credit Related Issues:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Telecopier No.: (212) 782-4935
Telephone No.: (212) 782-4310
Attention: Emile Elnems
Notice Address for Administrative, Operations and Other Issues:
1251 Avenue of the Americas, 12th Fl.
New York, New York 10020-1104
Telecopier No.: (212) 766-3127
Telephone No.: (201) 413-8570
Attention: Rolando Uy
<PAGE>
ROYAL BANK OF CANADA $3,500,000
Domestic Lending Office:
Financial Square, 23rd Floor
New York, New York 10005
Eurodollar Lending Office:
Financial Square, 23rd Floor
New York, New York 10005
Notice Address for Credit Related Issues:
Financial Square, 23rd Floor
New York, New York 10005
Telecopier No.: (212) 428-6460
Telephone No.: (212) 428-6552
Attention: Andy Cozewith
Notice Address for Administrative, Operations and Other Issues:
Financial Square, 23rd Floor
New York, New York 10005
Telecopier No.: (212) 428-2372
Telephone No.: (212) 428-6321
Attention: Jewel Haines
<PAGE>
MORGAN GUARANTY TRUST $3,500,000
COMPANY OF NEW YORK
Domestic Lending Office:
60 Wall Street
New York, New York 10260-0060
Eurodollar Lending Office:
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christina Road, 3rd Floor
Newark, Delaware 19713
Notice Address for Credit Related Issues:
60 Wall Street
New York, New York 10260-0060
Telecopier No.: (212) 648-5014
Telephone No.: (212) 648-4833
Attention: David Fox
Notice Address for Administrative, Operations and Other Issues:
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christina Road, 3rd Floor
Newark, Delaware 19713
Telecopier No.: (302) 634-1094
Telephone No.: (302) 634-4218
Attention: Mark Connor
<PAGE>
CREDIT LYONNAIS $3,500,000
NEW YORK BRANCH
Domestic Lending Office:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Eurodollar Lending Office:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Notice Address for Credit Related Issues:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Telecopier No.: (212) 261-3288
Telephone No.: (212) 261-7852
Attention: Mark Thorsheim
Notice Address for Administrative, Operations and Other Issues:
1301 Avenue of the Americas
18th Floor
New York, New York 10019
Telecopier No.: (212) 261-3318
Telephone No.: (212) 261-7741
Attention: Debbie Vellozzi
<PAGE>
THE FUJI BANK, LIMITED, $3,500,000
NEW YORK BRANCH
Domestic Lending Office:
2 World Trade Center, 79th Floor
New York, New York 10048
Eurodollar Lending Office:
2 World Trade Center, 79th Floor
New York, New York 10048
Notice Address for Credit Related Issues:
2 World Trade Center, 79th Floor
New York, New York 10048
Telecopier No.: (212) 898-2399
Telephone No.: (212) 898-2082
Attention: Mark Gronich
Telecopier No.: (212) 898-2399
Telephone No.: (212) 898-2061
Attention: Brian Carlson
Notice Address for Administrative, Operations and Other Issues:
2 World Trade Center, 79th Floor
New York, New York 10048
Telecopier No.: (212) 488-8216
Telephone No.: (212) 898-2099
Attention: Tina Catapano
<PAGE>
CAISSE NATIONALE DE CREDIT AGRICOLE $3,500,000
Domestic Lending Office:
55 East Monroe Street, Suite 47
Chicago, Illinois 60603
Eurodollar Lending Office:
55 East Monroe Street, Suite 47
Chicago, Illiois 60603
Notice Address for Credit Related Issues:
520 Madison Avenue
New York, New York 10022
Telecopier No.: (212) 418-2228
Telephone No.: (212) 418-2217
Attention: John McCloskey
Notice Address for Administrative, Operations and Other Issues:
55 E. Monroe Street, Suite 4700
Chicago, Illinois 60603
Telecopier No.: (312) 372-4421
Telephone No.: (312) 917-7420
Attention: Karen Bergstrom
<PAGE>
Schedule 1.02
FORM OF NOTICE OF BORROWING
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.02 of the Credit
Agreement of its request to have the following Loans made to it on [insert
requested date of borrowing]:
Type of Loan1 Amount
--------------------------------- --------------
--------------------------------- --------------
--------------------------------- --------------
[Please disburse the proceeds of the Loans by [insert requested method
of disbursement]].2
The undersigned represents and warrants that (a) the borrowing
requested hereby complies with the requirements of Section 1.02 of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]3 (i) each
Loan Document Representation and Warranty is true and correct in all material
respects at and as of the date hereof and (except to the extent the undersigned
gives notice to the Banks to the contrary prior to 5:00 p.m.
<PAGE>
(New York time) on the Business Day before the requested date for the making of
the Loans) will be true and correct in all material respects at and as of the
time the Loans are made, in each case both with and without giving effect to the
Loans and the application of the proceeds thereof, and (ii) no Default,
including a Default under Section 4.15 or 4.16 (other than a Default meeting the
requirements of the parenthetical provision set forth in Section 2.02(c) of the
Credit Agreement), has occurred and is continuing as of the date hereof or would
result from the making of the Loans or from the application of the proceeds
thereof if the Loans were made on the date hereof, and (except to the extent the
undersigned gives notice to the Banks to the contrary prior to 5:00 p.m. (New
York time) on the Business Day before the requested date for the making of the
Loans) no Default (other than a Default meeting the requirements of the
parenthetical provision set forth in Section 2.02(c) of the Credit Agreement)
will have occurred and be continuing at the time the Loans are to be made or
would result from the making of the Loans or from the application of the
proceeds thereof.
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar
Rate Loans (e.g., one-month Eurodollar Rate).
2. Include and complete this sentence if the proceeds of the requested
Loans are to be disbursed in a manner other than by credit to an
account of the Borrower at the Administrative Agent's Office.
3. If the representation and warranty in either clause (b)(i) or (b)(ii)
would be incorrect, include the material in brackets and set forth the
reasons such representation and warranty would be incorrect on an
attachment labeled Annex A.
<PAGE>
Schedule 1.03(c)(iv)
FORM OF NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.03(c)(iv) of the
Credit Agreement of its desire to convert or continue the Loans specified below
into or as Loans of the Types and in the amounts specified below on [insert date
of conversion or continuation]:
<TABLE>
<CAPTION>
Loans to be Converted or
Converted or Continued Continued Loans
Last Day of Date of
Type Current Conversion or Type
of Loan1 Interest Period Amount Continuation of Loan1 Amount
<S> <C> <C> <C> <C> <C> <C>
--------- --------------- -------- ------------ -------- -------
--------- --------------- -------- ------------ -------- -------
--------- --------------- -------- ------------ -------- -------
</TABLE>
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar Rate
Loans (e.g., one-month Eurodollar Rate).
<PAGE>
Schedule 1.05
FORM OF NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.05 of the Credit
Agreement that it will prepay the Loans specified below on [insert date of
prepayment]:
Last Day of
Current
Type of Loan1 Interest Period Amount
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
1. Specify the duration of the Interest Period in the case of Eurodollar Rate
Loans (e.g., one-month Eurodollar Rate).
<PAGE>
Schedule 2.01(a)
FORM OF CERTIFICATE AS TO RESOLUTIONS, ETC.
[NAME OF LOAN PARTY]
I, ________________, [Secretary/Assistant Secretary/Responsible
Officer] of [NAME OF LOAN PARTY], a __________ corporation (the "Company"),
hereby certify, pursuant to Section 2.01(a) of the Credit Agreement (the "Credit
Agreement"), dated as of October 14, 1997, among COMCAST CELLULAR
COMMUNICATIONS, INC., the banks listed on the signature pages thereof, The Bank
of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank, National
Association and The Toronto-Dominion Bank, as Arranging Agents, and Toronto
Dominion (Texas), Inc., as Administrative Agent (capitalized terms used herein
but not otherwise defined herein shall have the meanings given to them in the
Credit Agreement):
1. The below named persons have been duly elected (or appointed)
and have duly qualified as, and on this day are, officers of the Company holding
the respective offices below set opposite their names, and the signatures below
set opposite their names are their genuine signatures:
Name Office Signature
[ ] [ ]
[ ] [ ]
[ ] [ ]
2. Attached as Annex A is a true and correct copy of resolutions
duly adopted by the Board of Directors of the Company. Such resolutions have not
been amended, modified or revoked and are in full force and effect on the date
hereof.
3. [List the Loan Documents to which the Company is a party], in
each case as executed and delivered on behalf of the Company, are substantially
in the forms thereof approved by the Board of Directors of the Company, except
for such changes as have been approved by the officer or officers of the Company
executing such documents.
4. There has been no amendment to the certificate of incorporation
of the Company since __________.
5. Attached as Annex B is a true and correct copy of the by-laws of
the Company as in effect on ________, 1997 and at all subsequent times to and
including the date hereof.
<PAGE>
IN WITNESS WHEREOF, I have signed this certificate this __ day of
_____, 1997.
By: ____________________________
Name:
Title:
I, __________, __________ of the Company, hereby certify that
__________ has been duly elected or appointed and has been duly qualified as,
and on this day is, [Secretary/Assistant Secretary/Responsible Officer] of the
Company, and the signature in paragraph 1 above is such individual's genuine
signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
___, 1997.
By: ____________________________
Name:
Title:
<PAGE>
Schedule 2.01(d)-1
FORM OF OPINION OF COUNSEL FOR
THE BORROWER AND EACH OTHER LOAN PARTY
[Letterhead of Drinker, Biddle & Reath]
___________________, 1997
To the Banks party to the Credit
Agreement referred to below
on the date hereof and
Toronto Dominion (Texas), Inc., as
Administrative Agent.
Re: Comcast Cellular Communications, Inc./Communications
Corporation/Comcast Financial Corporation
Ladies and Gentlemen:
We have acted as special counsel to Comcast Cellular Communications,
Inc., a Delaware corporation (the "Company"), Comcast Corporation, a
Pennsylvania corporation ("Comcast") and Comcast Financial Corporation, a
Delaware corporation ("Comcast Financial"), in connection with the execution and
delivery of the $100,000,000.00 Credit Agreement dated as of __________________,
1997 (the "Credit Agreement"), among (A) the Company, (B) each of the banks
which is a signatory thereto (individually a "Bank" and, collectively, the
"Banks"), (C) The Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank,
PNC Bank, National Association, and The Toronto-Dominion Bank, as Arranging
Agents, and (D) Toronto Dominion (Texas), Inc., as Administrative Agent. This
opinion is being delivered to you pursuant to Section 2.01(d) of the Credit
Agreement. Capitalized terms not defined herein shall have the meanings ascribed
to them in the Credit Agreement.
<PAGE>
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter, those documents, together with the Exhibits and
Schedules appended thereto or referred to therein, are collectively referred to
as the "Loan Documents"):
(1) the Credit Agreement;
(2) the Notes delivered on the date hereof;
(3) the Affiliate Subordination Agreement; and
(4) the Company's officer's certificate delivered pursuant to
Section 2.01(a) of the Credit Agreement.
In addition, we have examined such corporate records (consisting of Certificates
or Articles of Incorporation, by-laws and resolutions respecting the subject
transactions) of the Company, Comcast and Comcast Financial (individually, a
"Loan Party" and collectively, the "Loan Parties"), the originals, or copies
certified to our satisfaction, of certificates of public officials, including
without limitation, W a Certificate of Good Standing issued by the Secretary of
State of the State of Delaware on October 10, 1997 for the Company (the "Company
Good Standing Certificate"), (ii) a Subsistence Certificate issued by the Office
of the Secretary of the Commonwealth of Pennsylvania on October 9, 1997 for
Comcast (the "Comcast Good Standing Certificate"), and a Certificate of Good
Standing issued by the Secretary of State of the State of Delaware on October
10, 1997 for Comcast Financial (the "Comcast Financial Good Standing
Certificate") and such other agreements, documents and instruments as we have
deemed appropriate as the basis for the opinions hereinafter set forth.
In all cases, we have assumed the genuineness of all signatures (other
than those of the signatures of officers of the Loan Parties on the Loan
Documents), the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of documents submitted to us as
copies. As to questions of fact material to this opinion, we have relied with
your permission upon the accuracy of the representations and warranties made by
the parties in the Loan Documents and of certificates and other comparable
documents of
<PAGE>
appropriate officers and representatives of the Loan Parties and upon
certificates of public officials. We have not undertaken any independent
investigation of factual matters.
Opinions of separate counsel of the Loan Parties are being delivered to
you under Section 2.01(d) of the Credit Agreement contemporaneously herewith
with respect to, among other things, the corporate status and power of Comcast,
the Company and Comcast Financial, as applicable; the authorization, execution
and delivery of documents by Comcast, the Company and Comcast Financial, as
applicable; the absence of conflict with (a) the charter or by-laws of Comcast,
the Company and Comcast Financial, as applicable or (b) certain laws, orders or
agreements; the absence of certain litigation; and certain regulatory matters.
In rendering the opinions herein, we have assumed, without investigation, the
accuracy of such other opinions and we express no opinion with respect to any
such matters.
In addition, in rendering the opinions set forth herein, we have
assumed (except to the extent specifically opined on below with respect to
certain Loan Parties) without investigation, with respect to all of the
documents referred to in this opinion letter and the transactions contemplated
therein, that:
(A) each party to such documents and transactions (1) has
satisfied and will satisfy those legal requirements that are applicable to it to
the extent necessary to make such documents enforceable against it and (2) has
complied and will comply with all legal requirements pertaining to its status as
such status relates to its rights to enforce the documents; and
(B) the execution, delivery and performance in accordance
with their respective terms by each of the parties of the Loan Documents to
which it is a party do not and will not (1) require any Governmental Approval or
any other consent or approval, other than Governmental Approvals and other
consents or approvals that have been obtained, are final and not subject to
review or collateral attack and are in full force and effect, or -(2) violate or
conflict with, result in a breach of, or constitute a default under (a) any
Contract to which any of such parties may be bound or (b) any Applicable Law
referred to in
<PAGE>
clause (ii)(B) or (C) of the definition thereof contained in the Credit
Agreement.
When we state herein that matters are to our "knowledge," we mean that
we have no actual knowledge of facts which are contrary to the opinion rendered,
without having undertaken independent investigation or verification of any such
facts. The words "actual knowledge,, mean the conscious attention to such
information by the Primary Lawyer Group. The phrase "Primary Lawyer Group"
includes only attorneys who are currently members of or employed by this firm
who have been involved in the preparation of this letter and such other
attorneys as have been involved in the representation of the Loan Parties in
connection with the transaction that is the subject of this letter.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in our opinion:
1. The Company is a corporation validly existing and, based solely on
the Company Good Standing Certificates, in good standing under the laws of the
State of Delaware. The Company has the corporate power and authority to own its
properties and to conduct its business as, to the best of our knowledge, it is
now conducted, and to consummate the loan transactions contemplated by the Loan
Documents.
2. Comcast is a corporation validly existing and, based solely on the
Comcast Good Standing Certificates, is subsisting under the laws of the
Commonwealth of Pennsylvania. Comcast has the corporate power and authority to
own its properties and to conduct its business as, to the best of our knowledge,
it is now conducted, and to consummate the loan transactions contemplated by the
Loan Documents.
3. Comcast Financial is a corporation validly existing and, based
solely on the Comcast Financial Good Standing Certificates, in good standing
under the laws of the State of Delaware. Comcast Financial has the corporate
power and authority to own its properties and to conduct its business as, to the
best of our knowledge, it is now conducted, and to
<PAGE>
consummate the loan transactions contemplated by the Loan Documents.
4. The execution, delivery and performance by the Company of the Loan
Documents to which it is a party and the borrowings by the Company under the
Credit Agreement (A) have been duly authorized by all necessary corporate action
on the part of the Company and (B) do not violate the Certificate of
Incorporation or bylaws of the Company. Each of the Loan Documents to which the
Company is a party (X) has been duly executed and delivered by the Company and
(Y) constitutes a legal, valid and binding obligation of the Company enforceable
against it in accordance with its terms.
5. The execution, delivery and performance by Comcast of the Loan
Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast. Each of the Loan Documents to which
Comcast is a party has been duly executed and delivered by Comcast and
constitutes a legal, valid and binding obligation of Comcast enforceable against
it in accordance with its terms.
6. The execution, delivery and performance by Comcast Financial of the
Loan Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast. Each of the Loan Documents to which
Comcast Financial is a party has been duly executed and delivered by Comcast
Financial and constitutes a legal, valid and binding obligation of Comcast
Financial enforceable against it in accordance with its terms.
7. Neither the Company nor any of its Restricted Subsidiaries is (A) an
"investment company" within the meaning of the Investment Company Act of 1940,
or (B) a "holding company or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", or a "public utility" within the
meaning of the Public Utility Company Act of 1935, as amended.
8. Assuming the Company does not use the proceeds of the loans provided
in the Credit Agreement to purchase "margin securities" or "margin stock" within
the meanings of Regulations
<PAGE>
G, T, U, or X of the Federal Reserve Board and that any debt which is refinanced
with such proceeds did not constitute a "purpose credit" or "purpose loan"
within the meaning of such regulations, the Company's execution and performance
of the Loan Documents will not violate such regulations.
9. The obligations of the Company under the Loan Documents to which the
Company is a party are within the definitions of "Senior obligations" contained
in the Affiliate Subordination Agreement.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) We have assumed the legal capacity of all individuals
executing any of the Loan Documents.
(B) The validity and enforceability of the Loan Documents are
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and similar laws affecting the enforcement of creditors,
rights generally (including those relating to fraudulent conveyances and
transfers), principles of equity and to the equitable discretion of courts,
whether in proceedings at law or in equity.
(C) We express no opinion as to the enforceability of any
provisions in any Loan Document imposing penalties, forfeitures, late payment
charges, prepayment premiums, attorneys, commissions, or an increase in interest
rate upon the occurrence of a default or an event of default.
(D) Requirements in any Loan Document specifying that
provisions therein may only be waived in writing may be unenforceable if an oral
agreement modifying provisions of those documents has been performed.
(E) We express no opinion as to the enforceability of
provisions contained in any Loan Document which purport to constitute or provide
for the waiver and release of any rights, claims, defenses, counterclaims or
remedies of the Loan Parties, including, without limitation, the waiver and
release of (1) the
<PAGE>
benefit of statutes of limitation or moratoria, (2) errors, defects and
imperfections in proceedings, service of process or the establishment of
jurisdiction, (3) the benefits of any stay of execution, exemption from service
of process or extension of time for payment, (4) the benefits of laws requiring
the marshalling of assets or election of remedies, and (5) the benefits of laws,
regulations or judicial decisions exempting certain property and/or proceeds
from execution, attachment, levy or sale.
(F) We express no opinion concerning the financial condition
or solvency of the Loan Parties, nor do we express any opinion concerning the
effect of any action, suit, proceeding, litigation or transaction (including,
without limitation, the transactions contemplated in the Credit Agreement) upon
either (1) the financial condition of any of the Loan Parties or (2) any
financial covenants which the Loan Parties may have agreed to in the Loan
Documents or any other instrument executed and delivered in connection with the
transactions contemplated in the Credit Agreement or any other transaction.
(G) No opinion is expressed as to the enforceability of any
of the following kinds of provisions in the Loan Documents: (1) provisions for
self-help except as permitted by applicable law; (2) provisions which purport to
establish evidentiary standards; (3) provisions relating to the non-waiver of
your rights, discharge or waiver of defenses, liquidated damages, or
ratification of creditors' actions without consent of the Loan Parties or any
person secondarily liable; (4) provisions in the Loan Documents purporting to
waive statutory, constitutional or equitable rights which cannot by applicable
law be waived; (5) provisions containing powers of attorney or waiving
commercial reasonableness; (6) provisions which purport to retain a claim
against a guarantor where the primary debtor has been released; (7) provisions
for post-judgment interest in excess of the "legal rate" permitted on judgments
in Pennsylvania; (8) provisions which purport to create obligations to indemnify
you, except as permitted by applicable law; (9) provisions imposing penalties,
forfeitures, or (to the extent deemed to constitute penalties) increases in
interest rate upon the occurrence of a default or an event of default, provided
that
<PAGE>
the inclusion of such provisions does not affect the validity of the other
provisions of the Loan Documents.
(H) Pennsylvania law prohibits the imposition of interest at a
rate in excess of 25% per annum unless otherwise authorized by law. We express
no opinion concerning-the effect on the Loan Documents if (1) increases in the
interest rates as provided in the Loan Documents or (2) any fees, costs, charges
or expenses, in addition to the interest charged at the rates recited in the
Loan Documents cause the effective rate of interest payable under the Loan
Documents to increase to a rate in excess of 25% per a
(1) We express no opinion concerning the laws of any
jurisdiction other than the law of the Commonwealth of Pennsylvania, the federal
law of the United States of America and with respect to the opinions in
paragraph 1 hereof and the opinions in subparagraph 4(A) and 4(X), the General
Corporate Law of Delaware. In that connection, we note that the Loan Documents
provide that they are governed by the laws of the State of New York. We are not
expert regarding those laws and express no opinion about them. With your
permission, we have assumed, solely for purposes of this opinion, that the Loan
Documents will be governed by the laws of the Commonwealth of Pennsylvania
notwithstanding their express terms. We express no opinion concerning what law
will actually govern the Loan Documents or concerning the effectiveness of any
choice of law provision in the Loan Documents. Further, we express no opinion
concerning (1) the effects of any local law and regulation, or (2) federal or
state laws, rules or regulations governing securities, antitrust or unfair
competition, compliance with fiduciary duty, environmental liability, or any
aspect of the communications business.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks only in connection with the transactions contemplated by the
Loan Documents and may not be disclosed to, quoted from or relied upon by any
other person for 'any purpose, except that future holders of the Notes may rely
on this opinion and you and such future holders may make the opinion available
for inspection by regulatory authorities having
<PAGE>
jurisdiction over your affairs. This opinion is rendered as of the date hereof,
is based upon and relies upon the current status of law and in all respects is
subject to and may be limited by future legislation, as well as future case law.
We assume no responsibility to advise you as to any matters after the date
hereof.
Very truly yours,
DRINKER BIDDLE & REATH LLP
<PAGE>
Schedule 2.01(d)-2
FORM OF OPINION OF COUNSEL FOR
THE BORROWER AND EACH OTHER LOAN PARTY
[Letterhead of Arthur R. Block]
____________________, 1997
To the Banks party to the Credit
Agreement referred to below
on the date hereof and
Toronto Dominion (Texas), Inc., as
Administrative Agent.
Re: Comcast Cellular Communications, Inc./ Comcast
Corporation/Comcast Financial Corporation
Ladies and Gentlemen:
I am Senior Deputy General Counsel of Comcast Corporation, a
Pennsylvania corporation ("Comcast"), Comcast Cellular Communications, Inc., a
Delaware corporation (the "Company") and Comcast Financial Corporation, a
Delaware corporation ("Comcast Financial") and, as such am familiar with the
$100,000,000.00 Credit Agreement dated as of ___________________, 1997 (the
"Credit Agreement"), among (A) the Company, (B) each of the banks which is a
signatory thereto (individually a "Bank" and, collectively, the "Banks"), (C)
The Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank,
National Association and The Toronto-Dominion Bank, as Arranging Agents and
Toronto Dominion (Texas), Inc., as Administrative Agent. This opinion is being
delivered to you pursuant to Section 2.01(d) of the Credit Agreement.
Capitalized terms not defined herein shall have the
<PAGE>
meanings ascribed to them in the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following documents
(hereinafter, those documents, together with the Exhibits and Schedules appended
thereto or referred to therein, are collectively referred to as the "Loan
Documents"):
(1) the Credit Agreement;
(2) the Notes delivered on the date hereof;
(3) the Affiliate Subordination Agreement; and
(4) the Company's officer's certificate delivered pursuant to
Section 2.01(a) of the Credit Agreement.
In addition, I have examined such corporate records (consisting of Certificates
or Articles of Incorporation, by-laws and resolutions respecting the subject
transactions) of Comcast, the Company and Comcast Financial (individually, a
"Loan Party" and collectively, the "Loan Parties"), the originals, or copies
certified to my satisfaction, of certificates of public officials, including
without limitation, (i) a Subsistence Certificate issued by the Office of the
Secretary of the Commonwealth of Pennsylvania on October 9, 1997 for Comcast
(the "Comcast Good Standing Certificate"), (ii) a Certificate of Good Standing
issued by the Secretary of State of the State of Delaware on October 10, 1997
for the Company the "Company Good Standing Certificate") and (iii) a Certificate
of Good Standing issued by the Secretary of State of the State of Delaware on
October 10, 1997 for Comcast Financial (the "Comcast Financial Good Standing
Certificate") and such other agreements, documents and instruments as I have
deemed appropriate as the basis for the opinions hereinafter set forth.
In all cases, I have assumed the genuineness of all signatures (other
than those of the signatures of officers of the Loan Parties on the Loan
Documents), the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of documents submitted to us as
copies. As to questions of fact material to this opinion, I have relied with
your permission upon the accuracy of the representations and warranties made by
the parties in the Loan Documents and of certificates and other comparable
documents of appropriate officers and representatives of the Loan Parties and
upon certificates of public officials. I have not undertaken any independent
investigation of factual matters.
<PAGE>
In addition, in rendering the opinions set forth herein, I
have assumed (except to the extent specifically opined on below with respect to
certain Loan Parties) without investigation, with respect to all of the
documents referred to in this opinion letter and the transactions contemplated
therein, that:
(A) each party to such documents and transactions (1) has
satisfied and will satisfy those legal requirements that are applicable to it to
the extent necessary to make such documents enforceable against it and (2) has
complied and will comply with all legal requirements pertaining to its status as
such status relates to its rights to enforce the documents; and
(B) the execution, delivery and performance in accordance
with their respective terms by each of the parties of the Loan Documents to
which it is a party do not and will not (1) require any Governmental Approval or
any other consent or approval, other than Governmental Approvals and other
consents or approvals that have been obtained, are final and not subject to
review or collateral attack and are in full force and effect, or (2) violate or
conflict with, result in a breach of, or constitute a default under any Contract
to which any of such parties may be bound or (3) any Applicable Law referred to
in clause (ii)(B) or (C) of the definition thereof contained in the Credit
Agreement.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in my opinion:
1. The Company is a corporation validly existing and, based solely on
the Company Good Standing Certificate, in good standing under the laws of the
State of Delaware and has the corporate power and authority to own its
properties and to conduct its business as it is now conducted, and to consummate
the loan transactions contemplated by the Loan Documents. To my knowledge, the
Company is not required to be qualified as a foreign corporation or authorized
to do business in any other jurisdiction; provided that this opinion only speaks
to the extent that the failure to obtain any such qualification or authorization
would have a Materially Adverse Effect on the Company and the Restricted
Subsidiaries taken as whole.
2. Comcast is a corporation validly existing and, based solely on the
Comcast Good Standing Certificate, subsisting under the laws of the Commonwealth
of Pennsylvania and has the corporate power and authority to own its properties
and to
<PAGE>
conduct its business as it is now conducted, and to consummate the loan
transactions contemplated by the Loan Documents. To my knowledge, Comcast is not
required to be qualified as a foreign corporation or authorized to do business
in any other jurisdiction; provided that this opinion only speaks to the extent
that the failure to obtain any such qualification or authorization would have a
Materially Adverse Effect on the Company and the Restricted Subsidiaries taken
as whole.
3. Comcast Financial is a corporation validly existing and, based
solely on the Comcast Financial Good Standing Certificate, in good standing
under the laws of the State of Delaware and has the corporate power and
authority to own its properties and to conduct its business as it is now
conducted, and to consummate the loan transactions contemplated by the Loan
Documents. To my knowledge, Comcast Financial is not required to be qualified as
a foreign corporation or authorized to do business in any other jurisdiction;
provided that this opinion only speaks to the extent that the failure to obtain
any such qualification or authorization would have a Materially Adverse Effect
on the Company and the Restricted Subsidiaries taken as whole.
4. The execution, delivery and performance by the Company of the Loan
Documents to which it is a party and the borrowings under the Credit Agreement
(A) have been duly authorized by all necessary corporate action on the part of
the Company and (B) do not violate the Certificate of Incorporation or by-laws
of the Company. Each of the Loan Documents to which the Company is a party (X)
has been duly executed and delivered by the Company and (Y) constitutes a legal,
valid and binding obligation of the Company enforceable against it in accordance
with its terms.
5. The execution, delivery and performance by Comcast of the Loan
Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast and do not violate the Articles of
incorporation or bylaws of Comcast. Each of the Loan Documents to which Comcast
is a party has been duly executed and delivered by Comcast and constitutes a
legal, valid and binding obligation of Comcast enforceable against it in
accordance with its terms.
6. The execution, delivery and performance by Comcast Financial of the
Loan Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of Comcast Financial and do not violate the
Certificate of Incorporation or by-laws of Comcast Financial. Each of the Loan
<PAGE>
Documents to which Comcast Financial is a party has been duly executed and
delivered by Comcast Financial and constitutes a legal, valid and binding
obligation of Comcast Financial enforceable against it in accordance with its
terms.
7. The execution, delivery and performance by each of the Loan Parties
of the Loan Documents to which each of them is a party in accordance with their
respective terms and each borrowing thereunder do not and (absent any change
after the date hereof in any Applicable Law (as hereinafter defined) or
applicable Contract) will not (A) require any Governmental Approval under
Applicable Law or any other material consent or approval, other than
Governmental Approvals and other consents and approvals that have been obtained
and are in full force and effect 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 Company or any Restricted Subsidiary under, (1)
any Contract to which any Loan Party is a party or by which any Loan Party or
any of their respective properties may be bound, or any Applicable Law, except I
render no opinion as to any such violations, breaches or defaults of or under
Contracts or Applicable Law, if in the case of Contracts, both (a) such Contract
is not expressly identified or contemplated in the Credit Agreement or in any
other Loan Document and (b) no Loan Party is party thereto, or, if in the case
of Applicable Law, such Applicable Law is not applicable to any of the Loan
Parties, which could not reasonably be expected to expose any Agent or Bank to
any liability, loss, cost or expense, and which, either alone or in conjunction
with all other such violations, breaches or defaults, could not have a
Materially Adverse Effect on W the Company and the Restricted Subsidiaries taken
as a whole, or (ii) any Loan Document. As used herein, "Applicable Law" shall
mean those statutes and regulations of the Commonwealth of Pennsylvania,
Delaware General Corporate Law and the Federal law of the United States of
America which, if violated, would subject the Loan Parties to a fine, penalty or
other similar sanction or would materially impair any material rights or
remedies explicitly provided to the Agents and the Banks in the Loan Documents,
and which a Pennsylvania lawyer exercising customary professional diligence
would reasonably recognize as being directly applicable to the Loan Parties, the
subject loan transaction or both, provided, however, Applicable Law shall not
include reference to any law, including Federal law, governing communications or
securities regulation.
8. 1 confirm to you that, except as set forth on Schedule 3.04 of the
Credit Agreement, to my knowledge, there are no
<PAGE>
lawsuits or other proceedings pending or threatened against or affecting (A) the
Company or any of its Subsidiaries, or any of their respective properties or
businesses, or (B) any Loan Documents, before any court or arbitrator of any
kind or by or before any governmental or non-governmental body, except actions,
suits or proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Materially Adverse Effect on (1) the Company and the
Restricted Subsidiaries taken as a whole, or (2) any Loan Document.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) I have assumed the legal capacity of all individuals
executing any of the Loan Documents.
(B) The validity and enforceability of the Loan Documents are
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and similar laws affecting the enforcement of creditors'
rights generally (including those relating to fraudulent conveyances and
transfers), principles of equity and to the equitable discretion of courts,
whether in proceedings at law or in equity.
(C) I express no opinion as to the enforceability of any
provisions in any Loan Document imposing penalties, forfeitures, late payment
charges, prepayment premiums, attorneys' commissions, or an increase in interest
rate upon the occurrence of a default or an event of default.
(D) Requirements in any Loan Document specifying that
provisions therein may only be waived in writing may be unenforceable if an oral
agreement modifying provisions of those documents has been performed.
(E) I express no opinion as to the enforceability of
provisions contained in any Loan Document which purport to constitute or provide
for the waiver and release of any rights, claims, defenses, counterclaims or
remedies of the Loan Parties, including, without limitation, the waiver and
release of (1) the benefit of statutes of limitation or moratoria, (2) errors,
defects and imperfections in proceedings, service of process or the
establishment of jurisdiction, (3) the benefits of any stay of execution,
exemption from service of process or extension of time for payment, (4) the
benefits of laws requiring the marshalling of assets or election of remedies,
and (5) the benefits of laws, regulations or judicial decisions exempting
<PAGE>
certain property and/or proceeds from execution, attachment, levy or sale.
(F) I express no opinion concerning the financial condition
or solvency of the Loan Parties, nor, except as provided in paragraph 6 above,
do we express any opinion concerning the effect of any action, suit, proceeding,
litigation or transaction (including, without limitation, the transactions
contemplated in the Credit Agreement) upon either (1) the financial condition of
any of the Loan Parties or (2) any financial covenants which the Loan Parties
may have agreed to in the Loan Documents or any other instrument executed and
delivered in connection with the transactions contemplated in the Credit
Agreement or any other transaction.
(G) No opinion is expressed as to the enforceability of any
of the following kinds of provisions in the Loan Documents: (1) provisions for
self-help except as permitted by applicable law; (2) provisions which purport to
establish evidentiary standards; (3) provisions relating to the non-waiver of
your rights, discharge or waiver of defenses, liquidated damages, or
ratification of creditors' actions without consent of the companies or any
person secondarily liable; (4) provisions in the Loan Documents purporting to
waive statutory, constitutional or equitable rights which cannot by applicable
law be waived; (5) provisions containing powers of attorney or waiving
commercial reasonableness; (6) provisions which purport to retain a claim
against a guarantor where the primary debtor has been released; (7) provisions
for post-judgment interest in excess of the "legal rate" permitted on judgments
in Pennsylvania; (8) provisions which purport to create obligations to indemnify
you, except as permitted by applicable law; (9) provisions imposing penalties,
forfeitures, or (to the extent deemed to constitute penalties) increases in
interest rate upon the occurrence of a default or an event of default provided
that the inclusion of such provisions does not affect the validity of the other
provisions of the Loan Documents.
(H) Pennsylvania law prohibits the imposition of interest at
a rate in excess of 25% per annum unless otherwise authorized by law. We express
no opinion concerning the effect on the Loan Documents if (1) increases in the
interest rates as provided in the Loan Documents or (2) any fees, costs, charges
or expenses, in addition to the interest charged at the rates recited in the
Loan Documents cause the effective rate of interest payable under the Loan
Documents to increase to a rate in excess of 25% per annum.
<PAGE>
(I) I express no opinion concerning the laws of any
jurisdiction other than the law of the Commonwealth of Pennsylvania, the federal
law of the United States of America and, with respect to the opinions in the
first sentence of paragraph 1 hereof and the opinions in Subparagraph 3(A) and
3(X), the law of Delaware. In that connection, we note that the Loan Documents
provide that they are governed by the laws of the State of New York. I am not
expert regarding those laws and express no opinion about them. With your
permission, I have assumed, solely for purposes of this opinion, that the Loan
Documents will be governed by the laws of the Commonwealth of Pennsylvania
notwithstanding their express terms. I express no opinion concerning what law
will actually govern the Loan Documents or concerning the effectiveness of any
choice of law provision in the Loan Documents. Further, I express no opinion
concerning (1) the effects of any local law and regulation, or (2) federal or
state laws, rules or regulations governing securities, antitrust or unfair
competition, compliance with fiduciary duty, environmental liability, or any
aspect of the communications business.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks only in connection with the transactions contemplated by the
Loan Documents and may not be disclosed to, quoted from or relied upon by any
other person for any purpose, except that future holders of the Notes may rely
on this opinion and you and such future holders may make the opinion available
for inspection by regulatory authorities having jurisdiction over your affairs.
This opinion is rendered as of the date hereof, is based upon and relies upon
the current status of law and in all respects is subject to and may be limited
by future legislation, as well as future case law. I assume no responsibility to
advise you as to any matters after the date hereof.
Very truly yours,
Arthur R. Block
Senior Deputy General Counsel
<PAGE>
Schedule 2.01(e)
FORM OF OPINION OF SPECIAL
FCC COUNSEL FOR THE BORROWER
[Letterhead of Dow, Lohnes & Albertson, PLLC]
To: The Administrative Agent and Each Bank Listed on
the Signature Pages to the Credit Agreement Described Below
Re: Credit Agreement dated as of ___________, 1997, among
Comcast Cellular Communications Inc.. as Borrower, The
Chase Manhattan Bank, PNC Bank. National Association and
The Toronto-Dominion Bank as Arranging Agents. Toronto
Dominion (Texas). Inc. as Administrative Agent and the
Banks listed on the signature pages thereof
We are acting as special communications counsel to Comcast Cellular
Communications, Inc. (the "Borrower: in connection with the negotiation.
execution and delivery of that certain Credit Agreement("Credit Agreement")
dated as of _____________, 1997. by and among Comcast Cellular Communications.
Inc.. as Borrower (the "Borrower"): The Chase Manhattan Bank. PNC Bank, National
Association and The Toronto-Dominion Bank as Arranging Agents; Toronto Dominion
(Texas). Inc., as Administrative Agent; and the Banks listed on the signature
pages thereof. Our representation of the Company in connection with the Credit
Agreement is limited to specific matters before the Federal Communications
Commission (the "FCC") concerning those licenses issued by the FCC that are
listed on Annex I hereto (the "FCC Licenses"). We are delivering this opinion at
the request of the Company pursuant to Section 2.01 (e) of the Credit Agreement.
Unless otherwise defined herein, terms which are defined in the Credit Agreement
shall have the same meaning in this opinion.
To provide the opinions rendered herein in our capacity as special
communications counsel, we have reviewed the Credit Agreement and those
documents listed in Annex 2 hereto in the form described in Annex 2 (including
the Credit Agreement. the "Reviewed Documents"). We assume that each of the
Reviewed Documents. as executed in final form, will conform in all respects
material to our opinions rendered herein with the drafts of these documents that
we have reviewed. Our opinion is limited solely to matters arising under the
Communications Act of 1934, as amended (the "Communications Act"), and the
rules. regulations, and published and publicly available policy statements of
the FCC ("FCC Rules"). We have not reviewed any other agreement, contract or
other similar document in connection with the opinions expressed herein.
As to questions of fact in connection with our opinions, we have relied
solely upon (a) the representations and warranties set forth in the Credit
Agreement and the other Reviewed Documents, (b) certificates provided to us or
statements made to us by officers or representatives
<PAGE>
of the Borrower or any of the Subsidiaries of the Borrower, and (c) our review
as of October 10, 1997, of the FCCs publicly available facilities records in
Washington, D.C., for the FCC Licenses listed in Annex 1 and an inquiry to the
FCC's Compliance and Information Bureau with respect to the licensees for the
FCC Licenses listed in Annex 1, which records and information we assume to have
been accurate and complete at the time of our examination and to be unchanged
between the date of our examination and the date of this opinion. We have not
made inquiry as to any complaints pending before the Enforcement Division of the
Wireless Telecommunications Bureau, given that the substance of any such
complaints would, by policy, not be made available until the completion of
processing by the Enforcement Division. It is possible that there may be matters
pending before the FCC relating to the FCC Licenses that have not been
incorporated into the publicly available files of the FCC reviewed by us and are
therefore beyond the scope of this opinion. We render no opinion as to whether
any application pending before the FCC will be granted.
In rendering the opinions herein expressed. we have assumed: (i) the
genuineness of all signatures on documents submitted to us; (ii) the legal
capacity of natural persons; (iii) the conformity with original documents of all
documents submitted to us as certified. conformed or photostatic copies or
facsimiles; (iv) the authority of the person or persons who executed any such
documents on behalf of any person or entity; (v) that such person or entity has
all the requisite power and authority and has fulfilled all necessary procedures
to take and adopt the actions. or enter into the agreements. set forth in such
documents executed by him or it or on his or its behalf and to effect the
actions contemplated thereby; and (vii) that such agreements constitute the
legal. valid and binding obligations of such parties. We have not conducted an
independent field investigation of the Borrower or any of its Subsidiaries. nor
have we examined their actual day-to-day operations. We have not examined the
docket or records of any court or federal administrative agency, other than the
FCC. Whenever any statement in this opinion is indicated to be based on our
knowledge, it is intended to signify that, during the course of our
representation of the Borrower in connection herewith, no information has come
to the attention of the attorneys in our firm involved in the preparation of
this opinion that gives those attorneys current actual knowledge of the
inaccuracy of such statement. Our engagement by the Borrower has been limited to
matters as to which we have been consulted, we do not routinely represent the
Borrower on federal licensing matters, and the Company may employ other counsel
from time to time, including its own internal counsel. Accordingly, no inference
as to our knowledge of the existence or absence of facts should be drawn from
our serving as special counsel to the Borrower.
Based upon the foregoing, and subject to the assumptions. limitations
and exceptions contained herein. it is our opinion that:
<PAGE>
1. The execution and delivery by the Borrower of the Credit Agreement
and the other Reviewed Documents to which it is a party and the performance by
the Borrower of its obligations under the Credit Agreement and the other
Reviewed Documents do not require the prior consent or approval of the FCC and
do not violate the Communications Act or the FCC Rules, except that any exercise
of control over, or transfer of control of any license, permit or other
authorization issued bv the FCC in connection with the exercise by or on behalf
of the Lenders under the Credit Agreement or the other Reviewed Documents upon
the occurrence of an event of default may require the prior consent of the FCC
of any proposed assignment or transfer of control of such licenses, permits or
other authorizations, and we render no opinion as to whether any such consent
would be granted.
2. Based upon our above-described review of the publicly available
records of the FCC, each of the FCC Licenses is held by the entity designated on
Annex I hereto, has the expiration date set forth on Annex 1, and, except as may
be set forth in Annex 1, is in effect in accordance with its terms.
3. To our knowledge, based solely upon inquiry to the Borrower and upon
our above-described review of certain publicly available files and records of
the FCC, there is no proceeding pending before the FCC against the Borrower or
the Subsidiaries listed on Annex 1 hereof with regard to the FCC Licenses, which
reasonably could be expected to result in the revocation, rescission or
non-renewal of any of the FCC Licenses. In rendering this opinion, we have not
considered rule making proceedings for the formulation of policies that affect
the cellular industry. The PCS industry and/or the microwave common carrier
industry generally.
The opinions and statements set forth herein are as of the date hereof,
and we assume no obligation to advise you of changes which may hereafter be
brought to our attention. This letter is solely for your benefit as lenders
under the above-referenced Credit Agreement and it may not be relied upon by you
for any other purpose, nor may it be released to or relied upon by any other
person without the express written consent of this firm.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By:
<PAGE>
ANNEX 1
<PAGE>
Cellular System Licenses
Call Sign Licensee Expiration Date
KNKA382 AWACS, Inc. 02/09/06
KNKA353 Wilmington Cellular Telephone 02/09/06
Company
KNKA311 Long Branch Cellular Telephone 12/17/06
Company
KNKA319 New Brunswick Cellular Telephone 12/17/06
Company
KNKA513 CellSouth of New Jersey, Inc. 10/01/97
KNKA625 Joliet Cellular Telephone 10/01/98
Company, Inc.
KNKA760 Aurora Elgin Cellular Telephone 10/01/98
Company, Inc.
KNKN836 Ocean County Cellular Telephone 10/01/00
Company
KNKA652 Vineland Cellular Telephone 10/01/98
Company, Inc.
KNKA791 Amcell of Atlantic City, Inc. 10/01/98
KNKN720 C-SW Cellular Partnership 10/01/00
_____________
*/ The Borrower has confirmed to us that a renewal application was filed for
this license on September 16, 1997. As of October 10, 1997, the FCC's records
did not yet reflect that the renewal application had been filed. The FCC
released a public notice on October 16, 1997, indicating that this renewal
application had been accepted for filing by the FCC.
<PAGE>
Point-to-Point Common Carrier Microwave Licenses
1) American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WLN998 Millstone, NJ 02/01/01
WLN999 Freehold, NJ 02/01/01
WLU865 Perth Amboy, NJ 02/01/01
WLS552 Edison, NJ 02/01/01
WLS556 Old Bridge, NJ 02/01/01
WMJ742 Hazlet, NJ 02/01/01
WMN881 Gibson Point, PA 02/01/01
WMN882 Spectrum, PA 02/01/01
WPJF575 Philadelphia, PA 02/01/01
WPJF574 Hahneman Univ., PA 02/01/01
<PAGE>
2) Wilmington Cellular Telephone Company
Call Sign Location Expiration Date
WLK631 Theodore, MD 02/01/01
WLK632 Iron Hill, DE 02/01/01
WLK638 South Gate, DE 02/01/01
WLK640 Mannington, NJ 02/01/01
WHF558 Pine Tree, DE 02/01/01
WHF560 Dover, DE 02/01/01
WMR677 Woodstown, NJ 02/01/01
WPJF792 Elmer, NJ 02/01/01
WPJF793 Elwood, NJ 02/01/01
3) Ocean County Cellular Telephone Company
Call Sign Location Expiration Date
WLS721 Toms River, NJ 02/01/01
<PAGE>
38 GHz Licenses
1. American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WMW543 Allentown, PA 02/01/01
WMW544 Long Branch, NJ 02/01/01
WMW545 West Chester, PA 02/01/01
WMW546 Philadelphia, PA 02/01/01
WPJC701 Wilmington, DE 02/01/01
WPNA363 New Brunswick, NJ 02/01/01
<PAGE>
ANNEX 2
1. Credit Agreement dated as of October 14, 1997 among Comcast Cellular
Communications, Inc., Toronto Dominion (Texas), Inc. as Arranging Agent, et
al. (Draft dated October 13, 1997).
2. Form of Promissory Note (included in Exhibit A to the above-referenced
draft Credit Agreement).
<PAGE>
Schedule 2.01(f)
FORM OF OPINION OF SPECIAL
COUNSEL FOR THE ARRANGING AGENTS
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_______ __, 1997
To the Administrative Agent and each Bank party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank PNC Bank, National Association and The
Toronto-Dominion Bank, as Arranging Agents, in connection with the negotiation,
execution and delivery of the Credit Agreement, dated as of October 14, 1997,
among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the signature
pages thereof, The Bank of New York, Barclays Bank PLC, The Chase Manhattan
Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as Arranging
Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent (the "Credit
Agreement"). Terms defined in the Credit Agreement that are not otherwise
defined herein are used herein with the meanings therein ascribed to them.
For the purposes of rendering the opinions contained in this
letter, we have examined executed counterparts of the Credit Agreement, the
Notes delivered on the date hereof and the Affiliate Subordination Agreement
(collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i) the
authenticity of all such documents submitted to us as originals, (ii) the due
authorization, execution and delivery by the Administrative Agent and the Banks
of the Loan Documents to which they are parties, (iii) that each of the Loan
Parties has the corporate power, and has taken all necessary corporate action to
authorize it, to execute, deliver and perform each of the Loan Documents to
which it is a party, (iv) that the Loan Documents have been duly executed and
delivered by each of the Loan Parties and (v) that the execution, delivery and
performance in accordance with their respective terms by each of the Loan
Parties of the Loan Documents to which it is a party do not and will not (A)
require any Governmental Approval or any other consent or approval, other than
Governmental Approvals and other consents or approvals that have been obtained,
are final and not subject to review or collateral attack and are in full force
and effect, or (B) violate or conflict with, result in a breach of, or
constitute a default under (1) any Contract to
<PAGE>
which any of the Loan Parties is a party or by which it or its properties may be
bound or (2) any Applicable Law referred to in clause (ii)(B) or (C) of the
definition thereof contained in the Credit Agreement.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that the Loan Documents are
legal, valid and binding obligations of the Loan Parties party thereto,
enforceable against such Loan Parties in accordance with their respective terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting the
enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at law).
Such principles applied by a court might include a requirement that a creditor
act with reasonableness and good faith. Furthermore, a court may refuse to
enforce a covenant where a court deems such covenant to be violative of
applicable public policy.
(b) Our opinions are limited to the law of the State of New York
and the Federal law of the United States. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Bank may be located or wherein
enforcement of the Loan Documents may be sought that limits the rates of
interest legally chargeable or collectable.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks and no other Person shall be entitled to rely hereon for any
purpose.
Very truly yours,
<PAGE>
Schedule 3.02: Capital Securities
<TABLE>
<CAPTION>
Jurisdication of
Name Organization Ownership
<S> <C> <C>
Comcast Cellular Communications, Inc. Delaware Comcast Cellular Corp. - 100% Common
Subsidiaries
Unless otherwise indicated, a) all entitites listed below
are Subsidiaries of the Borrower and b) 100% of their common
stock or partnership interests, as applicable, is owned by
the entity or entities listed under the heading "Ownership".
Jurisdication of
Name Organization Ownership
American Cellular Network Corp. (AMCELL) New Jersey Borrower
AWACS, Inc. (AWACS) Pennsylvania Borrower
Comcast Directory Services, Inc. Delaware Borrower
Comcast Publishing Holdings Corporation (1) Pennsylvania Borrower
Comcast Central NJ Holding Company, Inc. Delaware AMCELL
American Cellular Network Corp. of Delaware Delaware AMCELL
Amcell of Atlantic City, Inc. New Jersey AMCELL
Amcell of Ocean County, Inc. Delaware AMCELL
Amcell of Trenton, Inc. New Jersey AMCELL
Amcell of Vineland Holdings, Inc. Delaware AMCELL
American Cellular Network Corp. of
Pennsylvania (1) Pennsylvania AMCELL
Comcast Cellular Communications Inc. Pennsylvania AMCELL
Amcell of Pennsylvania Holdings, Inc. Delaware AMCELL
Amcell of Hunterdon, Inc. (1) New Jersey AMCELL
Cell South of New Jersey, Inc. New Jersey Amcell of Trenton, Inc. - approx. 85.31%
Other - 14.69%
Aurora/Elgin Cellular Telephone Company, Inc. Illinois AMCELL - approx. 81.43%
Other - 18.57%
Joliet Cellular Telephone Company, Inc. Illinois AMCELL - approx. 83.44%
Other - 16.56%
Vineland Cellular Telephone Company, Inc. Delaware Amcell of Vineland Holdings, Inc. - 94.57%
Other - 5.43%
Long Branch Cellular Telephone Company Delaware AMCELL - 91.67%
Comcast Central NJ Holding Company, Inc-8.33%
New Brunswick Cellular Telephone Company Delaware AMCELL - 63.15%
Comcast Central NJ Holding Company, Inc-36.85%
Comcast Directory Assistance Partnership Delaware Comcast Directory Services, Inc. 51%
Hebenstreit Communications of Phil-Wilm LP-49%
Ocean County Cellular Telephone Company Washington Amcell of Ocean County, Inc. - 75%
Comcast Central NJ Holding Company - 25%
Wilmington Cellular Telephone Company Delaware AMCELL - 41.176%
American Cellular Network Corp of
Delaware-58.824%
AWACS Financial Corporation Delaware AWACS
AWACS Purchasing Corporation Delaware AWACS
AWACS Investment Holdings, Inc. Delaware AWACS
AWACS Retail Stores, Inc. Delaware AWACS
Comcast Publishing Holdings Financial
Corporation (1) Delaware Comcast Publishing Holdings Corporation
AWACS Garden State, Inc. Delaware AWACS Investment Holdings, Inc.
Garden State Cablevision, L.P. Delaware Comcast Garden State - 10.005%
AWACS Garden State, Inc. - 39.995%
Lenfest Jersey, Inc. - 50.00%
Other Interests
C-SW Cellular Partnership Delaware AMCELL - 50%
SW Bell Mobile Systems, Inc. 50%
<FN>
(1) - Currently inactive. Scheduled to be dissolved.
</FN>
</TABLE>
<PAGE>
Schedule 3.03 List of Governmental Approvals and approvals or consents of other
Persons
None.
<PAGE>
Schedule 3.04: Litigation
None.
<PAGE>
SCHEDULE 3.09
Wireless Licenses and Related Matters
Cellular System Licenses
Call Sign Licensee Expiration Date
KNKA382 AWACS, Inc. 02/09/06
KNKA353 Wilmington Cellular Telephone 02/09/06
Company
KNKA311 Long Branch Cellular Telephone 12/17/06
Company
KNKA319 New Brunswick Cellular Telephone 12/17/06
Company
KNKA513 CellSouth of New Jersey, Inc. 10/01/97*
KNKA625 Joliet Cellular Telephone 10/01/98
Company, Inc.
KNKA760 Aurora/Elgin Cellular Telephone 10/01/98
Company, Inc.
KNKN836 Ocean County Cellular Telephone 10/01/00
Company
KNKA652 Vineland Cellular Telephone 10/01/98
Company, Inc.
KNKA791 Amcell of Atlantic City, Inc. 10/01/98
KNKN720 C-SW Cellular Partnership 10/01/00
_____________
*. A renewal application was filed for this license on September 16, 1997.
<PAGE>
Point-to-Point Common Carrier Microwave Licenses
1) American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WLN998 Millstone, NJ 02/01/01
WLN999 Freehold, NJ 02/01/01
WLU865 Perth Amboy, NJ 02/01/01
WLS552 Edison, NJ 02/01/01
WLS556 Old Bridge, NJ 02/01/01
WMJ742 Hazlet, NJ 02/01/01
WMN881 Gibson Point, PA 02/01/01
WMN882 Spectrum, PA 02/01/01
WPJF575 Philadelphia, PA 02/01/01
WPJF574 Hahneman Univ., PA 02/01/01
2) Wilmington Cellular Telephone Company
Call Sign Location Expiration Date
WLK631 Theodore, MD 02/01/01
WLK632 Iron Hill, DE 02/01/01
WLK638 South Gate, DE 02/01/01
WLK640 Mannington, NJ 02/01/01
WHF558 Pine Tree, DE 02/01/01
WHF560 Dover, DE 02/01/01
WMR677 Woodstown, NJ 02/01/01
WPJF792 Elmer, NJ 02/01/01
WPJF793 Elwood, NJ 02/01/01
3) Ocean County Cellular Telephone Company
Call Sign Location Expiration Date
WLS721 Toms River, NJ 02/01/01
<PAGE>
38 GHz Licenses
1. American Cellular Network Corp. d/b/a Comcast Cellular
Call Sign Location Expiration Date
WMW543 Allentown, PA 02/01/01
WMW544 Long Branch, NJ 02/01/01
WMW545 West Chester, PA 02/01/01
WMW546 Philadelphia, PA 02/01/01
WPJC701 Wilmington, DE 02/01/01
WPNA363 New Brunswick, NJ 02/01/01
<PAGE>
Schedule 3.13: Benefit Plans
None.
<PAGE>
Schedule 4.04: Existing Guaranties
None.
<PAGE>
Schedule 4.05: Existing Liens
Those liens respecting Predecessor Indebtedness being paid off at Closing, and:
In connection with the due diligence performed by the Borrower, the following
encumbrance was found.
A lien filed in the office of the Secretary of the Commonwealth of Pennsylvania
against AWACS, Inc. granting Neopost Leasing a lien of mailing, shipping,
computing and other equipment under lease from Neopost Leasing.
<PAGE>
Schedule 4.12
Permitted Restrictive Covenants
Restrictions on the granting of Liens set forth in Section 4.17 of the Indenture
dated as of May 8, 1997 (the "Indenture") between Comcast Cellular Holdings,
Inc., as issuer, and The Bank of New York, as trustee, provided, however that,
such restriction does not prohibit the Borrower or its Restricted Subsidiaries
from granting Liens securing Indebtedness under this Agreement, the Additional
Facility Credit Agreement, or any deferrals, renewals, extensions, replacements,
refinancings or refundings thereof, or amendments, modifications or supplements
thereto.
<PAGE>
Schedule 4.14: Existing Investments
1) Comcast Cellular Communications, Inc. ("CCCI") is party to an interest rate
swap with The Bank of Montreal effective through November 23, 1998 whereby CCCI
pays a fixed rate of 5.65% vs. 3 Month LIBOR on a notional amount of
$50,000,000.
2) Comcast Cellular Communications, Inc. ("CCCI") is party to an interest rate
collar with Barclays Bank effective through November 3, 1997 whereby 3 Month
LIBOR for CCCI is capped at 5.2% with a floor of 5.00% on a notional amount of
$50,000,000.
3) Amcell owns a 3.40% interest in the non-wireline license for Bloomington,
Indiana RSA.
4) Amcell owns a 10.07% interest in the non-wireline license for the Kanakee,
Illinois RSA.
5) Amcell owns a 50% interest in the C-SW Partnership, which owns the
non-wireline license for the Delaware 1 RSA.
Note: The information presented in items 3&$ is subject to minor variances
<PAGE>
Schedule 5.01(a)
FORM OF CERTIFICATE AS TO QUARTERLY FINANCIAL STATEMENTS
COMCAST CELLULAR COMMUNICATIONS, INC.
I, _______________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(a) of the Credit Agreement, dated as of October 14,
1997, among the Borrower, the banks listed on the signature pages thereof, The
Bank of New York, Barclays Bank PLC, The Chase Manhattan Bank, PNC Bank,
National Association and The Toronto- Dominion Bank, as Arranging Agents, and
Toronto Dominion (Texas), Inc., as Administrative Agent (the "Credit
Agreement"), that (terms defined in the Credit Agreement that are not otherwise
defined herein are used herein with the meanings therein ascribed to them):
1. (a) The accompanying unaudited consolidated financial statements of
the Borrower and the Restricted Subsidiaries as at ______________ and for the
quarterly accounting period ending _______________, 19__, present fairly, in
accordance with Generally Accepted Accounting Principles (except for changes
therein or departures therefrom described below that have been explained in the
financial statements, and except for the exclusion of the Unrestricted
Subsidiaries), the consolidated financial position of the Borrower and the
Restricted Subsidiaries as at the end of such quarterly period, and the
consolidated results of operations and cash flows for such quarterly period, and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, in each case on the basis presented and subject only to normal
year-end auditing adjustments.
(b) Except as disclosed or reflected in such financial statements, as
at __________, neither the Borrower nor any Restricted Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, have had or, insofar as can reasonably be foreseen
by the Borrower, might have a Materially Adverse Effect on the Borrower and the
Restricted Subsidiaries taken as a whole.
2. The changes in and departures from Generally Accepted Accounting
Principles, and the amount of any charges to or other reserves against revenues
of the Borrower and the Restricted Subsidiaries taken during such quarterly
period, are as follows:
3. The calculations required to establish whether or not the
Borrower was in compliance with the following Sections of the Credit Agreement
are as follows:
(a) Section 4.15.
(b) Section 4.16.
<PAGE>
4. Based on an examination sufficient in my judgment to enable me
to make an informed statement, no Default exists, including, in particular, any
such arising under the provisions of Article 4 of the Credit Agreement, except
the following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Borrower or a Subsidiary with respect thereto.]
Dated:
[Responsible Officer]
-2-
<PAGE>
Schedule 5.01(b)
FORM OF CERTIFICATE AS TO YEAR-END FINANCIAL STATEMENTS
COMCAST CELLULAR COMMUNICATIONS, INC.
I, _____________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(b) of the Credit Agreement, dated as of October 14,
1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them.
1. (a) The accompanying consolidated financial statements of the
Borrower and the Restricted Subsidiaries as at _____________ and for the fiscal
year ending _____________, 19__, present fairly, in accordance with Generally
Accepted Accounting Principles (except for changes therein or departures
therefrom described below, that have been explained in the financial statements,
and except for the exclusion of the Unrestricted Subsidiaries), the consolidated
financial position of the Borrower and the Restricted Subsidiaries as at the end
of such fiscal [year] [period], and the consolidated results of operations and
cash flows for such fiscal [year] [period], in each case on the basis presented.
(b) Except as disclosed or reflected in such financial statements, as
at _____________, neither the Borrower nor any Restricted Subsidiary had any
Liability, contingent or otherwise, or any unrealized or anticipated loss, that,
singly or in the aggregate, have had or, insofar as can reasonably be foreseen
by the Borrower, might have a Materially Adverse Effect on the Borrower and the
Restricted Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles, and the amount of any charges to or other reserves
against revenues of the Borrower and the Restricted Subsidiaries taken during
such fiscal [year] [period], are as follows:
3. The calculations required to establish whether or not the
Borrower was in compliance with the following Sections of the Credit Agreement
are as follows:
(a) Section 4.15.
(b) Section 4.16.
<PAGE>
4. Based on an examination sufficient to enable me to make an
informed statement, no Default exists, including, in particular, any such
arising under the provisions of Article 4 of the Credit Agreement, except the
following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Borrower or a Subsidiary with respect thereto.]
Dated:
[Responsible Officer]
-2-
<PAGE>
Schedule 5.01(f)
FORM OF CERTIFICATE AS TO CELLULAR SYSTEM INFORMATION
COMCAST CELLULAR COMMUNICATIONS, INC.
Fiscal quarter ended: __________, 19__
I, _______________, [Responsible Officer] of COMCAST CELLULAR
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), hereby certify,
pursuant to Section 5.01(f) of the Credit Agreement, dated as of October 14,
1997, among Comcast Cellular Communications, Inc., the banks listed on the
signature pages thereof, 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 (the "Credit Agreement"), that as at the end of the fiscal quarter
referred to above:
To the best of my knowledge, the information included in the report
attached hereto as Schedule I accurately reflects the books and records of the
Borrower and the Restricted Subsidiaries (as defined in the Credit Agreement).
-----------------------
Responsible Officer
Dated: ____________, 19__
<PAGE>
SCHEDULE I
COMCAST CELLULAR COMMUNICATIONS, INC.
FORM OF CERTIFICATE AS TO WIRELESS SYSTEM INFORMATION
FOR THE FISCAL QUARTER ENDED ___________, 19__
<TABLE>
<CAPTION>
Subscribers Aggregate Percentage
at End of the Ownership at End of the Pops at End of the
Wireless System Fiscal Quarter Fiscal Quarter 1 Fiscal Quarter *
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
1 To be completed only in the case of a certificate delivered with
respect to financial statements covering the fourth fiscal quarter of
any fiscal year of the Borrower.
<PAGE>
Schedule 5.02(a)
HISTORICAL FINANCIAL STATEMENTS
For Comcast Cellular Communications, Inc.
1) Consolidated Financial Statements for the Years Ended December 31, 1996 and
1995 and Independent Auditors' Report
2) Consolidated Financial Statements for the Quarter Ended June 30, 1997
unaudited
3) Pro Forma Consolidated Balance Sheet as of June 30, 1997
<PAGE>
Schedule 9.10(a)
FORM OF NOTICE OF ASSIGNMENT
[Name and address
of Borrower in accordance with
Section 9.01(b)(i)]
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October
14, 1997, among COMCAST CELLULAR COMMUNICATIONS, INC., the banks listed on the
signature pages thereof, The Bank of New York, Barclays Bank PLC, The Chase
Manhattan Bank, PNC Bank, National Association and The Toronto-Dominion Bank, as
Arranging Agents, and Toronto Dominion (Texas), Inc., as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby give notice pursuant to Section 9.10(a) of the
Credit Agreement that [name of Assignor] [(the "Assignor")] has made the
following assignment to [name of Assignee] [(the "Assignee")]:
Amount of rights and obligations assigned:
Effective date of
assignment:
[The Assignee's Lending Offices and address for notices are as
follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice address:]1
<PAGE>
The Assignor hereby requests that the Borrower and the
Administrative Agent consent to the assignment described above by signing a copy
of this letter in the space provided below and returning it to the Assignor.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Assignment consented to:
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent
By:
Name:
Title:
1. Omit if the Assignee is a Bank prior to such assignment.
-2-
<PAGE>
Schedule 10.01
PREDECESSOR INDEBTEDNESS
1) Debt arising from the credit agreement dated September 14, 1995 between
Comcast Cellular Communications, Inc. and The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank, N.A., PNC Bank, National Association and The
Toronto Dominion Bank (collectively, the Arranging Agents).
It is anticipated that this debt will be $140,294,738.89, including Accrued
interest, at Closing.
<PAGE>
EXHIBIT A
FORM OF PROMISSORY NOTE
COMCAST CELLULAR COMMUNICATIONS, INC.
_________ , 1997
FOR VALUE RECEIVED, COMCAST CELLULAR COMMUNICATIONS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
____________________ (the "Bank") the principal amount of the Loans of the Bank
outstanding on the date specified in Section 1.04 of the Credit Agreement
referred to below, and to pay interest on such principal amount on the dates and
at the rates specified in Section 1.03 of such Credit Agreement. All payments
due the Bank hereunder shall be made to the Bank at the place, in the type of
money and funds and in the manner specified in Section 1.10 of such Credit
Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Loan of the Bank and each payment,
prepayment or conversion with respect thereto.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the benefits
of, the Credit Agreement, dated as of October 14, 1997, among the Borrower, the
Banks listed on the signature pages thereof, The Bank of New York, Barclays Bank
PLC, The Chase Manhattan Bank, PNC Bank, National Association and The
Toronto-Dominion Bank, as Arranging Agents, and Toronto Dominion (Texas) Inc.,
as Administrative Agent, as the same may be amended from time to time. Reference
is made to such Credit Agreement, as so amended, for provisions relating to the
prepayment and the acceleration of the maturity of, and for the respective
meanings assigned to the capitalized terms used and not otherwise defined in,
this Note.
<PAGE>
This Note 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).
COMCAST CELLULAR COMMUNICATIONS, INC.
By:
Name:
Title:
[This is a Registered Note, and this Registered Note and the Loans
evidenced hereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer on the Register, together
with compliance with all other requirements provided for in the Credit
Agreement.] [INSERT THE FOREGOING IN ALL REGISTERED NOTES]
<PAGE>
GRID
NOTE
- --------------------------------------------------------------------------------
Amount of
Principal Paid, Unpaid
Amount of Prepaid or Principal Amount Notation
Date Loan Converted of Note Made By
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
- --------------------------------------------------------------------------------
Exhibit 12.1
COMCAST CELLULAR CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Earnings (loss) before fixed charges (1):
Loss before extraordinary items and
cumulative effects of accounting changes ($ 39,937) ($ 69,584) ($109,779)
Income tax benefit........................ (22,867) (38,067) (62,944)
Equity in net losses of affiliates ....... 6,603 6,559 9,600
Distributions from Garden State
Cablevision ............................ 35,479
Fixed charges (Interest expense) ......... 117,756 116,297 97,694
--------- --------- ---------
$ 61,555 $ 50,684 ($ 65,429)
========= ========= =========
Ratio of earnings to fixed charges (2) ... -- -- --
<FN>
_______________________
(1) For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of distributions from Garden State Cablevision and income
(loss) before extraordinary items and cumulative effect of accounting
changes, income tax expense (benefit), equity in net losses of affiliates
and fixed charges. Fixed charges consist of interest expense.
(2) For the years ended December 31, 1997, 1996 and 1995, earnings, as defined
above, were inadequate to cover fixed charges by $56.2 million, $65.6
million and $163.1 million, respectively.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated statement of operations and consolidated balance sheet and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0001041854
<NAME> COMCAST CELLULAR CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 4,692
<SECURITIES> 0
<RECEIVABLES> 65,608
<ALLOWANCES> (6,356)
<INVENTORY> 14,154
<CURRENT-ASSETS> 81,245
<PP&E> 595,861
<DEPRECIATION> (182,632)
<TOTAL-ASSETS> 1,477,455
<CURRENT-LIABILITIES> 165,093
<BONDS> 1,224,511
173,602
0
<COMMON> 0
<OTHER-SE> (418,587)
<TOTAL-LIABILITY-AND-EQUITY> 1,477,455
<SALES> 444,946
<TOTAL-REVENUES> 444,946
<CGS> 0
<TOTAL-COSTS> (384,728)
<OTHER-EXPENSES> (1,359)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (117,756)
<INCOME-PRETAX> (62,804)
<INCOME-TAX> 22,867
<INCOME-CONTINUING> (39,937)
<DISCONTINUED> 0
<EXTRAORDINARY> (10,671)
<CHANGES> 0
<NET-INCOME> (50,608)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
