EXHIBIT 10.5
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MEDIACOM SOUTHEAST LLC
MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM ARIZONA LLC
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CREDIT AGREEMENT
Dated as of September 30, 1999
______________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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Section 1. Definitions and Accounting Matters...................................................................... 1
1.01 Certain Defined Terms.................................................................................... 1
1.02 Accounting Terms and Determinations...................................................................... 29
1.03 Classes and Types of Loans............................................................................... 30
1.04 Subsidiaries............................................................................................. 30
1.05 Nature of Obligations of Borrowers....................................................................... 30
Section 2. Commitments, Loans and Prepayments...................................................................... 30
2.01 Loans.................................................................................................... 30
2.02 Borrowings............................................................................................... 32
2.03 Letters of Credit........................................................................................ 32
2.04 Changes of Commitments................................................................................... 37
2.05 Commitment Fee........................................................................................... 39
2.06 Lending Offices.......................................................................................... 40
2.07 Several Obligations; Remedies Independent................................................................ 40
2.08 Loan Accounts; Promissory Notes.......................................................................... 40
2.09 Optional Prepayments and Conversions or Continuations of Loans........................................... 41
2.10 Mandatory Prepayments and Reductions of Commitments...................................................... 42
Section 3. Payments of Principal and Interest...................................................................... 45
3.01 Repayment of Loans....................................................................................... 45
3.02 Interest................................................................................................. 47
3.03 Determination of Applicable Margin....................................................................... 48
Section 4. Payments; Pro Rata Treatment; Computations; Etc......................................................... 49
4.01 Payments................................................................................................. 49
4.02 Pro Rata Treatment....................................................................................... 50
4.03 Computations............................................................................................. 50
4.04 Minimum Amounts.......................................................................................... 51
4.05 Certain Notices.......................................................................................... 51
4.06 Non-Receipt of Funds by the Administrative Agent......................................................... 52
4.07 Sharing of Payments, Etc................................................................................. 53
(i)
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Section 5. Yield Protection, Etc................................................................................... 55
5.01 Additional Costs......................................................................................... 55
5.02 Limitation on Types of Loans............................................................................. 57
5.03 Illegality............................................................................................... 57
5.04 Treatment of Affected Loans.............................................................................. 57
5.05 Compensation............................................................................................. 58
5.06 Additional Costs in Respect of Letters of Credit......................................................... 59
5.07 U.S. Taxes............................................................................................... 59
5.08 Replacement of Lenders................................................................................... 61
Section 6. Conditions Precedent.................................................................................... 61
6.01 Initial Extension of Credit.............................................................................. 61
6.02 Initial and Subsequent Extensions of Credit.............................................................. 64
Section 7. Representations and Warranties.......................................................................... 64
7.01 Existence................................................................................................ 64
7.02 Financial Condition...................................................................................... 65
7.03 Litigation............................................................................................... 65
7.04 No Breach................................................................................................ 65
7.05 Action................................................................................................... 66
7.06 Approvals................................................................................................ 66
7.07 ERISA.................................................................................................... 66
7.08 Taxes.................................................................................................... 66
7.09 Investment Company Act................................................................................... 67
7.10 Public Utility Holding Company Act....................................................................... 67
7.11 Material Agreements and Liens............................................................................ 67
7.12 Environmental Matters.................................................................................... 68
7.13 Capitalization........................................................................................... 68
7.14 Subsidiaries, Etc........................................................................................ 69
7.15 True and Complete Disclosure............................................................................. 69
7.16 Franchises............................................................................................... 69
7.17 The CATV Systems......................................................................................... 70
7.18 Rate Regulation.......................................................................................... 71
7.19 Year 2000 Issues.......................................................................................... 72
7.20 Use of Credit............................................................................................ 72
Section 8. Covenants of the Borrowers.............................................................................. 73
8.01 Financial Statements Etc................................................................................. 73
8.02 Litigation............................................................................................... 75
8.03 Existence, Etc........................................................................................... 76
8.04 Insurance................................................................................................ 77
(ii)
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8.05 Prohibition of Fundamental Changes....................................................................... 77
8.06 Limitation on Liens...................................................................................... 82
8.07 Indebtedness............................................................................................. 83
8.08 Investments.............................................................................................. 84
8.09 Restricted Payments...................................................................................... 84
8.10 Certain Financial Covenants.............................................................................. 87
8.11 Management Fees.......................................................................................... 88
8.12 Capital Expenditures..................................................................................... 89
8.13 Interest Rate Protection Agreements...................................................................... 91
8.14 Affiliate and Additional Subordinated Indebtedness....................................................... 91
8.15 Lines of Business........................................................................................ 92
8.16 Transactions with Affiliates............................................................................. 92
8.17 Use of Proceeds.......................................................................................... 93
8.18 Certain Obligations Respecting Subsidiaries; Further Assurances.......................................... 93
8.19 Modifications of Certain Documents....................................................................... 95
Section 9. Events of Default....................................................................................... 95
9.01 Events of Default........................................................................................ 95
9.02 Certain Cure Rights...................................................................................... 100
Section 10. The Administrative Agent............................................................................... 102
10.01 Appointment, Powers and Immunities...................................................................... 102
10.02 Reliance by Administrative Agent........................................................................ 102
10.03 Defaults................................................................................................ 103
10.04 Rights as a Lender...................................................................................... 103
10.05 Indemnification......................................................................................... 104
10.06 Non-Reliance on Administrative Agent and Other Lenders.................................................. 104
10.07 Failure to Act.......................................................................................... 104
10.08 Resignation or Removal of Administrative Agent.......................................................... 105
10.09 Consents under Other Loan Documents..................................................................... 105
Section 11. Miscellaneous.......................................................................................... 106
11.01 Waiver.................................................................................................. 106
11.02 Notices................................................................................................. 106
11.03 Expenses, Etc........................................................................................... 106
11.04 Amendments, Etc......................................................................................... 107
11.05 Successors and Assigns.................................................................................. 109
11.06 Assignments and Participations.......................................................................... 109
11.07 Survival................................................................................................ 112
11.08 Captions................................................................................................ 113
11.09 Counterparts............................................................................................ 113
11.10 Governing Law; Submission to Jurisdiction............................................................... 113
(iii)
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11.11 Waiver of Jury Trial.................................................................................... 113
11.12 Treatment of Certain Information; Confidentiality....................................................... 114
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Investments
SCHEDULE IV - Franchises
SCHEDULE V - Certain Matters Related to CATV Systems
SCHEDULE VI - Certain Adjustments to System Cash Flow
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Quarterly Officer's Report
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D - Form of Guarantee and Pledge Agreement
EXHIBIT E - Form of Subsidiary Guarantee Agreement
EXHIBIT F - Form of Management Fee Subordination Agreement
EXHIBIT G - Form of Opinion of Counsel to the Obligors
EXHIBIT H - Form of Opinion of Special New York Counsel to Chase
EXHIBIT I - Form of Confidentiality Agreement
EXHIBIT J - Form of Affiliate Subordinated Indebtedness Subordination
Agreement
(iv)
CREDIT AGREEMENT dated as of September 30, 1999, between: MEDIACOM
SOUTHEAST LLC, a limited liability company duly organized and validly existing
under the laws of the State of Delaware ("Mediacom Southeast"); MEDIACOM
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CALIFORNIA LLC, a limited liability company duly organized and validly existing
under the laws of the State of Delaware ("Mediacom California"); MEDIACOM
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DELAWARE LLC, a limited liability company duly organized and validly existing
under the laws of the State of Delaware ("Mediacom Delaware"); MEDIACOM ARIZONA
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LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware ("Mediacom Arizona" and, together with Mediacom
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Southeast, Mediacom California, Mediacom Delaware, the "Borrowers"); each of the
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lenders that is a signatory hereto identified under the caption "Lenders" on the
signature pages hereto and each lender that becomes a "Lender" after the date
hereof pursuant to Section 11.06(b) hereof (individually, a "Lender" and,
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collectively, the "Lenders"); and THE CHASE MANHATTAN BANK, a New York banking
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corporation, as administrative agent for the Lenders (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
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The Borrowers have requested that the Lenders extend credit to them
(by making loans and issuing letters of credit) in an aggregate principal or
face amount not exceeding $550,000,000 (which may, in the circumstances herein
provided, be increased to $750,000,000) at any one time outstanding to enable
the Borrowers to refinance and replace certain existing credit facilities and
for general corporate purposes. The Lenders are prepared to extend such credit
on the terms and conditions hereof and, accordingly, the parties hereto agree as
follows:
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms. As used herein, the following terms shall
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have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
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"Acquisition" shall mean any acquisition permitted under 8.05(d)(iv)
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hereof, provided that for the purposes of this Agreement the Triax Acquisition
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(other than the Apache Acquisition) shall not be an Acquisition hereunder.
"Additional Capital Expenditures" shall mean Capital Expenditures made
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in accordance with the requirements of Section 8.12(b) hereof.
"Adjusted Operating Cash Flow" shall mean, for any period during which
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the Borrowers shall have consummated an Acquisition, the sum, for the Borrowers
and their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) Operating Cash Flow minus (ii) without duplication of the
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Management Fees actually paid during such period, the additional
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Management Fees that would have been paid during such period at a rate equal to
the then applicable rate or percentage specified in the Management Agreement of
the gross operating revenue of the Borrowers and their Subsidiaries for such
period (determined, as specified above under the assumption that such
Acquisition had been consummated on the first day of such period).
"Adjusted System Cash Flow" shall mean, for any period during which
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the Borrowers shall have consummated an Acquisition, the sum, for the Borrowers
and their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) System Cash Flow for such period plus (ii) the sum of (x) non-
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recurring expenses incurred by the relevant sellers prior to the actual closing
of such Acquisition (to the extent such items were included as operating
expenses in the determination of System Cash Flow for such period) and (y) in
the case of the Apache Acquisition, the amounts set forth in Schedule VI hereto
for such period, or, in the case of any other Acquisition after the date hereof,
the amounts set forth in a statement of adjustments to System Cash Flow provided
by the Borrowers in connection with such Acquisition and acceptable to the
Administrative Agent and Majority Lenders (in each case representing certain
cost savings and programming cost increases in respect of the CATV Systems being
acquired in such Acquisition).
"Administrative Questionnaire" shall mean an Administrative
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Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean any Person that directly or indirectly
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controls, or is under common control with, or is controlled by, a Borrower and,
if such Person is an individual, any member of the immediate family (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
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"controlled by" and "under common control with") shall mean possession,
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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 that, in any event, any
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Person that owns directly or indirectly securities having 5% or more of the
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of 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, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of any Borrower or any of its
Subsidiaries and (b) none of the Borrowers or their Wholly Owned Subsidiaries
shall be Affiliates.
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"Affiliate Letters of Credit" shall mean Letters of Credit issued in
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accordance with the requirements of Section 8.08(g) hereof.
"Affiliate Subordinated Indebtedness" shall mean Indebtedness to an
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Affiliate (i) for which a Borrower is directly and primarily liable, (ii) in
respect of which none of its Subsidiaries is contingently or otherwise
obligated, (iii) that is subordinated to the obligations of the Borrowers to pay
principal of and interest on the Loans, Reimbursement Obligations, fees and
other amounts payable hereunder pursuant to an Affiliate Subordinated
Indebtedness Subordination Agreement, (iv) that does not mature prior to
September 30, 2009, and that is issued pursuant to documentation containing
terms (including interest, covenants and events of default) in form and
substance satisfactory to the Majority Lenders and (v) that states by its terms
that principal and interest in respect thereof shall only be payable to the
extent permitted under Section 8.09 hereof.
"Affiliate Subordinated Indebtedness Subordination Agreement" shall
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mean an Affiliate Subordinated Indebtedness Subordination Agreement
substantially in the form of Exhibit J hereto between any Person to whom a
Borrower or any of its Subsidiaries may be obligated to pay Affiliate
Subordinated Indebtedness, the Borrowers and the Administrative Agent, as the
same shall be modified and supplemented and in effect from time to time.
"Apache Acquisition" shall mean the acquisition by Mediacom Arizona
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of the Apache Junction, Arizona cable television system from Triax Midwest
Associates, L.P. as part of the Triax Acquisition.
"Applicable Lending Office" shall mean, for each Lender and for each
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Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or of an affiliate
of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean, with respect to (a) Term Loans that
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are Base Rate Loans, (i) when the then-current Rate Ratio (determined pursuant
to Section 3.03 hereof) is 5.00 to 1 or less, 1.50% per annum and (ii) at all
other times, 1.75% per annum, (b) Term Loans that are Eurodollar Loans, (i) when
the then-current Rate Ratio (determined pursuant to Section 3.03 hereof) is 5.00
to 1 or less, 2.50% per annum and (ii) at all other times, 2.75% per annum and
(c) Revolving Credit Loans of any Type, the respective rates indicated below for
Loans of such Type opposite the then-current Rate Ratio (determined pursuant to
Section 3.03 hereof) indicated below (except that anything in this Agreement to
the contrary notwithstanding, the Applicable Margin with respect to any Loans
shall be 1.75% with respect to Base Rate Loans
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and 2.75% with respect to Eurodollar Loans during any period when an Event of
Default shall have occurred and be continuing):
Range Applicable Margin (% p.a.)
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of
Rate Ratio Base Rate Loans Eurodollar Loans
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Greater than 5.75 to 1 1.250% 2.250%
Greater than or equal to
5.50 to 1 but less than
or equal to 5.75 to 1 1.000% 2.000%
Greater than or equal to
5.00 to 1 but less than
5.50 to 1 0.750% 1.750%
Greater than or equal to
4.50 but less than
5.00 to 1 0.500% 1.500%
Greater than or equal to
3.75 to 1 but
less than 4.50 to 1 0.250% 1.250%
Greater than or equal to
3.00 to 1 but
less than 3.75 to 1 0.250% 1.000%
Less than 3.00 to 1 0.000% 0.750%
"Applicable Permitted Transaction Amount" shall mean, as at any date
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during any fiscal quarter during any Fiscal Period, the sum of (a) the Equity
Contribution Amount and the outstanding principal amount of Affiliate
Subordinated Indebtedness, as at the beginning of such fiscal quarter plus (b)
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the total cash equity capital contributions made, and the aggregate principal
amount of Affiliate Subordinated Indebtedness advanced, to the Borrowers during
the period (the "current period") commencing on the first day of such fiscal
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quarter through and including such date minus (c) the sum of (i) the aggregate
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amount of repayments of Affiliate Subordinated Indebtedness, and distributions
in respect of equity capital, made during the current period plus (ii) the
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aggregate face amount of Affiliate Letters of Credit issued during the current
period or during the period (the "prior period") commencing on the Closing Date
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through and
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including the last day of the fiscal quarter immediately preceding such fiscal
quarter minus (iii) the aggregate amount of reductions in the undrawn face
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amount of Affiliate Letters of Credit (i.e. excluding reductions in such face
amount that occur upon a drawing thereunder) during the current period or the
prior period, together with the aggregate amount of Affiliate Letters of Credit
that expire or are terminated during the current period or the prior period
without being drawn.
"Approved Fund" means with respect to any Lender that is a fund that
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invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
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entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 11.05 hereof), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
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amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
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higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
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upon the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement and the
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other Loan Documents.
"Basic Subscribers" shall mean, as at any date, (a) Subscribers who
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subscribe to a CATV System at the regular basic monthly subscription rate for
such CATV System to a single household Subscriber (exclusive of "secondary
outlets", as such term is commonly understood in the cable television industry),
plus (b) the number of Subscribers determined by dividing the aggregate dollar
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monthly amount billed for basic service to bulk Subscribers (hotels, motels,
apartment buildings, hospitals and the like) located in each Region by the
weighted average of the regular basic monthly subscription rates for basic
service charged by the CATV Systems in such Region.
"Basle Accord" shall mean the proposals for risk-based capital
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framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper
-6-
entitled "International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, modified and supplemented and in effect
from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are
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not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by a Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, expenditures made
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by the Borrowers or any of their Subsidiaries to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements,
but excluding repairs and the Acquisitions) during such period computed in
accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all
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obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property of any
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Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"CATV System" shall mean any cable distribution system that receives
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broadcast signals by antennae, microwave transmission, satellite transmission or
any other form of transmission and that amplifies such signals and distributes
them to Persons who pay to receive such signals, but shall exclude wireless
cable.
"Chase" shall mean The Chase Manhattan Bank.
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"Class" shall have the meaning assigned to such term in Section 1.03
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hereof.
"Closing Date" shall mean the date on which the initial extension of
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credit hereunder is made.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time.
"Collateral Account" shall have the meaning assigned to such term in
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the Pledge Agreement.
"Xxxxxxxx Entity" shall mean, collectively, (i) Xxxxx Xxxxxxxx, (ii)
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any entity controlled by Xxxxx Xxxxxxxx and owned by Xxxxx Xxxxxxxx, (iii)
members of the immediate family of Xxxxx Xxxxxxxx or (iv) trusts established for
the benefit of Xxxxx Xxxxxxxx or members of the immediate family of Xxxxx
Xxxxxxxx. Following a Qualified Public Offering, the term "Xxxxxxxx Entity"
shall also include any officer or employee of Holdco and Mediacom who owns
shares of the capital stock of Holdco.
"Commitments" shall mean, collectively, the Revolving Credit
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Commitments, the Term Loan Commitments and the Incremental Facility Commitments
(if any).
"Continue", "Continuation" and "Continued" shall refer to the
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continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
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pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"Cure Monies" shall mean proceeds of Affiliate Subordinated
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Indebtedness and/or equity contributions received by the Borrowers after the
date hereof that, at the time the same are received by the Borrowers are
identified by the Borrowers, in a certificate of a Senior Officer delivered by
the Borrowers to the Administrative Agent within one Business Day of such
receipt, as constituting "Cure Monies" for purposes of Section 9.02 hereof.
"Debt Issuance" shall mean any issuance or sale by a Borrower or any
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of its Subsidiaries after the Closing Date of any debt securities, excluding,
however, any Indebtedness incurred pursuant to Section 8.07(c) or 8.07(f)
hereof.
"Debt Service" shall mean, for any period, the sum, for the Borrowers
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and their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following: (a) in the case of Revolving Credit
Loans under this Agreement, the aggregate amount of payments of principal of
such Loans that, giving effect to Commitment reductions or terminations
scheduled to be made during such period pursuant to Section 2.04(a) hereof, were
required to be made pursuant to Section 3.01(a) hereof during such period plus
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(b) in the case of
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Term Loans and Incremental Facility Loans under this Agreement and all other
Indebtedness (other than Revolving Credit Loans), all regularly scheduled
payments or regularly scheduled prepayments of principal of such Indebtedness
(including, without limitation, the principal component of any payments in
respect of Capital Lease Obligations) made or payable during such period (other
than the principal component of any payments in respect of Affiliate
Subordinated Indebtedness) plus (c) all Interest Expense for such period.
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"Default" shall mean an Event of Default or an event that with
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notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
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disposition of any Property (whether now owned or hereafter acquired) by the
Borrowers or any of their Subsidiaries to any other Person excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"Dollars" and "$" shall mean lawful money of the United States of
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America.
"Environmental Claim" shall mean, with respect to any Person, any
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written or oral notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
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investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all present and future
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Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
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"Equity Contribution Amount" shall mean, as at any date of
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determination, (a) the aggregate amount of cash contributions made to the equity
capital of the Borrowers during the period from and including the respective
dates of organization of each of the Borrowers through and including such date
of determination minus (b) the aggregate amount of distributions made in respect
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of the equity capital of the Borrowers during such period (other than
distributions of equity capital of the Borrowers made pursuant to Section
8.09(e) hereof).
"Equity Rights" shall mean, with respect to any Person, any
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subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class or other
ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
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that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which a Borrower is a member and (ii) solely for purposes
of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11)
of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which a
Borrower is a member.
"Eurodollar Base Rate" shall mean, for the Interest Period for any
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Eurodollar Loan, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for the offering of Dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the Eurodollar Base
Rate for such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Eurodollar Loans" shall mean Loans that bear interest at rates
----------------
based on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
-10-
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
---------------
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
----------------
Section 9 hereof.
"Excess Cash Flow" shall mean, for any period, the excess of (a)
----------------
Operating Cash Flow for such period over (b) the sum of (i) Capital Expenditures
made during such period plus (ii) the aggregate amount of Debt Service for such
----
period plus (iii) the Tax Payment Amount for such period plus (iv) any decreases
---- ----
(or minus any increases) in Working Capital from the first day to the last day
-----
of such period.
"Executive Compensation" shall mean, for any period, the aggregate
----------------------
amount of compensation (including, without limitation, salaries, withholding
taxes, unemployment insurance contributions, pension, health and other benefits)
of the Manager's executive management personnel during such period. For purposes
hereof, "executive management personnel" shall not include any individual (such
as a system manager) who is employed solely in connection with the day-to-day
operations of a CATV System.
"Existing Credit Agreements" shall mean, collectively, (a) the
--------------------------
Mediacom Southeast Credit Agreement and (b) the Second Amended and Restated
Credit Agreement dated as of June 24, 1997 between Mediacom California, Mediacom
Delaware and Mediacom Arizona, the lenders party thereto and Chase as
administrative agent for such lenders, as heretofore modified, supplemented and
in effect.
"FCC" shall mean the Federal Communications Commission or any
---
governmental authority substituted therefor.
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
--------
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds
-11-
Rate for such Business Day shall be the average rate charged to Chase on such
Business Day on such transactions as determined by the Administrative Agent.
"Fiscal Period" means any fiscal year or the period from the Closing
-------------
Date to and including December 31, 1999.
"Franchise" shall mean a franchise, license, authorization or right by
---------
contract or otherwise to construct, own, operate, promote, extend and/or
otherwise exploit any CATV System operated or to be operated by the Borrowers or
any of their Subsidiaries granted by any state, county, city, town, village or
other local or state government authority or by the FCC. The term "Franchise"
shall include each of the Franchises set forth on Schedule IV hereto.
"GAAP" shall mean generally accepted accounting principles applied on
----
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
--------- ----------
have a correlative meaning.
"Guarantee and Pledge Agreement" shall mean a Guarantee and Pledge
------------------------------
Agreement substantially in the form of Exhibit D hereto between Mediacom, the
Manager and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Hazardous Material" shall mean, collectively, (a) any petroleum or
------------------
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under
-12-
any Environmental Law and (c) any other chemical or other material or substance,
exposure to which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"Holdco" shall mean, a corporation to be formed in connection with a
------
Qualified Public Offering, that will issue capital stock to the holders of
equity interests in Mediacom in exchange for the equity interests held by such
holders, and of which Mediacom will thereby become a Subsidiary.
"Incremental Facility Availability Period" shall mean the period from
----------------------------------------
and including the Closing Date to but excluding December 31, 2001 (or, if such
date is not a Business Day, to but excluding the immediately preceding Business
Day).
"Incremental Facility Commitment" shall mean, for each Incremental
-------------------------------
Facility Lender, and for any Series thereof, the obligation of such Incremental
Facility Lender to make Incremental Facility Loans of such Series (as the same
may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof or
increased or reduced from time to time pursuant to assignments permitted under
Section 11.06(b) hereof). The amount of each Lender's Incremental Facility
Commitment of any Series shall be determined in accordance with the provisions
of Section 2.01(d) hereof. The aggregate amount of the Incremental Facility
Commitments of all Series shall not exceed $200,000,000.
"Incremental Facility Lenders" shall mean, in respect of any Series of
----------------------------
Incremental Facility Loans, the Lenders from time to time holding Incremental
Facility Loans and Incremental Facility Commitments of such Series after giving
effect to any assignments thereof permitted by Section 11.06(b) hereof.
"Incremental Facility Loans" shall mean the loans provided for by
--------------------------
Section 2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Indebtedness" shall mean, for any Person: (a) obligations created,
------------
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person), including, without limitation, Affiliate
Subordinated Indebtedness; (b) obligations of such Person to pay the deferred
purchase or acquisition price of Property or services, other than trade accounts
payable (other than for borrowed money) arising, and accrued expenses incurred,
in the ordinary course of business so long as such trade accounts payable are
payable within 90 days of the date the respective goods are delivered or the
respective services are rendered; (c) Indebtedness of others secured by a Lien
on the Property of such Person, whether or not the respective indebtedness so
secured has been assumed by such Person; (d) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for
-13-
account of such Person; (e) Capital Lease Obligations of such Person; and (f)
Indebtedness of others Guaranteed by such Person; provided that Indebtedness
shall exclude (i) obligations in respect of surety and performance bonds backing
pole rental or conduit attachments and the like, or backing obligations under
Franchises, arising in the ordinary course of business of the CATV Systems and
related telecommunications services of the Borrowers and their Subsidiaries and
(ii) all obligations in respect of Interest Rate Protection Agreements.
"Information Memorandum" shall mean the Confidential Information
----------------------
Memorandum dated August, 1999 prepared in connection with the syndication of the
credit facilities provided for in this Agreement.
"Interest Coverage Ratio" shall mean, as at any date, the ratio of (a)
-----------------------
Operating Cash Flow for the fiscal quarter ending on, or most recently ended
prior to, such date to (b) Interest Expense for such fiscal quarter.
Notwithstanding the foregoing, the Interest Coverage Ratio for any
fiscal quarter during which an Acquisition is consummated shall be deemed to be
equal to the ratio of Adjusted Operating Cash Flow for such fiscal quarter to
Interest Expense for such fiscal quarter.
"Interest Expense" shall mean, for any period, the sum, for the
----------------
Borrowers and their Subsidiaries (determined on a combined basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued or capitalized
during such period (whether or not actually paid during such period) and all
commitment fees payable hereunder, but excluding all interest in respect of
Affiliate Subordinated Indebtedness (to the extent not paid in cash during such
period), plus (b) the net amount payable (or minus the net amount receivable)
---- -----
under Interest Rate Protection Agreements during such period (whether or not
actually paid or received during such period) plus (c) the aggregate amount of
----
upfront or one-time fees or expenses payable in respect of Interest Rate
Protection Agreements to the extent such fees or expenses are amortized during
such period.
Notwithstanding the foregoing, if during any period for which Interest
Expense is being determined the Borrowers or any of their Subsidiaries shall
have consummated any acquisition of any CATV System or other business, or
consummated any Disposition, then, for all purposes of this Agreement, Interest
Expense shall be determined on a pro forma basis as if such acquisition or
Disposition had been made or consummated (and any related Indebtedness incurred
or repaid) on the first day of such period.
"Interest Period" shall mean, with respect to any Eurodollar Loan,
---------------
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or (in the event of a Continuation) the last day of the
next preceding Interest Period for such Loan
-14-
and (subject to the provisions of Section 2.01(d) hereof) ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrowers may select as provided in Section 4.05
hereof, except that each Interest Period that commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month. Notwithstanding
the foregoing:
(i) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date, such
Interest Period shall end on the Revolving Credit Commitment Termination
Date;
(ii) no Interest Period for any Revolving Credit Loan may commence
before and end after any Revolving Credit Commitment Reduction Date unless,
after giving effect thereto, the aggregate principal amount of Revolving
Credit Loans having Interest Periods that end after such Revolving Credit
Commitment Reduction Date shall be equal to or less than the aggregate
principal amount of Revolving Credit Loans scheduled to be outstanding
after giving effect to the payments of principal required to be made on
such Revolving Credit Commitment Reduction Date;
(iii) no Interest Period for any Term Loan may commence before and
end after any Principal Payment Date unless, after giving effect thereto,
the aggregate principal amount of the Term Loans having Interest Periods
that end after such Principal Payment Date shall be equal to or less than
the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(iv) no Interest Period for any Incremental Facility Loan of any
Series may commence before and end after any Principal Payment Date unless,
after giving effect thereto, the aggregate principal amount of the
Incremental Facility Loans of such Series having Interest Periods that end
after such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Incremental Facility Loans of such Series
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date;
(v) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(vi) notwithstanding clauses (i), (ii), (iii) and (iv) above, no
Interest Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan
-15-
would otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any Person, an
----------------------------------
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
For purposes hereof, the "credit exposure" at any time of any Person under an
---------------
Interest Rate Protection Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Interest Rate Protection Agreement.
"Investment" shall mean, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection
with the sale of programming or advertising time by such Person in the ordinary
course of business; (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Interest Rate
Protection Agreement.
"Issuing Lender" shall mean Chase, as the issuer of Letters of Credit
--------------
under Section 2.03 hereof, together with its successors and assigns in such
capacity.
"Letter of Credit" shall have the meaning assigned to such term in
----------------
Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter of
--------------------------
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
-16-
"Letter of Credit Interest" shall mean, for each Revolving Credit
-------------------------
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
--------------------------
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit plus (b) the aggregate unpaid principal amount
----
of all Reimbursement Obligations of the Borrowers at such time due and payable
in respect of all drawings made under such Letter of Credit. For purposes of
this Agreement, a Revolving Credit Lender (other than the Issuing Lender) shall
be deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Lender shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests under said
Section 2.03.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
----
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property 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 (other than an
operating lease) relating to such Property.
"Loan Documents" shall mean, collectively, this Agreement, the Letter
--------------
of Credit Documents, the Security Documents, each Affiliate Subordinated
Indebtedness Agreement and each Management Fee Subordination Agreement.
"Loans" shall mean, collectively, the Revolving Credit Loans, the Term
-----
Loans and the Incremental Facility Loans.
"Majority Incremental Facility Lenders" shall mean, with respect to
-------------------------------------
any Series of Incremental Facility Loans, Incremental Facility Lenders holding
more than 50% of the aggregate outstanding principal amount of the Incremental
Facility Loans of such Series or, if the Incremental Facility Loans shall not
have been made, more than 50% of the Incremental Facility Commitments of such
Series.
"Majority Lenders" shall mean, subject to the last paragraph of
----------------
Section 11.04 hereof, Lenders having more than 50% of the sum of (a) the
aggregate outstanding principal amount of the Term Loans or, if the Term Loans
shall not have been made, the aggregate
-17-
outstanding principal amount of the Term Loan Commitments plus (b) the aggregate
----
outstanding principal amount of the Incremental Facility Loans or, if the
Incremental Facility Loans shall not have been made, the aggregate outstanding
principal amount of the Incremental Facility Commitments plus (c) the sum of (i)
----
the aggregate unused amount, if any, of the Revolving Credit Commitments at such
time plus (ii) the aggregate outstanding principal amount of the Revolving
----
Credit Loans at such time.
"Majority Revolving Credit Lenders" shall mean Revolving Credit
---------------------------------
Lenders having more than 50% of the aggregate amount of the Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have terminated,
Revolving Credit Lenders holding more than 50% of the sum of (a) the aggregate
unpaid principal amount of the Revolving Credit Loans plus (b) the aggregate
----
amount of all Letter of Credit Liabilities.
"Majority Term Loan Lenders" shall mean Term Loan Lenders holding more
--------------------------
than 50% of the aggregate outstanding principal amount of the Term Loans or, if
the Term Loans shall not have been made, more than 50% of the Term Loan
Commitments.
"Management Agreements" shall mean, collectively, (a) the Management
---------------------
Agreement dated January 23, 1998 between Mediacom Southeast and Mediacom
Management Corporation, (b) the Management Agreement dated March 12, 1996
between Mediacom California and Mediacom Management Corporation, (c) the
Management Agreement dated December 27, 1996 between Mediacom Arizona and
Mediacom Management Corporation, and (d) the Management Agreement dated June 24,
1997 between Mediacom Delaware and Mediacom Management Corporation, in each case
as the same shall, subject to Section 8.19 hereof, be modified and supplemented
and in effect from time to time.
"Management Fee Subordination Agreement" shall mean a Management Fee
--------------------------------------
Subordination Agreement substantially in the form of Exhibit F hereto between
the Manager (or, as contemplated by Section 8.11 hereof, any other Person to
whom the Borrowers or any of their Subsidiaries may be obligated to pay
Management Fees), the Borrowers and the Administrative Agent, as the same shall
be modified and supplemented and in effect from time to time.
"Management Fees" shall mean, for any period, the sum of all fees,
---------------
salaries and other compensation (including, without limitation, all Executive
Compensation) paid or incurred by the Borrowers to Affiliates (other than
Affiliates that are employees of the Borrowers and their Subsidiaries) in
respect of services rendered in connection with the management or supervision of
the Borrowers and their Subsidiaries, provided that Management Fees shall
--------
exclude the aggregate amount of intercompany shared expenses payable to Mediacom
that are allocated by Mediacom to the Borrowers and their Subsidiaries in
accordance with Section 5.04 of the Guarantee and Pledge Agreement (other than
the allocated amount of Executive
-18-
Compensation, which Executive Compensation shall in any event constitute
Management Fees hereunder).
"Manager" shall mean Mediacom Management Corporation, or any successor
-------
in such capacity as manager of the Borrowers.
"Margin Stock" shall mean "margin stock" within the meaning of
------------
Regulations T, U and X.
"Material Adverse Effect" shall mean a material adverse effect on (a)
-----------------------
the Property, business, operations, financial condition, prospects, liabilities
or capitalization of the Borrowers and their Subsidiaries taken as a whole, (b)
the ability of any Obligor to perform its obligations under any of the Loan
Documents to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith.
"Mediacom" shall mean Mediacom LLC, a New York limited liability
--------
company.
"Mediacom Arizona Operating Agreement" shall mean the Operating
------------------------------------
Agreement of Mediacom Arizona dated December 27, 1996 between Mediacom and
Mediacom California, as the same shall, subject to Section 8.19 hereof, be
modified and supplemented and in effect from time to time.
"Mediacom California Operating Agreement" shall mean the Operating
---------------------------------------
Agreement of Mediacom California dated March 12, 1996 between Mediacom and
Mediacom Management Corporation, as the same shall, subject to Section 8.19
hereof, be modified and supplemented and in effect from time to time.
"Mediacom Delaware Operating Agreement" shall mean the Operating
-------------------------------------
Agreement of Mediacom Delaware dated January 1, 1997 as the same shall, subject
to Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Mediacom Southeast Credit Agreement" shall mean the Credit Agreement
-----------------------------------
dated as of January 23, 1998 between Mediacom Southeast, the lenders party
thereto and Chase as administrative agent for such lenders, as heretofore
modified, supplemented and in effect.
"Mediacom Southeast Operating Agreement" shall mean the Operating
--------------------------------------
Agreement of Mediacom Southeast dated as of January 23, 1998, as the same shall,
subject to Section 8.19 hereof, be modified and supplemented and in effect from
time to time.
-19-
"Multiemployer Plan" shall mean a multiemployer plan defined as such
------------------
in Section 3(37) of ERISA to which contributions have been made by a Borrower or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
----------------------
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Borrowers and their Subsidiaries in respect of such Casualty Event
net of (A) reasonable expenses incurred by the Borrowers and their
Subsidiaries in connection therewith and (B) contractually required
repayments of Indebtedness to the extent secured by a Lien on such Property
and any income and transfer taxes payable by the Borrowers or any of their
Subsidiaries in respect of such Casualty Event (C) the Tax Payment Amount,
if any, attributable to such Casualty Event and (D) any transfer taxes
payable by the Borrowers or any of their Subsidiaries in respect of such
Casualty Event; and
(iii) in the case of any Debt Issuance, the aggregate amount of
all cash received by the Borrowers or any of their Subsidiaries in respect
of such Debt Issuance, net of reasonable expenses incurred by the Borrowers
and their Subsidiaries in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition, the
-----------------
aggregate amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Borrowers and their Subsidiaries directly or
indirectly in connection with such Disposition; provided that (a) Net Cash
--------
Payments shall be net of the amount of any legal, accounting, broker, title and
recording tax expenses, commissions, finders' fees and other fees and expenses
paid by the Borrowers and their Subsidiaries in connection with such Disposition
and (b) Net Cash Payments shall be net of any repayments by the Borrowers and
their Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is
secured by a Lien on the Property that is the subject of such Disposition and
(ii) the transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property.
"1998 Senior Notes" shall mean the 8-1/2% senior notes due 2008 in an
-----------------
aggregate principal amount of $200,000,000 issued by Mediacom.
-20-
"Obligors" shall mean, collectively, the Borrowers, Mediacom, Mediacom
--------
Management Corporation and, effective upon execution and delivery of any
Subsidiary Guarantee Agreement, each Subsidiary of the Borrowers so executing
and delivering such Subsidiary Guarantee Agreement.
"Operating Agreements" shall mean, collectively, the Mediacom
--------------------
Southeast Operating Agreement, the Mediacom Arizona Operating Agreement, the
Mediacom California Operating Agreement and the Mediacom Delaware Operating
Agreement.
"Operating Cash Flow" shall mean, for any period, the sum, for the
-------------------
Borrowers and their Subsidiaries (determined on a combined basis without
duplication in accordance with GAAP), of the following: (a) System Cash Flow
minus (b) Management Fees paid during such period to the extent not exceeding
-----
the then applicable rate or percentage specified in the Management Agreement of
the gross operating revenue of the Borrowers and their Subsidiaries for such
period.
"Pay TV Units" shall mean the aggregate number of premium or pay
------------
television services to which Subscribers subscribe.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean: (a) direct obligations of the
---------------------
United States of America, or of any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; and (c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Ratings Services, a division of XxXxxx-Xxxx Companies, Inc., or Xxxxx'x
Investors Services, Inc., respectively, maturing not more than 90 days from the
date of acquisition thereof; in each case so long as the same (x) provide for
the payment of principal and interest (and not principal alone or interest
alone) and (y) are not subject to any contingency regarding the payment of
principal or interest.
"Person" shall mean any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
-21-
"Plan" shall mean an employee benefit or other plan established or
----
maintained by the Borrowers or any ERISA Affiliates and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" shall mean a Pledge Agreement substantially in the
----------------
form of Exhibit C hereto between the Borrowers, each of the additional parties,
if any, that becomes a "Securing Party" thereunder, and the Administrative
Agent, as the same shall be modified and supplemented and in effect from time to
time.
"Post-Default Rate" shall mean a rate per annum equal to 2% plus the Base
----------------- ----
Rate as in effect from time to time plus the Applicable Margin for Base Rate
----
Loans, provided that, with respect to principal of a Eurodollar Loan that shall
--------
become due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
----
hereof and, thereafter, the rate provided for above in this definition.
"Preferred Membership Interests" shall mean the equity rights provided
------------------------------
for in Section 6.2 of the Mediacom Southeast Operating Agreement.
"Prime Rate" shall mean the rate of interest from time to time
----------
announced by Chase at its principal office in New York City as its prime
commercial lending rate.
"Principal Payment Dates" shall mean (a) in the case of the Term
-----------------------
Loans, the last Business Day of March, June, September and December of each
year, commencing with September 30, 2002, through and, subject to the last
sentence of Section 3.01(b), including September 30, 2008 and (b) in the case of
Incremental Facility Loans of any Series, such dates as shall have been agreed
upon between the Borrowers and the respective Incremental Facility Lenders of
such Series pursuant to Section 2.01(c) hereof at the time such Lenders become
obligated to make such Incremental Facility Loans hereunder.
"Pro Forma Debt Service Coverage Ratio" shall mean, as at any date,
-------------------------------------
the ratio of (a) the product of (x) Operating Cash Flow for the fiscal quarter
ending on, or most recently ended prior to, such date times (y) four to (b) Debt
-----
Service (other than payments in respect of Affiliate Subordinated Indebtedness)
for the period of four consecutive fiscal quarters immediately following the
last day of the most recently ended fiscal quarter, determined under the
assumptions that (1) the rate of interest applicable to Indebtedness of the
Borrowers and their Subsidiaries (other than Affiliate Subordinated
Indebtedness) during such period will not change from the weighted average rate
of interest in effect on such last day and (2) all regularly scheduled payments
or regularly scheduled prepayments of principal of such Indebtedness
-22-
required to be made during such period will be made when due (including, without
limitation, the principal component of any payments in respect of Capital Lease
Obligations).
Notwithstanding the foregoing, the Pro Forma Debt Service Coverage
Ratio for any fiscal quarter during which an Acquisition is consummated shall be
deemed to be equal to the ratio of (a) the product of (x) Adjusted Operating
Cash Flow for such fiscal quarter times (y) four to (b) Debt Service (other than
-----
payments in respect of Affiliate Subordinated Indebtedness) for the period of
four consecutive fiscal quarters immediately following the last day of such
fiscal quarter, determined on the assumptions set forth above.
"Property" shall mean any right or interest in or to property of any
--------
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchase Price" shall mean, without duplication, with respect to any
--------------
Acquisition, an amount equal to the sum of (i) the aggregate consideration,
whether cash, Property or securities (including, without limitation, any
Indebtedness incurred pursuant to paragraph (f) of Section 8.07 hereof), paid or
delivered by the Borrowers and their Subsidiaries in connection with such
acquisition plus (ii) the aggregate amount of liabilities of the acquired
----
business (net of current assets of the acquired business) that would be
reflected on a balance sheet (if such were to be prepared) of the Borrowers and
their Subsidiaries after giving effect to such acquisition.
"Qualified Public Offering" shall mean an offer or offerings of
-------------------------
capital stock of Holdco under one or more effective registration statements
under the Securities Act of 1933, as amended, such that, after giving effect
thereto, (a) at least 15% of the aggregate equity interests (without regard to
voting rights) in Holdco on a fully diluted basis (i.e., giving effect to the
exercise of any warrants, options and conversion and other rights) has been sold
pursuant to such offerings and (b) such offerings result in aggregate cash
proceeds being received by Holdco (and contributed by Holdco to Mediacom) of at
least $75,000,000 exclusive of underwriter's discounts and other expenses.
"Quarterly Dates" shall mean the twentieth day of January, April, July
---------------
and October in each year, the first of which shall be the first such day after
the date of this Agreement; provided that if any such day is not a Business Day,
--------
then such Quarterly Date shall be the next succeeding Business Day.
"Quarterly Officer's Report" shall mean a quarterly report of a Senior
--------------------------
Officer with respect to Basic Subscribers, homes passed, revenues per Subscriber
and Pay TV Units, substantially in the form of Exhibit B hereto.
-23-
"Quarterly Payment Period" shall mean each successive three-month
------------------------
period from and including a Quarterly Date (or, in the case of the initial
Quarterly Payment Period, from and including the Closing Date) to but not
including the next following Quarterly Date.
"Rate Ratio" shall mean, for any Quarterly Payment Period, the daily
----------
average of the Total Leverage Ratio during the fiscal quarter ending on, or most
recently ended prior to, the first day of such Quarterly Payment Period,
provided that (a) the Rate Ratio on the Closing Date shall be the Total Leverage
--------
Ratio on such date, (b) the Rate Ratio on the date of the Triax Acquisition
shall be the Total Leverage Ratio (computed on a pro forma basis after giving
effect to the borrowings to be made (i) to enable the Borrowers to make
Restricted Payments to Mediacom pursuant to Section 8.09(e) hereof in connection
with the Triax Acquisition and (ii) to enable Mediacom Arizona to effect the
Apache Acquisition) and (c) for purposes of determining the Rate Ratio for the
period from and after the date of the Triax Acquisition until such time as one
complete fiscal quarter shall have elapsed subsequent to the date of the Triax
Acquisition, the daily average of the Total Leverage Ratio shall be determined
only for the portion of such fiscal quarter commencing on the date of the Triax
Acquisition.
"Rate Ratio Certificate" shall mean, for any Quarterly Payment Period,
----------------------
a certificate of a Senior Officer setting forth, in reasonable detail, the
calculation (and the basis for such calculation) of the Rate Ratio for use in
determining the Applicable Margin hereunder during such Quarterly Payment
Period.
"Region" shall mean each geographic region into which the CATV Systems
------
of the Borrowers and their Subsidiaries are divided for operating and management
purposes.
"Register" shall have the meaning assigned to such term in Section
--------
11.06(g) hereof.
"Regulations A, D, T, U and X" shall mean, respectively, Regulations
----------------------------
A, D, T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
-----------------
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
-24-
"Reimbursement Obligations" shall mean, at any time, the obligations
-------------------------
of the Borrowers then outstanding, or that may thereafter arise in respect of
all Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reserve Requirement" shall mean, for any Interest Period for any
-------------------
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Reserved Commitment Amount" shall have the meaning assigned to such
--------------------------
term in Section 2.01(a) hereof.
"Restricted Payments" shall mean, collectively, (a) all distributions
-------------------
of the Borrowers (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any portion of any ownership interest in the Borrowers or of any
warrants, options or other rights to acquire any such ownership interest (or to
make any payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to fair market or equity value of
the Borrowers or any of their Subsidiaries), (b) any payments made by a Borrower
to any holders of any equity interests in the Borrowers that are designed to
reimburse such holders for the payment of any taxes attributable to the
operations of the Borrowers and their Subsidiaries, (c) any payments of
principal of or interest on Affiliate Subordinated Indebtedness, (d) any
payments in respect of Management Fees, and (e) any Affiliate Letters of Credit
issued by the Issuing Lender for the account of the Borrowers.
"Revolving Credit Commitment" shall mean, as to each Revolving Credit
---------------------------
Lender, the obligation of such Lender to make Revolving Credit Loans, and to
issue or participate in
-25-
Letters of Credit pursuant to Section 2.03 hereof, in an aggregate principal or
face amount at any one time outstanding up to but not exceeding the amount set
forth opposite the name of such Lender on Schedule I hereto (as the same may be
reduced from time to time pursuant to Section 2.04 or 2.10 hereof or increased
or reduced from time to time pursuant to assignments permitted under Section
11.06(b) hereof). The original aggregate principal amount of the Revolving
Credit Commitments is $450,000,000.
"Revolving Credit Commitment Percentage" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Reduction Dates" shall mean the last
-------------------------------------------
Business Day of March, June, September and December in each year, commencing
with September 30, 2002, through and including March 31, 2008.
"Revolving Credit Commitment Termination Date" shall mean the
--------------------------------------------
Revolving Credit Commitment Reduction Date falling on or nearest to March 31,
2008, provided that if Mediacom does not refinance its 1998 Senior Notes prior
--------
to March 31, 2007, with new financing having a maturity no earlier than two
years after the payment of all amounts due under this Agreement and on terms
satisfactory to the Administrative Agent and the Majority Lenders, the Revolving
Credit Termination Date shall mean the Revolving Credit Commitment Reduction
Date falling on or nearest to June 30, 2007.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the
------------------------
Lenders having Revolving Credit Commitments on Schedule I hereto and (b)
thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 11.06(b) hereof.
"Revolving Credit Loans" shall mean the loans provided for in Section
----------------------
2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Security Documents" shall mean, collectively, the Pledge Agreement,
------------------
the Guarantee and Pledge Agreement and the Subsidiary Guarantee Agreements, and
all Uniform Commercial Code financing statements required by the Pledge
Agreement, the Guarantee and Pledge Agreement and the Subsidiary Guarantee
Agreements, to be filed with respect to the security interests created pursuant
to the Pledge Agreement, the Guarantee and Pledge Agreement and the Subsidiary
Guarantee Agreements.
"Senior Officer" shall mean the chairman, chief executive officer or
--------------
chief financial officer of the Manager, acting for and on behalf of the
Borrowers.
-26-
"Series" has the meaning set forth in Section 2.01(c).
------
"Special Reductions" shall mean, as at any date during any fiscal
------------------
quarter, the aggregate amount of reductions during such fiscal quarter through
such date in the undrawn face amount of Affiliate Letters of Credit issued
during such fiscal quarter (i.e. excluding reductions in such face amount that
occur upon a drawing under such Affiliate Letters of Credit), together with the
aggregate amount of Affiliate Letters of Credit issued during such fiscal
quarter that expire or are terminated during such fiscal quarter through such
date without being drawn.
"Subscriber" shall mean a Person who subscribes to one or more of the
----------
cable television services of the Borrowers and their Subsidiaries and includes
both Basic Subscribers and Persons who subscribe to Pay TV Units, but excluding
each such Person who is pending disconnection for any reason or is delinquent in
payment for such services for more than 60 days or who has not paid in full
without discount at least one monthly xxxx generated in the ordinary course of
business.
"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership,
limited liability company or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership, limited liability company or other entity shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Guarantee Agreement" shall mean a Subsidiary Guarantee
------------------------------
Agreement substantially in the form of Exhibit E hereto by a Subsidiary of a
Borrower in favor of the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrowers that
--------------------
executes and delivers a Subsidiary Guarantee Agreement.
"Supplemental Capital" shall mean (a) advances made by an Affiliate to
--------------------
the Borrowers constituting Affiliate Subordinated Indebtedness (excluding any
Cure Monies) and (b) equity contributions by an Affiliate subsequent to the date
of this Agreement (excluding any Cure Monies).
-27-
"System Cash Flow" shall mean, for any period, the sum, for the
----------------
Borrowers and their Subsidiaries (determined on a combined basis without
duplication in accordance with GAAP), of the following: (a) gross operating
revenues for such period minus (b) all operating expenses for such period,
-----
including, without limitation, technical, programming and selling, general and
administrative expenses, but excluding (to the extent included in operating
expenses) income taxes, Management Fees, depreciation, amortization and interest
expense (including, without limitation, all items included in Interest Expense),
provided that gross operating revenues and operating expenses for any period
--------
shall exclude all extraordinary and unusual items and all non-cash items. For
the purposes of determining System Cash Flow, gross operating revenues will
include revenues received in cash in respect of investments, so long as such
investments are recurring (i.e. reasonably expected to continue for four or more
fiscal quarters) and do not for any period exceed 20% of gross operating
revenues for such period (not including (i) extraordinary items and (ii) such
investment revenues).
Notwithstanding the foregoing, if during any period for which System
Cash Flow is being determined the Borrowers or any of their Subsidiaries shall
have consummated any acquisition of any CATV System or other business, or
consummated any Disposition, then, for all purposes of this Agreement (other
than for purposes of the definition of Excess Cash Flow), System Cash Flow shall
be determined on a pro forma basis as if such acquisition or Disposition had
been made or consummated on the first day of such period.
"Tax Payment Amount" shall mean, for any period, an amount not
------------------
exceeding in the aggregate the amount of Federal, state and local income taxes
the Borrowers would otherwise have paid in the event they were corporations
(other than "S corporations" within the meaning of Section 1361 of the Code) for
such period and all prior periods.
"Term Loan Commitment" shall mean, as to each Term Loan Lender, the
--------------------
obligation of such Lender to make one or more Term Loans in an aggregate
principal amount equal to the amount set opposite the name of such Lender on
Schedule I hereto. The original aggregate principal amount of the Term Loan
Commitments is $100,000,000.
"Term Loan Commitment Termination Date" shall mean the date that is 45
-------------------------------------
days after the Closing Date (or, if such date is not a Business Day, the
immediately preceding Business Day).
"Term Loan Lenders" shall mean (a) on the date hereof, the Lenders
-----------------
having Term Loan Commitments on Schedule I hereto and (b) thereafter, the
Lenders from time to time holding Term Loans and Term Commitments after giving
effect to any assignments thereof permitted by Section 11.06(b) hereof.
-28-
"Term Loans" shall mean the loans provided for by Section 2.01(b)
----------
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Total Leverage Ratio" shall mean, as at any date, the ratio of (a)
--------------------
the aggregate amount of all Indebtedness of the Borrowers and their Subsidiaries
(including, without limitation, Capital Lease Obligations, but excluding
Affiliate Subordinated Indebtedness) as at such date to (b) the product of (x)
System Cash Flow for the fiscal quarter ending on, or most recently ended prior
to, such date times (y) four.
-----
Notwithstanding the foregoing, the Total Leverage Ratio for any fiscal
quarter during which an Acquisition is consummated shall be deemed to be equal
to the ratio of (a) the aggregate amount of all Indebtedness of the Borrowers
and their Subsidiaries (including, without limitation, Capital Lease
Obligations, but excluding Affiliate Subordinated Indebtedness) as at the
relevant date to (b) the product of Adjusted System Cash Flow for such fiscal
quarter times four.
-----
"Triax Acquisition" shall mean the acquisition by Mediacom (directly
-----------------
or indirectly through Subsidiaries) of the cable systems and related assets of
Triax Midwest Associates, L.P.
"Type" shall have the meaning assigned to such term in Section 1.03
----
hereof.
"U.S. Person" shall mean a citizen or resident of the United States of
-----------
America, a corporation, partnership, limited liability company or other entity
created or organized in or under any laws of the United States of America or any
State thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" shall mean 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" shall mean, with respect to any Person, any
-----------------------
corporation, partnership, limited liability company or other entity of which all
of the equity securities or other ownership interests (other than, in the case
of a corporation, 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 Wholly Owned Subsidiaries of such
Person.
"Working Capital" shall mean, as at such date, for the Borrowers and
---------------
their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP) (a) current assets (excluding cash and cash equivalents)
minus (b) current liabilities (excluding the current portion of long term debt
-----
and of any installments of principal payable hereunder).
-29-
1.02 Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in paragraph (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder (which, prior to the delivery of
the first financial statements under Section 8.01 hereof, shall mean the audited
financial statements as at December 31, 1998 referred to in Section 7.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 8.01 hereof
(or, prior to the delivery of the first financial statements under Section 8.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1998 referred to in Section 7.02 hereof) unless
(i) the Borrowers shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or
(ii) the Majority Lenders shall so object in writing within 30 days
after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
shall mean the unaudited financial statements referred to in Section 7.02
hereof).
(b) The Borrowers shall deliver to the Lenders at the same time as
the delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
-30-
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 8 hereof, none of the Borrowers will
change the last day of its fiscal year from December 31, or the last days of the
first three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished
--------------------------
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Credit Loan, a Term Loan or an
Incremental Facility Loan, each of which constitutes a Class. The "Type" of a
Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each
of which constitutes a Type. Loans may be identified by both Class and Type.
Incremental Facility Loans and Incremental Facility Commitments shall be
classified by Series, each of which shall be considered a separate Class.
1.04 Subsidiaries. None of the Borrowers has any Subsidiaries on the
------------
date hereof; reference in this Agreement to Subsidiaries of the Borrowers shall
be deemed inapplicable until such time as the Majority Lenders shall consent to
the creation of such Subsidiaries or such Subsidiaries shall in fact come into
existence in accordance with the terms hereof.
1.05 Nature of Obligations of Borrowers. It is the intent of the
----------------------------------
parties hereto that the Borrowers shall be jointly and severally obligated
hereunder and under the notes executed and delivered by the Borrowers pursuant
to Section 2.08(d) hereof, as co-borrowers under this Agreement and as co-makers
on such notes, in respect of the principal of and interest on, and all other
amounts owing in respect of, the Loans and such notes.
Section 2. Commitments, Loans and Prepayments.
----------------------------------
2.01 Loans.
-----
(a) Revolving Credit Loans. Each Revolving Credit Lender severally
----------------------
agrees, on the terms and conditions of this Agreement, to make loans to the
Borrowers in Dollars during the period from and including the Closing Date to
but not including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the Revolving Credit Commitment of such Lender as in effect from
time to time, provided that in no event shall the aggregate principal amount of
--------
all Revolving Credit Loans, together with the aggregate amount of all Letter of
Credit Liabilities, exceed the aggregate amount of the Revolving Credit
Commitments as in effect from time to time. Subject to the terms and conditions
of this Agreement, during such period the Borrowers may borrow, repay and
reborrow the amount of the Revolving Credit Commitments by means of Base Rate
Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one Type
into Revolving Credit Loans of another Type (as provided in Section 2.09 hereof)
or Continue
-31-
Revolving Credit Loans of one Type as Revolving Credit Loans of the same Type
(as provided in Section 2.09 hereof).
Proceeds of Revolving Credit Loans shall be available for any use
permitted under Section 8.17(a) hereof, provided that, in the event that as
--------
contemplated by Section 2.10(d) hereof, the Borrowers shall prepay Revolving
Credit Loans from the proceeds of a Disposition hereunder, then an amount of
Revolving Credit Commitments equal to the amount of such prepayment (herein the
"Reserved Commitment Amount") shall be reserved and shall not be available for
--------------------------
borrowings hereunder except and to the extent that the proceeds of such
borrowings are to be applied to make Acquisitions permitted under Section 8.05
hereof or to make prepayments of Loans under Section 2.10(d) hereof. The
Borrowers agree, upon the occasion of any borrowing of Revolving Credit Loans
hereunder that is to constitute a utilization of any Reserved Commitment Amount,
to advise the Administrative Agent in writing of such fact at the time of such
borrowing, identifying the amount of such borrowing that is to constitute such
utilization, the Acquisition in respect of which the proceeds of such borrowing
are to be applied and the reduced Reserved Commitment Amount to be in effect
after giving effect to such borrowing.
(b) Term Loans. Each Term Lender severally agrees, on the terms and
----------
conditions of this Agreement, to make term loans to the Borrowers in Dollars in
up to two drawings, with the first drawing to occur on the Closing Date and the
second drawing to occur on a date no later than 45 days after the Closing Date
in an aggregate principal amount equal to the amount of the Term Loan Commitment
of such Lender. Subject to the terms and conditions of this Agreement, on and
after the Closing Date the Borrowers may borrow the Term Loan Commitments by
means of Base Rate Loans and Eurodollar Loans, and thereafter the Borrowers may
Convert Term Loans of one Type into Term Loans of another Type (as provided in
Section 2.09 hereof) or Continue Term Loans of one Type as Term Loans of the
same Type (as provided in Section 2.09 hereof).
Proceeds of Term Loans hereunder shall be available for any use
permitted under the first sentence of Section 8.17(b) hereof.
(c) Incremental Facility Loans. In addition to borrowings of Term
--------------------------
Loans and Revolving Credit Loans provided above, at any time during the
Incremental Facility Availability Period the Borrowers may from time to time
request that the Lenders offer to enter into commitments to make additional term
loans to the Borrowers hereunder, which commitment of any Lender shall not be
less than $10,000,000 and not greater than $100,000,000. In the event that one
or more of the Lenders offer, in their sole discretion, to enter into such
commitments, and such Lenders and the Borrowers agree pursuant to an instrument
in writing (the form and substance of which shall be satisfactory, and a copy of
which shall be delivered, to the Administrative Agent and the Lenders making
such Loans) as to the amount of such
-32-
commitments that shall be allocated to the respective Lenders making such
offers, the fees (if any) to be payable by the Borrowers in connection therewith
and the amortization and interest rate to be applicable thereto, such Lenders
shall become obligated to make Incremental Facility Loans under this Agreement
in an amount equal to the amount of their respective Incremental Facility
Commitments. The Incremental Facility Loans to be made pursuant to any such
agreement between the Borrowers and one or more Lenders in response to any such
request by the Borrowers shall be deemed to be a separate "Series" of
------
Incremental Facility Loans for all purposes of this Agreement. Anything herein
to the contrary notwithstanding, (i) the minimum aggregate principal amount of
Incremental Facility Commitments entered into pursuant to any such request (and,
accordingly, the minimum aggregate principal amount of any Series of Incremental
Facility Loans) shall be $25,000,000, (ii) the aggregate principal amount of all
unused Incremental Facility Commitments and Incremental Facility Loans shall not
exceed $200,000,000 and (iii) in no event shall the final maturity date for the
Incremental Facility Loans of any Series be earlier than the final Principal
Payment Date for the Term Loans, nor shall the amortization for any Incremental
Facility Loans of any Series be at a rate faster (i.e. earlier) than the rate of
amortization of the Term Loans (the determination of whether or not such
amortization is faster to be made by the Administrative Agent).
Proceeds of Incremental Facility Loans hereunder shall be available
for any use permitted under the last sentence of Section 8.17(b) hereof.
(d) Limit on Eurodollar Loans. No more than seven separate Interest
-------------------------
Periods in respect of Eurodollar Loans of a Class from each Lender may be
outstanding at any one time.
2.02 Borrowings. The Borrowers shall give the Administrative Agent
----------
notice of each borrowing hereunder as provided in Section 4.05 hereof. Not later
than 1:00 p.m. New York time on the date specified for each borrowing hereunder,
each Lender shall make available the amount of the Loan or Loans to be made by
it on such date to the Administrative Agent, at an account designated by the
Administrative Agent to the Lenders, in immediately available funds, for account
of the Borrowers. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Borrowers by depositing the same, in immediately available funds, in an account
of the Borrowers designated by the Borrowers and maintained with Chase at its
principal office.
2.03 Letters of Credit. Subject to the terms and conditions of this
-----------------
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Borrowers, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Lender of letters of credit
(collectively, "Letters of Credit") for account of the Borrowers or any of their
-----------------
Subsidiaries (as specified by the relevant Borrower), provided that in no event
--------
shall (i) the aggregate amount of all Letter of Credit Liabilities, together
with the aggregate principal amount of the Revolving Credit Loans, exceed the
aggregate amount of the Revolving
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Credit Commitments as in effect from time to time, (ii) the outstanding
aggregate amount of all Letter of Credit Liabilities exceed $100,000,000 and
(iii) the expiration date of any Letter of Credit extend beyond the earlier of
the date five Business Days prior to the Revolving Credit Commitment Termination
Date and the date twelve months following the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, twelve months after the
then-current expiration date of such Letter of Credit, so long as such renewal
or extension occurs within three months of such then-current expiration date).
The Borrowers may request the Issuing Lender to issue Letters of Credit for the
account of the Borrowers to support an obligation of an Affiliate of the
Borrowers so long as the face amount of such Letter of Credit does not exceed
the amount of Restricted Payments the Borrowers may then make pursuant to
Section 8.09(d). The following additional provisions shall apply to Letters of
Credit:
(a) The Borrowers shall give the Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt) specifying
the Business Day (which shall be no later than 30 days preceding the
Revolving Credit Commitment Termination Date) each Letter of Credit is to
be issued and the account party or parties therefor and describing in
reasonable detail the proposed terms of such Letter of Credit (including
the beneficiary thereof) and the nature of the transactions or obligations
proposed to be supported thereby (including whether such Letter of Credit
is to be a commercial letter of credit or a standby letter of credit). Upon
receipt of any such notice, the Administrative Agent shall advise the
Issuing Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the then undrawn face amount of such Letter
of Credit. Each Revolving Credit Lender (other than the Issuing Lender)
agrees that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Lender's liability
under such Letter of Credit in an amount equal to such Lender's Revolving
Credit Commitment Percentage of such liability, and each Revolving Credit
Lender (other than the Issuing Lender) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to the Issuing Lender to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Lender's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify the Borrowers (through the Administrative Agent) of the
amount to be paid by the Issuing Lender as a result of such demand and the
date on which payment is to be made by the
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Issuing Lender to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Letter of Credit,
the Borrowers hereby jointly and severally unconditionally agree to pay and
reimburse the Administrative Agent for account of the Issuing Lender for
the amount of each demand for payment under such Letter of Credit that is
in substantial compliance with the provisions of such Letter of Credit at
or prior to the date on which payment is to be made by the Issuing Lender
to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.03, the Borrowers shall advise the Administrative
Agent whether or not the Borrowers intend to borrow hereunder to finance
their obligation to reimburse the Issuing Lender for the amount of the
related demand for payment and, if they do, submit a notice of such
borrowing as provided in Section 4.05 hereof.
(e) Each Revolving Credit Lender (other than the Issuing Lender)
shall pay to the Administrative Agent for account of the Issuing Lender at
its principal office in Dollars and in immediately available funds, the
amount of such Lender's Revolving Credit Commitment Percentage of any
payment under a Letter of Credit upon notice by the Issuing Lender (through
the Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Lender under this paragraph (e), and the Issuing Lender's right
to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
failure of any other Revolving Credit Lender to make its payment under this
paragraph (e), the financial condition of the Borrowers (or any other
account party), the existence of any Default or the termination of the
Commitments. Each such payment to the Issuing Lender shall be made without
any offset, abatement, withholding or reduction whatsoever. If any
Revolving Credit Lender shall default in its obligation to make any such
payment to the Administrative Agent for account of the Issuing Lender, for
so long as such default shall continue the Administrative Agent may at the
request of the Issuing Lender withhold from any payments received by the
Administrative Agent under this Agreement for account of such Revolving
Credit Lender the amount so in default and, to the extent so withheld, pay
the same to the Issuing Lender in satisfaction of such defaulted
obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Lender pursuant to paragraph (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Lender or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing
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Lender by the Borrowers hereunder and under the Letter of Credit Documents
relating to such Letter of Credit and (ii) a participation in a percentage
equal to such Lender's Revolving Credit Commitment Percentage in any
interest or other amounts payable by the Borrowers hereunder and under such
Letter of Credit Documents in respect of such Reimbursement Obligation
(other than the commissions, charges, costs and expenses payable to the
Issuing Lender pursuant to paragraph (g) of this Section 2.03). Upon
receipt by the Issuing Lender from or for account of the Borrowers of any
payment in respect of any Reimbursement Obligation or any such interest or
other amount (including by way of setoff or application of proceeds of any
collateral security) the Issuing Lender shall promptly pay to the
Administrative Agent for account of each Revolving Credit Lender entitled
thereto, such Revolving Credit Lender's Revolving Credit Commitment
Percentage of such payment, each such payment by the Issuing Lender to be
made in the same money and funds in which received by the Issuing Lender.
In the event any payment received by the Issuing Lender and so paid to the
Revolving Credit Lenders hereunder is rescinded or must otherwise be
returned by the Issuing Lender, each Revolving Credit Lender shall, upon
the request of the Issuing Lender (through the Administrative Agent), repay
to the Issuing Lender (through the Administrative Agent) the amount of such
payment paid to such Lender, with interest at the rate specified in
paragraph (j) of this Section 2.03.
(g) The Borrowers shall pay to the Administrative Agent for account
of each Revolving Credit Lender (ratably in accordance with their
respective Commitment Percentages) a letter of credit fee in respect of
each Letter of Credit in an amount equal to the Applicable Margin, in
effect from time to time, for Revolving Credit Loans that are Eurodollar
Loans on the daily average undrawn face amount of such Letter of Credit for
the period from and including the date of issuance of such Letter of Credit
(i) in the case of a Letter of Credit that expires in accordance with its
terms, to and including such expiration date and (ii) in the case of a
Letter of Credit that is drawn in full or is otherwise terminated other
than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made under such
Letter of Credit on such day).
In addition, the Borrowers shall pay to the Administrative Agent for
account of the Issuing Lender a fronting fee in respect of each Letter of
Credit in an amount equal to 1/4 of 1% per annum of the daily average
undrawn face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in the case of
a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to
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but excluding the date such Letter of Credit is drawn in full or is
terminated (such fee to be non-refundable, to be paid in arrears on each
Quarterly Date and on the Revolving Credit Commitment Termination Date and
to be calculated for any day after giving effect to any payments made under
such Letter of Credit on such day) plus all commissions, charges, costs and
expenses in the amounts customarily charged by the Issuing Lender from time
to time in like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing
Lender shall deliver (through the Administrative Agent) to each Revolving
Credit Lender and the Borrowers a notice describing the aggregate amount of
all Letters of Credit outstanding at the end of such month. Upon the
request of any Revolving Credit Lender from time to time, the Issuing
Lender shall deliver any other information reasonably requested by such
Lender with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 6
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Lender consistent with
its then current practices and procedures with respect to letters of credit
of the same type and (ii) the Borrowers shall have executed and delivered
such applications, agreements and other instruments relating to such Letter
of Credit as the Issuing Lender shall have reasonably requested consistent
with its then current practices and procedures with respect to letters of
credit of the same type, provided that in the event of any conflict between
--------
any such application, agreement or other instrument and the provisions of
this Agreement or any Security Document, the provisions of this Agreement
and the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section 2.03
on the due date therefor, such Lender shall pay interest to the Issuing
Lender (through the Administrative Agent) on such amount from and including
such due date to but excluding the date such payment is made at a rate per
annum equal to the Federal Funds Rate, provided that if such Lender shall
--------
fail to make such payment to the Issuing Lender within three Business Days
of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (i) the respective Letter of Credit
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affected thereby would have complied with such conditions had it originally
been issued hereunder in such modified or supplemented form or (ii) each
Revolving Credit Lender shall have consented thereto.
(l) Pursuant to Section 2.03 of the Mediacom Southeast Credit
Agreement, the Issuing Lender may from time to time have issued "Letters of
Credit" (as defined therein). Each of the parties hereto agrees that any
such "Letter of Credit" that shall be outstanding on the Closing Date shall
constitute, on and after the Closing Date, a Letter of Credit for all
purposes of this Agreement.
The Borrowers hereby indemnify and hold harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Lender under any Letter of Credit; provided that the Borrowers shall
--------
not be required to indemnify any Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Lender in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Lender, such Lender's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended
to limit the other obligations of the Borrowers, any Lender or the
Administrative Agent under this Agreement.
2.04 Changes of Commitments.
----------------------
(a) Subject to the last sentence of this Section 2.04(a), the aggregate
amount of the Revolving Credit Commitments shall be automatically reduced to
zero on the Revolving Credit Commitment Termination Date. In addition, the
aggregate amount of the Revolving Credit Commitments shall be automatically
reduced on each Revolving Credit Commitment Reduction Date set forth in column
(A) below, (x) by an amount (subject to reduction pursuant to paragraph (c)
below) equal to the amount set forth in column (B) below opposite such Revolving
Credit Commitment Reduction Date, (y) to an amount (subject to reduction
pursuant to paragraph (c) below) equal to the amount set forth in column (C)
below opposite such Revolving Credit Commitment Reduction Date:
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(A) (B) (C)
Revolving Credit Revolving Credit Revolving Credit
Commitment Reduction Commitments Reduced Commitments Reduced
Date Falling on or by the Following to the Following
Nearest to: Amounts: Amounts:
---------- -------- --------
September 30, 2002 $ 5,625,000 $444,375,000
December 31, 2002 $ 5,625,000 $438,750,000
March 31, 2003 $ 5,625,000 $433,125,000
June 30, 2003 $ 5,625,000 $427,500,000
September 30, 2003 $ 5,625,000 $421,875,000
December 31, 2003 $ 5,625,000 $416,250,000
March 31, 2004 $16,875,000 $399,375,000
June 30, 2004 $16,875,000 $382,500,000
September 30, 2004 $16,875,000 $365,625,000
December 31, 2004 $16,875,000 $348,750,000
March 31, 2005 $22,500,000 $326,250,000
June 30, 2005 $22,500,000 $303,750,000
September 30, 2005 $22,500,000 $281,250,000
December 31, 2005 $22,500,000 $258,750,000
March 31, 2006 $22,500,000 $236,250,000
June 30, 2006 $22,500,000 $213,750,000
September 30, 2006 $22,500,000 $191,250,000
December 31, 2006 $22,500,000 $168,750,000
March 31, 2007 $22,500,000 $146,250,000
June 30, 2007 $22,500,000 $123,750,000
September 30, 2007 $22,500,000 $101,250,000
December 31, 2007 $22,500,000 $ 78,750,000
March 31, 2008 $78,750,000 $ 0
As provided for in the definition of "Revolving Credit Commitment Termination
Date" in Section 1.01, if Mediacom does not refinance its 1998 Senior Notes
prior to March 31, 2007, with new Indebtedness having a maturity no earlier than
two years after the payment of all amounts due under this Agreement and on terms
satisfactory to the Administrative Agent and the Majority Lenders, the Revolving
Credit Commitments shall be terminated, and the entire principal amount of the
Revolving Credit Loans then outstanding shall, as provided for in
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Section 2.10(g) hereof, be paid in full, on the Revolving Credit Commitment
Reduction Date falling on or nearest to June 30, 2007.
(b) The Borrowers shall have the right at any time or from time to
time (i) so long as no Revolving Credit Loans or Letter of Credit Liabilities
are outstanding, to terminate the Revolving Credit Commitments, (ii) so long as
no Term Loans are outstanding, to terminate the Term Loan Commitments, (iii) so
long as no Incremental Facility Loans of a Series are outstanding, to terminate
the Incremental Facility Commitments of such Series and (iv) to reduce the
aggregate unused amount of the Revolving Credit Commitments or Incremental
Facility Commitments of any Series (for which purpose use of the Revolving
Credit Commitments shall be deemed to include the aggregate amount of Letter of
Credit Liabilities); provided that (x) the Borrowers shall give notice of each
--------
such termination or reduction as provided in Section 4.05 hereof, (y) each
partial reduction shall be in an aggregate amount at least equal to $1,000,000
(or a larger multiple of $500,000) and (z) prior to the making of the initial
Loans hereunder, each such reduction of Commitments shall be applied ratably to
the Commitments of each Class.
(c) Each reduction in the aggregate amount of the Revolving Credit
Commitments pursuant to paragraph (b) above, or pursuant to Section 2.10 hereof,
on any date shall be applied to the reductions set forth in the schedule in
paragraph (a) above ratably as follows: each such reduction shall result in an
automatic and simultaneous reduction (but not below zero) of the respective
amounts set forth in column (B) at the end of paragraph (a) above (ratably in
accordance with the respective remaining amounts thereof, after giving effect to
any prior reductions pursuant to this paragraph (c)), with appropriate
reductions (but not below zero) being made to the respective amounts set forth
in column (C) of said paragraph (a) after giving effect to such reduction of the
amounts in said column (B).
(d) The aggregate amount of the Term Loan Commitments shall be
automatically reduced to zero on the close of business on the Term Loan
Commitment Termination Date. The aggregate amount of the Incremental Facility
Commitments shall be automatically reduced to zero on the close of business on
the last day of the Incremental Facility Availability Period.
(e) The Commitments once terminated or reduced may not be reinstated.
2.05 Commitment Fee. The Borrowers shall pay to the Administrative
--------------
Agent for account of each Revolving Credit Lender a commitment fee on the daily
average unused amount of such Lender's Revolving Credit Commitment (for which
purpose (i) the aggregate amount of any Letter of Credit Liabilities shall be
deemed to be a pro rata (based on the Revolving Credit Commitments) use of each
Lender's Revolving Credit Commitment and (ii) any Reserved Commitment Amount
shall be deemed to be unused), for the period from and including the date hereof
to but not including the earlier of the date such Revolving Credit Commitment is
terminated and the Revolving Credit Commitment Termination Date, at a rate per
annum equal
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to (x) 3/8 of 1% at any time the then-current Rate Ratio (determined pursuant to
Section 3.03 hereof) is greater than 5.00 to 1 and (y) 1/4 of 1% at any time the
then-current Rate Ratio (so determined) is equal to or less than 5.00 to 1. The
Borrowers shall pay to the Administrative Agent for account of each Incremental
Facility Lender of any Series a commitment fee in such amounts, and on such
dates, as shall have been agreed to by the Borrowers and such Incremental
Facility Lender upon the allocation of the Incremental Facility Commitment of
such Series to such Lender pursuant to Section 2.01(c) hereof. Accrued
commitment fee shall be payable on each Quarterly Date and on the earlier of the
date the relevant Commitments are terminated and the Revolving Credit Commitment
Termination Date or the Incremental Facility Commitment Termination Date, as the
case may be.
2.06 Lending Offices. The Loans of each Type made by each Lender
---------------
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07 Several Obligations; Remedies Independent. The failure of any
-----------------------------------------
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender. Anything in
this Agreement to the contrary notwithstanding, each Lender hereby agrees with
each other Lender that no Lender shall take any action to protect or enforce its
rights arising out of this Agreement (including, without limitation, exercising
any rights of off-set) without first obtaining the prior written consent of the
Administrative Agent or the Majority Lenders, it being the intent of the Lenders
that any such action to protect or enforce rights under this Agreement shall be
taken in concert and at the direction or with the consent of the Administrative
Agent or the Majority Lenders and not individually by a single Lender.
2.08 Loan Accounts; Promissory Notes.
-------------------------------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to such
Lender resulting from each Loan made by such Lender to the Borrowers, including
the amounts of principal and interest payable and paid to such Lender by the
Borrowers from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder to the Borrowers, the
Class and Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrowers to each Lender hereunder and (iii) the amount
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of any sum received by the Administrative Agent hereunder from the Borrowers for
the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph
(a) or (b) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(d) Any Lender may request that Loans of any Class made by it to the
Borrowers be evidenced by a promissory note. In such event, the Borrowers shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans of the Borrowers evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 11.06 hereof) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
2.09 Optional Prepayments and Conversions or Continuations of Loans.
--------------------------------------------------------------
Subject to Section 4.04 hereof, the Borrowers shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
provided that:
--------
(a) the Borrowers shall give the Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in Section 4.05
hereof (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder);
(b) Eurodollar Loans may be prepaid or Converted at any time from
time to time, provided that the Borrowers shall pay any amounts owing
--------
under Section 5.05 hereof in the event of any such prepayment or Conversion
on any date other than the last day of an Interest Period for such Loans;
(c) prepayments of any Term Loan shall be effected in such manner so
that the Term Loans (and, to the extent that Incremental Loans are
outstanding, the Incremental Loans of all Series) are concurrently prepaid
ratably in accordance with the respective outstanding principal amounts
thereof and the aggregate principal amount of all such concurrent
prepayments is at least equal to $1,000,000 or a greater multiple of
$500,000;
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(d) prepayments of the Term Loans and Incremental Facility Loans
shall be applied to the remaining installments of such Loans ratably in
accordance with the respective principal amounts thereof; and
(e) any Conversion or Continuation of Eurodollar Loans shall be
subject to the provisions of Section 2.01(d) hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 9 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Borrowers to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Casualty Events. Upon the date 270 days following the receipt by
---------------
any Borrower or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of any of the Borrowers or any of their Subsidiaries (or
upon such earlier date as the Borrowers or any such Subsidiary, as the case may
be, shall have determined not to repair or replace the Property affected by such
Casualty Event), the Borrowers shall prepay the Loans (and/or provide cover for
Letter of Credit Liabilities as specified in paragraph (f) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount, if
any, equal to 100% of the Net Available Proceeds of such Casualty Event not
theretofore applied (or committed to be applied pursuant to executed
construction contracts or equipment orders) to the repair or replacement of such
Property, such prepayment to be effected in each case in the manner and to the
extent specified in paragraph (e) of this Section 2.10. Notwithstanding the
foregoing, the Borrowers shall not be required to make any prepayment (and/or
provide cover for Letter of Credit Liabilities) under this paragraph (a), and
the Commitments shall not be subject to automatic reduction, until the aggregate
amount of the Net Available Proceeds that must be prepaid under this paragraph
(a) (reduced by the amount of such Net Available Proceeds that has previously
been applied to the prepayment of Loans or reduction of Commitments hereunder as
a result of previous Casualty Events) exceeds $10,000,000.
(b) Excess Cash Flow. Not later than the date 150 days after the end
----------------
of each fiscal year of the Borrowers (or, if earlier, 30 days after the delivery
of the audited financial statements for such fiscal year pursuant to Section
8.01(b) hereof), commencing with the fiscal year ending on December 31, 2002,
the Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (f) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to the excess of
(A) 50% of
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Excess Cash Flow for such fiscal year over (B) the aggregate amount of voluntary
prepayments of Term Loans and Incremental Facility Loans made during such fiscal
year pursuant to Section 2.09 hereof (other than that portion, if any, of such
prepayments applied to installments of the Term Loans and Incremental Facility
Loans falling due in such fiscal year), such prepayment and reduction to be
effected in each case in the manner and to the extent specified in paragraph (e)
of this Section 2.10.
(c) Debt Issuances. Upon any Debt Issuance, the Borrowers shall
--------------
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (f) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the Net Available
Proceeds thereof, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in paragraph (e) of this Section 2.10.
(d) Sale of Assets. Without limiting the obligation of the Borrowers
--------------
to obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to
any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
-------------------
of all prior Dispositions after the date hereof as to which a prepayment has not
yet been made under this Section 2.10(d), shall exceed $10,000,000 then, no
later than five Business Days prior to the occurrence of the Current
Disposition, the Borrowers will deliver to the Lenders a statement, certified by
a Senior Officer, in form and detail satisfactory to the Administrative Agent,
of the amount of the Net Available Proceeds of the Current Disposition and of
all such prior Dispositions and will prepay the Loans (and/or provide cover for
Letter of Credit Liabilities as specified in paragraph (f) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 100% of the Net Available Proceeds of the Current Disposition and such
prior Dispositions, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in paragraph (e) of this Section 2.10.
Notwithstanding the foregoing, the Borrowers shall not be required to
make a prepayment pursuant to this paragraph (d) with respect to Net Available
Proceeds from any Disposition in the event that the Borrowers advise the
Administrative Agent at the time the Net Available Proceeds from such
Disposition are received that they intend to reinvest such Net Available
Proceeds in replacement assets pursuant to an Acquisition so long as
(x) such Net Available Proceeds are either (i) held by the
Administrative Agent in the Collateral Account pending such reinvestment,
in which event the Administrative Agent need not release such Net Available
Proceeds except upon presentation of evidence satisfactory to it that such
Net Available Proceeds are to be so reinvested in compliance with the
provisions of this Agreement or (ii) applied by the Borrowers to the
prepayment of Revolving Credit Loans hereunder (in which event the
Borrowers agree to advise the Administrative Agent in writing at the time
of such prepayment of Revolving
-44-
Credit Loans that such prepayment is being made from the proceeds of a
Disposition and that, as contemplated by Section 2.01(a) hereof, a portion
of the Revolving Credit Commitments hereunder equal to the amount of such
prepayment gives rise to a Reserved Commitment Amount that shall be
available hereunder only for purposes of making an acquisition under
Section 8.05(d)(iv) hereof),
(y) the Net Available Proceeds from any Disposition are in fact so
reinvested within 270 days of such Disposition (it being understood that,
in the event Net Available Proceeds from more than one Disposition are paid
into the Collateral Account or applied to the prepayment of Revolving
Credit Loans as provided in clause (x) above, such Net Available Proceeds
shall be deemed to be released (or, as the case may be, Revolving Credit
Loans utilizing the Reserved Commitment Amount shall be deemed to be made)
in the same order in which such Dispositions occurred and, accordingly, (A)
any such Net Available Proceeds so held for more than 270 days shall be
forthwith applied to the prepayment of Loans and reductions of Commitments
as provided above and (B) any Reserved Commitment Amount that remains so
unutilized for more than 270 days shall, subject to the satisfaction of the
conditions precedent to such borrowing in Section 6.02 hereof, be utilized
through the borrowing by the Borrowers of Revolving Credit Loans the
proceeds of which shall be applied to the prepayment of Loans and
reductions of Commitments as provided in paragraph (e) of this Section
2.10) and
(z) the aggregate amount of Net Available Proceeds (together with
investment earnings thereon) so held at any time by the Administrative
Agent pending reinvestment as contemplated by this sentence, together with
the aggregate amount of the Reserved Commitment Amount, shall not at any
time exceed $40,000,000 or such greater amount as the Majority Lenders may
otherwise agree.
As contemplated by Section 4.01 of the Pledge Agreement, nothing in this
paragraph (d) shall be deemed to obligate the Administrative Agent to release
any of such proceeds from the Collateral Account to the Borrowers for purposes
of reinvestment as aforesaid upon the occurrence and during the continuance of
any Event of Default.
(e) Application. Prepayments and reductions of Commitments described
-----------
above in this Section 2.10 shall be applied to the Term Loans and Incremental
Facility Loans of each Series then outstanding, and to the reduction of the
Revolving Credit Commitments, ratably in accordance with the respective amounts
of such Loans and Commitments and shall be applied:
(x) to the prepayment of the respective installments of the Term
Loans and Incremental Facility Loans ratably in accordance with the
respective principal amounts thereof and
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(y) to the extent that, after giving effect to any such reduction of
Revolving Credit Commitments, the sum of the aggregate outstanding
principal amount of the Revolving Credit Loans and Letter of Credit
Liabilities shall exceed the aggregate amount of the Revolving Credit
Commitments, to the prepayment of Revolving Credit Loans (and to provide
cover for Letter of Credit Liabilities as specified in paragraph (f)
below), so that, after giving effect thereto, such sum does not exceed the
aggregate amount of the Revolving Credit Commitments.
(f) Cover for Letter of Credit Liabilities. In the event that the
--------------------------------------
Borrowers shall be required pursuant to this Section 2.10, to provide cover for
Letter of Credit Liabilities, the Borrowers shall effect the same by paying to
the Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided therein as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of the Letter of Credit Liabilities
paid in full.
(g) Change in Commitments. If at any time the aggregate outstanding
---------------------
amount of Revolving Credit Loans and Letter of Credit Liabilities exceeds the
aggregate amount of the Revolving Credit Commitments then in effect, the
Borrowers shall prepay the Revolving Credit Loans (and/or provide cover for
Letter of Credit Liabilities as specified in paragraph (f) above) in such
amounts as shall be necessary so that after giving effect to such prepayment
(and cover), the aggregate outstanding amount of the Revolving Credit Loans and
Letter of Credit Liabilities does not exceed the aggregate amount of the
Revolving Credit Commitments, provided that any such prepayment shall be
--------
accompanied by any amounts payable under Section 5.05 hereof.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans.
------------------
(a) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of each Lender the entire outstanding principal
amount of such Lender's Revolving Credit Loans, and each Revolving Credit Loan
shall mature, on the Revolving Credit Commitment Termination Date. In addition,
if following any Revolving Credit Commitment Reduction Date the aggregate
principal amount of the Revolving Credit Loans shall exceed the Revolving Credit
Commitments, the Borrowers shall pay Revolving Credit Loans, and provide cover
for Letter of Credit Liabilities as specified in Section 2.10(f), in an
aggregate amount equal to such excess.
(b) Subject to the last sentence of this Section 3.01(b), the
Borrowers hereby jointly and severally promise to pay to the Administrative
Agent for account of the Term Loan
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Lenders the principal of the Term Loans in twenty-five consecutive quarterly
installments payable on the Principal Payment Dates as follows:
Principal Payment Date Amount of Installment ($)
---------------------- -------------------------
September 30, 2002 $ 250,000
December 31, 2002 $ 250,000
March 31, 2003 $ 250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 250,000
December 31, 2003 $ 250,000
March 31, 2004 $ 250,000
June 30, 2004 $ 250,000
September 30, 2004 $ 250,000
December 31, 2004 $ 250,000
March 31, 2005 $ 250,000
June 30, 2005 $ 250,000
September 30, 2005 $ 250,000
December 31, 2005 $ 250,000
March 31, 2006 $ 250,000
June 30, 2006 $ 250,000
September 30, 2006 $ 250,000
December 31, 2006 $ 250,000
March 31, 2007 $ 250,000
June 30, 2007 $ 250,000
September 30, 2007 $ 250,000
December 31, 2007 $ 250,000
March 31, 2008 $ 250,000
June 30, 2008 $ 250,000
September 30, 2008 $94,000,000
If Mediacom does not refinance its 1998 Senior Notes prior to March 31, 2007,
with new Indebtedness having a maturity no earlier than two years after the
payment of all amounts due under this Agreement and on terms satisfactory to the
Administrative Agent and the Majority
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Lenders, the entire outstanding principal amount of the Term Loans shall be
payable on September 30, 2007.
(c) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of the Incremental Facility Lenders of any
Series the principal of the Incremental Facility Loans of such Series on the
respective Principal Payment Dates agreed upon between the Borrowers and such
Incremental Facility Lenders pursuant to Section 2.01(c) hereof at the time such
Lenders become obligated to make such Incremental Facility Loans hereunder.
3.02 Interest. The Borrowers hereby jointly and severally promise to
--------
pay to the Administrative Agent for account of each Lender interest on the
unpaid principal amount of each Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin and
----
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period plus the Applicable Margin.
----
Notwithstanding the foregoing, the Borrowers jointly and severally promise to
pay to the Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such Lender,
on any Reimbursement Obligation held by such Lender and on any other amount
payable by the Borrowers hereunder to or for account of such Lender, that shall
not be paid in full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the period from and including the due
date thereof to but excluding the date the same is paid in full. Accrued
interest on each Loan shall be payable (i) in the case of a Base Rate Loan,
quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the
last day of each Interest Period therefor and, if such Interest Period is longer
than three months, at three-month intervals following the first day of such
Interest Period, (iii) in the case of any Eurodollar Loan, upon the payment,
prepayment or Conversion thereof (but only on the principal amount so paid,
prepaid or Converted) and (iv) in the case of all Loans, upon the payment or
prepayment in full of the principal of the Loans, and the termination of the
Commitments, hereunder, except that interest payable at the Post-Default Rate
shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrowers.
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3.03 Determination of Applicable Margin.
----------------------------------
(a) The Applicable Margin for the period from the Closing Date to the
date of the Triax Acquisition shall be determined based upon the certificate
delivered pursuant to Section 6.01(l) hereof. The Applicable Margin for the
period from and including the date of the Triax Acquisition to the day prior to
the first Quarterly Date occurring after the date of the Triax Acquisition shall
be determined based upon a Rate Ratio Certificate (computed on a pro forma
basis, after giving effect to the borrowings to be made in connection with the
Triax Acquisition), which Rate Ratio Certificate shall be delivered three or
more days prior to the date of the Triax Acquisition. Thereafter, the Applicable
Margin for each Quarterly Payment Period shall be determined based upon a Rate
Ratio Certificate for such Quarterly Payment Period delivered by the Borrowers
to the Lenders and the Administrative Agent under this Section 3.03. If the Rate
Ratio Certificate for any Quarterly Payment Period is delivered to the
Administrative Agent three or more days prior to the first day of such Quarterly
Payment Period, any adjustment in the Applicable Margin required to be made, as
shown in such Rate Ratio Certificate, shall be effective on the first day of
such Quarterly Payment Period.
(b) If the Rate Ratio Certificate for any Quarterly Payment Period
(or for the period from and including the date of the Triax Acquisition to the
first Quarterly Payment Period occurring after the date of the Triax
Acquisition) is delivered by the Borrowers to the Administrative Agent later
than three days prior to the commencement of such Quarterly Payment Period (or
the Triax Acquisition), then (i) any decrease in the Applicable Margin for such
Quarterly Payment Period (or such period) shall not become effective on the
first day of such Quarterly Payment Period (or such period) but shall instead
become effective on the third day following receipt by the Administrative Agent
of such Rate Ratio Certificate and (ii) any increase in the Applicable Margin
for such Quarterly Payment Period (or such period) shall become effective
retroactively from the first day of such Quarterly Payment Period (or such
period).
(c) If it shall be determined at any time, on the basis of a
certificate of a Senior Officer delivered pursuant to the last sentence of
Section 8.01 hereof, that the Applicable Margin then in effect for the current
Quarterly Payment Period, or any previous Quarterly Payment Period, is or was
incorrect, and that a correction would have the effect of increasing the
Applicable Margin, then the Applicable Margin shall be so increased effective
retroactively from the first day of such Quarterly Payment Period, provided that
--------
in the event such certificate for any fiscal quarter is not delivered to the
Lenders pursuant to said Section 8.01 within 60 days of the end of such fiscal
quarter, then, unless the Borrowers shall deliver such certificate within 10
days after notice of such non-delivery shall be given by any Lender or the
Administrative Agent to the Borrowers, the Applicable Margin for such Quarterly
Payment Period shall be deemed to be the highest Applicable Margin provided for
in the definition of such term in Section 1.01 hereof.
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(d) In the event of any retroactive increase in the Applicable Margin
for any Quarterly Payment Period pursuant to paragraph (a), (b) or (c) above,
the amount of interest in respect of any Loan outstanding during all or any
portion of such Quarterly Payment Period shall be recalculated using the
Applicable Margin as so increased. On the Business Day immediately following
receipt by the Borrowers of notice from the Administrative Agent of such
increase, the Borrowers shall pay to the Administrative Agent, for account of
the Lenders, an amount equal to the difference between (i) the amount of
interest previously paid or payable by the Borrowers in respect of such Loan for
such Quarterly Payment Period and (ii) the amount of interest in respect of such
Loan as so recalculated for such Quarterly Payment Period.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
------------------------------------------------
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrowers under this Agreement, and except to the extent otherwise provided
therein, all payments to be made by the Borrowers under any other Loan Document
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at an account designated by
the Administrative Agent to the Borrowers, not later than 1:00 p.m. New York
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of the Borrowers with such
Lender (with notice to the Borrowers and the Administrative Agent), provided
--------
that such Lender's failure to give such notice shall not affect the validity
thereof.
(c) The Borrowers shall, at the time of making each payment under
this Agreement for account of any Lender, specify to the Administrative Agent
(which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable by the Borrowers hereunder to
which such payment is to be applied (and in the event that the Borrowers fail to
so specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02 hereof,
may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(e) hereof, each payment received by the Administrative Agent under
this Agreement for account of any Lender shall be paid by the Administrative
Agent promptly to such Lender, in immediately
-50-
available funds, for account of such Lender's Applicable Lending Office for the
Loan or other obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein:
(a) each borrowing of Loans of a particular Class (including of a
particular Series of Incremental Facility Loans) from the Lenders under
Section 2.01 hereof shall be made from the relevant Lenders, each payment
of commitment fee under Section 2.05 hereof in respect of Commitments of a
particular Class shall be made for account of the relevant Lenders, and
each termination or reduction of the amount of the Commitments of a
particular Class under Section 2.04 hereof shall be applied to the
respective Commitments of such Class of the relevant Lenders, pro rata
according to the amounts of their respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof, Eurodollar
Loans of any Class (including of a particular Series of Incremental
Facility Loans) having the same Interest Period shall be allocated pro rata
among the relevant Lenders according to the amounts of their respective
Revolving Credit, Term Loan and Incremental Facility Loan Commitments of
the relevant Series (in the case of the making of Loans) or their
respective Revolving Credit, Term and Incremental Facility Loans of the
relevant Series (in the case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Revolving Credit, Term
and Incremental Facility Loans by the Borrowers shall be made for account
of the relevant Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and
(d) each payment of interest on Revolving Credit, Term and
Incremental Facility Loans by the Borrowers shall be made for account of
the relevant Lenders pro rata in accordance with the amounts of interest on
such Loans then due and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans shall be computed on
------------
the basis of a year of 360 days and actual days elapsed (including the first day
but excluding the last day) occurring in the period for which payable and
interest on Base Rate Loans and Reimbursement Obligations, commitment fee and
letter of credit fees shall be computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed (including the first day but,
except
-51-
as otherwise provided in Section 2.03(g) hereof, excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant
---------------
to Section 2.10 hereof and Conversions or prepayments made pursuant to Section
5.04 hereof, each borrowing, Conversion and partial prepayment of principal of
Base Rate Loans (other than prepayments of Term Loans, as to which the
provisions of Section 2.09(c) hereof shall apply) shall be in an aggregate
amount at least equal to $100,000 or a larger multiple of $100,000 and each
borrowing, Conversion and partial prepayment of Eurodollar Loans (other than
prepayments of Term Loans, as to which the provisions of Section 2.09(c) hereof
shall apply) shall be in an aggregate amount at least equal to $3,000,000 or a
larger multiple of $500,000 (borrowings, Conversions or prepayments of or into
Loans of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period). If any Eurodollar Loans would otherwise be in a lesser
principal amount for any period, such Loans shall be Base Rate Loans during such
period.
4.05 Certain Notices. Notices by the Borrowers to the Administrative
---------------
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than 1:00 p.m. New York time on the number of Business Days prior to
the date of the relevant termination, reduction, borrowing, Conversion,
Continuation or prepayment or the first day of such Interest Period specified
below:
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Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans (including, if applicable, the particular Series of Incremental
Facility Loans) to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate.
The Administrative Agent shall promptly notify the Lenders of the
contents of each such notice. In the event that the Borrowers fail to select the
Type of Loan, or the duration of any Interest Period for any Eurodollar Loan,
within the time period and otherwise as provided in this Section 4.05, such Loan
(if outstanding as a Eurodollar Loan) will be automatically Converted into a
Base Rate Loan on the last day of the then current Interest Period for such Loan
or (if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
------------------------------------------------
Administrative Agent shall have been notified by a Lender or the Borrowers (the
"Payor") prior to the date on which the Payor is to make payment to the
-----
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrowers) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
----------------
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has
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been made and may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient(s) on such
date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
------------
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, provided that if neither the recipient(s) nor the Payor shall return
--------
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be made by
the Borrowers to the Lenders, the Borrowers and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of the Borrowers under Section 3.02 hereof to pay interest
on the Required Payment at the Post-Default Rate), it being understood that
the return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of the Borrowers under
said Section 3.02 to pay interest at the Post-Default Rate in respect of
the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to the Borrowers, the Payor and the Borrowers shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type of such Loan, it
being understood that the return by the Borrowers of the Required Payment
to the Administrative Agent shall not limit any claim the Borrowers may
have against the Payor in respect of such Required Payment.
4.07 Sharing of Payments, Etc.
-------------------------
(a) Each Borrower agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of
-54-
whether such deposit or other indebtedness are then due to such Borrower), in
which case it shall promptly notify such Borrower and the Administrative Agent
thereof, provided that such Lender's failure to give such notice shall not
--------
affect the validity thereof.
(b) If any Lender shall obtain from any Borrower payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any other
Loan Document through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or Letter of Credit Liabilities or such other amounts then due
hereunder or thereunder by such Borrower to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans of such Class or Letter of Credit Liabilities or such
other amounts, respectively, owing to such other Lenders (or in interest due
thereon, as the case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment) pro rata
in accordance with the unpaid principal of and/or interest on the Loans of such
Class or Letter of Credit Liabilities or such other amounts, respectively, owing
to each of the Lenders. To such end all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) Each Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrowers. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
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Section 5. Yield Protection, Etc.
----------------------
5.01 Additional Costs.
----------------
(a) The Borrowers shall pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
----------------
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (excluding
changes in the rate of tax on the overall net income of such Lender or of
such Applicable Lending Office by the jurisdiction in which such Lender has
its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement (or any of
such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Borrowers under this Section
5.01(a), the Borrowers may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter to make
or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable), provided that such suspension shall not affect the right of such
--------
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Borrowers shall pay directly to each
Lender from time to time on
-56-
request such amounts as such Lender may determine to be necessary to compensate
such Lender (or, without duplication, the bank holding company of which such
Lender is a subsidiary) for any costs that it determines are attributable to the
maintenance by such Lender (or any Applicable Lending Office or such bank
holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord, of capital in
respect of its Commitments or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such bank holding
company) to a level below that which such Lender (or any Applicable Lending
Office or such bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrowers of any event occurring
after the date hereof entitling such Lender to compensation under paragraph (a)
or (b) of this Section 5.01 as promptly as practicable, but in any event within
45 days, after such Lender obtains actual knowledge thereof; provided that (i)
--------
if any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Borrowers a certificate setting forth the basis and amount
of each request by such Lender for compensation under paragraph (a) or (b) of
this Section 5.01. Determinations and allocations by any Lender for purposes of
this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph
(a) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (b) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Lender
under this Section 5.01, shall be conclusive, provided that such determinations
--------
and allocations are made on a reasonable basis.
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5.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders, if the related Loans are Term Loans, the Majority
Term Loan Lenders, or if the related Loans are Incremental Facility Loans
of any Series, the Majority Incremental Facility Lenders of such Series
determine, which determination shall be conclusive, and notify the
Administrative Agent that the relevant rates of interest referred to in the
definition of "Eurodollar Base Rate" in Section 1.01 hereof upon the basis
of which the rate of interest for Eurodollar Loans for such Interest Period
is to be determined are not likely adequately to cover the cost to such
Lenders of making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrowers and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Borrowers shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Borrowers thereof (with a copy to the Administrative Agent) and such
Lender's obligation to make or Continue, or to Convert Loans of any other Type
into, Eurodollar Loans shall be suspended until such time as such Lender may
again make and maintain Eurodollar Loans (in which case the provisions of
Section 5.04 hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to
---------------------------
make Eurodollar Loans of any Class or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans of any Class shall be suspended pursuant to Section 5.01
or 5.03 hereof, such Lender's Eurodollar Loans of such Class shall be
automatically Converted into Base Rate Loans of such
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Class on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from a circumstance described
in Section 5.03 hereof, on such earlier date as such Lender may specify to the
Borrowers with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans of such Class
have been so Converted, all payments and prepayments of principal that
would otherwise be applied to such Lender's Eurodollar Loans of such Class
shall be applied instead to its Base Rate Loans of such Class; and
(b) all Loans of such Class that would otherwise be made or Continued
by such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Base Rate Loans of such Class of such Lender that
would otherwise be Converted into Eurodollar Loans shall remain as Base
Rate Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans of the same
Class made by other Lenders are outstanding, such Lender's Base Rate Loans of
such Class shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans of such Class are allocated among the Lenders ratably (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments of such Class.
5.05 Compensation. The Borrowers shall pay to the Administrative Agent
------------
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9 hereof) on
a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrowers for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without
------------------------------------------------
limiting the obligations of the Borrowers under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrowers shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrowers shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
----------
(a) The Borrowers jointly and severally agree to pay to each Lender
that is not a U.S. Person such additional amounts as are necessary in order that
the net payment of any amount due to such non-U.S. Person hereunder after
deduction for or withholding in respect of any U.S. Taxes imposed with respect
to such payment (or in lieu thereof, payment of such U.S. Taxes by such non-U.S.
Person), will not be less than the amount stated herein to be then
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due and payable, provided that the foregoing obligation to pay such additional
--------
amounts shall not apply:
(i) if such Lender is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, to any payment to any Lender hereunder unless
such Lender is, on the date hereof (or on the date it becomes a Lender
hereunder as provided in Section 11.06(b) hereof) and on the date of any
change in the Applicable Lending Office of such Lender, either entitled to
submit a Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it hereunder
in respect of the Loans) or a Form 4224 (relating to all interest to be
received by such Lender hereunder in respect of the Loans), or (B) if such
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and is entitled to claim exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. Lender delivers a Form W-8, a
certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 864(d)(4) of the Code)), properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption from,
or a reduced rate of, U.S. Federal withholding tax on payments of interest
by the Borrower under this Agreement and the other Loan Documents, or
(ii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person (or, if such non-U.S. Person is not the beneficial owner of
the relevant Loan, such beneficial owner) to comply with applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the
United States of America of such non-U.S. Person (or beneficial owner, as
the case may be) if such compliance is required by statute or regulation of
the United States of America as a precondition to relief or exemption from
such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "Form 1001" shall mean Form 1001
---------
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America and (B) "Form 4224" shall mean Form
---------
4224 (Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms (including Form W-8EC1 or Form W-8BEN) as may
from time to time be adopted by the relevant taxing authorities of the United
States of America to document a claim to which such Form relates).
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(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the
Borrowers shall deliver to the Administrative Agent for delivery to such non-
U.S. Person evidence satisfactory to such Person of such deduction, withholding
or payment (as the case may be).
5.08 Replacement of Lenders. If any Lender requests compensation
----------------------
pursuant to Section 5.01, 5.06 or 5.07 hereof, or any Lender's obligation to
make or Continue, or to Convert Loans of any Type into, the other Type of Loan
shall be suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender
requesting such compensation being herein called a "Requesting Lender"), the
-----------------
Borrowers, upon three Business Days notice, may require that such Requesting
Lender transfer all of its right, title and interest under this Agreement to any
bank or other financial institution (a "Proposed Lender") identified by the
--------------
Borrowers that is reasonably satisfactory to the Administrative Agent (i) if
such Proposed Lender agrees to assume all of the obligations of such Requesting
Lender hereunder, and to purchase all of such Requesting Lender's Loans
hereunder for consideration equal to the aggregate outstanding principal amount
of such Requesting Lender's Loans, together with interest thereon to the date of
such purchase, and satisfactory arrangements are made for payment to such
Requesting Lender of all other amounts payable hereunder to such Requesting
Lender on or prior to the date of such transfer (including any fees accrued
hereunder and any amounts that would be payable under Section 5.05 hereof, as if
all of such Requesting Lender's Loans were being prepaid in full on such date)
and (ii) if such Requesting Lender has requested compensation pursuant to said
Section 5.01, 5.06 or 5.07 hereof, such Proposed Lender's aggregate requested
compensation, if any, pursuant to said Section 5.01, 5.06 or 5.07 with respect
to such Requesting Lender's Loans is lower than that of the Requesting Lender.
Subject to the provisions of Section 11.06(b) hereof, such Proposed Lender shall
be a "Lender" for all purposes hereunder. Without prejudice to the survival of
any other agreement of the Borrowers hereunder the agreements of the Borrowers
contained in Sections 5.01, 5.06, 5.07 and 11.03 hereof (without duplication of
any payments made to such Requesting Lender by the Borrowers or the Proposed
Lender) shall survive for the benefit of such Requesting Lender under this
Section 5.08 with respect to the time prior to such replacement.
Section 6. Conditions Precedent.
--------------------
6.01 Initial Extension of Credit. The obligation of any Lender to make
---------------------------
its initial extension of credit hereunder (whether by making a Loan or issuing a
Letter of Credit) is subject to the conditions precedent that (i) such extension
of credit shall occur on or before September 30, 1999 and (ii) the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c) and (d) below, sufficient copies for each Lender),
each of which
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shall be satisfactory to the Administrative Agent (and to the extent specified
below, to each Lender) in form and substance:
(a) Organizational Documents. Certified copies of the Operating
------------------------
Agreements and of the charter and by-laws (or equivalent documents) of each
Obligor and of all limited liability company and corporate authority for
each Obligor (including, without limitation, board of director resolutions,
member approvals and evidence of incumbency, including specimen signatures,
of officers of each Obligor) with respect to the execution, delivery and
performance of the Basic Documents to which such Obligor is to be a party
and each other document to be delivered by such Obligor from time to time
in connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor to the
contrary).
(b) Officer's Certificate. A certificate of a Senior Officer, dated
---------------------
the Closing Date, to the effect set forth in the first sentence of Section
6.02 hereof.
(c) Opinion of Counsel to the Obligors. An opinion, dated the Closing
----------------------------------
Date, of Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel to the
Obligors, substantially in the form of Exhibit G hereto and covering such
other matters as the Administrative Agent or any Lender may reasonably
request (and the Borrowers hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion, dated
--------------------------------------------
the Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York
counsel to Chase, substantially in the form of Exhibit H hereto (and Chase
hereby instructs such counsel to deliver such opinion to the Lenders).
(e) Notes. Promissory notes for each Lender that shall have requested
-----
the execution and delivery of a promissory note, on or prior to the Closing
Date, pursuant to Section 2.08(d) hereof.
(f) Pledge Agreement. The Pledge Agreement, duly executed and
----------------
delivered by the Borrowers and the Administrative Agent. In addition, each
such Obligor shall have taken such other action as the Administrative Agent
shall have requested in order to perfect the security interests created
pursuant to the Pledge Agreement, including, without limitation, delivering
to the Administrative Agent, for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements.
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(g) Guarantee and Pledge Agreement. The Guarantee and Pledge
------------------------------
Agreement, duly executed and delivered by Mediacom, the Manager and the
Administrative Agent and the certificates (if any) evidencing the ownership
interests in the Borrowers held by Mediacom and the Manager, accompanied by
undated powers executed in blank. In addition, Mediacom and the Manager
shall have taken such other action as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant to
the Guarantee and Pledge Agreement, including, without limitation,
delivering to the Administrative Agent, for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing statements.
(h) Management Fee Subordination Agreement. The Management Fee
--------------------------------------
Subordination Agreement, duly executed and delivered by the Manager, the
Borrowers and the Administrative Agent.
(i) Affiliate Subordinated Indebtedness Subordination Agreements.
------------------------------------------------------------
Affiliate Subordinated Indebtedness Subordination Agreements, duly executed
and delivered by the Borrowers, the Administrative Agent and by Mediacom
and the Manager, respectively.
(j) Termination of Existing Credit Agreements. Evidence that (i) the
-----------------------------------------
principal of and interest on, and all other amounts owing under the
Existing Credit Agreements (other than "Letters of Credit" thereunder
which, as provided in Section 2.03(l) hereof, are being continued as
Letters of Credit hereunder) are being paid in full with the proceeds of
the initial Loans and the commitments thereunder terminated and (ii) to the
extent the assets of the Borrowers and their Subsidiaries are subject to
Liens not permitted hereunder, such Liens shall have been released (or
arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(k) Approvals. Evidence of receipt of all material licenses, permits,
---------
approvals and consents, if any, required (or, in the discretion of the
Administrative Agent, advisable) with respect to the continuing operation
of the Borrowers and their Subsidiaries.
(l) Rate Ratio Certificate. A certificate of a Senior Officer, dated
----------------------
the Closing Date, setting forth, in reasonable detail, the calculation (and
the basis for such calculation) of Rate Ratio as of such date.
(m) Conversion of Preferred Membership Interests. Evidence that the
--------------------------------------------
Borrowers shall have converted all of their Preferred Membership Interests
into Affiliate Subordinated Indebtedness or that such conversion is being
effected on the Closing Date.
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(n) Other Documents. Such other documents as the Administrative Agent
---------------
or any Lender or special New York counsel to Chase may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Borrowers of such fees as the Borrowers
shall have agreed to pay or deliver to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to
Chase, in connection with the negotiation, preparation, execution and delivery
of this Agreement and the other Loan Documents and the extensions of credit
hereunder (to the extent that statements for such fees and expenses have been
delivered to the Borrowers).
6.02 Initial and Subsequent Extensions of Credit. The obligation of
-------------------------------------------
the Lenders to make any Loan or otherwise extend any credit to the Borrowers
upon the occasion of each borrowing or other extension of credit hereunder
(including the initial borrowing) is subject to the further conditions precedent
that, both immediately prior to the making of such Loan or other extension of
credit and also after giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrowers in
Section 7 hereof, and by each Obligor in the other Loan Documents to which
it is a party, shall be true and complete on and as of the date of the
making of such Loan or other extension of credit with the same force and
effect as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Borrowers hereunder shall constitute a certification by the Borrowers to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrowers otherwise notify the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 7. Representations and Warranties. The Borrowers represent
------------------------------
and warrant to the Administrative Agent and the Lenders that:
7.01 Existence. Each Borrower and its Subsidiaries: (a) is a
---------
corporation, partnership, limited liability company or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be
-65-
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
7.02 Financial Condition. The Borrowers have heretofore furnished to
-------------------
each of the Lenders the following financial statements:
(i) audited financial statements of each Borrower and its respective
Subsidiaries (or, in the case of Mediacom California, Mediacom Arizona and
Mediacom Delaware, combined financial statements of such Borrowers and
their Subsidiaries) for the fiscal years ended December 31, 1997 and
December 31, 1998;
(ii) unaudited interim financial statements of each Borrower and its
respective Subsidiaries (or, in the case of Mediacom California, Mediacom
Arizona and Mediacom Delaware, combined financial statements of such
Borrowers and their Subsidiaries) for the fiscal quarters ended March 31,
1999 and June 30, 1999, respectively; and
(iii) unaudited pro forma combined financial statements of the
Borrowers and their Subsidiaries as at and for the fiscal quarter ended
June 30, 1999.
All such financial statements are complete and correct and fairly present in all
material respects the actual or pro forma (as the case may be) combined
financial condition of the respective entities as at said respective dates and
the actual or pro forma (as the case may be) results of their operations for the
applicable periods ended on said respective dates, all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis.
Since June 30, 1999, there has been no material adverse change in the
combined financial condition, operations, business or prospects of the Borrowers
and their Subsidiaries taken as a whole from that set forth in said pro forma
financial statements as at said date referred to in clause (iii) above.
7.03 Litigation. There are no legal or arbitral proceedings, or any
----------
proceedings or investigations by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of any Borrower)
threatened against any Borrowers or any of its Subsidiaries, that, if adversely
determined could (either individually or in the aggregate) have a Material
Adverse Effect.
7.04 No Breach. None of the execution and delivery of this Agreement
---------
and the other Basic Documents, the consummation of the transactions herein and
therein contemplated or compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the Operating Agreements, or any applicable law or
-66-
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which any
Borrower or any of its Subsidiaries is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for the Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Borrower or any of its Subsidiaries pursuant to the terms of any
such agreement or instrument.
7.05 Action. Each Borrower has all necessary limited liability
------
company power, authority and legal right to execute, deliver and perform its
obligations under each of the Basic Documents to which it is a party; the
execution, delivery and performance by each Borrower of each of the Basic
Documents to which it is a party have been duly authorized by all necessary
limited liability company action on its part (including, without limitation, any
required member approvals); and this Agreement has been duly and validly
executed and delivered by each Borrower and constitutes, and the other Basic
Documents to which it is a party when executed and delivered will constitute,
its legal, valid and binding obligation, enforceable against each Borrower in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of, and no
---------
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Borrower of this Agreement or any of the other Basic
Documents to which it is a party or for the legality, validity or enforceability
hereof or thereof, except for (i) filings and recordings in respect of the Liens
created pursuant to the Security Documents and (ii) the exercise of remedies
under the Security Documents may require prior approval of the FCC or the
issuing municipalities or States under one or more of the Franchises.
7.07 ERISA. Each Plan, and, to the knowledge of each Borrower, each
-----
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which such Borrower would be
under an obligation to furnish a report to the Lenders under Section 8.01(e)
hereof.
7.08 Taxes. Each Borrower and each of its Subsidiaries has filed all
-----
Federal income tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any
-67-
assessment received by such Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been set aside by such Borrower in accordance with GAAP. The
charges, accruals and reserves on the books of the Borrowers and their
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Borrowers, adequate. None of the Borrowers has given or been
requested to give a waiver of the statute of limitations relating to the payment
of any Federal, state, local and foreign taxes or other impositions.
7.09 Investment Company Act. None of the Borrowers nor any of its
----------------------
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.10 Public Utility Holding Company Act. None of the Borrowers nor
----------------------------------
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.11 Material Agreements and Liens.
-----------------------------
(a) Part A of Schedule II hereto sets forth (i) a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement (other than the Loan
Documents) providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrowers or any of their Subsidiaries, outstanding on the date hereof,
or that (after giving effect to the transactions contemplated hereunder to occur
on or before the Closing Date) will be outstanding on the Closing Date, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $1,000,000, and the aggregate principal or face amount outstanding or
that may become outstanding under each such arrangement is correctly described
in Part A of said Schedule II, and (ii) a statement of the aggregate amount of
obligations in respect of surety and performance bonds backing pole rental or
conduit attachments and the like, or backing obligations under Franchises, of
the Borrowers or any of their Subsidiaries outstanding on the date hereof.
(b) Part B of Schedule II hereto is a complete and correct list of
each Lien (other than the Liens created pursuant to the Security Documents)
securing Indebtedness of any Person outstanding on the date hereof, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $1,000,000 and covering any Property of the Borrowers or any of their
Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by
each such Lien and the Property covered by each such Lien is correctly described
in Part B of said Schedule II.
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7.12 Environmental Matters. Each of the Borrowers and their
---------------------
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or authorization would not (either
individually or in the aggregate) have a Material Adverse Effect. Each of such
permits, licenses and authorizations is in full force and effect and each of the
Borrowers and its Subsidiaries is in compliance with the terms and conditions
thereof, and is 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 therewith would not (either individually or in the aggregate) have a
Material Adverse Effect. In addition, 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, to the Borrowers' knowledge, no
investigation or review is pending or threatened by any governmental or other
entity with respect to any alleged failure by the Borrowers or any of their
Subsidiaries to have any environmental, health or safety permit, license or
other authorization required under any Environmental Law in connection with the
conduct of the business of the Borrowers or any of their Subsidiaries or with
respect to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous Materials generated by
the Borrowers or any of their Subsidiaries. All environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or that are in
the possession of the Borrowers or any of their Subsidiaries in relation to
facts, circumstances or conditions at or affecting any site or facility now or
previously owned, operated or leased by the Borrowers or any of their
Subsidiaries and that could result in a Material Adverse Effect have been made
available to the Lenders.
7.13 Capitalization. The Borrowers have heretofore delivered to the
--------------
Lenders true and complete copies of the Operating Agreements. The only members
of Mediacom California on the date hereof are Mediacom and Mediacom Management
Corporation, the only member of Mediacom Delaware and Mediacom Southeast on the
date hereof is Mediacom and the only members of Mediacom Arizona on the date
hereof are Mediacom and Mediacom California. As of the date hereof, except for
Sections 6.2 and 7.3 of the Mediacom Southeast Operating Agreement relating to
Preferred Membership Interests, (x) there are no outstanding Equity Rights with
respect to any of the Borrowers and (y) except for the redemption permitted
pursuant to Section 8.09(f) hereof, there are no outstanding obligations of any
of the Borrowers or any of their Subsidiaries to repurchase, redeem, or
otherwise acquire any equity interests in the Borrowers nor are there any
outstanding obligations of any Borrower or any of their Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
such Borrowers or any of their Subsidiaries.
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7.14 Subsidiaries, Etc.
-----------------
(a) As of the date hereof, none of the Borrowers has any
Subsidiaries.
(b) Set forth in Schedule III hereto is a complete and correct list
of all Investments (other than Investments of the type referred to in paragraphs
(b), (c) and (e) of Section 8.08 hereof) held by the Borrowers or any of their
Subsidiaries in any Person on the date hereof and, for each such Investment, (x)
the identity of the Person or Persons holding such Investment and (y) the nature
of such Investment. Except as disclosed in Schedule III hereto, each of the
Borrowers and their Subsidiaries owns, free and clear of all Liens (other than
the Liens created pursuant to the Security Documents), all such Investments.
(c) None of the Subsidiaries of the Borrowers is, on the date
hereof, subject to any indenture, agreement, instrument or other
arrangement of the type described in Section 8.18(d) hereof.
7.15 True and Complete Disclosure. The information, reports,
----------------------------
financial statements, exhibits and schedules (including the Information
Memorandum) furnished in writing by or on behalf of the Borrowers to the
Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Loan Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole do not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrowers and their
Subsidiaries to the Administrative Agent and the Lenders in connection with this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby will be true, complete and accurate in every material respect, or
(in the case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact known to the
Borrowers that could reasonably be expected to have a Material Adverse Effect
(other than facts affecting the cable television industry in general) that has
not been disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
7.16 Franchises.
----------
(a) Set forth in Schedule IV hereto is a complete and correct list
of all Franchises (identified by issuing authority, franchisee and expiration
date) owned by the Borrowers and their Subsidiaries on the date hereof.
(b) Each of the Borrowers and their Subsidiaries possesses or has
the right to
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use all such Franchises, and all copyrights, licenses, trademarks, service
marks, trade names or other rights, including licenses and permits granted by
the FCC, agreements with public utilities and microwave transmission companies,
pole or conduit attachment, use, access or rental agreements and utility
easements that are necessary for the conduct of the CATV Systems of the
Borrowers and their Subsidiaries, except for such of the foregoing the absence
of which could not have a Material Adverse Effect on the Borrowers or any of
their Subsidiaries, and each of such Franchises, copyrights, licenses, patents,
trademarks, service marks, trade names and rights is in full force and effect
and no material default has occurred and is continuing thereunder. None of the
Borrowers nor any of its Subsidiaries has received any notice from the granting
body or any other governmental authority with respect to any breach of any
covenant under, or any default with respect to, any Franchise. Complete and
correct copies of all Franchises have heretofore been made available to the
Administrative Agent.
7.17 The CATV Systems.
----------------
(a) Each of the Borrowers and their Subsidiaries, and the CATV
Systems owned by it, are in compliance in all material respects with all
applicable federal, state and local laws, rules and regulations, including
without limitation, the Communications Act, the Copyright Revision Act of 1976,
and the rules and regulations of the FCC and the United States Copyright Office,
including, without limitation, rules and laws governing system registration, use
of aeronautical frequencies and signal carriage, equal employment opportunity,
cumulative leakage index testing and reporting, signal leakage, and subscriber
privacy, except to the extent that the failure to so comply with any of the
foregoing could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing except to the extent that the failure to comply with any of the
following could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect and except as set forth in Schedule V
hereto:
(i) the communities included in the areas covered by the Franchises
have been registered with the FCC;
(ii) all of the annual performance tests on such CATV Systems
required under the rules and regulations of the FCC have been performed and
the results of such tests demonstrate satisfactory compliance with the
applicable requirements being tested in all material respects;
(iii) such CATV Systems currently meet or exceed the technical
standards set forth in the rules and regulations of the FCC, including,
without limitation, the leakage limits contained in 47 C.F.R. Section
76.605(a)(11);
-71-
(iv) such CATV Systems are being operated in compliance with the
provisions of 47 C.F.R. Sections 76.610 through 76.619 (mid-band and super-
band signal carriage), including 47 C.F.R. Section 76.611 (compliance with
the cumulative signal leakage index); and
(v) where required, appropriate authorizations from the FCC have
been obtained for the use of all aeronautical frequencies in use in such
CATV Systems and such CATV Systems are presently being operated in
compliance with such authorizations (and all required certificates, permits
and clearances from governmental agencies, including the Federal Aviation
Administration, with respect to all towers, earth stations, business radios
and frequencies utilized and carried by such CATV Systems have been
obtained) .
(b) All notices, statements of account, supplements and other
documents required under Section 111 of the Copyright Act of 1976 and under the
rules of the Copyright Office with respect to the carriage of broadcast station
signals by the CATV Systems (the "Copyright Filings") owned by the Borrowers and
-----------------
their Subsidiaries have been duly filed, and the proper amount of copyright fees
have been paid on a timely basis, and each such CATV System qualifies for the
compulsory license under Section 111 of the Copyright Act of 1976, except to the
extent that the failure to so file or pay could not (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect, it
being understood that this representation and warranty is given to the knowledge
of the Borrowers with respect to periods prior to the ownership of such CATV
Systems by the Borrowers and their Subsidiaries. To the knowledge of the
Borrowers, there is no pending claim, action, demand or litigation by any other
person with respect to the Copyright Filings or related royalty payments made by
the CATV Systems.
(c) The carriage of all off-air signals by the CATV Systems owned by
the Borrowers and their Subsidiaries is permitted by valid transmission consent
agreements or by must-carry elections by broadcasters, or is otherwise permitted
under applicable law, except to the extent the failure to obtain any of the
foregoing could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect.
(d) The assets of the CATV Systems owned by the Borrowers and their
Subsidiaries are adequate and sufficient in all material respects for all of the
current operations of such CATV Systems.
7.18 Rate Regulation. Each of the Borrowers and their Subsidiaries
---------------
have each reviewed and evaluated in detail the FCC rules currently in effect
(the "Rate Regulation Rules") implementing the rate regulation provisions of the
---------------------
Cable Television Consumer Protection and Competition Act of 1992 (the "Rate
----
Regulation Act"). Based upon such review by the Borrowers and their
--------------
Subsidiaries:
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(i) except as set forth in Schedule V hereto, none the CATV Systems
of the Borrowers is subject to effective competition as of the date hereof;
(ii) except as set forth in Schedule V hereto, no franchising
authority has notified the Borrowers or any of their Subsidiaries of its
application to be certified to regulate rates as provided in Section 76.910
of the Rate Regulation Rules;
(iii) except as set forth in Schedule V hereto, no franchising
authority has notified the Borrowers or any of their Subsidiaries that it
has been certified and has adopted regulations required to commence
regulation as provided in Section 76.910(c)(2) of the Rate Regulation
Rules;
(iv) to the knowledge of the Borrowers and except as set forth in
Schedule V hereto, there are no pending cable service programming rate
complaints filed with the FCC; and
(v) no reduction of rates or refunds to subscribers is required by
an outstanding order of the FCC or any local franchising authority as of
the date hereof under the Rate Regulation Act and the Rate Regulation Rules
applicable to the CATV Systems of the Borrowers and their Subsidiaries.
7.19 Year 2000 Issues. Any reprogramming required to permit the
----------------
proper functioning, in and following the year 2000, of (i) the Borrowers'
material operating computer systems and (ii) material operating equipment
containing embedded microchips (including systems and equipment supplied by
others or, to the knowledge of the Borrowers, with which the Borrowers' material
operating systems interface) and the testing of all such systems and equipment,
as so reprogrammed, will be completed by September 30, 1999. The cost to the
Borrowers of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrowers (including reprogramming errors and
the failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Borrowers and their Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Borrowers to conduct their business without a Material
Adverse Effect.
7.20 Use of Credit. None of the Borrowers or any of their
-------------
Subsidiaries is engaged principally, or as one of their important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock in violation of Regulations T, U
or X.
-73-
Section 8. Covenants of the Borrowers. The Borrowers covenant and
--------------------------
agree with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Borrowers hereunder:
8.01 Financial Statements Etc. The Borrowers shall deliver to each of
------------------------
the Lenders:
(a) as soon as available and in any event within 60 days after the
end of each quarterly fiscal period of each fiscal year of the Borrowers,
combined statements of income, retained earnings and cash flows of the
Borrowers and their Subsidiaries for such period and for the period from
the beginning of the respective fiscal year to the end of such period, and
the related combined balance sheet of the Borrowers and their Subsidiaries
as at the end of such period, setting forth in each case in comparative
form the corresponding figures for the corresponding periods in the
preceding fiscal year (except that, in the case of balance sheets, such
comparison shall be to the last day of the prior fiscal year), accompanied
by a certificate of a Senior Officer, which certificate shall state that
said financial statements fairly present in all material respects the
combined financial condition and results of operations of the Borrowers and
their Subsidiaries in accordance with generally accepted accounting
principles consistently applied as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrowers, combined statements of income,
retained earnings and cash flows of the Borrowers and their Subsidiaries
for such fiscal year and the related combined balance sheet of the
Borrowers and their Subsidiaries as at the end of such fiscal year, setting
forth in each case in comparative form the corresponding combined figures
for the preceding fiscal year and accompanied by an opinion thereon of
independent certified public accountants of recognized national standing,
which opinion shall state that said combined financial statements fairly
present in all material respects the combined financial condition and
results of operations of the Borrowers and their Subsidiaries as at the end
of, and for, such fiscal year in accordance with generally accepted
accounting principles, and a statement of such accountants to the effect
that, in making the examination necessary for their opinion, nothing came
to their attention that caused them to believe that the Borrowers were not
in compliance with Sections 8.07, 8.08, 8.09, 8.10, 8.11, 8.12 or 8.15
hereof, insofar as such Sections relate to accounting matters;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Borrowers shall have filed with the Securities
-74-
and Exchange Commission (or any governmental agency substituted therefor)
or any national securities exchange;
(d) promptly upon the mailing thereof by the Borrowers to the members
of the Borrowers generally, to holders of Affiliate Subordinated
Indebtedness generally, or by Mediacom to the holders of its senior notes
(if any), copies of all financial statements, reports and proxy statements
so mailed;
(e) as soon as possible, and in any event within ten days after any
Borrower knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan
has occurred or exists, a statement signed by a Senior Officer setting
forth details respecting such event or condition and the action, if any,
that the Borrowers or their ERISA Affiliates propose to take with respect
thereto (and a copy of any report or notice required to be filed with or
given to the PBGC by the Borrowers or an ERISA Affiliate with respect to
such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the minimum
--------
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under Section 412(d) of the Code
for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any Plan or any action taken by the Borrowers or
an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by the Borrowers or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by the Borrowers or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt by any Borrower or any ERISA
-75-
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under Section 4041A
of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrowers or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result
in the loss of tax-exempt status of the trust of which such Plan is a
part if the Borrowers or an ERISA Affiliate fails to timely provide
security to the Plan in accordance with the provisions of said
Sections;
(f) within 60 days of the end of each quarterly fiscal period of the
Borrowers, a Quarterly Officer's Report as at the end of such period;
(g) promptly after any Borrower knows or has reason to believe that
any Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Borrowers have taken or
propose to take with respect thereto; and
(h) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrowers or any of
their Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender or the Administrative Agent may reasonably
request.
The Borrowers will furnish to each Lender, at the time they furnish each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
Senior Officer (i) to the effect that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing, describing the same in
reasonable detail and describing the action that the Borrowers have taken or
proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrowers are in
compliance with Sections 8.07, 8.08, 8.09, 8.10, 8.11, 8.12 and 8.15 hereof
(including, without limitation, calculations demonstrating compliance with the
requirements of Section 8.09(d)(ii) hereof after giving effect to any Capital
Expenditure pursuant to Section 8.12(b) hereof) as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 Litigation. The Borrowers will promptly give to each Lender
----------
notice of all legal or arbitral proceedings, and of all proceedings or
investigations by or before any
-76-
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Borrowers or any of
their Subsidiaries or any of their Franchises, except proceedings that, if
adversely determined, would not (either individually or in the aggregate) have a
Material Adverse Effect. Without limiting the generality of the foregoing, the
Borrowers will give to each Lender (i) notice of the assertion of any
Environmental Claim by any Person against, or with respect to the activities of,
the Borrowers or any of their Subsidiaries and notice of any alleged violation
of or non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation that, if
adversely determined, would not (either individually or in the aggregate) have a
Material Adverse Effect and (ii) copies of any notices received by the Borrowers
or any of their Subsidiaries under any Franchise of a material default by the
Borrowers or any of their Subsidiaries in the performance of its obligations
thereunder.
8.03 Existence, Etc. Each Borrower will, and will cause each of its
--------------
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that nothing
--------
in this Section 8.03 shall prohibit any transaction expressly permitted
under Section 8.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could (either individually or in the
aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of
its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
(d) maintain, in all material respects, all of its Properties used
or useful in its business in good working order and condition, ordinary
wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to
-77-
the extent reasonably requested by such Lender or the Administrative Agent
(as the case may be).
8.04 Insurance. Each Borrower will, and will cause each of its
---------
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by Persons engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts
customarily maintained by such corporations, provided that each Borrower will in
--------
any event maintain (with respect to itself and each of its Subsidiaries)
casualty insurance and insurance against claims for damages with respect to
defamation, libel, slander, privacy or other similar injury to person or
reputation (including misappropriation of personal likeness), in such amounts as
are then customary for Persons engaged in the same or similar business similarly
situated.
8.05 Prohibition of Fundamental Changes.
----------------------------------
(a) Restrictions on Merger. None of the Borrowers will nor will it
----------------------
permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
(b) Restrictions on Acquisitions. None of the Borrowers will nor
----------------------------
will it permit any of its Subsidiaries to, acquire any business or Property
from, or capital stock of, or be a party to any acquisition of, any Person
except for purchases of equipment, programming rights and other Property to be
sold or used in the ordinary course of business, Investments permitted under
Section 8.08(f) hereof, and Capital Expenditures permitted under Section 8.12
hereof.
(c) Restrictions on Sales and Other Dispositions. None of the
--------------------------------------------
Borrowers will nor will it permit any of its Subsidiaries to, convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold
interests, but excluding (i) obsolete or worn-out Property, tools or equipment
no longer used or useful in its business so long as the amount thereof sold in
any single fiscal year by the Borrowers and their Subsidiaries shall not have a
fair market value in excess of $5,000,000 and (ii) any equipment, programming
rights or other Property sold or disposed of in the ordinary course of business
and on ordinary business terms).
(d) Certain Permitted Transactions. Notwithstanding the foregoing
------------------------------
provisions of this Section 8.05:
(i) Intercompany Mergers and Consolidations. Any Borrower may be
---------------------------------------
merged or consolidated with any other Borrower, and any Subsidiary of a
Borrower may be merged or consolidated with or into: (x) such Borrower if
such Borrower shall be the continuing
-78-
or surviving corporation or (y) any other such Subsidiary; provided that if
--------
any such transaction shall be between a Subsidiary and a Wholly Owned
Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving corporation.
(ii) Intercompany Dispositions. Any Borrower may sell, lease,
-------------------------
transfer or otherwise dispose of any or all of its Property to any other
Borrower, and any Subsidiary of a Borrower may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Borrowers or a Wholly Owned Subsidiary of the
Borrowers.
(iii) Permitted Dispositions. The Borrowers or any Wholly owned
----------------------
Subsidiary of the Borrowers may enter into one or more transactions
intended to trade (by means of either an exchange or a sale and subsequent
purchase) one or more of the CATV Systems owned by the Borrowers and their
Subsidiaries for one or more CATV Systems owned by any other Person, which
transactions may be effected either by
(I) the Borrowers or such Wholly Owned Subsidiary selling one or
more CATV Systems owned by it, and either depositing the Net Available
Proceeds thereof into the Collateral Account, or prepaying Revolving
Credit Loans (and creating a Reserved Commitment Amount), as
contemplated by the second paragraph of Section 2.10(d) hereof, and
then within 270 days acquiring one or more other CATV Systems or
(II) exchanging one or more CATV Systems, together with cash not
exceeding 20% of the fair market value of such acquired CATV Systems,
so long as
(x) at the time of any such transactions and after giving
effect thereto, no Default shall have occurred and be continuing and
(B) after giving effect to such transaction the Borrowers shall be in
compliance with Section 8.10 hereof (the determination of such
compliance to be calculated on a pro forma basis, as at the end of and
for the fiscal quarter most recently ended prior to the date of such
transaction for which financial statements of the Borrowers and their
Subsidiaries are available, under the assumption that such transaction
shall have occurred, and any Indebtedness in connection therewith
shall have been incurred, at the beginning of the applicable period,
and under the assumption that interest for such period had been equal
to the actual weighted average interest rate in effect for the Loans
hereunder on the date of such transaction), and the Borrowers shall
have delivered to the Administrative Agent a certificate of a Senior
Officer showing such calculations in reasonable detail to demonstrate
such compliance,
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(y) with respect to any single exchange of CATV Systems
pursuant to clause (II) above, the sum of the System Cash Flow for the
period of four fiscal quarters ending on, or most recently ended prior
to, the date of such exchange attributable to the CATV Systems being
exchanged does not exceed more than 15% of System Cash Flow for such
period and
(z) the sum of (A) the System Cash Flow for the period referred
to in subclause (y) above plus (B) the System Cash Flow attributable
----
to all other CATV Systems previously exchanged pursuant to clause (II)
above (whether during the period referred to in subclause (y) above,
or prior thereto), does not exceed an amount equal to 35% of Adjusted
System Cash Flow for the period referred to in subclause (y) above.
If, in connection with an exchange permitted under this subparagraph (iii),
the Borrowers or Wholly Owned Subsidiary receives cash in excess of 20% the
fair market value of the acquired CATV Systems, such exchange shall be
permitted as a sale under this subparagraph (iii) and the cash received by
the Borrowers in connection with such transaction shall be applied in
accordance with Section 2.10(d).
(iv) Acquisitions. Any Borrower or a Wholly Owned Subsidiary of
------------
such Borrower may acquire any business or Property from, or capital stock
of, or be a party to any acquisition of, any Person, so long as:
(A) the aggregate Purchase Price of any individual such
acquisition shall not exceed $200,000,000;
(B) such acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the acquired
business, and the related assets, are owned either by a Borrower or a
Wholly Owned Subsidiary of a Borrower and, if effected by merger or
consolidation involving a Borrower, such Borrower shall be the
continuing or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Subsidiary of a Borrower, such
Wholly Owned Subsidiary shall be the continuing or surviving entity;
(C) such acquisition (if by purchase of stock) shall be
effected in such manner so that the acquired entity becomes a Wholly
Owned Subsidiary of a Borrower;
(D) with respect to any acquisition involving an
aggregate Purchase Price in excess of $25,000,000, the Borrowers shall
deliver to the Administrative Agent
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(which shall promptly forward a copy to each Lender which requests
one) (1) no later than five Business Days prior to the consummation of
each such acquisition (or such earlier date as shall be five Business
Days after the execution and delivery thereof), copies of the
respective agreements or instruments pursuant to which such
acquisition is to be consummated (including, without limitation, any
related management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments and all
other material ancillary documents to be executed or delivered in
connection therewith and (2) promptly following request therefor (but
in any event within three Business Days following such request),
copies of such other information or documents relating to each such
acquisition as the Administrative Agent shall have requested;
(E) with respect to any acquisition involving an aggregate
Purchase Price in excess of $25,000,000, the Administrative Agent
shall have received (and shall promptly forward a copy thereof to each
Lender which requests one) a letter (in the case of each legal opinion
delivered to the Borrowers pursuant to such acquisition) from each
Person delivering such opinion (which shall in any event include an
opinion of special FCC counsel) authorizing reliance thereon by the
Administrative Agent and the Lenders;
(F) with respect to any acquisition involving an aggregate
Purchase Price in excess of $25,000,000, the Borrowers shall have
delivered to the Administrative Agent and the Lenders evidence
satisfactory to the Administrative Agent and the Majority Lenders of
receipt of all licenses, permits, approvals and consents, if any,
required with respect to such acquisition (including, without
limitation, the consents of the respective municipal franchising
authorities to the acquisition of the respective CATV Systems being
acquired (if any));
(G) the entire amount of the consideration payable by the
Borrowers and their Subsidiaries in connection with such acquisition
(other than customary post-closing adjustments and indemnity
obligations, and other than Indebtedness incurred in connection with
such acquisition that is permitted under paragraphs (c) or (f) of
Section 8.07 hereof) shall be payable on the date of such acquisition;
(H) none of the Borrowers nor any of its Subsidiaries shall, in
connection with such acquisition, assume or remain liable in respect
of (x) any Indebtedness of the seller or sellers (except for
Indebtedness permitted under Section 8.07(f) hereof) or (y) other
obligations of the seller or sellers (except for obligations incurred
in the ordinary course of business in operating the CATV System so
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acquired and necessary or desirable to the continued operation of such
CATV System);
(I) to the extent the assets purchased in such acquisition shall
be subject to any Liens not permitted hereunder, such Liens shall have
been released (or arrangements for such release satisfactory to the
Administrative Agent shall have been made);
(J) to the extent applicable, the Borrowers shall have complied
with the provisions of Section 8.18 hereof, including, without
limitation, to the extent not theretofore delivered, delivery to the
Administrative Agent of (x) the shares of stock or other ownership
interests, accompanied by undated stock powers or other powers
executed in blank, and (y) the agreements, instruments, opinions of
counsel and other documents required under Section 8.18 hereof;
(K) after giving effect to such acquisition the Borrowers shall
be in compliance with Section 8.10 hereof (the determination of such
compliance to be calculated on a pro forma basis, as at the end of and
for the fiscal quarter most recently ended prior to the date of such
acquisition for which financial statements of the Borrowers and their
Subsidiaries are available, under the assumption that such acquisition
shall have occurred, and any Indebtedness in connection therewith
shall have been incurred, at the beginning of the applicable period,
and under the assumption that interest for such period had been equal
to the actual weighted average interest rate in effect for the Loans
hereunder on the date of such acquisition), and the Borrowers shall
have delivered to the Administrative Agent a certificate of a Senior
Officer showing such calculations in reasonable detail to demonstrate
such compliance;
(L) immediately prior to such acquisition and after giving
effect thereto, no Default shall have occurred and be continuing; and
(M) the Borrowers shall deliver such other documents and shall
have taken such other action as the Majority Lenders or the
Administrative Agent may request (which may include evidence that the
Borrowers shall have received an equity contribution from Mediacom or
the proceeds of the issuance of Affiliate Subordinated Indebtedness
pursuant to documentation and in amounts in form and substance
satisfactory to the Majority Lenders and the Administrative Agent).
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8.06 Limitation on Liens. None of the Borrowers will, nor will it
-------------------
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule II hereto (or, to the extent not meeting the minimum thresholds
for required listing on said Schedule II pursuant to Section 7.11 hereof,
in an aggregate amount not exceeding $10,000,000);
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrowers or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in
good faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in an Event
of Default under Section 9.01(i) hereof;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the Borrowers or any
of their Subsidiaries; and
(h) Liens upon real and/or tangible personal Property acquired after
the date hereof (by purchase, construction or otherwise) by the Borrowers
or any of their Subsidiaries and securing Indebtedness permitted under
Section 8.07(f) hereof, each of which Liens either (A) existed on such
Property before the time of its acquisition and was
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not created in anticipation thereof or (B) was created solely for the
purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of such
Property; provided that (i) no such Lien shall extend to or cover any
--------
Property of a Borrower or any such Subsidiary other than the Property so
acquired and improvements thereon and (ii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the fair
market value (as determined in good faith by a Senior Officer) of such
Property at the time it was acquired (by purchase, construction or
otherwise).
8.07 Indebtedness. None of the Borrowers will, nor will it permit any
------------
of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness to the Lenders hereunder, including, without
limitation, Incremental Facility Loans in an aggregate principal amount up
to but not exceeding $200,000,000;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule II hereto (or, to the extent not meeting the minimum thresholds
for required listing on said Schedule II pursuant to Section 7.11 hereof,
in an aggregate amount not exceeding $10,000,000);
(c) Affiliate Subordinated Indebtedness incurred in accordance with
Section 8.14 hereof ;
(d) Indebtedness of the Borrowers to any Subsidiary of the Borrowers,
and of any Subsidiary of the Borrowers to the Borrowers or its other
Subsidiaries;
(e) Indebtedness of the Borrowers and their Subsidiaries that is
subordinated in right of payment to the obligations of the Borrowers and
their Subsidiaries under the Loan Documents (and which contains terms,
including in respect of interest, amortization, defaults, mandatory
redemptions and prepayments, and covenants) that are in each case
satisfactory to the Administrative Agent and the Majority Lenders; and
(f) additional Indebtedness of the Borrowers and their Subsidiaries
(including, without limitation, Capital Lease Obligations and other
Indebtedness secured by Liens permitted under Section 8.06(h) hereof) up to
but not exceeding an aggregate amount of $25,000,000 at any one time
outstanding.
In addition to the foregoing, the Borrowers will not, nor will they
permit their Subsidiaries to, incur or suffer to exist any obligations in an
aggregate amount in excess of $10,000,000 at any one time outstanding in respect
of surety and performance bonds backing
-84-
pole rental or conduit attachments and the like, or backing obligations under
Franchises, arising in the ordinary course of business of the CATV Systems of
the Borrowers and their Subsidiaries.
8.08 Investments. The Borrowers will not, nor will they permit any of
-----------
their Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and identified in
Schedule III hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) subject to the last sentence of this Section 8.08, Investments by
the Borrowers and their Subsidiaries in the Borrowers and their
Subsidiaries;
(e) Interest Rate Protection Agreements entered into in the ordinary
course of business of the Borrowers and not for speculative purposes;
(f) Investments by the Borrowers and their Subsidiaries consisting of
acquisitions permitted under subparagraphs (iii) or (iv) of Section
8.05(d);
(g) Investments consisting of the issuance of a Letter of Credit for
the account of the Borrowers to support an obligation of an Affiliate of
the Borrowers, in such amounts as would be permitted under Section
8.09(d)(ii) hereof; and
(h) additional Investments (including, without limitation,
Investments by the Borrowers or any of their Subsidiaries in Affiliates of
the Borrowers), so long as (i) the aggregate amount of all such Investments
shall not exceed $100,000,000 and (ii) at the time of making such
additional investments as contemplated by this Section 8.08(h) and after
giving effect thereto, the Total Leverage Ratio shall be less than 5.75 to
1 or if lower, the applicable requirement at the time under Section 8.10(a)
hereof.).
Without limiting the generality of the forgoing, the Borrowers will not create,
or make any Investment in, any Subsidiary after the date hereof without the
prior written consent of the Majority Lenders.
8.09 Restricted Payments. The Borrowers will not make any Restricted
-------------------
Payment at any time, provided that, so long as at the time thereof, and after
--------
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, the Borrowers may make the
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following Restricted Payments (subject, in each case, to the applicable
conditions set forth below):
(a) the Borrowers may make Restricted Payments in cash to their
members on or after April 12 of each fiscal year (the "current year") in an
------------
amount equal to the Tax Payment Amount for the immediately preceding fiscal
year (the "prior year"), so long as at least fifteen days prior to making
----------
any such Restricted Payment, the Borrowers shall have delivered to each
Lender (i) notification of the amount and proposed payment date of such
Restricted Payment and (ii) a statement from the Borrowers' independent
certified public accountants setting forth a detailed calculation of the
Tax Payment Amount for the prior year and showing the amount of such
Restricted Payment and all prior Restricted Payments;
(b) the Borrowers may make payments in cash in respect of Management
Fees to the extent permitted under Section 8.11 hereof;
(c) the Borrowers may make payments in cash in respect of the
interest on Affiliate Subordinated Indebtedness constituting Supplemental
Capital or Cure Monies ;
(d) the Borrowers may make payments in cash in respect of the
principal of Affiliate Subordinated Indebtedness and distributions in
respect of the equity capital of the Borrowers and may request the issuance
of Affiliate Letters of Credit (such payment and issuance being
collectively called "Permitted Transactions"), so long as
----------------------
(i) in the case of any Permitted Transaction consisting of a
payment in respect of the principal of Affiliate Subordinated
Indebtedness, or distribution in respect of equity capital,
constituting Cure Monies, at least one complete fiscal quarter shall
have elapsed subsequent to the last date upon which the Borrowers
shall have utilized their cure rights under Section 9.02 hereof,
without the occurrence of any Event of Default (and, for purposes
hereof, unless the Borrowers indicate otherwise at the time of any
such payment, such payment or distribution shall be deemed to be made
first from Cure Monies and second from Supplemental Capital);
(ii) after giving effect to any Permitted Transaction
during any fiscal quarter (the "current fiscal quarter") and to the
----------------------
making of any Capital Expenditures pursuant to Section 8.12(b) hereof
during the current fiscal quarter, the Borrowers would (as at the last
day of the most recent fiscal quarter immediately prior to the current
fiscal quarter) have been in compliance on a pro forma basis with
Section 8.10 hereof and the Total Leverage Ratio calculated on a pro
forma basis is at the time less than 5.75 to 1 (or, if lower, the
applicable
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requirement at the time under Section 8.10(a) hereof), the
determination of such compliance and such Total Leverage Ratio to be
determined as if
(x) for purposes of calculating the Total Leverage Ratio,
there were added to Indebtedness the sum (herein, the "Relevant
--------
Sum") of the amount of such Permitted Transaction plus the amount
--- ----
of all other Permitted Transactions made during the current
fiscal quarter through the date of such Permitted Transaction,
minus the amount of Special Reductions through such date plus the
----- ----
amount of any such Capital Expenditures, and
(y) for purposes of calculating the Interest Coverage Ratio
and Pro Forma Debt Service Coverage Ratio, the Relevant Sum plus
----
any Cure Monies received during the period for which the Interest
Coverage Ratio or Pro Forma Debt Service Coverage Ratio is
calculated represented additional principal of the Loans
outstanding hereunder at all times during the respective fiscal
quarter for which such Ratios are calculated and the amount of
interest that would have been payable hereunder during such
fiscal quarter was recalculated to take into account such
additional principal;
(iii) after giving effect to distributions made in respect of
the equity capital of any Borrower, the Equity Contribution Amount
shall not be less than zero; and
(iv) the aggregate amount of Permitted Transactions as at any
date (minus the aggregate amount of Special Reductions through such
-----
date), shall not exceed the Applicable Permitted Transaction Amount
for such date;
(e) the Borrowers may make distributions in cash to Mediacom of (i)
up to $21,500,000 simultaneously with the acquisition of the stock of
Xxxxxxx Communications Corporation and (ii) up to $239,500,000
simultaneously with the consummation of the Triax Acquisition from the
proceeds of the Loans so long as the conditions specified in paragraph
(d)(ii) are satisfied as if such distribution constituted a "Permitted
Transaction"; and
(f) the Borrowers may convert all of their outstanding Preferred
Membership Interests to Affiliate Subordinated Indebtedness on or before
the Closing Date.
Nothing herein shall be deemed to prohibit the payment of dividends by
any Subsidiary of a Borrower to such Borrower or to any other Subsidiary of such
Borrower.
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8.10 Certain Financial Covenants.
---------------------------
(a) Total Leverage Ratio. The Borrowers will not permit the Total
--------------------
Leverage Ratio to exceed the following respective ratios at any time during the
following respective periods:
Total
Period Leverage Ratio
------ --------------
From the Closing Date
through December 31, 2000 6.00 to 1
From January 1, 2001
through December 31, 2001 5.75 to 1
From January 1, 2002
through December 31, 2002 5.50 to 1
From January 1, 2003
through December 31, 2003 4.75 to 1
From January 1, 2004
and at all times thereafter 4.50 to 1
(b) Interest Coverage Ratio. The Borrowers will not permit the
-----------------------
Interest Coverage Ratio to be less than the following respective ratios as at
the last day of any fiscal quarter ending during the following respective
periods:
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Period Ratio
------ -----
From the Closing Date
through December 31, 2000 1.40 to 1
From January 1, 2001
through December 31, 2001 1.50 to 1
From January 1, 2002
through December 31, 2002 1.60 to 1
From January 1, 2003
through December 31, 2003 1.80 to 1
From January 1, 2004
and at all times thereafter 2.00 to 1
(c) Pro Forma Debt Service Coverage Ratio. The Borrowers will not
-------------------------------------
permit the Pro Forma Debt Service Coverage Ratio to be less than 1.15 to 1 at
any time.
8.11 Management Fees. The Borrowers will not permit the aggregate
---------------
amount of Management Fees accrued in respect of any fiscal year of the Borrowers
to exceed 4.5% of the Gross Operating Revenue of the Borrowers and their
Subsidiaries for such fiscal year. In addition, the Borrowers will not, as at
the last day of the first, second and third fiscal quarters in any fiscal year,
permit the amount of Management Fees paid during the portion of such fiscal year
ending with such fiscal quarter to exceed 4.5% of the Gross Operating Revenue of
the Borrowers and their Subsidiaries for such portion of such fiscal year (based
upon the financial statements of the Borrowers provided pursuant to Section
8.01(a) hereof), provided that in any event the Borrowers will not pay any
--------
Management Fees at any time following the occurrence and during the continuance
of any Default. Any Management Fees that are accrued for any fiscal quarter (the
"current fiscal quarter") but which are not paid during the current fiscal
----------------------
quarter may be paid at any time during the period of four fiscal quarters
following the current fiscal quarter (and for these purposes any payment of
Management Fees during such period shall be deemed to be applied to Management
Fees in the order of the fiscal quarters in respect of which such Management
Fees are accrued). Any Management Fees which may not be paid as a result of the
limitations set forth in the forgoing provisions of this Section 8.11 shall be
deferred and shall not be payable until the principal of and interest on the
Loans, and all other amounts owing hereunder, shall have been paid in full. For
purposes of this Section 8.11 "Gross Operating Revenue" shall mean the aggregate
-----------------------
gross operating revenues derived by the Borrowers from their CATV Systems and
from other telecommunications services as determined in accordance
-89-
with GAAP excluding, however, revenue or income derived by the Borrowers from
any of the following sources: (i) from the sale of any asset of such CATV
Systems not in the ordinary course of business, (ii) interest income, (iii)
proceeds from the financing or refinancing of any Indebtedness of the Borrowers
or any of their Subsidiaries and (iv) extraordinary gains in accordance with
GAAP.
None of the Borrowers nor any of its Subsidiaries shall be obligated
to pay Management Fees to any Person, unless the Borrowers and such Person shall
have executed and delivered to the Administrative Agent a Management Fee
Subordination Agreement, and none of the Borrowers nor any of its Subsidiaries
shall pay Management Fees to any Person except to the extent permitted under the
respective Management Fee Subordination Agreement to which such Person is a
party.
None of the Borrowers nor any of its Subsidiaries shall employ or
retain any executive management personnel (or pay any Person, other than the
Manager, in respect of executive management personnel or matters, for the
Borrowers or any of their Subsidiaries), it being the intention of the parties
hereto that all executive management personnel required in connection with the
business or operations of the Borrowers and their Subsidiaries shall be
employees of the Manager (and that the Executive Compensation for such employees
shall be covered by Management Fees payable hereunder). For purposes hereof,
"executive management personnel" shall not include any individual (such as a
system manager or a regional manager) who is employed solely in connection with
the day-to-day operations of a CATV System or a Region.
8.12 Capital Expenditures.
--------------------
(a) Scheduled Capital Expenditures. The Borrowers will not permit
------------------------------
the aggregate amount of Capital Expenditures to exceed the following respective
amounts for the following respective Fiscal Periods of the Borrowers:
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Fiscal Period Ending Amount
-------------------- ------
December 31, 1999 $30,000,000
December 31, 2000 $53,900,000
December 31, 2001 $56,100,000
December 31, 2002 $52,200,000
December 31, 2003 $39,200,000
December 31, 2004 $26,100,000
December 31, 2005 $25,300,000
December 31, 2006 $24,600,000
December 31, 2007 $24,500,000
provided that, the amounts set forth above for any Fiscal Period of the
--------
Borrowers in which the Borrowers enter into an Acquisition pursuant to Section
8.05(d)(iv) shall be increased by such amount as the Borrowers shall propose in
a notice to the Administrative Agent and the Lenders (which amount shall be
based on a proposed budget and operating plan set forth in such notice) which
increase shall become effective unless Requisite Lenders object to such amount,
by notice to the Administrative Agent, within 10 Business Days following receipt
of the Borrowers' notice. For purposes of this Section 8.12(a), "Requisite
---------
Lenders" shall mean Lenders having at least 50% of the sum of (a) the aggregate
-------
outstanding principal amount of the Term Loans or, if the Term Loans shall not
have been made, the aggregate outstanding principal amount of the Term Loan
Commitments plus (b) the aggregate outstanding principal amount of the
----
Incremental Facility Loans or, if the Incremental Facility Loans shall not have
been made, the aggregate outstanding principal amount of the Incremental
Facility Commitments plus (c) the sum of (i) the aggregate unused amount, if
----
any, of the Revolving Credit Commitments at such time plus (ii) the aggregate
----
outstanding principal amount of the Revolving Credit Loans at such time
If the aggregate amount of Capital Expenditures for any Fiscal Period
of the Borrowers shall be less than the amount set forth opposite such Fiscal
Period in the schedule above, then the shortfall shall be added to the amount of
Capital Expenditures permitted for the immediately succeeding (but not any
other) Fiscal Period and, for purposes hereof, the amount of Capital
Expenditures made during any Fiscal Period shall be deemed to have been made
first from the carryover from any previous Fiscal Period and last from the
permitted amount for such Fiscal Period.
(b) Additional Capital Expenditures. In addition to the Capital
-------------------------------
Expenditures permitted under paragraph (a) above, the Borrowers and their
Subsidiaries may make Additional Capital Expenditures during any fiscal quarter
in such amounts as would be permitted under Section 8.09(d)(ii) (in the case of
a payment of principal of Affiliate Subordinated Indebtedness, as if such
Capital Expenditure constituted a payment in respect of Supplemental Capital
thereunder).
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8.13 Interest Rate Protection Agreements. The Borrowers will within
-----------------------------------
90 days of the Closing Date, enter into, and thereafter maintain in full force
and effect, one or more Interest Rate Protection Agreements with one or more of
the Lenders or their affiliates (and/or with a bank or other financial
institution having capital, surplus and undivided profits of at least
$500,000,000), that effectively enables the Borrowers (in a manner satisfactory
to the Majority Lenders) to protect themselves, in a manner and on terms
reasonably satisfactory to the Majority Lenders, against adverse fluctuations in
the three-month London interbank offered rates as to a notional principal amount
which, together with that portion of the aggregate outstanding principal amount
of Indebtedness of the Borrowers bearing a fixed rate of interest, shall in the
aggregate be at least equal to 50% of the aggregate outstanding principal amount
of the Indebtedness (including Affiliate Subordinated Indebtedness) of the
Borrowers.
8.14 Affiliate and Additional Subordinated Indebtedness.
--------------------------------------------------
(a) The Borrowers may at any time after the date hereof incur
Affiliate Subordinated Indebtedness to Mediacom or one or more other
Affiliates, so long as the proceeds of any such Affiliate Subordinated
Indebtedness constituting Cure Monies are immediately applied to the reduction
of the Revolving Credit Commitments and the prepayment of principal of the Term
Loans and Incremental Facility Loans of each Series hereunder, applied ratably
to the Revolving Credit Commitments, the Term Loans and the Incremental
Facility Loans of each Series in accordance with the respective then-
outstanding aggregate amounts of such Commitments and Loans (and to the
simultaneous prepayment of the Revolving Credit Loans in an amount equal to
such required reduction of Revolving Credit Commitments), provided that to the
--------
extent any such required prepayment of Revolving Credit Loans shall exceed the
then-outstanding aggregate principal amount of Revolving Credit Loans, such
excess shall be applied to the ratable prepayment of Term Loans and Incremental
Facility Loans of each Series.
(b) The Borrowers will not, nor will they permit any of their
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any Affiliate Subordinated Indebtedness, except to the
extent permitted under Section 8.09 hereof.
(c) The Borrowers will not, nor will they permit any of their
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any Indebtedness at any time issued pursuant to Section
8.07(e).
-92-
8.15 Lines of Business. The Borrowers will at all times ensure that
-----------------
not more than 15% of gross operating revenue of the Borrowers and their
Subsidiaries for any fiscal year shall be derived from any line or lines of
business activity other than the business of owning and operating CATV Systems
and related communications businesses.
8.16 Transactions with Affiliates. Except as expressly permitted by
----------------------------
this Agreement, none of the Borrowers will, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an Affiliate
except for Investments permitted under Section 8.08(h), provided that, the
--------
monetary or business consideration arising therefrom would be substantially as
advantageous to a Borrower and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; (d) make any contribution towards, or
reimbursement for, any Federal income taxes payable by any member of a Borrower
or any of its Subsidiaries in respect of income of a Borrower; or (e) enter into
any other transaction directly or indirectly with or for the benefit of an
Affiliate (including, without limitation, Guarantees and assumptions of
obligations of an Affiliate); provided that
--------
(i) any Affiliate who is an individual may serve as a director,
officer or employee of a Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity,
(ii) a Borrower and its Subsidiaries may enter into transactions
(other than extensions of credit by such Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of equipment,
programming rights, advertising time and other Property in the ordinary
course of business if the monetary or business consideration arising
therefrom would be substantially as advantageous to such Borrower and its
Subsidiaries as the monetary or business consideration that would obtain in
a comparable transaction with a Person not an Affiliate,
(iii) the Borrowers may enter into and perform their respective
obligations under, the Management Agreements, and
(iv) the Borrowers and their Subsidiaries may pay to the Manager the
aggregate amount of intercompany shared expenses payable to Mediacom that
are allocated by Mediacom to the Borrowers and their Subsidiaries in
accordance with Section 5.04 of the Guarantee and Pledge Agreement.
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8.17 Use of Proceeds.
---------------
(a) Revolving Credit Loans. The Borrowers will use the proceeds of
----------------------
the Revolving Credit Loans hereunder solely to (i) provide financing for
Acquisitions and to pay the fees and expenses related thereto, (ii) make
Restricted Payments, (iii) pay Management Fees, (iv) make Investments permitted
under Section 8.08 hereof and (v) finance capital expenditures and working
capital needs of the Borrowers and their Subsidiaries and acquisitions permitted
hereunder (in each case in compliance with all applicable legal and regulatory
requirements); provided that (x) any borrowing of Revolving Credit Loans
hereunder that would constitute a utilization of any Reserved Commitment Amount
shall be applied solely to make acquisitions permitted under Section 8.05(d)(iv)
hereof, or to make prepayments of Loans under Section 2.10(d) hereof and (y)
neither the Administrative Agent nor any Lender shall have any responsibility as
to the use of any of such proceeds.
(b) Term Loans and Incremental Facility Loans. The Borrowers will use
-----------------------------------------
the proceeds of the Term Loans to refinance indebtedness outstanding under the
Existing Credit Agreements, to make distributions to (or repay advances made to
the Borrowers by) Mediacom, and, in the case of Mediacom Arizona, to effect the
Apache Acquisition. The Borrowers will use the proceeds of the Incremental
Facility Loans for general corporate purposes and to make Acquisitions.
8.18 Certain Obligations Respecting Subsidiaries; Further Assurances.
-------------------------------------------
(a) Subsidiary Guarantors. In the event that any Borrower or any of
---------------------
its Subsidiaries shall form or acquire any Subsidiary after the date hereof
(after obtaining any necessary consent of the Lenders), such Borrower shall
cause, and shall cause its Subsidiaries to cause, such Subsidiary to:
(i) execute and deliver to the Administrative Agent a Subsidiary
Guarantee Agreement in the form of Exhibit E hereto (and, thereby, to
become a "Subsidiary Guarantor", and an "Obligor" hereunder and a "Securing
Party" under the Pledge Agreement);
(ii) deliver the shares of its stock or other ownership interests
accompanied by undated stock powers or other powers executed in blank to
the Administrative Agent, and to take other such action, as shall be
necessary to create and perfect valid and enforceable first priority Liens
(subject to Liens permitted under Section 8.06 hereof) on substantially all
of the Property of such new Subsidiary as collateral security for the
obligations of such new Subsidiary under the Subsidiary Guarantee
Agreement, and
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(iii) deliver such proof of corporate action, limited liability
company action or partnership action, as the case may be, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 6.01 hereof on the
Closing Date or as the Administrative Agent shall have reasonably
requested.
(b) Ownership of Subsidiaries. Each Borrower will, and will cause
-------------------------
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary.
In the event that any additional shares of stock or other ownership interests
shall be issued by Subsidiary of a Borrower, such Borrower agrees forthwith to
deliver to the Administrative Agent pursuant to the Pledge Agreement the
certificates evidencing such shares of stock or other ownership interests,
accompanied by undated stock or other powers executed in blank and to take such
other action as the Administrative Agent shall request to perfect the security
interest created therein pursuant to the Pledge Agreement.
(c) Further Assurances. Each Borrower will, and will cause each of
------------------
its Subsidiaries to, take such action from time to time (including filing
appropriate Uniform Commercial Code financing statements and executing and
delivering such assignments, security agreements and other instruments) as shall
be requested by the Administrative Agent to create, in favor of the
Administrative Agent for the benefit of the Lenders, perfected security
interests and Liens in shares of stock or other ownership interests of their
Subsidiaries. In addition, the Borrowers will not issue additional equity
interests ("Additional Equity Interests") after the date hereof to any Person (a
---------------------------
"New Equity Owner") other than Mediacom unless such New Equity Owner shall:
----------------
(i) pledge such Additional Equity Interests to the Administrative
Agent on behalf of the Lenders pursuant to a pledge agreement in
substantially the form (other than negative covenants) of the Guarantee and
Pledge Agreement and otherwise in form and substance satisfactory to the
Administrative Agent;
(ii) deliver to the Administrative Agent any certificates evidencing
the Additional Equity Interests accompanied by undated powers executed in
blank;
(iii) deliver to the Administrative Agent such proof of corporate
action, limited liability company, partnership or other action, as
applicable, incumbency of officers, opinions of counsel and other documents
as is consistent with those delivered by Mediacom and the Manager pursuant
to Section 6.01 hereof on the Closing Date or as the Administrative Agent
shall have reasonably requested; and
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(iv) take other such additional action, as shall be necessary to
create and perfect valid and enforceable first priority security interests
in the Additional Equity Interests in favor of the Administrative Agent.
(d) Certain Restrictions. The Borrowers will not, and will not permit
--------------------
any of their Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrowers or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets
securing the obligations of the Borrowers or any Subsidiary under any of the
Loan Documents, or in respect of any Interest Rate Protection Agreement, or (b)
the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or other ownership interests or to
make or repay loans or advances to the Borrowers or any Subsidiary or to
Guarantee Indebtedness of the Borrowers or any Subsidiary under any of the Loan
Documents; provided that (i) the foregoing shall not apply to restrictions and
--------
conditions imposed by law or by any of the Loan Documents, (ii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
--------
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iii) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement or any other Loan Document if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.
8.19 Modifications of Certain Documents. The Borrowers will not
----------------------------------
consent to any modification, supplement or waiver of any of the provisions of
any Management Agreement (other than modifications, supplements or waivers that
do not alter any of the material rights or obligations of the Borrowers
thereunder, it being understood that any modification of the management fee
provisions thereof that would have the effect of increasing the management fees
payable pursuant thereto shall be deemed material for purposes hereof), or any
agreement, instrument or other document evidencing or relating to Affiliate
Subordinated Indebtedness or Indebtedness permitted under Section 8.07(e) hereof
without the prior consent of the Administrative Agent (with the approval of the
Majority Lenders).
Section 9. Events of Default.
-----------------
9.01 Events of Default. If one or more of the following events
-----------------
(herein called "Events of Default") shall occur and be continuing:
-----------------
(a) The Borrowers shall default in the payment when due (whether at
stated maturity or upon mandatory or optional prepayment) of any principal of or
interest on
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any Loan or any Reimbursement Obligation, any fee or any other amount
payable by them hereunder or under any other Loan Document; or
(b) Any Borrower or any Subsidiary of a Borrower shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $5,000,000 or more; or any event specified in any
note, agreement, indenture or other document evidencing or relating to any
such Indebtedness shall occur if the effect of such event is to cause, or
(without the lapse of time or the taking of any action, other than the
giving of notice) to permit the holder or holders of such Indebtedness (or
a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; or any Borrower shall default in the payment when due of any
amount aggregating $5,000,000 or more under any Interest Rate Protection
Agreement; or any event specified in any Interest Rate Protection Agreement
shall occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, termination or
liquidation payment or payments aggregating $1,000,000 or more to become
due; or
(c) Any representation, warranty or certification made or deemed made
herein or in any other Loan Document (or in any modification or supplement
hereto or thereto) by any Obligor, or any certificate furnished to any
Lender or the Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the time made
or furnished in any material respect; or
(d) Any Borrower shall default in the performance of any of its
obligations under any of Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09,
8.10, 8.11, 8.12, 8.14, 8.16, 8.18 or 8.19 hereof; or any Borrower shall
default in the performance of any of its other obligations in this
Agreement or any Obligor shall default in the performance of its
obligations under any other Loan Document to which it is a party, and such
default shall continue unremedied for a period of thirty or more days after
notice thereof to the Borrowers by the Administrative Agent or any Lender
(through the Administrative Agent); or
(e) Any Obligor shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Obligor shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
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reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or (vi) take
any corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of any Obligor, in any court of competent jurisdiction, seeking
(i) its reorganization, liquidation, dissolution, arrangement or winding-
up, or the composition or readjustment of its debts, (ii) the appointment
of a receiver, custodian, trustee, examiner, liquidator or the like of such
Obligor or of all or any substantial part of its Property or (iii) similar
relief in respect of such Obligor under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against such Obligor shall be entered in an
involuntary case under the Bankruptcy Code; or
(h) Any Borrower shall be terminated, dissolved or liquidated (as a
matter of law or otherwise), or proceedings shall be commenced by a
Borrower seeking the termination, dissolution or liquidation of a Borrower,
or proceedings shall be commenced by any Person (other than the Borrowers)
seeking the termination, dissolution or liquidation of a Borrower and such
proceeding shall continue undismissed for a period of 60 or more days; or
(i) A final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of
such judgment) or of $10,000,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against the Borrowers or any
of their Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof shall
not be procured, within 30 days from the date of entry thereof and the
relevant Borrower or Subsidiary shall not, within said period of 30 days,
or such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(j) An event or condition specified in Section 8.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Borrowers or any ERISA Affiliate shall incur or in the
opinion of the Majority Lenders shall be reasonably likely to
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incur a liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the Majority
Lenders, would (either individually or in the aggregate) have a Material
Adverse Effect; or
(k) A reasonable basis shall exist for the assertion against any
Borrower or any of its Subsidiaries, or any predecessor in interest of any
Borrower or any of its Subsidiaries or Affiliates, of (or there shall have
been asserted against any Borrower or any of its Subsidiaries) an
Environmental Claim that, in the judgment of the Majority Lenders is
reasonably likely to be determined adversely to such Borrower or any of its
Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by such Borrower or any of its Subsidiaries but
after deducting any portion thereof that is reasonably expected to be paid
by other creditworthy Persons jointly and severally liable therefor); or
(l) Any one or more of the following events shall occur and be
continuing:
(i) Xxxxx Xxxxxxxx shall, by reason other than death or
permanent disability, cease to be Chairman and Chief Executive Officer
of the Manager (or, following a Qualified Public Offering, of Holdco),
or if Xxxxx Xxxxxxxx shall cease to be the Chairman and Chief
Executive Officer of the Manager (or, as applicable, Holdco) by reason
of death or permanent disability, a period of 120 days shall have
elapsed without the appointment of a successor Chairman and Chief
Executive Officer with a Person with knowledge and experience in the
cable television industry reasonably acceptable to the Majority
Lenders;
(ii) Mediacom Management Corporation or Mediacom shall cease
to act as Manager of the Borrowers;
(iii) Mediacom, Mediacom Management Corporation and Mediacom
California shall cease to own, collectively, 50.1% of the aggregate
voting power of the ownership interests in each Borrower, provided
that nothing in this paragraph shall affect the obligation of the
Borrowers pursuant to Section 8.18(c) hereof, or of Mediacom pursuant
to Section 6.04 of the Guarantee and Pledge Agreement, to ensure that
Administrative Agent shall maintain on behalf of the Lenders at all
times a pledge of 100% of the equity interests in the Borrowers;
(iv) any person or group (within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act") and Section 13(d) and 14(d) of the Exchange Act) other than a
---
Xxxxxxxx Entity or any entity controlled by or under common control
with Chase Manhattan Capital Corporation or Xxxxxx Communications
Corporation becomes, directly or
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indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation or other business
combination or otherwise, the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 25% of the aggregate voting
power of the capital stock of Mediacom or after a Qualified Public
Offering, Holdco, on a fully-diluted basis (in other words, giving
effect to the exercise of any warrants, options and conversion and
other rights);
(v) at any time prior to a Qualified Public Offering, the
Xxxxxxxx Entities shall sell, transfer or otherwise dispose of more
than 20% of the aggregate equity interests in Mediacom held by them on
the date hereof (excluding in any event any additional equity
interests issued after the date hereof, including upon a revaluation
after the date hereof as provided in the operating agreement for
Mediacom, and excluding also any such transfer following the death or
permanent disability of Xxxxx Xxxxxxxx and any such transfer that
consists of an exchange by the holders of the equity generally of
Mediacom of their equity interests in Mediacom for equity interests in
Holdco); or
(vi) at any time after a Qualified Public Offering, the
Xxxxxxxx Entities shall cease to own at least 50.1% of the aggregate
voting power of the capital stock of Holdco on a fully-diluted basis
(in other words, giving effect to the exercise of any warrants,
options and conversion and other rights); or
(m) Except for Franchises that cover fewer than 10% of the
Subscribers of the Borrowers and their Subsidiaries (determined as at the
last day of the most recent fiscal quarter for which a Quarterly Officers'
Report shall have been delivered) one or more Franchises relating to the
CATV Systems of the Borrowers and their Subsidiaries shall be terminated or
revoked such that the respective Borrower or Subsidiary is no longer able
to operate such Franchises and retain the revenue received therefrom or the
respective Borrower or Subsidiary or the grantors of such Franchises shall
fail to renew such Franchises at the stated expiration thereof such that
the respective Borrower or Subsidiary is no longer able to operate such
Franchises and retain the revenue received therefrom; or
(n) The Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than Liens
permitted under Section 8.06 hereof or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of
the Security Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by any Borrower; or
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(o) Any Operating Agreement shall be modified in any manner that
would adversely affect the obligations of the Borrowers, or the rights of
the Lenders or the Administrative Agent, hereunder or under any of the
other Loan Documents;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to any Borrower, the
Administrative Agent shall, if instructed by the Majority Lenders, by notice to
the Borrowers, terminate the Commitments and/or declare the principal amount
then outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by the Borrowers hereunder (including,
without limitation, any amounts payable under Section 5.05 or 5.06 hereof) to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrowers; and (2) in the case
of the occurrence of an Event of Default referred to in clause (f) or (g) of
this Section 9 with respect to any Borrower, the Commitments shall automatically
be terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans, Reimbursement Obligations and all other amounts payable
by the Borrowers hereunder (including, without limitation, any amounts payable
under Section 5.05 or 5.06 hereof) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrowers.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Borrowers hereunder to be due and payable), the
Borrowers agree that they shall, if requested by the Administrative Agent or the
Majority Revolving Credit Lenders through the Administrative Agent (and, in the
case of any Event of Default referred to in clause (f) or (g) of this Section 9
with respect to the Borrowers, forthwith, without any demand or the taking of
any other action by the Administrative Agent or such Lenders) provide cover for
the Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to withdrawal
only as therein provided.
9.02 Certain Cure Rights.
-------------------
(a) Notwithstanding the provisions of Section 9.01 hereof, but
without limiting the obligations of the Borrowers under Section 8.10(a) hereof,
a breach by the Borrowers as of the last day of any fiscal quarter or any fiscal
year of its obligations under said Section 8.10(a) shall not constitute an Event
of Default hereunder (except for purposes of Section 6 hereof) until the date
(the "Cut-Off Date") which is the earlier of the date thirty days after (a) the
-------------
date the
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financial statements for the Borrowers and their Subsidiaries with respect to
such fiscal quarter or fiscal year, as the case may be, are delivered pursuant
to Section 8.01(a) or 8.01(b) hereof or (b) the latest date on which such
financial statements are required to be delivered pursuant to said Section
8.01(a) or 8.01(b), provided that, if following the last day of such fiscal
--------
quarter or fiscal year and prior to the Cut-Off Date, the Borrowers shall have
received Cure Monies (and shall have applied the proceeds thereof to the
prepayment of the Loans hereunder, which prepayment, in the case of Affiliate
Subordinated Indebtedness, shall be effected in the manner provided in Section
8.14(a) hereof), or shall have prepaid the Loans hereunder from available cash,
in an amount sufficient to bring the Borrowers into compliance with said Section
8.10(a) assuming that the Total Leverage Ratio, as of the last day of such
fiscal quarter or fiscal year, as the case may be, were recalculated to subtract
such prepayment from the aggregate outstanding amount of Indebtedness, then such
breach or breaches shall be deemed to have been cured; provided, further, that
-------- -------
breaches of Section 8.10 hereof (including pursuant to paragraph (b) below) may
not be deemed to be cured pursuant to this Section 9.02 (x) more than three
times during the term of this Agreement or (y) during consecutive fiscal
quarters.
(b) Notwithstanding the provisions of Section 9.01 hereof, but
without limiting the obligations of the Borrowers under Section 8.10(b) or
8.10(c) hereof, a breach by the Borrowers as of the last day of any fiscal
quarter or any fiscal year of its obligations under said Section 8.10(b) or
8.10(c) shall not constitute an Event of Default hereunder (except for purposes
of Section 6 hereof) until the date (the "Cut-Off Date") which is the earlier of
------------
the date thirty days after (a) the date the financial statements for the
Borrowers and their Subsidiaries with respect to such fiscal quarter or fiscal
year, as the case may be, are delivered pursuant to Section 8.01(a) or 8.01(b)
hereof or (b) the latest date on which such financial statements are required to
be delivered pursuant to said Section 8.01(a) or 8.01(b), provided that, if
--------
following the last day of such fiscal quarter or fiscal year and prior to the
Cut-Off Date, the Borrowers shall have received Cure Monies (and shall have
applied the proceeds thereof to the prepayment of the Loans hereunder, which
prepayment, in the case of Affiliate Subordinated Indebtedness, shall be
effected in the manner provided in Section 8.14(a) hereof), or shall have
prepaid the Loans hereunder from available cash, in an amount sufficient to
bring the Borrowers into compliance with said Section 8.10(b) or 8.10(c)
assuming that the Interest Coverage Ratio and the Pro Forma Debt Service
Coverage Ratio (as the case may be), as of the last day of such fiscal quarter
or fiscal year, as the case may be, were recalculated to deduct from Interest
Expense the aggregate amount of interest that would not have been required to be
paid hereunder if such prepayment had been made on the first day of the period
for which the Interest Coverage Ratio and the Pro Form Debt Service Coverage
Ratio is determined under said Section 8.10(b) or 8.10(c), then such breach or
breaches shall be deemed to have been cured; provided, further, that breaches of
-------- -------
Section 8.10 hereof (including pursuant to paragraph (a) above) may not be
deemed to be cured pursuant to this Section 9.02 (x) more than three times
during the term of this Agreement or (y) during consecutive fiscal quarters.
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Section 10. The Administrative Agent.
------------------------
10.01 Appointment, Powers and Immunities. Each Lender hereby appoints
----------------------------------
and authorizes the Administrative Agent to act as its agent hereunder and under
the other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and under the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
10.05 and the first sentence of Section 10.06 hereof shall include reference to
its affiliates and its own and its affiliates' officers, directors, employees
and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Loan Documents, and shall not
by reason of this Agreement or any other Loan Document be a trustee for any
Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Loan Document, or in any certificate or other document referred
to or provided for in, or received by any of them under, this Agreement or
any other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or any other document referred to or provided for herein or
therein or for any failure by the Borrowers or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to the collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Loan Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or
willful misconduct.
The Administrative Agent 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 selected by it in good faith.
10.02 Reliance by Administrative Agent. The Administrative Agent
--------------------------------
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be
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genuine and correct and to have been signed or sent 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 the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Majority Lenders or, if provided herein, in accordance
with the instructions given by the Majority Revolving Credit Lenders, the
Majority Term Loan Lenders, the Majority Incremental Facility Lenders of a
Series or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrowers 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 Lenders. The
Administrative Agent shall (subject to Section 10.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders , the Majority Term Loan
Lenders or the Majority Incremental Facility Lenders of a Series, provided that,
--------
unless and until the Administrative Agent shall have received such directions,
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 interest of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or not be taken,
only with the consent or upon the authorization of the Majority Lenders, the
Majority Revolving Credit Lenders, the Majority Term Loan Lenders or the
Majority Incremental Facility Lenders of a Series or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and the
------------------
Loans made by it, Chase (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Borrowers (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase (and any such successor) and its affiliates may accept fees and
other consideration from the Borrowers for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
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10.05 Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Borrowers under said Section 11.03)
ratably in accordance with the aggregate principal amount of the Loans and
Reimbursement Obligations held by the Lenders (or, if no Loans or Reimbursement
Obligations are at the time outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities, obligations, 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 the Administrative Agent (including by any Lender) arising out
of or by reason of any investigation in or in any way relating to or arising out
of this Agreement or any other Loan Document any other documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses that the
Borrowers are obligated to pay under Section 11.03 hereof, but excluding, unless
a Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
10.06 Non-Reliance on Administrative Agent and Other Lenders. Each
------------------------------------------------------
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrowers and their Subsidiaries and decision to enter into this Agreement and
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or under any other Loan
Document. The Administrative Agent shall not be required to keep itself informed
as to the performance or observance by the Borrowers of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the Properties or books of the Borrowers or any
of their Subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Borrowers or any of their Subsidiaries (or any of
their affiliates) that may come into the possession of the Administrative Agent
or any of its affiliates.
10.07 Failure to Act. Except for action expressly required of the
--------------
Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under
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Section 10.05 hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
10.08 Resignation or Removal of 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 five days prior
notice thereof to the Lenders and the Borrowers, and the Administrative Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, in consultation with the
Borrowers, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 10
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.
10.09 Consents under Other Loan Documents. Except as otherwise
provided in Section 11.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Loan Documents, provided that, without the prior consent of each Lender, the
--------
Administrative Agent shall not (except as provided herein or in the Security
Documents) release all or substantially all of the Subsidiary Guarantors from
their obligations under the Security Documents, or release all or substantially
all of the collateral or otherwise terminate all or substantially all of the
Liens under the Security Documents (taken as a whole), or agree to additional
obligations being secured by all or substantially all such collateral security
(unless the Lien for such additional obligations shall be junior to the Lien in
favor of the other obligations secured by such Security Document, in which event
the Administrative Agent may consent to such junior Lien provided that it
--------
obtains the consent of the Majority Lenders thereto), alter the relative
priorities of the obligations entitled to the benefits of all or substantially
all of the Liens under the Security Documents, except that no such consent shall
be required, and the Administrative Agent is hereby authorized, to release any
Lien covering Property (and to release any Subsidiary Guarantor) that is the
subject of either a disposition of Property permitted hereunder or a Disposition
to which the Majority Lenders have consented.
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Section 11. Miscellaneous.
-------------
11.01 Waiver. No failure on the part of the Administrative Agent or
------
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
Each Borrower irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the
Administrative Agent or any Lender relating in any way to this Agreement should
be dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by a Borrower relating in any way to this Agreement whether
or not commenced earlier. To the fullest extent permitted by applicable law,
the Borrowers shall take all measures necessary for any such action or
proceeding commenced by the Administrative Agent or any Lender to proceed to
judgment prior to the entry of judgment in any such action or proceeding
commenced by a Borrower.
11.02 Notices. All notices, requests and other communications
-------
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including, without limitation, by
telecopy) delivered to the intended recipient at (i) in the case of the
Borrowers and the Administrative Agent, at the "Address for Notices" specified
below its name on the signature pages hereof and (ii) in the case of each of the
Lenders, the address (or telecopy number) set forth in its Administrative
Questionnaire; or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Notwithstanding the foregoing,
notices of borrowing, prepayment and Conversion of Loans pursuant to Section
4.05 hereof may be made by telephone, so long as the same are promptly confirmed
in writing. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
11.03 Expenses, Etc. The Borrowers jointly and severally agree to pay
--------------
or reimburse each of the Lenders and the Administrative Agent for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to Chase) in connection
with (i) the negotiation, preparation, execution and delivery of this Agreement
and the other Loan Documents and the extension of credit hereunder and (ii) the
negotiation or preparation of any modification, supplement or waiver of any of
the terms of this
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Agreement or any of the other Loan Documents (whether or not consummated); (b)
all reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 11.03; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the other Loan
Documents or any other document referred to herein or therein and all costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
The Borrowers hereby jointly and severally agree to indemnify the
Administrative Agent, each Lender, each of their affiliates and their respective
directors, officers, employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the Administrative Agent to
any Lender, whether or not the Administrative Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Borrowers or any of their Subsidiaries of the proceeds of
any of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
11.04 Amendments, Etc. Except as otherwise expressly provided in this
---------------
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Borrowers and the Majority Lenders, or
by the Borrowers and the Administrative Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by the
Majority Lenders or by the Administrative Agent acting with the consent of the
Majority Lenders; provided that:
--------
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders:
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(i) increase, or extend the term of any of the Commitments, or
extend the time or waive any requirement for the reduction or
termination of any of the Commitments,
(ii) extend the date fixed for the payment of principal of or
interest on any Loan, the Reimbursement Obligations or any fee
hereunder,
(iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon or
any fee is payable hereunder,
(v) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied, or
provide that any Class of Loans or Lenders are subordinate in right of
payment or have junior priority as to Collateral, as between the
Lenders or Classes of Loans,
(vi) alter the terms of this Section 11.04,
(vii) modify the percentages set forth in the definition of the
term "Majority Lenders", "Majority Revolving Credit Lenders",
"Majority Term Loan Lenders" or "Majority Incremental Facility
Lenders",
(viii) waive or amend any provision requiring the consent or
approval of all Lenders; or
(ix) waive any of the conditions precedent set forth in Section
6.01 hereof; and
(b) any modification or supplement of Section 10 hereof, or of any of
the rights or duties of the Administrative Agent hereunder, shall require
the consent of the Administrative Agent.
Anything in this Agreement to the contrary notwithstanding, no waiver
or modification of any provision of this Agreement that has the effect (either
immediately or at some later time) of enabling the Borrowers to satisfy a
condition precedent to the making of a Revolving Credit Loan, Term Loan or
Incremental Facility Loan of any Series shall be effective against the Revolving
Credit Lenders for the purposes of the Revolving Credit Commitments, the Term
Loan Lenders for purposes of the Term Loan Commitments and Incremental Facility
Commitments of such Series unless the Majority Revolving Credit Lenders or
Majority Incremental Facility Lenders of such Series, as applicable, shall have
concurred with such waiver
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or modification, and no waiver or modification of any provision of this
Agreement or any other Loan Document that could reasonably be expected to
adversely affect the Lenders of any Class shall be effective against the Lenders
of such Class unless the Majority Revolving Credit Lenders, Majority Term Loan
Lenders or Majority Incremental Facility Lenders or the applicable Series, as
the case may be, shall have concurred with such waiver or modification.
11.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.06 Assignments and Participations.
------------------------------
(a) None of the Borrowers may assign any of its rights or obligations
hereunder without the prior consent of all of the Lenders and the Administrative
Agent.
(b) Each Lender may assign any of its Loans, its Commitments and, if
such Lender is a Revolving Credit Lender, its Letter of Credit Interest (but
only with the consent of, in the case of its outstanding Commitments, the
Borrowers and the Administrative Agent and, in the case of the Revolving Credit
Commitment or a Letter of Credit Interest, the Issuing Lender, which consents
shall not be unreasonably withheld or delayed); provided that
--------
(i) no such consent by the Borrowers or the Administrative Agent
shall be required in the case of any assignment to another Lender, an
affiliate or an Approved Fund of a Lender;
(ii) except to the extent the Borrowers and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Lender or an affiliate or an Approved Fund of a Lender) shall be in an
amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit Loans
or Revolving Credit Commitment or Letter of Credit Interest shall be made
in such manner so that the same portion of its Revolving Credit Loans,
Revolving Credit Commitment and Letter of Credit Interest is assigned to
the respective assignee;
(iv) each such assignment by a Lender of its Term Loans or Term Loan
Commitment shall be made in such manner so that the same portion of its
Term Loans and Term Loan Commitment is assigned to the respective assignee;
(v) each such assignment by a Lender of its Incremental Facility
Loans of any Series shall be made in such manner so that the same portion
of its Incremental Facility Loans and Incremental Facility
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Commitment of such Series is assigned to the respective assignee; and
(vi) upon each such assignment, the assignor and assignee shall
deliver to the Borrowers, the Administrative Agent and the Issuing Lender
an Assignment and Acceptance in the form of Exhibit A hereto and the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
Upon execution and delivery by the assignor and the assignee to the Borrowers,
the Administrative Agent and the Issuing Lender of such Assignment and
Acceptance, and upon consent thereto by the Borrowers, the Administrative Agent
and the Issuing Lender to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Borrowers,
the Administrative Agent and the Issuing Lender), the obligations, rights and
benefits of a Lender hereunder holding the Commitment(s), Loans and, if
applicable, Letter of Credit Interest (or portions thereof) assigned to it and
specified in such Assignment and Acceptance (in addition to the Commitment(s),
Loans and Letter of Credit Interest, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment the assigning Lender shall pay the Administrative Agent an assignment
fee of $3,500; provided, however, that no such fee shall be payable in the case
-------- -------
of an assignment to another Lender, an Affiliate of a Lender or an Approved
Fund; and provided further that, in the case of contemporaneous assignments by a
-------- -------
Lender to more than one fund managed by the same investment advisor (which funds
are not then Lenders hereunder), only a single such fee shall be payable for all
such contemporaneous assignments.
(c) A Lender may sell or agree to sell to one or more other Persons
(each a "Participant") a participation in all or any part of any Loans or Letter
-----------
of Credit Interest held by it, or in its Commitments, provided that (i) such
--------
Participant shall not have any rights or obligations under this Agreement or any
other Loan Document (the Participant's rights against such Lender in respect of
such participation to be those set forth in the agreements executed by such
Lender in favor of the Participant) and (ii) such Lender shall promptly notify
the Borrowers of the sale of such participation. All amounts payable by the
Borrowers to any Lender under Section 5 hereof in respect of Loans and Letter of
Credit Interests held by it, and its Commitments, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans, Letter
of Credit Interest and Commitments, and as if such Lender were funding each of
such Loan, Letter of Credit Interest and Commitments in the same way that it is
funding the portion of such Loan, Letter of Credit Interest and Commitments in
which no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
Commitment or extend the amount or
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date of any scheduled reduction of such Commitment pursuant to Section 2.04
hereof, (ii) extend the date fixed for the payment of principal of or interest
on the related Loan or Loans, Reimbursement Obligations or any portion of any
fee hereunder payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable thereon,
or any fee hereunder payable to the Participant, to a level below the rate at
which the Participant is entitled to receive such interest or fee or (v) consent
to any modification, supplement or waiver hereof or of any of the other Loan
Documents to the extent that the same, under Section 10.09 or Section 11.04
hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Lender may (without notice
to the Borrowers, the Administrative Agent or any other Lender and without
payment of any fee) (i) assign and pledge all or any portion of its Loans to any
Federal Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Lender and (ii) assign all or
any portion of its rights under this Agreement and its Loans to an affiliate.
Any Lender that is a fund that invests in bank loans may (without the consent of
the Borrowers or the Administrative Agent) pledge all or any portion of its
rights in connection with this Agreement to the trustee for holders of
obligations owed, or securities issued, by such fund as security for such
obligations or such securities, provided that any foreclosure or other exercise
of remedies by such trustee shall be subject to the provisions of this Section
11.06 in all respects. No assignment or pledge described in this paragraph shall
release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Borrowers or
any of their Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Borrowers or any of their Affiliates or
Subsidiaries without the prior consent of each Lender.
(g) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
--------
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
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The Register shall be available for inspection by the Borrowers and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) above, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(i) Notwithstanding anything to the contrary contained herein, any
lender (a "Granting Lender") may grant to a special purpose funding vehicle (a
---------------
"SPC"), identified as such in writing from time to time by the Granting Lender
---
to the Administrative Agent and the Borrowers, the option to provide to the
Borrowers all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrowers pursuant to this Agreement; provided that
-------------
(i) nothing herein shall constitute a commitment by any SPC to make any Loan,
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper, or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof in respect of claims
arising out of this Agreement. In addition, notwithstanding anything to the
contrary contained in this Section 11.06(i), any SPC may (i) with notice to, but
without the prior written consent of, the Borrowers and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrowers and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.
11.07 Survival. The obligations of the Borrowers under Sections 5.01,
--------
5.05, 5.06, 5.07 and 11.03 hereof, and the obligations of the Lenders under
Section 10.05 hereof, shall
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survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments, Loans or Letter of Credit Interest hereunder,
shall survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder. In addition, each representation
and warranty made, or deemed to be made by a notice of any extension of credit
(whether by means of a Loan or a Letter of Credit), herein or pursuant hereto
shall survive the making of such representation and warranty, and no Lender
shall be deemed to have waived, by reason of making any extension of credit
hereunder (whether by means of a Loan or a Letter of Credit), any Default that
may arise by reason of such representation or warranty proving to have been
false or misleading, notwithstanding that such Lender or the Administrative
Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such extension of
credit was made.
11.08 Captions. The table of contents and captions and section
--------
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This Agreement shall
-----------------------------------------
be governed by, and construed in accordance with, the law of the State of New
York. Each Borrower hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of the
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient
11.11 Waiver of Jury Trial. EACH OF THE BORROWERS, THE ADMINISTRATIVE
--------------------
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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11.12 Treatment of Certain Information; Confidentiality.
-------------------------------------------------
(a) The Borrowers acknowledge that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrowers or one or more of their Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Borrowers hereby authorize each Lender to
share any information delivered to such Lender by the Borrowers and their
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, to any such subsidiary or affiliate,
it being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) below as if it
were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any Obligor pursuant to this Agreement
or any other Loan Document that is identified by the Borrowers as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the disclosure of
--------
any such information (i) after such information shall have become public (other
than through a violation of this Section 11.12), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Lenders or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Lender or the Administrative
Agent), or to auditors or accountants, (v) to the Administrative Agent or any
other Lender (or to Chase Securities Inc.), (vi) in connection with any
litigation to which any one or more of the Lenders or the Administrative Agent
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (vii) to a subsidiary or affiliate
of such Lender as provided in paragraph (a) above or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to the respective Lender a Confidentiality Agreement substantially in the form
of Exhibit I hereto (or executes and delivers to such Lender an acknowledgement
to the effect that it is bound by the provisions of this Section 11.12(b), which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans or Letter of Credit Interest hereunder); provided,
--------
further, that obligations of any assignee that has executed a Confidentiality
-------
Agreement in the form of Exhibit I hereto shall be superseded by this Section
11.12 upon the date upon which such assignee becomes a Lender hereunder pursuant
to Section 11.06(b) hereof.
-115-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
MEDIACOM SOUTHEAST LLC
MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By: /s/ Xxxxx Xxxxxxxx.
-------------------------------
Title: Manager
Address for Notices:
c/o Mediacom LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-116-
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxxxx X. Xxxxxxx.
--------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx.
--------------------------------
Title: Vice President
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
Agent Bank Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-117-
BANK OF MONTREAL
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
FIRST UNION NATIONAL BANK
By:/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CIBC INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
-118-
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxxx Xxxxx
Title: Lending Officer
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
-119-
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ W. Xxxxx Xxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
-120-
MEES PIERSON CAPITAL CORP.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit and Risk Officer
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney in Fact
SOCIETE GENERALE
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
-121-
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By:/s/ Xxxx X. XxXxxxxx
----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
KZH-ING-1 LLC
By:/s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
SCHEDULE I
Commitments
-----------
Revolving Term
Lender Credit Commitment Loan Commitment
------ ------------------- ---------------------
The Chase Manhattan Bank $ 41,000,000.00 $ 62,500,000.00
First Union National Bank 37,000,000.00 4,000,000.00
Bank of Montreal 37,000,000.00 4,000,000.00
CIBC Inc. 30,000,000.00 0
Credit Suisse First Boston 30,000,000.00 0
Dresdner Bank AG New York and 30,000,000.00 0
Grand Cayman Branches
Fleet National Bank 30,000,000.00 0
Mellon Bank, N.A. 30,000,000.00 0
PNC Bank, National Association 30,000,000.00 0
Xxx Xxxx xx Xxxx Xxxxxx 30,000,000.00 0
SunTrust Bank, Central 20,000,000.00 3,000,000.00
Florida, N.A.
Bank of America, N.A. 20,000,000.00 0
Citibank, N.A. 15,000,000.00 0
The Fuji Bank, Limited 15,000,000.00 0
Mees Pierson Capital Corp. 10,000,000.00 2,000,000.00
Societe Generale 15,000,000.00 0
Union Bank of California, N.A. 15,000,000.00 3,000,000.00
Banque Nationale de Paris 15,000,000.00 3,000,000.00
General Electric Capital Corporation 0 13,500,000.00
Floating Rate Portfolio 0 2,500,000.00
KZH-ING-1 LLC 2,500,000.00
Total $450,000,000.00 $100,000,000.00
=============== ===============
SCHEDULE II
Material Agreements and Liens
-----------------------------
[See Sections 7.11, 8.06(b) and 8.07(b)]
Part A - Material Agreements
-------------------
Part B - Liens
-----
SCHEDULE III
Investments
-----------
[See Sections 7.14 and 8.08(a)]
SCHEDULE IV
Franchises
----------
[See definition of "Franchises" in
Section 1.01 and Section 7.16]
SCHEDULE V
Certain Matters related to CATV Systems
---------------------------------------
[See definition of CATV Systems in Section 1.01 and Section 7.17]
SCHEDULE VI
Certain Adjustments to System Cash Flow
---------------------------------------
[See definition of "Adjusted System Cash Flow" in Section 1.01]
