[Execution Copy]
EXHIBIT 10.5(a)
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MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM ARIZONA LLC
_____________________________
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 24, 1997
______________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
FIRST UNION NATIONAL BANK,
as Documentation 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.
Page
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Section 1. Definitions and Accounting Matters.................... 2
1.01 Certain Defined Terms.................................. 2
1.02 Accounting Terms and Determinations.................... 34
1.03 Classes and Types of Loans............................. 36
1.04 Subsidiaries........................................... 36
1.05 Nature of Obligations of Borrowers..................... 36
Section 2. Commitments, Loans, Notes and Prepayments............. 36
2.01 Loans.................................................. 36
2.02 Borrowings............................................. 38
2.03 Changes of Commitments................................. 39
2.04 Commitment Fee......................................... 41
2.05 Lending Offices........................................ 41
2.06 Several Obligations; Remedies Independent.............. 41
2.07 Notes.................................................. 42
2.08 Optional Prepayments and Conversions or Continuations
of Loans............................................... 43
2.09 Mandatory Prepayments and Reductions of Commitments.... 45
Section 3. Payments of Principal and Interest.................... 46
3.01 Repayment of Loans..................................... 46
3.02 Interest............................................... 49
3.03 Determination of Applicable Margin..................... 50
Section 4. Payments; Pro Rata Treatment; Computations; Etc....... 51
4.01 Payments............................................... 51
4.02 Pro Rata Treatment..................................... 52
4.03 Computations........................................... 53
4.04 Minimum Amounts........................................ 53
4.05 Certain Notices........................................ 54
4.06 Non-Receipt of Funds by the Administrative Agent....... 55
4.07 Sharing of Payments, Etc............................... 56
Section 5. Yield Protection, Etc................................. 57
5.01 Additional Costs....................................... 57
(i)
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5.02 Limitation on Types of Loans........................... 60
5.03 Illegality............................................. 61
5.04 Treatment of Affected Loans............................ 61
5.05 Compensation........................................... 62
5.06 U.S. Taxes............................................. 63
5.07 Replacement of Lenders................................. 64
Section 6. Conditions Precedent.................................. 65
6.01 Initial Loan........................................... 65
6.02 Initial and Subsequent Loans........................... 70
Section 7. Representations and Warranties........................ 71
7.01 Corporate Existence.................................... 71
7.02 Financial Condition.................................... 71
7.03 Litigation............................................. 72
7.04 No Breach.............................................. 72
7.05 Action................................................. 73
7.06 Approvals.............................................. 73
7.07 ERISA.................................................. 73
7.08 Taxes.................................................. 74
7.09 Investment Company Act................................. 74
7.10 Public Utility Holding Company Act..................... 74
7.11 Material Agreements and Liens.......................... 75
7.12 Environmental Matters.................................. 75
7.13 Capitalization......................................... 76
7.14 Subsidiaries, Etc...................................... 77
7.15 True and Complete Disclosure........................... 77
7.16 Franchises............................................. 78
7.17 The CATV Systems....................................... 78
7.18 Rate Regulation........................................ 80
7.19 Real Property.......................................... 81
7.20 Acquisition Agreements................................. 81
Section 8. Covenants of the Borrowers............................ 81
8.01 Financial Statements Etc............................... 82
8.02 Litigation............................................. 85
8.03 Existence, Etc......................................... 86
8.04 Insurance.............................................. 87
8.05 Prohibition of Fundamental Changes..................... 87
8.06 Limitation on Liens.................................... 93
8.07 Indebtedness........................................... 95
8.08 Investments............................................ 95
8.09 Restricted Payments.................................... 96
8.11 Management Fees........................................ 100
8.12 Capital Expenditures................................... 101
8.13 Interest Rate Protection Agreements.................... 102
8.14 Affiliate Subordinated Indebtedness.................... 102
(ii)
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8.15 Lines of Business...................................... 103
8.16 Transactions with Affiliates........................... 103
8.17 Use of Proceeds........................................ 104
8.18 Certain Obligations Respecting Subsidiaries............ 104
8.19 Modifications of Certain Documents..................... 106
Section 9. Events of Default..................................... 106
9.01 Events of Default...................................... 106
9.02 Certain Cure Rights.................................... 111
Section 10. The Administrative Agent............................. 113
10.01 Appointment, Powers and Immunities.................... 113
10.02 Reliance by Administrative Agent...................... 114
10.03 Defaults.............................................. 114
10.04 Rights as a Lender.................................... 115
10.05 Indemnification....................................... 115
10.06 Non-Reliance on Administrative Agent and Other
Lenders.............................................. 116
10.07 Failure to Act........................................ 117
10.08 Resignation or Removal of Administrative Agent........ 117
10.09 Consents under Other Loan Documents................... 117
10.10 Documentation Agent................................... 118
Section 11. Miscellaneous........................................ 118
11.01 Waiver................................................ 118
11.02 Notices............................................... 119
11.03 Expenses, Etc......................................... 119
11.04 Amendments, Etc....................................... 121
11.05 Successors and Assigns................................ 122
11.06 Assignments and Participations........................ 122
11.07 Survival.............................................. 126
11.08 Captions.............................................. 126
11.09 Counterparts.......................................... 126
11.10 Governing Law; Submission to Jurisdiction............. 126
11.11 Waiver of Jury Trial.................................. 127
11.12 Treatment of Certain Information; Confidentiality..... 127
(iii)
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Investments
SCHEDULE III - Franchises
SCHEDULE IV - Certain Matters Related to CATV Systems
SCHEDULE V - Real Property
SCHEDULE VI - Certain Adjustments to Operating Cash Flow and System Cash Flow
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT B - Form of Quarterly Officer's Report
EXHIBIT C - Form of Security 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 Assignment and Acceptance
(iv)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 24, 1997,
between: MEDIACOM CALIFORNIA LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware ("Mediacom
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California"); MEDIACOM DELAWARE LLC, a limited liability company duly organized
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and validly existing under the laws of the State of Delaware ("Mediacom
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Delaware"); MEDIACOM ARIZONA LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware ("Mediacom Arizona"
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and, together with Mediacom California and Mediacom Delaware, the "Borrowers");
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each of the 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, collectively, the "Lenders"); THE CHASE MANHATTAN BANK, a New York
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banking corporation, as administrative agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent") and
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FIRST UNION NATIONAL BANK, as documentation agent (in such capacity, the
"Documentation Agent").
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Mediacom California, Mediacom Arizona, the Existing Lenders (as hereinafter
defined) and the Administrative Agent are parties to an Amended and Restated
Credit Agreement dated as of December 27, 1996 (such Credit Agreement, as
heretofore modified and supplemented and in effect on the date hereof, being
herein called the "Existing Credit Agreement") providing subject to the terms
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and conditions thereof, for loans in an aggregate principal amount not exceeding
$40,000,000 at any one time outstanding. The parties hereto wish to amend the
Existing Credit Agreement by among other things, increasing the amount of loans
available thereunder to an aggregate principal amount up to but not exceeding
$100,000,000, by adding the New Lenders (as hereinafter defined), by adding
Mediacom Delaware as an additional borrower thereunder and by amending certain
of the other provisions thereof, and, in that connection, wish to amend and
restate the Existing Credit Agreement in its entirety, it being the intention of
the parties hereto that the loans outstanding on the Effective Date (as
hereinafter defined) shall continue and remain outstanding and not be repaid on
the Effective Date, but shall be assigned and reallocated among the Lenders as
provided in Section 2.01 hereof.
Accordingly the parties hereto hereby agree that the Existing Credit Agreement
shall, as of the Effective Date (but subject to the satisfaction of the
conditions precedent specified
Credit Agreement
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in Section 6.01 hereof), be amended and restated
in its entirety as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall have
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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 Agreements" shall mean, collectively, the December 1996
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Acquisition Agreements, the Benchmark Acquisition Agreement, the Booth
Acquisition Agreement, the Spring 1997 Acquisition Agreements and the Subsequent
Acquisition Agreements.
"Acquisitions" shall mean, collectively, the December 1996 Acquisitions
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the Benchmark Acquisition, the Booth Acquisition, the Spring 1997 Acquisitions
and the Subsequent Acquisitions.
"Adjusted Operating Cash Flow" shall mean, for any period during which
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the Borrowers shall have consummated either of the Spring 1997 Acquisitions, 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 Spring 1997 Acquisition had been
consummated on the first day of such period: (i) Operating Cash Flow for such
period plus (ii) the sum of (x) non-recurring expenses incurred by the
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applicable Spring 1997 Seller prior to the actual closing of such Spring 1997
Acquisition (to the extent such items were included as operating expenses in the
determination of Operating Cash Flow for such period) and (y) the amounts set
forth in Schedule VI hereto for such period (representing certain cost savings
and programming cost increases in respect of the CATV Systems being acquired in
such Spring 1997 Acquisition), minus (iii) without duplication of the Management
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Fees actually paid during such period, the additional Management Fees that would
have been paid during such period at a rate equal to 5% of the gross operating
revenue of the Borrowers and their Subsidiaries for such period (determined, as
specified above, under the assumption that such Spring 1997 Acquisition had been
consummated on the first day of such period).
Credit Agreement
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"Adjusted System Cash Flow" shall mean, for any period during which the
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Borrowers shall have consummated either of the Spring 1997 Acquisitions, 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 Spring 1997 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-recurring expenses incurred by the
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applicable Spring 1997 Seller prior to the actual closing of such Spring 1997
Acquisition (to the extent such items were included as operating expenses in the
determination of System Cash Flow for such period) and (y) the amounts set forth
in Schedule VI hereto (representing certain cost savings and programming cost
increases in respect of the CATV Systems being acquired in such Spring 1997
Acquisition).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in a
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form supplied by the Administrative Agent.
"Affiliate" shall mean any Person that directly or indirectly controls, or is
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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, "controlled by"
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and "under common control with") shall mean possession, directly or indirectly,
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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 Person that owns
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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
Wholly Owned Subsidiaries of any Borrower shall be Affiliates.
Credit Agreement
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"Affiliate Subordinated Indebtedness" shall mean Indebtedness to an Affiliate
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(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 and Notes hereunder on terms in form and substance
satisfactory to the Majority Lenders, (iv) that does not mature prior to June
30, 2006, 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. Notwithstanding the foregoing, Affiliate
Subordinated Indebtedness shall not include the Booth Subordinated Indebtedness.
"Applicable Lending Office" shall mean, for each Lender and for each Type of
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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 (a) with respect to Revolving Credit Loans and
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Term A Loans of any Type, the respective rates indicated below for Revolving
Credit Loans and Term A 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 Revolving Credit Loans and Term A Loans shall be the
highest rates provided for below (i.e., 1.625% with respect to Base Rate Loans
and 2.625% with respect to Eurodollar Loans) during any period when an Event of
Default shall have occurred and be continuing):
Credit Agreement
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Applicable Margin (% p.a.)
Range --------------------------
of
Rate Ratio Base Rate Loans Eurodollar Loans
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Greater than or equal
to 5.50 to 1 1.625% 2.625%
Greater than or equal to
5.00 to 1 but less than
5.50 to 1 1.375% 2.375%
Greater than or equal to
4.50 to 1 but less than
5.00 to 1 1.125% 2.125%
Greater than or equal to
4.00 to 1 but less than
4.50 to 1 0.875% 1.875%
Greater than or equal to
3.00 but less than
4.00 0.625% 1.625%
Less than 3.00 to 1 0.375% 1.375%
and (b) with respect to Term B Loans of any Type, the respective rates indicated
below for Term B 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 Term B Loans shall be the highest rates provided for
below (i.e., 1.75% with respect to Base Rate Loans and 2.75% with respect to
Eurodollar Loans) during any period when an Event of Default shall have occurred
and be continuing):
Credit Agreement
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Applicable Margin (% p.a.)
Range --------------------------
of
Rate Ratio Base Rate Loans Eurodollar Loans
---------- --------------- ----------------
Greater than or equal
to 5.50 to 1 1.75% 2.75%
Greater than or equal to
5.00 to 1 but less than
5.50 to 1 1.50% 2.50%
Less than 5.00 to 1 1.25% 2.25%
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as amended
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from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the higher of
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(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 upon the
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Base Rate.
"Basic Documents" shall mean, collectively, this Agreement, the other Loan
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Documents and the Acquisition Agreements.
"Basic Subscribers" shall mean, as at any date, (a) Subscribers who subscribe
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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 monthly amount
billed to bulk Subscribers (hotels, motels, apartment buildings, hospitals and
the like), by the regular basic monthly subscription rate for basic service
charged by the CATV System in which such bulk Subscriber is located.
"Basle Accord" shall mean the proposals for risk-based capital framework
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described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital
Credit Agreement
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Standards" dated July 1988, as amended, modified and supplemented and in effect
from time to time or any replacement thereof.
"Benchmark" shall mean Benchmark Acquisition Fund II Limited Partnership, a
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Maryland limited partnership.
"Benchmark Acquisition" shall mean the acquisition by Mediacom California
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pursuant to the Benchmark Acquisition Agreement of substantially all of the
assets comprising the cable television systems of Benchmark in the communities
of Ridgecrest, and China Lake Naval Station, California, and in San Bernadino
County and Xxxx County, California.
"Benchmark Acquisition Agreement" shall mean the Asset Purchase Agreement made
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as of November 6, 1995, by and between Benchmark and Mediacom California, as
assignee of Mediacom, as amended by an Amendment No. 1 thereto dated as of March
12, 1996, and as the same shall, subject to Section 8.19 hereof, be further
modified and supplemented and in effect from time to time.
"Booth" shall mean Booth American Company, a Michigan corporation.
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"Booth Acquisition" shall mean the acquisition by Mediacom California pursuant
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to the Booth Acquisition Agreement of substantially all of the assets comprising
the cable television systems of Booth in the communities of Kernville, Xxxxxxx
Heights, Lake Isabella, Bodfish, Onyx, Xxxxxx-Xxxxx Valley, Belle Vista, Mt.
Mesa-Squirrel Valley and South Lake of Xxxx County, California.
"Booth Acquisition Agreement" shall mean the Asset Purchase and Sale Agreement
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made as of May 23, 1996 by and between Booth and Mediacom California, as the
same shall, subject to Section 8.19 hereof, be modified and supplemented and in
effect from time to time.
"Booth Subordinated Indebtedness" shall mean the obligations of the Borrowers
-------------------------------
to Booth (or any transferee thereof) under the Amended and Restated Senior
Subordinated Loan Agreement executed and delivered on December 27, 1996 pursuant
to the Booth Acquisition Agreement, as amended by Amendment No. 1 dated as of
June 24, 1997.
"Business Day" shall mean any day (a) on which commercial banks are not
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authorized or required to close in New
Credit Agreement
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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 by the
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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 obligations of
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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.
"CATV System" shall mean any cable distribution system that receives broadcast
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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 hereof.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
----
time.
"Xxxxxxxx Entity" shall mean, collectively, (i) Xxxxx Xxxxxxxx, (ii) any
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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.
Credit Agreement
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"Commitments" shall mean, collectively, the Revolving Credit Commitments and
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the Term Loan Commitments.
"Continue", "Continuation" and "Continued" shall refer to the continuation
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pursuant to Section 2.08 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant
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to Section 2.08 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 Indebtedness
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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 of its
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Subsidiaries after the Effective Date of any debt securities, excluding,
however, any Indebtedness incurred pursuant to Section 8.07(c) or 8.07(e)
hereof.
"Debt Service" 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) 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 2.03(a) hereof, were
required to be made pursuant to Section 3.01(a) hereof during such period plus
----
(b) in the case of Term 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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Credit Agreement
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"December 1996 Acquisitions" shall mean, collectively, the Saguaro Cable
--------------------------
Acquisition and the Valley Center Acquisition.
"December 1996 Acquisition Agreements" shall mean, collectively, the Saguaro
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Cable Acquisition Agreement and the Valley Center Acquisition Agreement.
"Deeds of Trust" shall mean, collectively, one or more deeds of trust,
--------------
mortgages, or collateral assignments of leasehold interest, in form and
substance satisfactory to the Administrative Agent, creating a Lien on real
property or leasehold interests in the state where the respective Property to be
covered by such instrument is located, executed by the respective Obligor that
is the owner or lessee of such Property in favor of the Administrative Agent
(or, in the case of a deed of trust, in favor of a trustee for the benefit of
the Administrative Agent and the Lenders) pursuant to the Existing Credit
Agreement (or any predecessor agreement), Section 6.01(h) hereof or Section 8.18
hereof, as the case may be, covering the respective fee or leasehold interests
owned by such Obligor, as said deeds of trust, mortgages and collateral
assignments of leasehold interests shall be modified and supplemented and in
effect from time to time.
"Default" shall mean an Event of Default or an event that with notice or lapse
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of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other 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 America.
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"Effective Date" shall mean the date on which the conditions to effectiveness
--------------
set forth in Section 6.01 hereof shall have been satisfied or waived.
"Environmental Claim" shall mean, with respect to any Person, any written or
-------------------
oral notice, claim, demand or other communication (collectively, a "claim") by
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any other Person alleging or asserting such Person's liability for investigatory
Credit Agreement
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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 Federal, state,
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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.
"Equity Issuance" shall mean, collectively, (a) any issuance or sale by a
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Borrower after the Effective Date of (i) any of its ownership interests or of
its capital stock, (ii) any warrants or options exercisable in respect of its
capital stock or its ownership interests (other than any warrants or options
issued to directors, officers or employees of the Borrowers pursuant to employee
benefit plans established in the ordinary course of business and any ownership
interests of the Borrowers issued upon the exercise of such warrants or options)
or (iii) any other security or instrument representing an equity interest (or
the right to obtain any equity interest) in the Borrowers or (b) the receipt by
a Borrower after the Effective Date of any equity capital contribution (whether
or not evidenced by any equity security issued by the recipient of such
contribution), provided that the term "Equity Issuance" shall not include any
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capital contribution by Mediacom to any Borrower from
Credit Agreement
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the proceeds of the proposed equity issuance by Mediacom described in the
Confidential Private Placement Memorandum dated September, 1996 relating to the
offering of $75,000,000 limited liability company membership interests in
Mediacom.
"Equity Rights" shall mean, with respect to any Person, any 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 1974, as
-----
amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business 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, with respect to any Eurodollar Loan for any
--------------------
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%), quoted by Chase at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) on the date two Business Days prior
to the first day of such Interest Period for the offering by Chase to leading
banks in the London interbank market of Dollar deposits having a term comparable
to such Interest Period and in an amount comparable to the principal amount of
the Eurodollar Loan to be made by Chase for such Interest Period. If Chase is
not participating in any Eurodollar Loans during any Interest Period therefor,
the Eurodollar Base Rate for such Loans for such Interest Period shall be
determined by reference to the amount of such Loans that Chase would have made
or had outstanding had it been participating in such Loan during 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.
Credit Agreement
----------------
- 13 -
"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 Lenders" shall mean Chase and First Union National Bank.
----------------
"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
Credit Agreement
----------------
- 14 -
on the next succeeding Business Day and (b) if such rate is not so published for
any Business Day, the Federal Funds 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.
"Fixed Charge 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) the sum of (i) Debt
-----
Service for the period of four consecutive fiscal quarters ending on, or most
recently ended prior to, such date plus (ii) Capital Expenditures for the period
----
of four consecutive fiscal quarters ending on, or most recently ended prior to,
such date plus (iii) the Tax Payment Amount for the period of four consecutive
----
fiscal quarters ending on, or most recently ended prior to, such date. For
purposes of determining the Fixed Charge Coverage Ratio, Capital Expenditures
incurred for any period prior to January 1, 2000 with respect to the cable
television systems acquired or to be acquired in connection with the December
1996 Acquisitions and the Spring 1997 Acquisitions shall be the lesser of (i)
actual Capital Expenditures incurred for such period with respect to such cable
television systems and (ii) the product of $40 times the average number of
-----
Subscribers to such cable television systems during such period.
"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 a Borrower or
any of its 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 III 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
Credit Agreement
----------------
- 15 -
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 Second Amended and Restated
------------------------------
Guarantee and Pledge Agreement substantially in the form of Exhibit D hereto
between the Parent Guarantors 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 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.
"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 Debt
and Booth 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
Credit Agreement
----------------
- 16 -
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 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 of the Borrowers and their Subsidiaries and (ii) all obligations in
respect of Interest Rate Protection Agreements.
"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, if during any fiscal quarter for which the
Interest Coverage Ratio is being determined the Borrowers shall have consummated
either of the Spring 1997 Acquisitions, the Interest Coverage Ratio 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 to be
determined under the assumption that such Spring 1997 Acquisition had been
consummated (and all Indebtedness incurred in connection therewith) on the first
day of 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 and all Booth Subordinated Indebtedness (in each case,
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)
Credit Agreement
----------------
- 17 -
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.
"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 and (subject to the provisions of Section
2.01(c) 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 A Loan
may commence before and end after any Principal Payment Date unless, after
giving effect thereto, the aggregate principal amount of the Term A 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 A 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 Term B Loan may
commence before and end after any Principal Payment Date unless, after giving
effect thereto, the aggregate principal amount of the Term B 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 B Loans scheduled to be
outstanding after giving effect to the payments of principal
Credit Agreement
----------------
- 18 -
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 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;
Credit Agreement
----------------
- 19 -
or (d) the entering into of any Interest Rate Protection Agreement.
"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 Notes, the
--------------
Security Documents and each Management Fee Subordination Agreement.
"Loans" shall mean, collectively, the Revolving Credit Loans and the Term
-----
Loans.
"Lower Delaware Acquisition" shall mean the acquisition by Mediacom Delaware
--------------------------
pursuant to the Lower Delaware Acquisition Agreement of substantially all of the
assets comprising the cable television systems of American Cable TV Investors 5,
Ltd. in (i) the following areas in Delaware: the residential and recreational
areas known as Angola-by-the Bay, unincorporated Sussex County, Long Neck, the
private residential community of Sea Colony and the towns of Xxxxxxx Beach,
Dagsboro, Frankford, Millsboro, Millville, Oceanview, Selbyville and South
Xxxxxxx and (ii) the following areas in Maryland: the towns of Willards and
Pittsville, Unincorporated Wicomico County, Worcester County and the private
residential community of Ocean Pines.
"Lower Delaware Acquisition Agreement" shall mean the Asset Purchase Agreement
------------------------------------
made as of December 24, 1996 by and between American Cable TV Investors 5, Ltd.
and Mediacom, as the same shall, subject to Section 8.19 hereof, be modified and
supplemented and in effect from time to time.
"Majority Lenders" shall mean, subject to the last paragraph of Section 11.04
----------------
hereof, Lenders having at least 66-2/3% of the sum of (a) the aggregate
outstanding principal amount of the Term Loans or, if the Term Loans shall not
have been made (or designated as provided in Section 2.01 hereof), the aggregate
outstanding principal amount of the Term Loan Commitments plus (b) the sum of
----
(i) the aggregate unused amount, if any, of the
Credit Agreement
----------------
- 20 -
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
---------------------------------
at least 66-2/3% of the aggregate amount of the Revolving Credit Commitments or,
if the Revolving Credit Commitments shall have terminated, Revolving Credit
Lenders holding at least 66-2/3% of the aggregate unpaid principal amount of the
Revolving Credit Loans.
"Majority Term A Lenders" shall mean Term A Lenders holding at least 66-2/3%
-----------------------
of the aggregate outstanding principal amount of the Term A Loans or, if the
Term A Loans shall not have been made (or designated as provided in Section 2.01
hereof), at least 66-2/3% of the Term A Commitments.
"Majority Term B Lenders" shall mean Term B Lenders holding at least 66-2/3%
-----------------------
of the aggregate outstanding principal amount of the Term B Loans or, if the
Term B Loans shall not have been made, at least 66-2/3% of the Term B
Commitments.
"Management Agreements" shall mean, collectively, (a) the Management Agreement
---------------------
dated March 12, 1996 among Mediacom California and Mediacom Management
Corporation, (b) the Management Agreement dated December 27, 1996 among Mediacom
Arizona and Mediacom Management Corporation and (c) the Management Agreement
dated June 24, 1997 among 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 Second Amended
--------------------------------------
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 a Borrower or any of its 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
Credit Agreement
----------------
- 21 -
rendered in connection with the management or supervision of
the Borrowers and their Subsidiaries, provided that Management Fees shall
--------
exclude (a) the first $100,000 of Manager Expenses (if any) during any fiscal
year and (b) 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 5.05 of the Guarantee and Pledge Agreement (other
than the allocated amount of Executive 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.
"Manager Expenses" shall mean out-of-pocket expenses incurred by the Manager
----------------
on behalf of the Borrowers and their Subsidiaries in connection with the
operation of the business of the Borrowers and their Subsidiaries.
"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 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.
Credit Agreement
----------------
- 22 -
"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.
"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 and
(ii) in the case of any Equity Issuance or Debt Issuance, the
aggregate amount of all cash received by any Borrower or any of its
Subsidiaries in respect of such Equity Issuance or 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.
"New Lenders" shall mean each Lender party hereto on the Effective Date other
-----------
than the Existing Lenders.
"Notes" shall mean, collectively, the Revolving Credit Notes and the Term Loan
-----
Notes.
Credit Agreement
----------------
- 23 -
"Obligors" shall mean, collectively, the Borrowers, the Parent Guarantors and,
--------
effective upon execution and delivery of any Subsidiary Guarantee Agreement,
each Subsidiary of a Borrower so executing and delivering such Subsidiary
Guarantee Agreement.
"Operating Agreements" shall mean, collectively, the Mediacom California
--------------------
Operating Agreement, the Mediacom Delaware Operating Agreement and the Mediacom
Arizona 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 5% of the
gross operating revenue of the Borrowers and their Subsidiaries for such period.
"Parent Guarantors" shall mean, collectively, Mediacom and Mediacom Management
-----------------
Corporation.
"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 Group, 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.
Credit Agreement
----------------
- 24 -
"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).
"Plan" shall mean an employee benefit or other plan established or maintained
----
by a Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA,
other than a Multiemployer Plan.
"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.
"Prime Rate" shall mean the rate of interest from time to time announced by
----------
Chase at the its principal office in New York City as its prime commercial
lending rate.
"Principal Payment Dates" shall mean the last Business Day of March, June,
-----------------------
September and December of each year, commencing with September 30, 1997, through
and including September 30, 2005.
"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.
"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,
Credit Agreement
----------------
- 25 -
homes passed, revenues per Subscriber and Pay TV Units, substantially in the
form of Exhibit B hereto.
"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 Effective Date) to but not including the next
following Quarterly Date.
"Rate Ratio" shall mean, for any Quarterly Payment Period, the daily average
----------
of the Senior Leverage Ratio during the fiscal quarter ending on, or most
recently ended prior to, the first day of such Quarterly Payment Period,
provided that until such time as one complete fiscal quarter shall have elapsed
--------
subsequent to the Effective Date, such daily average of the Senior Leverage
Ratio shall be determined only for the portion of such fiscal quarter commencing
on the Effective Date.
"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.
"Registered Holder" shall have the meaning assigned to such term in Section
-----------------
5.06(a)(ii) hereof.
"Registered Loan" shall have the meaning assigned to such term in Section
---------------
2.07(f) hereof.
"Registered Note" shall have the meaning assigned to such term in Section
---------------
2.07(f) hereof.
"Regulations A, D, G, T, U and X" shall mean, respectively, Regulations A, D,
-------------------------------
G, 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
Credit Agreement
----------------
- 26 -
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.
"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.
"Restricted Payment" 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 Subsidiary), (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 or Booth Subordinated Indebtedness and
(d) any payments in respect of Management Fees.
Credit Agreement
----------------
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"Revolving Credit Commitment" shall mean, as to each Revolving Credit Lender,
---------------------------
the obligation of such Lender to make Revolving Credit Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
set forth opposite the name of such Lender on the signature pages hereof under
the caption "Revolving Credit Commitment" or, in the case of a Person that
becomes a Revolving Credit Lender pursuant to an assignment permitted under
Section 11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03 or 2.09 hereof, or increased or reduced in
connection with any assignment pursuant to Section 11.06(b) hereof). The
original aggregate principal amount of the Revolving Credit Commitments is
$40,000,000.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the Lenders
------------------------
having Revolving Credit Commitments on the signature pages hereof 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 Commitment Reduction Dates" shall mean the last Business Day
-------------------------------------------
of March, June, September and December in each year, commencing with September
30, 1998, through and including September 30, 2005.
"Revolving Credit Commitment Termination Date" shall mean the Revolving Credit
--------------------------------------------
Commitment Reduction Date falling on or nearest to September 30, 2005.
"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.
"Revolving Credit Notes" shall mean the promissory notes provided for by
----------------------
Section 2.07(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time. The term "Revolving Credit Notes" shall
include any Registered Notes evidencing Revolving Credit Loans executed and
delivered pursuant to Section 2.07(f) hereof.
"RidgeNet" shall mean the Internet communications node serving the cities of
--------
Ridgecrest and Indian Xxxxx Valley, California.
Credit Agreement
----------------
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"RidgeNet Indebtedness" shall mean obligations of Mediacom California to pay
---------------------
the deferred purchase price of RidgeNet.
"Saguaro Cable Acquisition" shall mean the acquisition by Mediacom Arizona
-------------------------
pursuant to the Saguaro Cable Acquisition Agreement of substantially all of the
assets comprising the cable television systems of Saguaro Cable TV Investors,
L.P. in the communities of Nogales, Rio Xxxx, Xxxxx and Ajo, Arizona, and
located in the Counties of Pima and Santa Xxxx, Arizona.
"Saguaro Cable Acquisition Agreement" shall mean the Asset Purchase Agreement
-----------------------------------
made as of August 29, 1996, by and between Saguaro Cable TV Investors, L.P. and
Mediacom Arizona, as assignee of Mediacom, as the same shall, subject to Section
8.19 hereof, be modified and supplemented and in effect from time to time.
"Security Agreement" shall mean a Second Amended and Restated Security
------------------
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.
"Security Documents" shall mean, collectively, the Security Agreement, the
------------------
Deeds of Trust, the Guarantee and Pledge Agreement and the Subsidiary Guarantee
Agreements, and all Uniform Commercial Code financing statements required by the
Security Agreement, the Deeds of Trust, the Guarantee and Pledge Agreement and
the Subsidiary Guarantee Agreements, to be filed with respect to the security
interests created pursuant to the Security Agreement, the Deeds of Trust, the
Guarantee and Pledge Agreement and the Subsidiary Guarantee Agreements.
"Senior Indebtedness" shall mean, as of any date, all Indebtedness of the
-------------------
Borrowers and their Subsidiaries (determined on a combined basis without
duplication in accordance with GAAP), including, without limitation, all
Indebtedness hereunder, but excluding all Affiliate Subordinated Debt and Booth
Subordinated Debt.
"Senior Leverage Ratio" shall mean, as at any date, the ratio of (a) the
---------------------
aggregate amount of all Senior Indebtedness (other than RidgeNet Indebtedness)
of the Borrowers and their
Credit Agreement
----------------
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Subsidiaries (including, without limitation, Capital Lease Obligations) 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, if during any fiscal quarter for which the
Senior Leverage Ratio is being determined the Borrowers shall have consummated
either of the Spring 1997 Acquisitions, the Senior Leverage Ratio shall be
deemed to be equal to the ratio of (a) the aggregate amount of all Senior
Indebtedness (other than RidgeNet Indebtedness) of the Borrowers and their
Subsidiaries (including, without limitation, Capital Lease Obligations) as at
the relevant date to (b) the product of Adjusted System Cash Flow for such
fiscal quarter, times four.
-----
"Senior Officer" shall mean the chairman, chief executive officer or chief
--------------
financial officer of the Manager, acting for and on behalf of the Borrowers.
"Spring 1997 Acquisition Agreements" shall mean, collectively, the Lower
----------------------------------
Delaware Acquisition Agreement and the Sun City Acquisition Agreement.
"Spring 1997 Acquisitions" shall mean, collectively, the Lower Delaware
------------------------
Acquisition and the Sun City Acquisition.
"Spring 1997 Sellers" shall mean American Cable TV Investors 5, Ltd. and
-------------------
CoxCom, Inc.
"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.
"Subsequent Acquisition Agreements" shall mean each agreement pursuant to
---------------------------------
which a Subsequent Acquisition shall be consummated, as the same shall, subject
to Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Subsequent Acquisitions" shall mean any acquisition permitted under
-----------------------
8.05(d)(iv) hereof.
Credit Agreement
----------------
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"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 a Borrower that executes
--------------------
and delivers a Subsidiary Guarantee Agreement.
"Sun City Acquisition" shall mean the acquisition by Mediacom California
--------------------
pursuant to the Sun City Acquisition Agreement of substantially all of the
assets comprising the cable television systems of CoxCom, Inc. in Sun City,
California.
"Sun City Acquisition Agreement" shall mean the Asset Purchase Agreement made
------------------------------
as of May 22, 1997, by and between CoxCom, Inc. and Mediacom California, as the
same shall, subject to Section 8.19 hereof, be modified and supplemented and in
effect from time to time.
"Supplemental Capital" shall mean advances made by an Affiliate to a Borrower
--------------------
constituting Affiliate Subordinated Indebtedness (excluding any Cure Monies).
"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
-----
Credit Agreement
----------------
- 31 -
limitation, technical, programming and selling, general and administrative
expenses, but excluding (to the extent included in operating expenses) income
taxes, Management Fees, the first $100,000 of Manager Expenses during any fiscal
year, 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.
Notwithstanding the foregoing, (i) if during any period for which System Cash
Flow is being determined the Borrowers shall have consummated any acquisition of
any CATV System or other business (excluding, however, any of the Spring 1997
Acquisitions), 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 it were a corporation (other than an "S
corporation" within the meaning of Section 1361 of the Code) for such period and
all prior periods.
"Term A Commitment" shall mean, as to each Term A Lender, the obligation of
-----------------
such Lender to make one or more Term A Loans (or to acquire Term A Loans
pursuant to Section 2.01 hereof) in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on the signature pages
hereof under the caption "Term A Commitment" or, in the case of a Person that
becomes a Term A Lender pursuant to an assignment permitted under Section
11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03 or 2.09 hereof, or increased or reduced in
connection with any assignment pursuant to Section 11.06(b) hereof). The
original aggregate principal amount of the Term A Commitments is $50,000,000.
"Term A Lenders" shall mean (a) on the date hereof, the Lenders having Term A
--------------
Commitments on the signature pages hereof and (b) thereafter, the Lenders from
time to time holding Term A
Credit Agreement
----------------
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Loans and Term A Commitments after giving effect to any assignments thereof
permitted by Section 11.06(b) hereof.
"Term A Loans" shall mean the loans provided for by Section 2.01(b) hereof,
------------
which may be Base Rate Loans and/or Eurodollar Loans.
"Term A Notes" shall mean the promissory notes provided for by Section 2.07(b)
------------
hereof and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time. The term "Term A Notes" shall include any Registered Notes
evidencing Term A Loans executed and delivered pursuant to Section 2.07(f)
hereof.
"Term B Commitment" shall mean, as to each Term B Lender, the obligation of
-----------------
such Lender to make one or more Term B Loans in an aggregate principal amount up
to but not exceeding the amount set opposite the name of such Lender on the
signature pages hereof under the caption "Term B Commitment" or, in the case of
a Person that becomes a Term B Lender pursuant to an assignment permitted under
Section 11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03 or 2.09 hereof, or increased or reduced in
connection with any assignment pursuant to Section 11.06(b) hereof). The
original aggregate principal amount of the Term B Commitments is $10,000,000.
"Term B Lenders" shall mean (a) on the date hereof, the Lenders having Term B
--------------
Commitments on the signature pages hereof and (b) thereafter, the Lenders from
time to time holding Term B Loans and Term B Commitments after giving effect to
any assignments thereof permitted by Section 11.06(b) hereof.
"Term B Loans" shall mean the loans provided for by Section 2.01(c) hereof,
------------
which may be Base Rate Loans and/or Eurodollar Loans.
"Term B Notes" shall mean the promissory notes provided for by Section 2.07(c)
------------
hereof and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time. The term "Term B Notes" shall include any Registered Notes
evidencing Term B Loans executed and delivered pursuant to Section 2.07(f)
hereof.
Credit Agreement
----------------
- 33 -
"Term Loan Commitments" shall mean, collectively, the Term A Commitments and
---------------------
the Term B Loan Commitments.
"Term Loan Commitment Termination Date" shall mean June 30, 1997.
-------------------------------------
"Term Loan Lenders" shall mean, collectively, the Term A Lenders and the Term
-----------------
B Lenders.
"Term Loan Notes" shall mean, collectively, the Term A Notes and the Term B
---------------
Notes.
"Term Loans" shall mean, collectively, the Term A Loans and the Term B Loans.
----------
"Total Leverage Ratio" shall mean, as at any date, the ratio of (a) the
--------------------
aggregate amount of all Indebtedness (other than RidgeNet Indebtedness) of the
Borrowers and their Subsidiaries (including, without limitation, Capital Lease
Obligations, but excluding Affiliate Subordinated Debt) 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, if during any fiscal quarter for which the
Total Leverage Ratio is being determined the Borrowers shall have consummated
either of the Spring 1997 Acquisitions, the Total Leverage Ratio shall be deemed
to be equal to the ratio of (a) the aggregate amount of all Indebtedness (other
than RidgeNet Indebtedness) of the Borrowers and their Subsidiaries (including,
without limitation, Capital Lease Obligations) as at the relevant date to (b)
the product of Adjusted System Cash Flow for such fiscal quarter, times four.
-----
"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.
Credit Agreement
-----------------
- 34 -
"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.
"Valley Center Acquisition" shall mean the acquisition by Mediacom California
-------------------------
pursuant to the Valley Center Acquisition Agreement of substantially all of the
assets comprising the cable television systems of Valley Center Cablesystems,
L.P. in the communities of Valley Center and Pauma, California and located in
the County of San Diego, California.
"Valley Center Acquisition Agreement" shall mean the Asset Purchase Agreement
-----------------------------------
made as of August 29, 1996, by and between Valley Center Cablesystems, L.P. and
Mediacom California, as the same shall, subject to Section 8.19 hereof, be
modified and supplemented and in effect from time to time.
"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).
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,
Credit Agreement
----------------
- 35 -
shall mean the audited financial statements as at December 31, 1996 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, 1996 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(i) 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.
(c) To enable the ready and consistent determination of compliance with the
covenants set forth in Section 8 hereof, the Borrowers will not 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.
Credit Agreement
----------------
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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 A Loan or a Term B 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.
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, as co-borrowers under this
Agreement and as co-makers on the Notes, in respect of the principal of and
interest on, and all other amounts owing in respect of, the Loans and the Notes.
Section 2. Commitments, Loans, Notes 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 Effective 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
(such Loans being herein called "Revolving Credit Loans"), provided that in no
---------------------- --------
event shall the aggregate principal amount of all Revolving Credit Loans 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 2.08 hereof)
Credit Agreement
----------------
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or Continue Revolving Credit Loans of one Type as Revolving Credit Loans of the
same Type (as provided in Section 2.08 hereof).
(b) Term A Loans. On the Effective Date, all outstanding "Loans" under the
------------
Existing Credit Agreement held by the Existing Lenders, shall automatically and
without any action on the part of any Person, be designated as Term A Loans
hereunder and each of the New Lenders that is a Term A Lender (and each Existing
Lender, if any, whose relative proportion of Term A Commitments hereunder is
increasing over the proportion of Existing Loans held by it under the Existing
Credit Agreement) shall, by assignments from the Existing Lenders (which shall
be deemed to occur automatically on the Effective Date), acquire a portion of
the Term A Loans of the Existing Lenders so designated in such amounts (and the
Term A Lenders shall, through the Administrative Agent, make such additional
adjustments among themselves as shall be necessary) so that after giving effect
to such assignments and adjustments, the Term A Lenders shall hold the Term A
Loans hereunder ratably in accordance with their respective Term A Commitments.
On the Effective Date all "Interest Periods" in respect of the "Loans" under the
Existing Credit Agreement that are designated as Term A Loans hereunder shall
automatically be terminated and, subject to the terms and conditions of this
Agreement (including, without limitation, paragraph (d) below), the Borrowers
shall be permitted to Continue such "Loans" as Eurodollar Loans or to Convert
such "Loans" into Base Rate Loans hereunder, in each case as provided in Section
2.08 hereof.
In addition to the foregoing, each Term A Lender severally agrees, on the
terms and conditions of this Agreement, to make additional term loans to the
Borrowers in Dollars on the Effective Date (provided that the same shall occur
no later than the Term Loan Commitment Termination Date) in an aggregate
principal amount up to but not exceeding the amount of the Term A Commitment of
such Lender (such Loans, together with the "Loans" under the Existing Credit
Agreement designated as Term Loans hereunder pursuant to the preceding
paragraph, being herein called "Term A Loans"), provided that in no event shall
------------ --------
the aggregate principal amount of all Term A Loans exceed the aggregate amount
of the Term A Commitments as in effect on the Effective Date. Subject to the
terms and conditions of this Agreement, on the Effective Date the Borrowers may
borrow the amount of the unutilized Term A Commitments by means of Base Rate
Loans and Eurodollar Loans, and thereafter the Borrowers may
Credit Agreement
----------------
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Convert Term A Loans of one Type into Term A Loans of another Type (as provided
in Section 2.08 hereof) or Continue Term A Loans of one Type as Term A Loans of
the same Type (as provided in Section 2.08 hereof).
(c) Term B Loans. Each Term B Lender severally agrees, on the terms and
------------
conditions of this Agreement, to make one or more term loans to the Borrowers in
Dollars on the Effective Date (provided that the same shall occur no later than
the Term Loan Commitment Termination Date) in an aggregate principal amount up
to but not exceeding the amount of the Term B Commitment of such Lender (such
Loans, together with the "Loans" under the Existing Credit Agreement designated
as Term B Loans hereunder pursuant to the preceding paragraph, being herein
called "Term B Loans"), provided that in no event shall the aggregate principal
------------ --------
amount of all Term B Loans exceed the aggregate amount of the Term B Commitments
as in effect on the Effective Date. Subject to the terms and conditions of this
Agreement, on the Effective Date the Borrowers may borrow the amount of the
unutilized Term B Commitments by means of Base Rate Loans and Eurodollar Loans,
and thereafter the Borrowers may Convert Term B Loans of one Type into Term B
Loans of another Type (as provided in Section 2.08 hereof) or Continue Term B
Loans of one Type as Term B Loans of the same Type (as provided in Section 2.08
hereof).
(d) Limit on Eurodollar Loans. No more than ten separate Interest Periods in
-------------------------
respect of Eurodollar Loans of a Class from each Lender may be outstanding at
any one time.
Credit Agreement
----------------
- 39 -
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 Borrower
designated by the Borrowers and maintained with Chase at its principal office.
2.03 Changes of Commitments.
----------------------
(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:
(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, 1998 $ 100,000 $39,900,000
December 31, 1998 $ 100,000 $39,800,000
March 31, 1999 $ 700,000 $39,100,000
June 30, 1999 $ 700,000
$38,400,000
September 30, 1999 $ 700,000 $37,700,000
December 31, 1999 $ 700,000 $37,000,000
March 31, 2000 $1,000,000 $36,000,000
June 30, 2000 $ 1,000,000
$35,000,000
Credit Agreement
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- 40 -
September 30, 2000 $1,000,000 $34,000,000
December 31, 2000 $1,000,000 $33,000,000
March 31, 2001 $1,300,000 $31,700,000
June 30, 2001 $ 1,300,000
$30,400,000
September 30, 2001 $1,300,000 $29,100,000
December 31, 2001 $1,300,000 $27,800,000
March 31, 2002 $1,500,000 $26,300,000
June 30, 2002 $ 1,500,000
$24,800,000
September 30, 2002 $1,500,000 $23,300,000
December 31, 2002 $1,500,000 $21,800,000
March 31, 2003 $1,700,000 $20,100,000
June 30, 2003 $ 1,700,000
$18,400,000
September 30, 2003 $1,700,000 $16,700,000
December 31, 2003 $1,700,000 $15,000,000
March 31, 2004 $2,000,000 $13,000,000
June 30, 2004 $2,000,000 $11,000,000
September 30, 2004 $2,000,000 $ 9,000,000
December 31, 2004 $2,000,000 $ 7,000,000
March 31, 2005 $2,333,333 $ 4,666,667
June 30, 2005 $2,333,333 $ 2,333,334
September 30, 2005 $2,333,334 $ 0
(b) The Borrowers shall have the right at any time or from time to time (i)
so long as no Revolving Credit Loans are outstanding, to terminate the Revolving
Credit Commitments, (ii) so long as no Term A Loans are outstanding, to
terminate the Term A Commitments, (iii) so long as no Term B Loans are
outstanding, to terminate the Term B Commitments and (iv) to reduce the
aggregate unused amount of the Commitments of any Class; 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 $500,000 (or a larger multiple of $100,000) 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.
Credit Agreement
----------------
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(c) Each reduction in the aggregate amount of the Revolving Credit
Commitments pursuant to paragraph (b) above, or pursuant to Section 2.09(a)
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).
Each reduction in the aggregate amount of the Revolving Credit Commitments
pursuant to Section 2.09(b) or 2.09(c) hereof on any date shall be applied to
the reductions set forth in the schedule in paragraph (a) above in inverse order
as follows: each such reduction shall result in the automatic and simultaneous
reduction (but not below zero) in the aggregate amount of the Revolving Credit
Commitments for each Revolving Credit Commitment Reduction Date (as reflected in
column (C) at the end of paragraph (a) above) after such date in an amount equal
to the amount of such reduction.
(d) The aggregate amount of the Term A and Term B Commitments shall be
automatically reduced to zero on the Term Loan Commitment Termination Date.
(e) The Commitments once terminated or reduced may not be reinstated.
2.04 Commitment Fee.
--------------
The Borrowers shall pay to the Administrative Agent for account of each Lender
a commitment fee on the daily average unused amount of such Lender's Revolving
Credit Commitment, 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
to 1/2 of 1%. 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.
Credit Agreement
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2.05 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.
2.06 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 or the Notes
(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 and the Notes 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.
2.07 Notes.
-----
(a) The Revolving Credit Loans (other than Registered Loans) made by each
Lender shall be evidenced by a single promissory note of the Borrowers
substantially in the form of Exhibit A-1 hereto, dated the date hereof, payable
to such Lender in a principal amount equal to the amount of its Revolving Credit
Commitment as originally in effect and otherwise duly completed.
(b) The Term A Loans (other than Registered Loans) made by each Lender shall
be evidenced by a single promissory note of the Borrowers substantially in the
form of Exhibit A-2 hereto, dated the date hereof, payable to such Lender in a
principal amount equal to the amount of its Term A Commitment as originally in
effect and otherwise duly completed.
(c) The Term B Loans (other than Registered Loans) made by each Lender shall
be evidenced by a single promissory note of the Borrowers substantially in the
form of Exhibit A-3 hereto, dated the date hereof, payable to such Lender in a
Credit Agreement
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principal amount equal to the amount of its Term B Commitment as originally in
effect and otherwise duly completed.
(d) The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan of each Class made by each Lender to the Borrowers, and
each payment made on account of the principal thereof, shall be recorded by such
Lender on its books and, prior to any transfer of any Note evidencing the Loans
of such Class held by it, endorsed by such Lender on the schedule attached to
such Note or any continuation thereof; provided that the failure of such Lender
--------
to make any such recordation or endorsement shall not affect the obligations of
the Borrowers to make a payment when due of any amount owing hereunder or under
such Note in respect of such Loans.
(e) No Lender shall be entitled to have its Notes substituted or exchanged
for any reason, or subdivided for promissory notes of lesser denominations,
except in connection with a permitted assignment of all or any portion of such
Lender's relevant Commitment, Loans and Notes pursuant to Section 11.06 hereof
and except as provided in clause (e) below (and, if requested by any Lender, the
Borrowers agree to so exchange any Note).
(f) Notwithstanding the foregoing, any Lender that is not a U.S. Person and
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code may
request the Borrowers (through the Administrative Agent), and the Borrowers
agree thereupon, to record (or cause to be recorded by the Administrative Agent
in accordance with Section 11.06(g) hereof) on the Register referred to in said
Section 11.06(g) any Loans of any Class held by such Lender under this
Agreement. Loans recorded on the Register ("Registered Loans") may not be
----------------
evidenced by promissory notes other than Registered Notes as defined below and,
upon the registration of any Loan, any promissory note (other than a Registered
Note) evidencing the same shall be null and void and shall be returned to the
Borrowers. The Borrowers agree, at the request of any Lender that is the holder
of Registered Loans, to execute and deliver to such Lender a promissory note in
registered form to evidence such Registered Loans (i.e. containing the optional
registered note language as indicated in Exhibits X-0, X-0 or A-3 hereto, as the
case may be) and registered as provided in Section 11.06(g) hereof (herein, a
"Registered Note"), dated the date hereof, payable to such Lender and otherwise
----------------
duly completed. A Loan once recorded on the Register may not be removed from
the Register so
Credit Agreement
----------------
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long as it remains outstanding and a Registered Note may not be
exchanged for a promissory note that is not a Registered Note.
2.08 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 of both Classes 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 $100,000;
(d) prepayments of the Term 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
Credit Agreement
----------------
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the last day(s) of the respective Interest Periods therefor) or Continued, as
the case may be, as Base Rate Loans.
2.09 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Excess Cash Flow. Not later than the date 150 days after the end of the
----------------
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, 1999,
the Borrowers shall prepay the Loans, and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 50% of Excess Cash Flow for
such fiscal year, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in paragraph (d) of this Section 2.09.
(b) Equity and Debt Issuances. Upon any Equity Issuance or Debt Issuance,
-------------------------
the Borrowers shall prepay the Loans, 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 (d) of this Section 2.09.
(c) 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 2.09(c), shall exceed $2,000,000 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 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 (d) of this Section 2.09.
Credit Agreement
----------------
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(d) Application. Upon the occurrence of any of the events described in
-----------
paragraphs (a), (b) or (c) of this Section 2.09, the amount of the required
prepayment shall be applied to the reduction of the Revolving Credit Commitments
and the prepayment of the Term Loans of each Class then outstanding ratably 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 reduction of
--------
Revolving Credit Commitments shall exceed the then-outstanding aggregate
principal amount of Revolving Credit Loans, such excess shall be applied to the
prepayment of Term Loans. Each such prepayment of Term Loans under paragraph
(a) of this Section 2.09 shall be applied to the installments thereof ratably in
accordance with the respective principal amounts of such installments and each
prepayment of Term Loans under paragraph (b) or (c) of this Section 2.09 shall
be applied to the installments thereof in inverse order of maturity.
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 in an aggregate
amount equal to such excess.
(b) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of each Lender the principal of such Lender's
Term A Loans in twenty-nine consecutive quarterly installments payable on the
Principal Payment Dates as follows:
Principal Payment Date Amount of Installment ($)
---------------------- -------------------------
June 30, 1998 $ 83,333
September 30, 1998 $ 83,334
Credit Agreement
----------------
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December 31, 1998 $ 83,333
March 31, 1999 $ 875,000
June 30, 1999 $ 875,000
September 30, 1999 $ 875,000
December 31, 1999 $ 875,000
March 31, 2000 $1,250,000
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,625,000
June 30, 2001 $1,625,000
September 30, 2001 $1,625,000
December 31, 2001 $1,625,000
March 31, 2002 $1,875,000
June 30, 2002 $1,875,000
September 30, 2002 $1,875,000
December 31, 2002 $1,875,000
March 31, 2003 $2,125,000
June 30, 2003 $2,125,000
September 30, 2003 $2,125,000
December 31, 2003 $2,125,000
March 31, 2004 $2,500,000
June 30, 2004 $2,500,000
September 30, 2004 $2,500,000
December 31, 2004 $2,500,000
March 31, 2005 $4,375,000
June 30, 2005 $4,375,000
If the full amount of the aggregate Term A Commitments are not borrowed (or
designated as Term A Loans as provided in Section 2.01 hereof) on or before the
Term Loan Commitment Termination Date, the shortfall shall be applied to reduce
the foregoing installments ratably.
(c) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of each Lender the principal of such Lender's
Term B Loans in thirty-three consecutive quarterly installments payable on the
Principal Payment Dates as follows:
Credit Agreement
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Principal Payment Date Amount of Installment ($)
---------------------- -------------------------
September 30, 1997 $ 25,000
December 31, 1997 $ 25,000
March 31, 1998 $ 25,000
June 30, 1998 $ 25,000
September 30, 1998 $ 25,000
December 31, 1998 $ 25,000
March 31, 1999 $ 25,000
June 30, 1999 $ 25,000
September 30, 1999 $ 25,000
December 31, 1999 $ 25,000
March 31, 2000 $ 25,000
June 30, 2000 $ 25,000
September 30, 2000 $ 25,000
December 31, 2000 $ 25,000
March 31, 2001 $ 25,000
June 30, 2001 $ 25,000
September 30, 2001 $ 25,000
December 31, 2001 $ 25,000
March 31, 2002 $ 25,000
June 30, 2002 $ 25,000
September 30, 2002 $ 25,000
December 31, 2002 $ 25,000
March 31, 2003 $ 25,000
June 30, 2003 $ 25,000
September 30, 2003 $ 25,000
December 31, 2003 $ 25,000
March 31, 2004 $ 25,000
June 30, 2004 $ 25,000
September 30, 2004 $ 25,000
December 31, 2004 $ 25,000
March 31, 2005 $ 25,000
June 30, 2005 $ 25,000
September 30, 2005 $9,200,000
Credit Agreement
-----------------
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If the full amount of the aggregate Term B Commitments are not borrowed on or
before the Term Loan Commitment Termination Date, the shortfall shall be
applied to reduce the foregoing installments ratably.
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
and on any other amount payable by the Borrowers hereunder or under the Notes
held by such Lender 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.
Credit Agreement
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3.03 Determination of Applicable Margin.
----------------------------------
(a) The Applicable Margin for all Quarterly Payment Periods through and
including the Quarterly Payment Period ending July 21, 1997, shall be determined
under the assumption that the Rate Ratio is 5.50 to 1. 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 is
delivered by the Borrowers to the Administrative Agent later than three days
prior to the commencement of such Quarterly Payment Period, then (i) any
decrease in the Applicable Margin for such Quarterly Payment Period shall not
become effective on the first day of such Quarterly Payment 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 shall become effective
retroactively from the first day of such Quarterly Payment 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
Credit Agreement
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provided for in the definition of such term in Section 1.01 hereof.
(d) In the event of any retroactive increase in the Applicable Margin for any
Quarterly Payment Period pursuant to clause (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 and other amounts to be made by the Borrowers under this
Agreement and the Notes, 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 a Borrower 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.
Credit Agreement
----------------
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(c) The Borrowers shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Loans 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) Each payment received by the Administrative Agent under this Agreement or
any Note for account of any Lender shall be paid by the Administrative Agent
promptly to such Lender, in immediately 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 or any Note 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 from the Lenders under Section 2.01 hereof shall be made
from the relevant Lenders, each payment of commitment fee under Section 2.04
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 2.03 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 having the same Interest Period shall be allocated pro rata among the
relevant Lenders according to the amounts of their respective Revolving Credit,
Term A and Term B Commitments (in the case of the making of Loans) or their
respective Revolving Credit, Term A and Term B Loans (in the case of Conversions
and Continuations of Loans); (c) each payment or prepayment of principal of
Revolving Credit Loans, Term A Loans or Term B 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
Credit Agreement
----------------
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Loans of such Class held by them; and (d) each payment of interest on Revolving
Credit Loans, Term A Loans and Term B 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 commitment fee 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
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 2.09 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 2.08(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 2.08(c) hereof shall apply) shall be in an
aggregate amount at least equal to $1,000,000 or a larger multiple of $100,000
(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
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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:
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 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
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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 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
Credit Agreement
----------------
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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 or
any other amount payable to such Lender hereunder, that is not paid when due
(regardless of 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 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 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 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 such other
amounts, respectively, owing to each of the Lenders. To such end all the
Credit Agreement
----------------
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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.
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 its Notes or changes the basis of taxation of any amounts payable
to such Lender under this Agreement or its Notes 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
Credit Agreement
----------------
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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
its Notes (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 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
Credit Agreement
----------------
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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.
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:
Credit Agreement
----------------
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(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 A Loans, the Majority Term A
Lenders determine or if the related Loans are Term B Loans the Majority
Term B Lenders, 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 2.08 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).
Credit Agreement
----------------
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5.04 Treatment of Affected Loans.
---------------------------
If the obligation of any Lender to make Eurodollar Loans or to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to
Section 5.01 or 5.03 hereof, such Lender's Eurodollar Loans shall be
automatically Converted into Base Rate Loans 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 have been so Converted,
all payments and prepayments of principal that would otherwise be applied
to such Lender's Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans 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 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
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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.
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 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 due and payable, provided
--------
that the foregoing obligation to pay such additional amounts shall not apply:
Credit Agreement
----------------
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(i) to any payment to any Lender hereunder (other than in
respect of any Registered Loan) 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
Form 4224 (relating to all interest to be received by such Lender hereunder
in respect of the Loans),
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "Registered Holder"), unless such Registered Holder (or,
-----------------
if such Registered Holder is not the beneficial owner of such Registered
Loan, the beneficial owner thereof) is, on the date hereof (or on the date
such Registered Holder becomes a Lender as provided in Section 11.06(b)
hereof) and on the date of any change in the Applicable Lending Office of
such Lender, entitled to submit a Form W-8, together with an annual
certificate stating that (x) such Registered Holder (or beneficial owner,
as the case may be) is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, and (y) such Registered Holder (or beneficial
owner, as the case may be) shall promptly notify the Borrowers if at any
time, such Registered Holder (or beneficial owner, as the case may be)
determines that it is no longer in a position to provide such certificate
to the Borrowers (or any other form of certification adopted by the
relevant taxing authorities of the United States of America for such
purposes), or
(iii) 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
Credit Agreement
----------------
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Certificate) of the Department of the Treasury of the United States of America,
(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 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) and (C) "Form W-8"
--------
shall mean Form W-8 (Certificate of Foreign Status of the Department of Treasury
of the United States of America). Each of the Forms referred to in the foregoing
clauses (A), (B) and (C) shall include such successor and related forms 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.
(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).
5.07 Replacement of Lenders.
----------------------
If any Lender requests compensation pursuant to Section 5.01 or 5.06 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 and such Requesting Lender's Notes 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
Credit Agreement
----------------
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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 or 5.06, hereof, such Proposed Lender's aggregate
requested compensation, if any, pursuant to said Section 5.01 or 5.06 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 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
Section 6. Conditions Precedent.
6.01 Initial Loan.
------------
The effectiveness of this Agreement (and the amendment and restatement of the
Existing Credit Agreement to be effected hereby), and the obligation of any
Lender to make its initial Loan hereunder is subject to the conditions precedent
that (i) such effectiveness shall occur on or before June 30, 1997 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 shall be satisfactory to the Administrative Agent (and to the
extent specified below, to each Lender) in form and substance:
(a) Corporate Documents. Certified copies of each 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 Loans 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).
Credit Agreement
----------------
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(b) Officer's Certificate. A certificate of a Senior Officer, dated
---------------------
the Effective Date, to the effect set forth in the first sentence of Section
6.02 hereof.
(c) Opinions of Counsel to the Obligors. An opinion, dated the
-----------------------------------
Effective 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 instruct 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
--------------------------------------------
Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx, 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. The Notes, duly completed and executed for each Lender (except
-----
that, in the case of a Registered Holder, Notes shall be required only to
the extent that such Registered Holder shall have requested the execution
and delivery of a Note pursuant to Section 2.07(f) hereof).
(f) Security Agreement. The Security Agreement, duly executed and
------------------
delivered by the Borrowers, each of the Subsidiaries of the Borrowers in
existence on the Effective Date 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 Security Agreement, including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements.
(g) Guarantee and Pledge Agreement. The Guarantee and Pledge Agreement,
------------------------------
duly executed and delivered by the Parent Guarantors and the Administrative
Agent and the certificates (if any) evidencing the ownership interests in each
Borrower held by the Parent Guarantors, accompanied by undated stock powers
executed in blank. In addition, the Parent Guarantors shall have taken such
other action as the Administrative Agent shall have requested in order to
perfect the security interests created pursuant to the
Credit Agreement
----------------
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Guarantee and Pledge Agreement, including, without limitation, (i) delivering to
the Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements, (ii) with respect to the
ownership interests in each Borrower held by the Parent Guarantors, executing
and delivering written instructions to such Borrower to register the Lien
created hereunder in such ownership interests in the registration books
maintained by such Borrower for such registrations and (iii) delivering to the
Administrative Agent a written confirmation from such Borrower to the effect
that the Lien created by the Guarantee and Pledge Agreement in the ownership
interests in such Borrower has been duly registered in the registration books of
such Borrower.
(h) Deeds of Trust. One or more Deeds of Trust (or modifications and
--------------
confirmations to Deeds of Trust executed and delivered pursuant to the Existing
Credit Agreement), covering any material fee or leasehold property of the
Borrowers or any of their Subsidiaries, in each case, duly executed and
delivered by the respective Obligor and to the extent necessary under applicable
law, for filing in the appropriate county land office(s), Uniform Commercial
Code financing statements covering fixtures relating to the Property covered by
such Deeds of Trust, in each case appropriately completed and duly executed. In
addition, the Borrowers shall have paid an amount equal to any recording and
stamp taxes payable in connection with recording any such Deeds of Trust (or
modifications and confirmations).
(i) Management Fee Subordination Agreement. A Management Fee
--------------------------------------
Subordination Agreement, duly executed and delivered by the Borrowers, the
Manager and the Administrative Agent.
(j) Lower Delaware Acquisition. Evidence that the Lower Delaware
--------------------------
Acquisition shall have been duly consummated by Mediacom Delaware in accordance
with the terms of the Lower Delaware Acquisition Agreement, including the
schedules and exhibits thereto (except for any modifications, supplements or
waivers thereof, or written consents or determinations made by any of the
parties thereto, each of which shall be satisfactory to the Majority Lenders),
and the Administrative Agent shall have received a certificate of a Senior
Officer to such effect and to the effect that attached thereto are true and
complete copies of
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the documents delivered in connection with the closing thereunder, together with
(in the case of each legal opinion delivered to the Borrowers pursuant thereto)
a letter 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.
(k) Repayment of Existing Indebtedness. Evidence that, to the extent the
----------------------------------
assets purchased in the Lower Delaware 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).
(l) Subscribers. Evidence, that as of the Effective Date and after giving
-----------
effect to the Lower Delaware Acquisition, the Borrowers and their Subsidiaries
shall have at least 54,800 Basic Subscribers (or, if the Sea Colony Consent (as
defined in the Lower Delaware Acquisition Agreement) has not been obtained, at
least 53,800 Basic Subscribers).
(m) Financial Statements. An unaudited combined pro forma balance sheet
--------------------
of the Borrowers and their Subsidiaries as at the Effective Date giving effect
to the Lower Delaware Acquisition and the initial Loans hereunder to be
outstanding on the Effective Date (subject, however, to asset value adjustments
based on subsequent appraisals), in form and providing such details as are
reasonably satisfactory to the Administrative Agent, together with a certificate
of a Senior Officer stating that said balance sheet fairly presents the pro
forma financial condition of the Borrowers and their Subsidiaries as at such
date in accordance with GAAP, after giving effect to the Lower Delaware
Acquisition and the initial Loans hereunder to be outstanding on the Effective
Date.
(n) Adjusted System Cash Flow. Evidence, that as of the Effective Date
-------------------------
and after giving effect to the Lower Delaware Acquisition, based on the three-
month period ended May 31, 1997, the product of (i) such Adjusted System Cash
Flow times (ii) four is at least equal to $10,800,000 (or, if the Sea Colony
-----
Consent (as defined in the Lower Delaware Acquisition Agreement) has not been
obtained, at least equal to $10,600,000).
Credit Agreement
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(o) Approvals. Evidence of receipt of all licenses, permits,
---------
approvals and consents, if any, required with respect to the Lower Delaware
Acquisition (including, without limitation, the consents of the respective
municipal franchising authorities to the acquisition of the respective CATV
Systems being acquired by Mediacom Delaware pursuant to the Lower Delaware
Acquisition).
(p) Capitalization. Evidence that Mediacom Delaware has received net
--------------
cash consideration (prior to the payment of any transaction expenses) of
(i) not less than $18,500,000 representing an equity contribution by
Mediacom to Mediacom Delaware and (ii) not less than $2,100,000 (including
the $1,100,000 deposit made by Mediacom with respect to the Lower Delaware
Acquisition) representing proceeds of the issuance of Affiliate
Subordinated Indebtedness, in each case upon terms and conditions in form
and substance satisfactory to the Majority Lenders, and the Administrative
Agent shall have received copies of each of the instruments pursuant to
which such equity interests and Affiliate Subordinated Indebtedness shall
have been issued, certified by a Senior Officer.
(q) Other Documents. Such other documents as the Administrative
---------------
Agent or any Lender or special New York counsel to Chase may reasonably
request.
The effectiveness of this Agreement (and the amendment and restatement of the
Existing Credit Agreement contemplated hereby) and the obligation of any Lender
to make its initial Loan hereunder is also subject (i) 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, special New York counsel to Chase, in connection with the negotiation,
preparation, execution and delivery of this Agreement, the Notes and the other
Loan Documents and the making of the Loans hereunder (to the extent that
statements for such fees and expenses have been delivered to the Borrowers) and
(ii) to the payment by the Borrowers to the Existing Lenders of accrued interest
on, and all amounts owing pursuant to Section 5.05 of the Existing Credit
Agreement in respect of the "Loans" under the Existing Credit Agreement, on the
Effective Date as if such "Loans" were being prepaid in full on the Effective
Date.
Credit Agreement
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6.02 Initial and Subsequent Loans.
----------------------------
The obligation of the Lenders to make any Loan to the Borrowers upon the
occasion of each borrowing hereunder (including the initial borrowing) is
subject to the further conditions precedent that, both immediately prior to the
making of such Loan and also after giving effect thereto and to the intended use
thereof:
(a) no Default shall have occurred and be continuing;
(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 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); and
(c) if the Sun City Acquisition shall not have occurred, the aggregate
principal amount of Loans outstanding shall not exceed $65,000,000.
Each notice of borrowing 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 and, unless the Borrowers otherwise notifies
the Administrative Agent prior to the date of such borrowing, as of the date of
such borrowing).
Section 7. Representations and Warranties. The Borrowers represent and
warrant to the Administrative Agent and the Lenders that:
7.01 Corporate 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 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
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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 combined consolidated statements of income, retained
earnings and cash flows of Mediacom California and Mediacom Arizona and
their Subsidiaries for the fiscal year ended December 31, 1996, and the
related combined balance sheet of Mediacom California and Mediacom Arizona
and their Subsidiaries as at the end of such fiscal year;
(ii) unaudited balance sheets of the CATV Systems being acquired
pursuant to the Spring 1997 Acquisitions as at December 31, 1996 and the
related unaudited statements of operations for the fiscal year ended on
said date; and
(iii) an unaudited pro forma combined balance sheet of the Borrowers and
their Subsidiaries as at March 31, 1997, prepared under the assumption that
the Spring 1997 Acquisitions were consummated on said date and that all of
the transactions contemplated by Section 6.01 hereof had been effected on
such date.
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) consolidated
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. None of the Borrowers nor any of its Subsidiaries has on the date hereof
any material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said pro
forma balance sheet as at March 31, 1997. Since December 31, 1996, there has
been no material adverse change in the combined financial condition, operations,
business or prospects (x) of Mediacom California and Mediacom Arizona and their
Subsidiaries taken as a whole from that set forth in said financial statements
as at December 31, 1996 referred to in clause (i) above, (y) of the CATV Systems
(taken
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----------------
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as a whole) to be purchased by Mediacom Delaware on or before the Effective Date
from that set forth in said financial statements as at December 31, 1996,
referred to in clause (ii) above, or (z) of the Borrowers and their Subsidiaries
taken as a whole from that set forth in said pro forma balance sheet as at March
31, 1997 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 Borrower or any of its Subsidiaries, or against American
Cable TV Investors 5, Ltd. (and in respect of which Mediacom Delaware would be
obligated after giving effect to the Lower Delaware Acquisition), or, on or
after the consummation of the Sun City Acquisition, against CoxCom, Inc. (and in
respect of which Mediacom California would be obligated after giving effect to
the Sun City Acquisition), 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
---------
Notes 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 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
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----------------
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has been duly and validly executed and delivered by each Borrower and
constitutes, and each of the Notes and the other Basic Documents to which it is
a party when executed and delivered (in the case of the Notes, for value) 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, (ii) the authorizations, approvals,
consents, filings and registrations contemplated by the Spring 1997 Acquisition
Agreements (each of which shall have been made or obtained on or before the date
of the closings of the Spring 1997 Acquisitions, to the extent required under
the Spring 1997 Acquisition Agreements to be obtained before such date, except
that orders of the FCC may not have become final under the rules and regulations
of the FCC) and (iii) the exercise of remedies under the Security Documents (and
the creation of a valid security interest in Franchises and the other Collateral
as described in Sections 6.01(f) and 8.18 hereof) may require the 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 the Borrowers would be
under an obligation to furnish a report to the Lenders under Section 8.01(e)
hereof.
7.08 Taxes. Each Borrower and its Subsidiaries have filed all Federal income
tax returns and all other material tax
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----------------
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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 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 each Borrower and its 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 I 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 Effective Date) will be outstanding on the Effective Date, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000, 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 I, 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, or
that (after giving effect to the transactions contemplated hereunder to occur
Credit Agreement
----------------
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on or before the Effective Date) will be outstanding on the Effective Date.
(b) Part B of Schedule I 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, or that
(after giving effect to the transactions contemplated hereunder to occur on or
before the Effective Date) will be outstanding on the Effective Date, the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000 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 I.
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
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----------------
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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 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, (x) there are no outstanding Equity
Rights with respect to any Borrower and (y) there are no outstanding obligations
of any Borrower or any of their Subsidiaries to repurchase, redeem, or otherwise
acquire any equity interests in any Borrower 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 its Subsidiaries.
7.14 Subsidiaries, Etc.
------------------
(a) As of the date hereof, none of the Borrowers has any Subsidiaries.
(b) Set forth in Schedule II 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 II 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.
Credit Agreement
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7.15 True and Complete Disclosure. The information, reports, financial
----------------------------
statements, exhibits and schedules 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 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. Set forth in Schedule III 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. Each of the Borrowers and their Subsidiaries possesses or has the right
to 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 (or on the Effective Date
will be) in full force and effect and no material default has occurred and is
continuing thereunder. No approval, application, filing, registration, consent
or other action of any local, state or federal authority is required to enable
the
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Borrowers or any of their Subsidiaries to operate the CATV Systems of the
Borrowers and their Subsidiaries, except for approvals, applications, filings,
registrations, consents or other actions that (if not made or obtained) could
not have a Material Adverse Effect on the Borrowers or any of their
Subsidiaries. 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
delivered to the Administrative Agent.
7.17 The CATV Systems.
----------------
(a) Each of the Borrowers and their Subsidiaries, and, (after giving effect
to the transactions contemplated hereunder to occur on or before the Effective
Date), the CATV Systems to be owned by it, are in compliance with all applicable
federal, state and local laws, rules and regulations, including without
limitation, the Communications Act of 1934, the Cable Communications Policy Act
of 1984, the Cable Television Consumer Protection and Competition Act of 1992,
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 IV 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;
Credit Agreement
----------------
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(iii) to the knowledge of the Borrowers, 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);
(iv) to the knowledge of the Borrowers, 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) to the knowledge of the Borrowers, 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) To the knowledge of the Borrowers, 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 off-air signals by the CATV Systems to be owned by the Borrowers and their
Subsidiaries (after giving effect to the transactions contemplated hereunder to
occur on or before the Effective Date) 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.
(c) The carriage of all off-air signals by the CATV Systems to be owned by
the Borrowers and their Subsidiaries (after giving effect to the transactions
contemplated hereunder to occur on or before the Effective Date) 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
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----------------
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could not (either individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect.
(d) The assets of the CATV Systems to be owned by the Borrowers and their
Subsidiaries (after giving effect to the transactions contemplated hereunder to
occur on or before the Effective Date) are adequate and sufficient for all of
the current operations of such CATV System.
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 and completion by the Borrowers and their
---
Subsidiaries of all applicable worksheets contemplated by the Rate Regulation
Rules for each CATV System to be owned by the Borrowers and their Subsidiaries
(after giving effect to the transactions contemplated hereunder to occur on or
before the Effective Date):
(i) except as set forth in Schedule IV hereto, to the knowledge
of the Borrowers, none of such CATV Systems is subject to effective
competition as of the date hereof;
(ii) except as set forth in Schedule IV hereto, no franchising
authority has notified any Borrower or any of its Subsidiaries or any
Spring 1997 Seller 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 IV hereto, no franchising
authority has notified the Borrowers or any of their Subsidiaries or any
Spring 1997 Seller 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; and
(iv) no reduction of rates or refunds to subscribers is required
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 Real Property. Set forth on Schedule V attached hereto is a list of all
-------------
of the real property interests to be held by the Borrowers and their
Subsidiaries on the Effective Date
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(after giving effect to the transactions contemplated hereunder to occur on
or before the Effective Date), indicating in each case whether the respective
Property is to be owned or leased, the identity of the owner or lessee and the
location of the respective Property.
7.20 Acquisition Agreements. The Borrowers have heretofore delivered to the
----------------------
Administrative Agent a true and complete copy of each of the Spring 1997
Acquisition Agreements (including all modifications or supplements to any
thereof) and each of the Spring 1997 Acquisition Agreements has been duly
executed and delivered by each party thereto and is in full force and effect.
Section 8. Covenants of the Borrowers. Each Borrower covenants and agrees
with the Lenders and the Administrative Agent that, so long as any Commitment or
Loan 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 (and, separately stated, for each Borrower
and its Subsidiaries if requested by the Administrative Agent) 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 sheets of the
Borrowers and their Subsidiaries (and, separately stated, for each Borrower
and its Subsidiaries, if so requested) as at the end of such period,
setting forth, in each case (other than financial statements for any period
ending on or prior to December 31, 1996) in comparative form the
corresponding combined 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 combined financial statements fairly present the combined financial
condition and results of operations of the Borrowers and their Subsidiaries
(and said separate financial statements fairly
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present the separate consolidated financial condition and results of
operations of the respective Borrower and its 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
(and, separately stated, for each Borrower and its Subsidiaries if
requested by the Administrative Agent) for such fiscal year and the related
combined balance sheets of the Borrowers and their Subsidiaries (and,
separately stated, for each Borrower and its Subsidiaries, if requested) as
at the end of such fiscal year, setting forth, in each case (other than
financial statements for the fiscal year ending on December 31, 1996) in
comparative form the corresponding combined figures for the preceding
fiscal year, and accompanied (x) in the case of said combined financial
statements, by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
said combined financial statements fairly present 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 and (y) in
the case of said separate financial statements, by a certificate of a
Senior Officer, which certificate shall state that said separate financial
statements fairly present the separate consolidated financial condition and
results of operations of the respective Borrower and its Subsidiaries, in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period;
(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
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----------------
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and Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the members of the Borrowers
generally or to holders of Affiliate Subordinated Indebtedness generally,
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 such Borrower or its ERISA Affiliate proposes to take with respect
thereto (and a copy of any report or notice required to be filed with or
given to the PBGC by any Borrower 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 any
Borrower 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 any Borrower or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
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----------------
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has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by any Borrower 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 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 any Borrower 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 any Borrower 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.
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----------------
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The Borrowers will furnish to each Lender, at the time it furnishes 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
propose 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 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 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 any Borrower or any of its 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);
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----------------
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(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 the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
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----------------
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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 corporations
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 it 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
$500,000 and (ii) any equipment, programming rights or other Property sold or
disposed of in the ordinary course of business and on ordinary business terms).
Credit Agreement
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(d) Certain Permitted Transactions. Notwithstanding the foregoing provisions
------------------------------
of this Section 8.05:
(i) Intercompany Mergers and Consolidations. Any Subsidiary of
---------------------------------------
a Borrower may be merged or consolidated with or into: (x) such Borrower
if such Borrower shall be the continuing 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 Subsidiary of a Borrower
-------------------------
may sell, lease, transfer or otherwise dispose of any or all of its
Property (upon voluntary liquidation or otherwise) to such Borrower or a
Wholly Owned Subsidiary of such Borrower.
(iii) Spring 1997 Acquisitions. The Borrowers may consummate
------------------------
the Spring 1997 Acquisitions, so long as the same are consummated in
accordance in all material respects with the respective Spring 1997
Acquisition Agreement and, in the case of the Sun City Acquisition:
(A) the Sun City Acquisition shall have been consummated
on or before September 30, 1997;
(B) at the time thereof, the Borrowers shall have
delivered to the Administrative Agent evidence that the Sun City
Acquisition has been duly consummated by Mediacom California in
accordance with the terms of the Sun City Acquisition Agreement,
including the schedules and exhibits thereto (except for any
modifications, supplements or waivers thereof, or written
consents or determinations made by any of the parties thereto,
each of which shall be satisfactory to the Majority Lenders), and
the Administrative Agent shall have received (and shall promptly
forward copies thereof to each Lender, if requested by such
Lender) a certificate of a Senior Officer to such effect and to
the effect that attached thereto are true and complete copies of
the documents delivered in connection with the closing
thereunder, together with (in the case of each legal opinion
delivered to the Borrowers pursuant thereto) a letter from each
Person delivering such opinion (which
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----------------
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shall in any event include an opinion of special FCC counsel)
authorizing reliance thereon by the Administrative Agent and the
Lenders;
(C) to the extent the assets purchased in the Sun City
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);
(D) after giving effect to the Sun City Acquisition, the
Borrowers and their Subsidiaries shall have at least 64,200 Basic
Subscribers, and the Administrative Agent shall have received a
certificate of a Senior Officer to such effect (and shall promptly
forward a copy thereof to each Lender, if requested by such
Lender);
(E) the Borrowers shall have delivered to the
Administrative Agent (which shall promptly forward copies thereof
to each Lender, if requested by such Lender) an unaudited combined
pro forma balance sheet of the Borrowers and their Subsidiaries as
at the date the Sun City Acquisition is consummated after giving
effect to the Sun City Acquisition and the Loans hereunder to be
outstanding on such date (subject, however, to asset value
adjustments based on subsequent appraisals), in form and providing
such details as are reasonably satisfactory to the Administrative
Agent, together with a certificate of a Senior Officer stating
that said balance sheet fairly presents the pro forma financial
condition of the Borrowers and their Subsidiaries as at such date
in accordance with GAAP, after giving effect to the Sun City
Acquisition and the Loans hereunder to be outstanding on such
date;
(F) after giving effect to the Sun City Acquisition,
based on the three-month period ended on the last day of the
calendar month immediately preceding the consummation of the Sun
City Acquisition, the product of (i) such Adjusted System Cash
Flow times (ii) four is at least equal to $12,100,000, and the
-----
Administrative Agent has received a certificate of a Senior
Officer to such effect (and shall promptly forward a copy thereof
to each Lender, if requested by such Lender);
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(G) the Borrowers shall have delivered to the
Administrative Agent 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
the Sun City Acquisition (including, without limitation, the
consents of the respective municipal franchising authorities to
the acquisition of the respective CATV Systems being acquired by
Mediacom California pursuant to the Sun City Acquisition);
(H) the Borrowers shall have delivered to the
Administrative Agent evidence that Mediacom California has
received net cash consideration (prior to the payment of any
transaction expenses) of not less than $3,500,000 representing (i)
an equity contribution by Mediacom to Mediacom California or (ii)
proceeds of the issuance of Affiliate Subordinated Indebtedness by
Mediacom California; and
(I) the Administrative Agent shall have received one or
more Deeds of Trust covering any material fee or leasehold
property of Mediacom California acquired pursuant to the Sun City
Acquisition, duly executed and delivered by Mediacom California
and to the extent necessary under applicable law, for filing in
the appropriate county land office(s), Uniform Commercial Code
financing statements covering fixtures relating to the Property
covered by such Deeds of Trust, in each case appropriately
completed and duly executed and the Borrowers shall have paid an
amount equal to any recording and stamp taxes payable in
connection with recording any such Deeds of Trust.
(iv) Subsequent Acquisitions. Any 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) 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, the
Borrower shall be the continuing or surviving entity
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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;
(B) 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;
(C) the Company shall deliver to the Administrative Agent
(which shall promptly forward copies thereof to each Lender (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 or the Majority Lenders shall have requested;
(D) the Administrative Agent shall have received (and shall
promptly forward copies thereof to each Lender, if requested by
such Lender) 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;
(E) the Borrowers shall have delivered to the
Administrative Agent 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
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authorities to the acquisition of the respective CATV Systems
being acquired (if any));
(F) 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);
(G) the Administrative Agent shall have received one or
more Deeds of Trust covering any material fee or leasehold
property of the Borrowers acquired pursuant to such acquisition,
duly executed and delivered by such Borrower and to the extent
necessary under applicable law, for filing in the appropriate
county land office(s), Uniform Commercial Code financing
statements covering fixtures relating to the Property covered by
such Deeds of Trust, in each case appropriately completed and duly
executed and the Borrowers shall have paid an amount equal to any
recording and stamp taxes payable in connection with recording any
such Deeds of Trust;
(H) to the extent applicable, the Company 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;
(I) immediately prior to such acquisition and after giving
effect thereto, no Default shall have occurred and be continuing;
(J) such acquisition shall have been approved by the
Majority Lenders and the Administrative Agent; and
(K) 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
a particular Borrower shall have received an equity contribution
from Mediacom or the proceeds of the issuance of
Credit Agreement
----------------
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Affiliate Subordinated Indebtedness pursuant to documentation and
in amounts in form and substance satisfactory to the Majority
Lenders and the Administrative Agent); and
(v) Other Acquisitions. Any Borrower may acquire any business
------------------
or Property from, or capital stock of, or be a party to any acquisition of,
any Person (in addition to the Spring 1997 Acquisitions and any Subsequent
Acquisitions), so long as the aggregate amount paid by the Borrowers in
respect of all such acquisitions (other than the Spring 1997 Acquisitions
and any Subsequent Acquisitions) after the date hereof shall not exceed
$1,000,000.
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 I
hereto;
(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 respective Borrower 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
Credit Agreement
----------------
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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 Borrower 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(e)
hereof, each of which Liens either (A) existed on such Property before the time
of its acquisition and was 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;
(b) Indebtedness outstanding on the date hereof and listed in Part A of
Schedule I hereto;
(c) the following Indebtedness: (x) Affiliate Subordinated Indebtedness
incurred in accordance with Section 8.14 hereof and (y) the Booth
Subordinated Indebtedness;
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----------------
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(d) Indebtedness of the Borrowers and their Subsidiaries to the Borrowers and
their Subsidiaries; and
(e) 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 $1,000,000 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 $1,250,000 at any one time outstanding 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 of the Borrowers and their Subsidiaries.
8.08 Investments. None of the Borrowers will, nor will it permit any of its
-----------
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Schedule II
hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrowers and their Subsidiaries in the Borrowers and
their Subsidiaries;
(e) Interest Rate Protection Agreements; provided that, without limiting the
--------
obligation of the Borrowers under Section 8.13 hereof, when entering into any
Interest Rate Protection Agreement that at the time has, or at any time in the
future may give rise to, any credit exposure, the aggregate credit exposure
under all Interest Rate Protection Agreements (including the Interest Rate
Protection Agreement being entered into) shall not exceed $2,500,000; and
(f) additional Investments (including, without limitation, Investments by the
Borrowers or any of their Subsidiaries in Affiliates of the Borrowers), so long
as the
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----------------
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aggregate amount of all such Investments shall not exceed $1,000,000.
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. None of the Borrowers will 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 following Restricted Payments (subject,
in each case, to the applicable conditions set forth below):
(a) the Borrowers may make Restricted Payments to its 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 respect of Management Fees to the
extent permitted under Section 8.11 hereof;
(c) the Borrowers may make payments in respect of the interest on Affiliate
Subordinated Indebtedness constituting Supplemental Capital or Cure Monies;
and
(d) the Borrowers may make payments in respect of the principal of Affiliate
Subordinated Indebtedness constituting Supplemental Capital or Cure Monies,
so long as
(i) in the case of any such payment in respect of the
principal of Affiliate Subordinated Indebtedness constituting Cure
Monies, at least one complete fiscal quarter shall have elapsed
subsequent to the last date upon which the Borrowers shall have
utilized its cure rights under Section 9.02 hereof, without the
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occurrence of any Event of Default (and, for purposes hereof, unless
the Borrowers indicate otherwise at the time of any such payment, such
payment shall be deemed to be made first from Cure Monies and second
from Supplemental Capital);
(ii) after giving effect to the payment of such principal,
the Borrowers would (as at the last day of the most recent fiscal
quarter) have been in compliance on a pro forma basis with Section
8.10 hereof and the Senior Leverage Ratio calculated on a pro forma
basis is at the time less than 5.50 to 1 (or, if lower, the applicable
requirement at the time under Section 8.10(a) hereof), the
determination of such compliance and such Senior Leverage Ratio to be
determined as if (x) for purposes of calculating the Senior Leverage
Ratio and the Total Leverage Ratio, the amount of such payment were
added to Indebtedness, and (y) for purposes of calculating the
Interest Coverage Ratio and Fixed Charges Coverage Ratio, the amount
of such payment (and any Cure Monies received during the period for
which the Interest Coverage Ratio or Fixed Charge 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 were recalculated to
take into account such additional principal; and
(iii) at least three Business Days prior to the date of any
such payment, the Borrowers shall have delivered to the Lenders a
certificate of a Senior Officer setting forth calculations, in form
and detail satisfactory to the Majority Lenders, demonstrating
compliance with the requirements of this paragraph (c) after giving
effect to such payment.
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.
8.10 Certain Financial Covenants.
---------------------------
(a) Leverage Ratios. The Borrowers will not permit the Senior Leverage Ratio
---------------
and Total Leverage Ratio to exceed the
- 98 -
following respective ratios at any time during the following respective periods:
Senior Total
Period Leverage Ratio Leverage Ratio
------ -------------- --------------
From the Effective Date
through September 29, 1997 6.25 to 1 6.50 to 1
From September 30, 1997
through June 29, 1998 6.00 to 1 6.50 to 1
From June 30, 1998
through September 29, 1998 5.90 to 1 6.40 to 1
From September 30, 1998
through March 30, 1999 5.75 to 1 6.25 to 1
From March 31, 1999
through September 29, 1999 5.50 to 1 6.00 to 1
From September 30, 1999
through June 29, 2000 5.00 to 1 5.50 to 1
From June 30, 2000
through June 29, 2001 4.50 to 1 5.00 to 1
From June 30, 2001
through June 29, 2002 3.50 to 1 4.00 to 1
From June 30, 2002
and at all times
thereafter 3.00 to 1 4.00 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 Effective Date
through September 29, 1998 1.50 to 1
From September 30, 1998
through June 29, 1999 1.60 to 1
From June 30, 1999
through March 30, 2000 1.75 to 1
From March 31, 2000
and at all times thereafter 2.00 to 1
(c) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed
---------------------------
Charge Coverage Ratio to be less than 1.05 to 1 at any time on or after December
31, 1997.
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
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 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
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Borrowers from its CATV Systems, from RidgeNet and from other telecommunications
services as determined in accordance 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.
Neither the Borrowers nor any of their 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 neither the Borrowers nor any of their 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.
Neither the Borrowers nor any of their 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) who is employed solely in connection with the day-to-day operations of
a CATV System.
8.12 Capital Expenditures. The Borrowers will not permit the aggregate
--------------------
amount of Capital Expenditures to exceed (i) $14,500,000 for the period from and
including the Effective Date through December 31, 1998, (ii) $4,000,000 for the
fiscal year ending on December 31, 1999 and (iii) $3,500,000 for each fiscal
year commencing after December 31, 1999. If the aggregate amount of Capital
Expenditures shall be less than $14,500,000 for the period from and including
the Effective Date through December 31, 1998, then the shortfall shall be added
to the amount of Capital Expenditures permitted for the fiscal year ending on
December 31, 1999 so long as the upgrades and rebuilds with respect to the
Spring 1997 Acquisitions have not been completed.
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8.13 Interest Rate Protection Agreements. The Borrowers will within 90 days
-----------------------------------
of the Effective 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 (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 itself, 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 at least equal to 50% of the
aggregate outstanding principal amount of the Loans.
8.14 Affiliate 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 hereunder, applied
ratably to the Revolving Credit Commitments and Term Loans of each Class 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 prepayment
of Term Loans.
(b) The Borrowers will not, nor will it 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 or the Booth Subordinated Indebtedness,
except (in the case of Affiliate Subordinated Indebtedness) to the extent
permitted under Section 8.09 hereof.
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
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- 102 -
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(f), provided that, the
monetary or business consideration arising therefrom would be substantially as
advantageous to the Borrowers and their 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 any
Borrower or any of its Subsidiaries in respect of income of such 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) the Borrowers and their Subsidiaries may enter into
transactions (other than extensions of credit by the Borrowers or any of
their 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 the Borrowers and their
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,
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----------------
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(iv) the Borrowers and their Subsidiaries may reimburse the
Manager for up to $100,000 of Manager Expenses during any fiscal year and
(v) 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 5.05 of the Guarantee and Pledge Agreement.
8.17 Use of Proceeds. The Borrowers will use the proceeds of the 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 and Manager Expenses, (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 neither the Administrative Agent nor any Lender
--------
shall have any responsibility as to the use of any of such proceeds.
8.18 Certain Obligations Respecting Subsidiaries.
-------------------------------------------
(a) Subsidiary Guarantors. In the event that the Borrowers or any of their
---------------------
Subsidiaries shall form or acquire any Subsidiary after the Effective Date
(after obtaining any necessary consent of the Lenders), the Borrowers shall
cause, and shall cause their 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 Security 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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----------------
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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
Effective Date or as the Administrative Agent shall have reasonably
requested.
(b) Ownership of Subsidiaries. The Borrowers will, and will cause each of
-------------------------
their 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 any Subsidiary, the respective Borrower agrees forthwith to deliver to
the Administrative Agent pursuant to the Security 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 Security Agreement.
(c) Further Assurances. The Borrowers will, and will cause each of their
------------------
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, Deeds of Trust 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 substantially all of the personal Property, and
all of the material fee and leasehold property, of the Borrowers and each of
their Subsidiaries.
(d) Certain Restrictions. The Borrowers will not permit any of their
--------------------
Subsidiaries to enter into, after the date hereof, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property.
8.19 Modifications of Certain Documents.
----------------------------------
None of the Borrowers will consent to any modification, supplement or waiver
of any of the provisions of the Management Agreements, any
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Acquisition Agreement, or any agreement, instrument or other document evidencing
or relating to Affiliate Subordinated Indebtedness or the Booth Subordinated
Indebtedness 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) Any Borrower shall default in the payment when due (whether at stated
maturity or upon mandatory or optional prepayment) of any principal of or
interest on any Loan, any fee or any other amount payable by them hereunder
or under any other Loan Document; or
(b) Mediacom, 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 $500,000 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 the Borrowers shall default in the payment when due of any
amount aggregating $500,000 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 $500,000 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
Credit Agreement
----------------
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thereto) by any Borrower, 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 any representation or warranty made or deemed made
in any Acquisition Agreement by the respective seller(s) thereunder, shall
prove to have been false or misleading as of the time made or furnished in
any material respect (except to the extent fully covered by amounts held on
deposit pursuant to the respective escrow agreements under the relevant
Acquisition Agreement); 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,
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
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----------------
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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 $600,000 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
$5,000,000 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 incur a liability to a Plan,
a
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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 their 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 cease to be Chairman and Chief
Executive Officer of the Manager;
(ii) Mediacom Management Corporation shall cease to act as
Manager of the Borrowers;
(iii) the Parent Guarantors and Mediacom California shall
cease to own 100% of the aggregate ownership interests in each
Borrower;
(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 Booth American Company
becomes, directly or 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
capital stock of any Borrower on a fully-diluted basis (in other
words,
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giving effect to the exercise of any warrants, options and conversion
and other rights); or
(v) the Xxxxxxxx Entities shall sell, transfer, pledge or
otherwise dispose of more than 20% of the aggregate equity interests
in Mediacom held by them on the Effective Date (after giving effect to
the transactions contemplated hereunder to occur on the Effective
Date); or
(m) Except for Franchises that cover fewer than 5% 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
(o) The Operating Agreements, or the Amended and Restated Operating Agreement
dated as of March 12, 1996 with respect to Mediacom, 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; or
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(p) A material adverse change shall have occurred subsequent to the date hereof
in the proceedings of the federal Defense Base Closure Commission with
respect to the China Lake Naval Base;
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 the Borrowers, 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 and all other
amounts payable by the Borrowers hereunder and under the Notes (including,
without limitation, any amounts payable under Section 5.05 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 the Borrowers, the Commitments shall
automatically be terminated and the principal amount then outstanding of, and
the accrued interest on, the Loans and all other amounts payable by the
Borrowers hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 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.
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 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
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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 Senior Leverage Ratio or Total
Leverage 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 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 Fixed Charge 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 Fixed Charge Coverage Ratio is determined under said Section 8.10(b) or
8.10(c), then such
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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.
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, any Note 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
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(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. The Administrative Agent may deem and
treat the payee (or Registered Holder, as the case may be) of a Note as the
holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent.
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 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 A
Lenders, the Majority Term B Lenders 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
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provided herein, the Majority Revolving Credit Lenders, the Majority Term A
Lenders or the Majority Term B Lenders, 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 A Lenders, the Majority Term B
Lenders 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.
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 held by the Lenders (or, if no Loans 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
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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.
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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 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
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Lender, the Administrative Agent shall not (except as provided herein or in the
Security Documents) release any collateral or otherwise terminate any Lien under
any Security Document providing for collateral security, or agree to additional
obligations being secured by 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 the Liens created under the Security Documents or
release any guarantor under any Security Document from its guarantee obligations
thereunder, 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 such guarantor) that is the subject of either a disposition
of Property permitted hereunder or a Disposition to which the Majority Lenders
have consented.
10.10 Documentation Agent.
-------------------
The Documentation Agent shall not have any rights or obligations under this
Agreement except in its capacity as a "Lender" hereunder.
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 or any Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement or any Note 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
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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, the Administrative Agent and the
Documentation 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, provided that notwithstanding the foregoing, all
--------
notices to any Borrower by the Administrative Agent or any Lender may be given
to Mediacom California, and the Administrative Agent and each Lender is
authorized to rely on any notice (including notices of borrowing) given by
Mediacom California with respect to matters relating to any Borrower (and shall
not be required to receive a notice from Mediacom Delaware or Mediacom Arizona).
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, 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
making of the Loans hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this 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
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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 and each Lender 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
Loans hereunder or any actual or proposed use by the Borrowers or any of their
Subsidiaries of the proceeds of any of the Loans 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). Without limiting the generality of the foregoing, the Borrowers
will indemnify the Administrative Agent and each Lender from, and hold the
Administrative Agent and each Lender harmless against, any losses, liabilities,
claims, damages or expenses described in the preceding sentence (including any
Lien filed against the Property covered by the Deeds of Trust or any part of the
Trust Estate thereunder in favor of any governmental entity, but excluding, as
provided in the preceding sentence, any loss, liability, claim, damage or
expense incurred by reason of the gross negligence or
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willful misconduct of the Person to be indemnified) arising under any
Environmental Law as a result of the past, present or future operations of the
Borrowers or any of their Subsidiaries (or any predecessor in interest to the
Borrowers or any of their Subsidiaries), or the past, present or future
condition of any site or facility owned, operated or leased at any time by the
Borrowers or any of their Subsidiaries (or any such predecessor in interest), or
any Release or threatened Release of any Hazardous Materials at or from any such
site or facility, excluding any such Release or threatened Release that shall
occur during any period when the Administrative Agent or any Lender shall be in
possession of any such site or facility following the exercise by the
Administrative Agent or any Lender of any of its rights and remedies hereunder
or under any of the Security Documents, but including any such Release or
threatened Release occurring during such period that is a continuation of
conditions previously in existence, or of practices employed by the Borrowers
and their Subsidiaries, at such site or facility.
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: (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 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
rights or obligations of the Borrowers to prepay Loans, (vi) alter the manner in
which payments or prepayments of principal, interest or other amounts hereunder
shall be applied as between the Lenders or Types or Classes of Loans, (vii)
alter the terms of this Section 11.04, (viii) modify the definition of the term
"Majority Lenders", "Majority Revolving Credit Lenders", "Majority Term A
Lenders" or "Majority Term B Lenders", or modify in any other manner the number
or percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any
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provision hereof, 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 shall be effective
against the Revolving Credit Lenders for the purposes of the Revolving Credit
Commitments unless the Majority Revolving Credit Lenders 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 or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, and its Commitments
(but only with the consent of, in the case of its outstanding Commitments, the
Borrowers and the Administrative Agent, 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 or an
affiliate 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) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit
Loans, Revolving Credit Note or Revolving Credit Commitment shall be made
in such manner so that the same portion of its Revolving Credit Loans,
Revolving Credit
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Note and Revolving Credit Commitment is assigned to the respective
assignee;
(iv) each such assignment by a Lender of its Term A Loans or
Term A Commitment shall be made in such manner so that the same portion of
its Term A Loans and Term A Commitment is assigned to the respective
assignee;
(v) each such assignment by a Lender of its Term B Loans or Term
B Commitment shall be made in such manner so that the same portion of its
Term B Loans and Term B Commitment is assigned to the respective assignee;
and
(vi) upon each such assignment, the assignor and assignee shall
deliver to the Borrowers and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit J hereto.
Upon execution and delivery by the assignor and the assignee to the Borrowers
and the Administrative Agent of such Assignment and Acceptance, and upon consent
thereto by the Borrowers and the Administrative Agent to the extent required
above, the assignee shall have, to the extent of such assignment (unless
otherwise consented to by the Borrowers and the Administrative Agent), the
obligations, rights and benefits of a Lender hereunder holding the Commitment(s)
and Loans (or portions thereof) assigned to it and specified in such Assignment
and Acceptance (in addition to the Commitment(s) and Loans, 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 $3,000.
(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 held by it, or in
------------
its Commitments, provided that (i) such Participant shall not have any rights or
--------
obligations under this Agreement or any Note 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 held by it, and its Commitments,
shall be determined as if such Lender had not
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sold or agreed to sell any participations in such Loans and Commitments, and as
if such Lender were funding each of such Loan and Commitments in the same way
that it is funding the portion of such Loan 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 date of any scheduled reduction of such
Commitment pursuant to Section 2.03 hereof, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans 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 and its Notes
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 and its Notes to
an affiliate. No such assignment 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 held by it hereunder to the
Borrowers or any of their Affiliates or Subsidiaries without the prior consent
of each Lender.
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(g) At the request of any Lender that is not a U.S. Person and is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, the Borrowers
shall maintain, or cause to be maintained, a register (the "Register") that, at
--------
the request of the Borrowers, shall be kept by the Administrative Agent on
behalf of the Borrowers at no charge to the Borrowers at the address to which
notices to the Administrative Agent are to be sent hereunder, on which it enters
the name of such Lender as the registered owner of each Registered Loan held by
such Lender. A Registered Loan (and the Registered Note, if any, evidencing the
same) may be assigned or otherwise transferred in whole or in part by
registration of such assignment or transfer on the Register (and each Registered
Note shall expressly so provide). Any assignment or transfer of all or part of
such Loan (and the Registered Note, if any, evidencing the same) may be effected
by registration of such assignment or transfer on the Register, together with
the surrender of the Registered Note, if any, evidencing the same duly endorsed
by (or accompanied by a written instrument of assignment or transfer duly
executed by) the holder of such Registered Note, whereupon, at the request of
the designated assignee(s) or transferee(s), one or more new Registered Notes in
the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or
transfer of any Registered Loan (and the Registered Note, if any, evidencing the
same), the Borrowers shall treat the Person in whose name such Loan (and the
Registered Note, if any, evidencing the same) is registered as the owner thereof
for the purpose of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.
(h) The Register shall be available for inspection by the Borrowers and any
Lender that is a Registered Holder at any reasonable time upon reasonable prior
notice.
11.07 Survival.
--------
The obligations of the Borrowers under Sections 5.01, 5.05, 5.06 and 11.03
hereof, and the obligations of the Lenders under Section 10.05 hereof, shall
survive the repayment of the Loans and the termination of the Commitments and,
in the case of any Lender that may assign any interest in its Commitments or
Loans 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
Loan, herein or pursuant hereto shall survive the
Credit Agreement
----------------
- 125 -
making of such representation and warranty, and no Lender shall be deemed to
have waived, by reason of making any Loan, 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 Loan 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 and the Notes 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 forum.
Credit Agreement
----------------
- 126 -
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, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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 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
Credit Agreement
----------------
- 127 -
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 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.
Credit Agreement
----------------
- 128 -
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 CALIFORNIA LLC
By MEDIACOM LLC, a Member
By_______________________________
Title: Manager
Address for Notices:
Mediacom California LLC
c/o Mediacom LLC
00 Xxxxxxx Xxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By_______________________________
Title: Manager
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By_______________________________
Title: Manager
Credit Agreement
----------------
- 129 -
Lenders
-------
Revolving Credit Commitment THE CHASE MANHATTAN BANK
---------------------------
$8,000,000
Term A Commitment By________________________________
-----------------
$10,000,000 Title:
Term B Commitment
-----------------
$2,000,000
Revolving Credit Commitment FIRST UNION NATIONAL BANK
---------------------------
$8,000,000
Term A Commitment By________________________________
-----------------
$10,000,000 Title:
Term B Commitment
-----------------
$2,000,000
Revolving Credit Commitment FIRST NATIONAL BANK OF CHICAGO
---------------------------
$6,000,000
Term A Commitment By________________________________
-----------------
$7,500,000 Title:
Term B Commitment
-----------------
$1,500,000
Revolving Credit Commitment MELLON BANK, N.A.
---------------------------
$6,000,000
Term A Commitment By________________________________
-----------------
$7,500,000 Title:
Term B Commitment
-----------------
Credit Agreement
----------------
- 130 -
$1,500,000
Revolving Credit Commitment CIBC, INC.
---------------------------
$6,000,000
Term A Commitment By________________________________
-----------------
$7,500,000 Title:
Term B Commitment
-----------------
$1,500,000
Revolving Credit Commitment BANK OF MONTREAL
---------------------------
$6,000,000
Term A Commitment By________________________________
-----------------
$7,500,000 Title:
Term B Commitment
-----------------
$1,500,000
Credit Agreement
----------------
- 131 -
THE CHASE MANHATTAN BANK,
as Administrative Agent
By__________________________________
Title:
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
Credit Agreement
----------------
- 132 -
FIRST UNION NATIONAL BANK,
as Documentation Agent
By________________________________
Title:
Address for Notices to
First Union National Bank as
Documentation Agent:
First Union National Bank
Specialized Industries/
Communications Group
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxxxxx
Vice President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Credit Agreement
----------------
SCHEDULE I
Material Agreements and Liens
-----------------------------
[See Sections 7.11, 8.06(b) and 8.07(b)]
Part A - Material Agreements
-------------------
Mediacom California LLC
San Bernardino County, California - $18,500 performance bond
Kern County, California - (i) $25,000 performance bond and (ii) $10,000
performance bond
Ridgecrest, California - $15,000 performance bond
Contel of California - (1) $110,000 pole attachment bond and
(ii) $136,700 pole attachment bond
Booth Subordinated Indebtedness
San Diego County, California - $5,000 performance bond
San Diego Gas & Electric of California - $10,000 pole attachment bond
MEDIACOM ARIZONA LLC
Pima County, Arizona - $100,000 performance bond
Booth Subordinated Indebtedness
MEDIACOM DELAWARE LLC
Xxxxxxx Beach, Delaware - $10,000 performance bond
Delaware Public Service Commission - $10,000 performance bond
Pittsville, Maryland - $10,000 performance bond
Willards, Maryland - $10,000 performance bond
Wicomico County, Maryland - $10,000 franchise bond
Xxxx Atlantic - $10,000 pole attachment bond
Booth Subordinated Indebtedness
Schedule I
----------
- 2 -
Part B - Liens
-----
None
Schedule I
----------
SCHEDULE II
Investments
-----------
[See Sections 7.14 and 8.08(a)]
NONE
SCHEDULE III
Franchises
----------
[See definition of "Franchises" in
Section 1.01 and Section 7.16]
Mediacom California (Franchisee)
Issuing Authority Expiration
----------------- ----------
City of Ridgecrest August 31, 2001
County of San Bernardino June 30, 0000
Xxxxxx xx Xxxx Xxxxxxxxx 00, 0000
Xxxxxx Xxxxxx Department February 13, 2000
of Navy Naval Weapons Center
China Lake, California
San Diego County July 8, 2007
Xxxxxx Indian Reservation June 19, 2001
San Xxxxxxx Reservation January 28, 1999
Mediacom Arizona (Franchisee)
Issuing Authority Expiration
----------------- ----------
County of Xxxx (Xxx Xxxx) Xxx 0, 0000
Xxxxxx xx Xxxx (Xxxxxxx xxxx) September 5, 0000
Xxxxxx xx Xxxxx Xxxx (Xxx Xxxx xxxx) June 8, 0000
Xxxxxx xx Xxxxx Xxxx (Xxxxxxx xxxx) June 22, 2003
City of Nogales June 10, 2020
Mediacom Delaware (Franchisee)
Issuing Authority Expiration
----------------- ----------
Delaware
--------
Town of Xxxxxxx Beach December 31, 0000
- 0 -
Xxxx xx Xxxxxxxx January 5, 2001
Delaware Public Service Commission June 10, 2001
Town of Frankford October 3, 2001
Town of Millsboro January 5, 2002
Town of Millville July 17, 2004
Town of Ocean View May 4, 2001
Town of Selbyville March 8, 2001
Town of South Xxxxxxx Beach October 9, 2002
Town of Willards July 31 2006
Maryland
--------
Wicomico County June 30, 2002
Town of Pittsville February 8, 2001
Worcester County*
*Worcester County does not issue franchise agreements.
SCHEDULE IV
Certain Matters related to CATV Systems
---------------------------------------
[See Sections 7.17 and 7.18]
All Systems Currently Owned by the Borrowers
--------------------------------------------
and their Subsidiaries
----------------------
1. 1997 Cable Television Employment Reports (FCC Forms 395-A) were due to be
filed on may 30, 1997. The Borrowers and their Subsidiaries have received
an extension from the Federal Communications Commission ("FCC") to file
1997 FCC Forms 395-A covering all of the cable systems currently owned and
operated by the Borrowers and their Subsidiaries, without penalty, by June
27, 1997.
Arizona Systems Acquired from Saguaro Cable
-------------------------------------------
Television Investors, L.P.
--------------------------
1. Saguaro Cable Television Investors, L.P. ("SCT") represented to the
Borrowers and their Subsidiaries in connection with the acquisition of the
CATV Systems formerly owned and operated by SCT that:
a. Aerial plant for the CATV Systems formerly owned and operated by SCT
has violations of the National Electrical Safety Code and/or pole
attachment agreements, including, but not limited to, lines below
minimum road/alley clearance heights, less than required separation
from power or phone facilities, and lack of proper grounding and
bonding.
b. Underground cables may not be buried to depths required by the
National Electrical Safety Code or other requirements.
c. Lighting checks required by Sections 17.47 and 17.49 of the FCC rules
may not have been performed for certain antenna structures requiring
illumination pursuant to applicable federal law which are used in
connection with the operation of the CATV Systems.
2. The Borrowers and their Subsidiaries were unable to verify the filing of
the following:
a. 1996 FCC Form 320 (Basic Signal Leakage Performance Report) for the
community of Amado, AZ0320
b. A Statement of Account for the 1996/1 accounting period listing
Amado, Arizona as the lead community
- 2 -
While copies of such completed forms were supplied to the Borrowers and
their Subsidiaries, such copies did not contain a date-stamp indicating
that such forms were in fact filed in a timely fashion with the appropriate
government agency. The Borrowers and their Subsidiaries did not own and
operate such cable systems at the time such reports were due.
California Systems Acquired from Valley Center Cablesystems, L.P.
-----------------------------------------------------------------
1. The FCC has determined that the CATV System owned by the Borrowers and
their Subsidiaries in the San Diego County franchise area is subject to
effective competition, and thus, exempt from rate regulation under the
FCC's rules.
2. Valley Center Cablesystems, L.P. ("VCC") represented to the Borrowers and
their Subsidiaries in connection with the acquisition of the CATV Systems
formerly owned and operated by VCC that:
a. Aerial plant for the CATV Systems formerly owned and operated by VCC
may have violations of the National Electrical Safety Code and/or
pole attachment agreements, including, but not limited to, lines
below minimum road/alley clearance heights, less than required
separation from power or phone facilities, and lack of proper
grounding and bonding.
b. Underground cables may not be buried to depths required by the
National Electrical safety Code or other requirements.
Delaware and Maryland Systems to be Acquired from
--------------------------------------------------
American CableTV Investors 5, Ltd.
----------------------------------
1. The Delaware Public Service Commission is certified to regulate basic
service tier reports.
SCHEDULE V
Real Property
-------------
[See Section 7.19]
Mediacom California
Real Property Location Owned/Leased Owner
---------------------- ------------ -----
1. 000 Xxxxxxxx Xxxx Owned Mediacom
California
Ridgecrest, CA
Parcel 1:
---------
Xxx 00 xx Xxxxx Xx. 0000, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxxx, State of
California, as per Map recorded May 29, 1945
in Book 5, Page 96 of Maps, in the Office of
the County Recorder of said County. EXCEPTING
THEREFROM the Southerly 35 feet thereof.
Parcel 2:
---------
The Southerly 35 feet of Xxx 00 xx Xxxxx Xx.
0000, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of
Xxxx, State of California, as per Map
recorded May 29 1945 in Book 5, Page 96 of
Maps, in the Office of the County Recorder
of said County.
Parcel 3:
---------
Xxx 00 xx Xxxxx Xx. 0000, xx xxx xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxxx, State of
California, as per Map recorded May 29, 1945
in Book 5, Page 96 of Maps, in the Office of
the County Recorder of said County.
2. Parcels 1 and 2 of Lot 46 of Tract 1542 in Leased Xxxxx
the City of Ridgecrest, County of Xxxx, Enterprises
State of California, as per Map recorded Xxxxxxxx X.
February 20, 1950 in Book inclusive, of Xxxxx,
Maps, in the Office of Page 67 to 71, the and
the County Recorder of said County, Xxxxx X. Xxxxx
located at 000 Xxxxxx Xxx, Xxxx. No. 123D,
in the COSO CENTER GRANDE WAY building,
Ridgecrest, California
3. 000 xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx Leased JJ Guest
4. Vacant property located directly west Leased Xxxxx X. Xxxxx
of 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx
5. Approximately 1/4 mile section on Xxxxxxxxx Leased Xxxx-XxXxx
Mine Road from Trona - Wildwood Road Chemical
intersection in County of lnyo, Trona,
California (antenna site) Corporation
6. Southeast quarter of the northeast quarter Leased Don L.
of Xxxxxxx 0, Xxxxxxxx 00, Xxxxx, Xxxxx Deadrich,
00 Xxxx X.X.X.&X, Xxxx, Xxxxxxxxxx Xxxxxx X.
(headend site) Deadrich
and
Xxxxx Xxxxxxx
7. 0 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx Leased Xxxxxxx Xxxx
8. 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx X Leased Xxxxxx X.
Xxxxxxxx
9. Yellow Brick Road, Portion of Tank Site Leased Valley Center
- 2 -
Municipal
Water
District
10. 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Leased Ridgecrest
California Redevelopment
Agency
- 3 -
Mediacom Arizona
Real Property Location Owned/Leased Owner
---------------------- ------------ -----
1. 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx Owned Mediacom
Xxxx 00 xxx 00 xx Xxxxx 0 xx xxx Xxxx of Arizona
Nogales
2. Reservoir Hill, Nogales, Arizona Owned Mediacom
Xxx 00 xx Xxxxx 00 of the City of Nogales, Arizona
according to the official plat on file and
of record with the Office of the County
Recorder for Santa Xxxx County.
3. Antenna Hill, Nogales, Arizona Owned Mediacom
All of that portion of Section 20, Township Arizona
24 South, range 14 East, Gila and Salt River
Base and Meridian, Santa Xxxx County,
Arizona
Easement: Included in the deeded parcel is a
three foot easement for utilities and TV
cables, lying immediately north of the sixty
foot neutral strip between the United States
and Mexico, running from the Southeast corner
of the Nogales Townsite to the above
described property, AND included in the
deeded parcel is an easement through existing
roads for ingress and egress of motor
vehicles to the above described parcel of
land.
4. Rio Rico, Arizona Owned Mediacom
Arizona
Parcel 1:
---------
A parcel of land situated in and being a part
of Lot A, Block 699, as recorded in the plat
of Rio Rico Unit No. 7, Book 3 of Maps and
Plats at Page 32, Santa Xxxx County, Arizona
Parcel 2:
---------
Xxx 0 xx Xxxxx 000 xx Xxx Xxxx Xxxxxxx Unit
No. 7, a subdivision of Santa Xxxx County,
Arizona, as set forth in the office of the
Santa Xxxx County Recorder in Book 2 of Maps
and Plats at Page 230.
5. 0 Xxxxxx Xxxxxx, Xxx, Xxxxxxx Owned Mediacom
Lot 21 in Block 3, except the southerly 75 Arizona
feet thereof, of Ajo Townsite, a
subdivision of Pima County, Arizona,
according to the Map of Record in the Pima
County Recorder's Office, in Book 3 of the
Maps and Plats at Page 61, excepting
therefrom and reserving unto the Grantor that
portion of said lot lying below a depth of 25
feet.
6. Amado, Arizona Leased Xxxxxx X.
xxxxxxx site Xxxxxxx
7. Keystone Peak, Arizona Leased Bureau of Land
Right of Way A-9630, easement for Management
communication site, cable and use of access
road
- 4 -
8. Keystone Mountain, Arizona Leased Sierrita
Access Road Use Agreement to Keystone Peak Mining and
microwave site Ranching
9. Ajo, Arizona Leased Xxxxxx Xxxxxx
Xxxxxx-Ajo xxxxxxx site and Xxxxx
Xxxxxx
10. Childs Mountain, Arizona, Permit M-6 for Leased U.S. Fish and
television microwave site Wildlife Service
Mediacom Delaware
1. Xxxxxx Xxxx 000, Xxxx, Xxxxxxxx Leased Xxxxxx Xxxxxx
xxxxxxx site and
Xxxxxxx Xxxxxx
2. Xxxxxx Xxxx 000, Xxxxxxxxx, Xxxxxxxx Leased Xxxx Xxxxxxx
microwave site
0. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx Leased Town of Willards
microwave site
4. Dagsboro, Delaware office Leased Xxxxxx
Route 133, County Village Square Enterprises,
Inc.
5. Willards, Maryland office Leased D&L
Dock Street Enterprises,
Inc.
6. City of Xxxxxxxxxx Tower Space Leased Xxxxxxx
and Ground Lease Agreement Communications
Company, L.P.
Corporation
(now Comcast)
SCHEDULE VI
Certain Adjustments to Operating Cash Flow and System Cash Flow
---------------------------------------------------------------
ADJUSTED SYSTEM CASH FLOW (ASCF)/(1)/
ADJUSTED OPERATING CASH FLOW (AOCF)/(1)/
FOR THE THREE MONTHS ENDING MAY 31, 1997
Adjusted System Cash Flow (ASCF)
System Cash Flow $ 683,724
Ridgecrest $ 380,929
Xxxx Valley $ 391,033
Nogales $ 102,835
RidgeNet $ 44,396
L. Delaware/Maryland (TCI) $ 1,201,855
------------
Total System Cash Flow $ 2,804,772
============
Adjustment to System Cash Flow
Programming Increases incurred by $ (95,670)
Buyer
Operational Savings realized by Buyer $ 41,177
------------
Total Adjustments to SCF $ (54,493)
============
ASCF $ 2,750,279
============
Annualized ASCF $ 11,001,116
============
Adjusted Operating Cash Flow (AOCF)
Revenues $ 5,173,272
System Cash Flow
Ridgecrest $ 683,724
Xxxx Valley $ 380,929
Nogales $ 391,033
Valley Center $ 102,835
RidgeNet $ 44,396
L. Delaware/Maryland (TCI) $ 1,201,855
------------
Total System Cash Flow $ 2,804,772
============
Management Fees $ (258,664)
===========
Operating Cash Flow $ 2,546,108
Adjustment to Operating Cash Flow
Programming Increases incurred by $ (95,670)
Buyer
Operational Saving realized by Buyer $ 41,177
-----------
Total Adjustments to SCF $ (54,493)
===========
AOCF $ 2,491,615
===========
Annualized AOCF $ 9,966,462
--------------- ===========
Note: (1) Assumes 100% of the System Cash Flow from Sea Colony.
EXHIBIT A-1
[Form of Revolving Credit Note]
PROMISSORY NOTE
$
------------------
, 1997
---
New York, New York
FOR VALUE RECEIVED, MEDIACOM CALIFORNIA LLC, a Delaware limited liability
company ("Mediacom California"), MEDIACOM DELAWARE LLC, a Delaware limited
-------------------
liability company ("Mediacom Delaware") and MEDIACOM ARIZONA LLC, a Delaware
-----------------
limited liability company ("Mediacom Arizona" and, together with Mediacom
----------------
California and Mediacom Delaware, the "Borrowers"), hereby promise to pay to
---------
__________________ (the "Lender") [or registered assigns]/1/, for account of its
------
respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan Bank at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of _______________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Revolving Credit Loans made by the Lender to the Borrowers under
the Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Revolving Credit Loan, at such office, in like money and funds, for
the period commencing on the date of such Revolving Credit Loan until such
Revolving Credit Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the register maintained for such
purpose by or on behalf of the Borrowers as provided in Section 11.06(g) of the
Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Revolving Credit Loan made by the Lender to the Borrowers,
and each payment made on account of the principal thereof, shall be recorded by
the Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
--------
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrowers to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Revolving
Credit Loans made by the Lender.
--------------------
/1/ Bracketed language to be inserted into Registered Notes.
-2-
This Note is one of the Revolving Credit Notes [(constituting a Registered
Note)] referred to in the Second Amended and Restated Credit Agreement dated as
of June 24, 1997 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrowers, the lenders party thereto
----------------
(including the Lender), The Chase Manhattan Bank, as Administrative Agent, and
First Union National Bank, as Documentation Agent, and evidences Revolving
Credit Loans made by the Lender thereunder. Terms used but not defined in this
Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this Note may
not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law
of the State of New York.
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
-3-
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or Converted
under the within-described Credit Agreement to the Borrowers, on the dates, in
the principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ------ ---- -------- -------- --------- ------ --------
EXHIBIT A-2
[Form of Term A Note]
PROMISSORY NOTE
$
------------------
, 1997
--------
New York, New York
FOR VALUE RECEIVED, MEDIACOM CALIFORNIA LLC, a Delaware limited
liability company ("Mediacom California"), MEDIACOM DELAWARE LLC, a Delaware
-------------------
limited liability company ("Mediacom Delaware") and MEDIACOM ARIZONA LLC, a
-----------------
Delaware limited liability company ("Mediacom Arizona" and, together with
----------------
Mediacom California and Mediacom Delaware, the "Borrowers"), hereby promise to
---------
pay to __________________ (the "Lender") [or registered assigns]/2/, for account
------
of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of
_______________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Term A Loans made by the Lender to the Borrowers
under the Credit Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of each such Term A Loan, at such office, in like money and funds, for
the period commencing on the date of such Term A Loan until such Term A Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the register maintained for
such purpose by or on behalf of the Borrowers as provided in Section 11.06(g) of
the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Term A Loan made by the Lender to the Borrowers, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
--------
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrowers to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Term A
Loans made by the Lender.
--------------------
/2/ Bracketed language to be inserted into Registered Notes.
-2-
This Note is one of the Term A Notes [(constituting a Registered
Note)] referred to in the Second Amended and Restated Credit Agreement dated as
of June 24, 1997 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrowers, the lenders party thereto
----------------
(including the Lender), The Chase Manhattan Bank, as Administrative Agent, and
First Union National Bank, as Documentation Agent, and evidences Term A Loans
made by the Lender thereunder. Terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Term A
Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
-3-
SCHEDULE OF TERM A LOANS
This Note evidences Term A Loans made, Continued or Converted under
the within-described Credit Agreement to the Borrowers, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ------ ---- -------- -------- --------- ------ --------
EXHIBIT A-3
[Form of Term B Note]
PROMISSORY NOTE
$
------------------
, 1997
---------
New York, New York
FOR VALUE RECEIVED, MEDIACOM CALIFORNIA LLC, a Delaware limited
liability company ("Mediacom California"), MEDIACOM DELAWARE LLC, a Delaware
-------------------
limited liability company ("Mediacom Delaware") and MEDIACOM ARIZONA LLC, a
-----------------
Delaware limited liability company ("Mediacom Arizona" and, together with
----------------
Mediacom California and Mediacom Delaware, the "Borrowers"), hereby promise to
---------
pay to __________________ (the "Lender") [or registered assigns]/3/, for account
------
of its respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase Manhattan Bank
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of
_______________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Term B Loans made by the Lender to the Borrowers
under the Credit Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of each such Term B Loan, at such office, in like money and funds, for
the period commencing on the date of such Term B Loan until such Term B Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the register maintained for
such purpose by or on behalf of the Borrowers as provided in Section 11.06(g) of
the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Term B Loan made by the Lender to the Borrowers, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
--------
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrowers to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Term B
Loans made by the Lender.
---------------------
/3/ Bracketed language to be inserted into Registered Notes.
-2-
This Note is one of the Term B Notes [(constituting a Registered
Note)] referred to in the Second Amended and Restated Credit Agreement dated as
of June 24, 1997 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrowers, the lenders party thereto
----------------
(including the Lender), The Chase Manhattan Bank, as Administrative Agent, and
First Union National Bank, as Documentation Agent, and evidences Term B Loans
made by the Lender thereunder. Terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Term B
Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By
-------------------------
Title:
-3-
SCHEDULE OF TERM B LOANS
This Note evidences Term B Loans made, Continued or Converted under
the within-described Credit Agreement to the Borrowers, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ------ ---- -------- -------- --------- ------ --------
EXHIBIT B
[Form of Quarterly Officer's Report]
MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM ARIZONA LLC
Fiscal quarter ended: ______________, 19__
This Report is delivered pursuant to Section 8.01(f) of the Second
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of June
----------------
24, 1997, between Mediacom California LLC ("Mediacom California"), Mediacom
-------------------
Delaware LLC ("Mediacom Delaware"), Mediacom Arizona LLC ("Mediacom Arizona"
----------------- ----------------
and, together with Mediacom California and Mediacom Delaware, the "Borrowers"),
---------
the lenders party thereto, The Chase Manhattan Bank, as Administrative Agent,
and First Union National Bank, as Documentation Agent, providing for loans to be
made by said lenders to the Borrowers in an aggregate principal amount not
exceeding $100,000,000. Terms defined in the Credit Agreement are used herein
as defined therein.
This Report is delivered in respect of the cable television systems of
the Borrowers and their Subsidiaries as at the end of the fiscal quarter
referred to above:
Homes passed at end of quarter:
--------------------
Basic Subscribers at beginning of quarter:
Basic Subscribers at end of quarter: --------------------
--------------------
Pay TV Units at beginning of quarter:
Pay TV Units at end of quarter: --------------------
--------------------
Revenue per Subscriber per Month for
the quarter:
--------------------
-----------------------------------
Senior Officer
Dated: ____________, 19__
EXHIBIT C
[Form of Security Agreement]
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT dated as of June 24,
1997 between: MEDIACOM CALIFORNIA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("Mediacom California"); MEDIACOM DELAWARE LLC, a limited liability company duly
--------------------
organized and validly existing under the laws of the State of Delaware
("Mediacom Delaware"), MEDIACOM ARIZONA LLC, a limited liability company duly
------------------
organized and validly existing under the laws of the State of Delaware
("Mediacom Arizona" and, together with Mediacom California and Mediacom
-----------------
Delaware, the "Borrowers"); each of the additional parties, if any, that becomes
---------
a "Securing Party" hereunder as contemplated by Section 6.11 hereof (each a
"Subsidiary Guarantor" and together with the Borrowers, the "Securing Parties");
-------------------- ----------------
and THE CHASE MANHATTAN BANK, as administrative agent for the lenders or other
financial institutions or entities party, as lenders, to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
--------------------
Mediacom California and Mediacom Arizona and the Administrative Agent
are parties to a Security Agreement dated as of December 27, 1996 (the "Existing
--------
Security Agreement"), pursuant to which Mediacom California and Mediacom Arizona
------------------
pledged and granted a security interest in the Collateral (as so defined) as
security for the Secured Obligations (as so defined) including, inter alia,
----- ----
obligations of Mediacom California and Mediacom Arizona under an Amended and
Restated Credit Agreement dated as of December 27, 1996 (the "Existing Credit
---------------
Agreement") between Mediacom California, Mediacom Arizona, certain lenders and
---------
the Administrative Agent. Concurrently with the execution and delivery of this
Agreement, the parties to the Existing Credit Agreement are amending and
restating the Existing Credit Agreement to increase the amount of credit
available thereunder, to add the New Lenders (as defined therein), to add
Mediacom Delaware as an additional borrower thereunder and to amend certain of
the other provisions thereof pursuant to a Second Amended and Restated Credit
Agreement dated as of June 24, 1997 (as modified and supplemented and in effect
from time to time, the "Credit Agreement"). In addition, the Borrowers may from
----------------
time to time be obligated to various of said lenders in respect of Interest Rate
Protection Agreements permitted under Section 8.08(e) of the Credit Agreement
(such indebtedness being herein referred to as the "Hedging Indebtedness").
--------------------
To induce said lenders to amend and restate the Existing Credit
Agreement pursuant to the Credit Agreement and to extend credit thereunder and
to extend credit to the Borrowers
- 2 -
that would constitute Hedging Indebtedness, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Securing Parties have agreed to pledge and grant a security interest in the
Collateral (as hereinafter defined) as security for the Secured Obligations (as
so defined), and to confirm the prior pledge and grant of a security interest in
the Collateral pursuant to the Existing Security Agreement and, in that
connection to amend and restate in its entirety the Existing Security Agreement.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
-----------
used herein as defined therein. In addition, as used herein:
"Accounts" shall have the meaning ascribed thereto in Section 3(d)
--------
hereof.
"Collateral" shall have the meaning ascribed thereto in Section 3
----------
hereof.
"Collateral Account" shall have the meaning ascribed thereto in
------------------
Section 4.01 hereof.
"Documents" shall have the meaning ascribed thereto in Section 3(j)
---------
hereof.
"Equipment" shall have the meaning ascribed thereto in Section 3(h)
---------
hereof.
"Instruments" shall have the meaning ascribed thereto in Section 3(e)
-----------
hereof.
"Inventory" shall have the meaning ascribed thereto in Section 3(f)
---------
hereof.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
--------------
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Pledged Stock" shall have the meaning ascribed thereto in Section
-------------
3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) in the case of the
-------------------
Borrowers, the principal of and interest on the Loans made by the Lenders
to, and the Note(s) held by each Lender of, the Borrowers and all other
amounts from time to time owing to the Lenders or the
- 3 -
Administrative Agent by the Borrowers under the Loan Documents (including,
without limitation, all Hedging Indebtedness of the Borrowers), and all
obligations of the Borrowers to the Lenders and the Administrative Agent
hereunder and (b) in the case of each Subsidiary Guarantor, all Guaranteed
Obligations of such Subsidiary Guarantor under and as defined in the
Subsidiary Guarantee Agreement executed by such Subsidiary Guarantor
pursuant to Section 6.11 hereof, and all other obligations of such
Subsidiary Guarantor to the Administrative Agent and the Lenders hereunder.
"Stock Collateral" shall mean, collectively, the Collateral described
----------------
in clauses (a) through (c) of Section 3 hereof and the proceeds of and to
any such property and, to the extent related to any such property or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
-----------------------
effect from time to time in the State of New York.
Section 2. Representations and Warranties. Each Securing Party
------------------------------
represents and warrants to the Lenders and the Administrative Agent that such
Securing Party is the sole beneficial owner of the Collateral which it purports
to grant a security interest pursuant to Section 3 hereof, and no Lien exists or
will exist upon such Collateral at any time (and no right or option to acquire
the same exists in favor of any other Person), except for Liens permitted under
Section 8.06 of the Credit Agreement and except for the pledge and security
interest in favor of the Administrative Agent for the benefit of the Lenders
created or provided for herein, which pledge and security interest will
constitute a first priority perfected pledge and security interest as soon as,
with respect to the Collateral as to which the Uniform Commercial Code requires
the filing of financing statements to perfect a security interest, all such
financing statements are so filed.
Section 3. Collateral. As collateral security for the prompt payment
----------
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, each Securing Party hereby pledges and grants to the
Administrative Agent (and hereby confirms the prior pledge and grant to the
Administrative Agent pursuant to the Existing Security Agreement), for the
benefit of the Lenders as hereinafter
- 4 -
provided, a security interest in all of such Securing Party's right, title and
interest in the following property, whether now owned by such Securing Party or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"):
----------
(a) all shares of capital stock or other ownership interests of any
Borrower or any Subsidiary of a Borrower now or hereafter owned by such
Securing Party, in each case together with the certificates (if any)
evidencing the same and all right, title and interest in, to and under any
Operating Agreement (including without limitation all of the right, title
and interest (if any) as a member to participate in the operation or
management of the respective Borrower and all of its ownership interests
under such Operating Agreement), and all present and future rights of such
Securing Party to receive payment of money or other distribution of
payments arising out of or in connection with its ownership interests and
its rights under such Operating Agreement, now or hereafter owned by such
Securing Party, in each case together with any certificates evidencing the
same (collectively, the "Pledged Stock");
-------------
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Borrowers under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which any issuer of any
Pledge Stock is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation formed by or resulting from
such consolidation or merger (the Pledged Stock, together with all other
certificates, shares, securities, properties or moneys as may from time to
time be pledged hereunder pursuant to clause (a) or (b) above and this
clause (c) being herein collectively called the "Stock Collateral");
----------------
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Securing Party constituting any right to
the payment of money,
- 5 -
including (but not limited to) all moneys due and to become due to such
Securing Party in respect of any loans or advances or for Inventory or
Equipment or other goods sold or leased or for services rendered, all
moneys due and to become due to such Securing Party under any guarantee
(including a letter of credit) of the purchase price of Inventory or
Equipment sold by such Securing Party and all tax refunds (such accounts,
general intangibles and moneys due and to become due being herein called
collectively "Accounts");
--------
(e) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Securing Party evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts, including (but
not limited to) promissory notes, drafts, bills of exchange and trade
acceptances (herein collectively called "Instruments");
-----------
(f) all inventory (as defined in the Uniform Commercial Code) of such
Securing Party, including Motor Vehicles held by such Securing Party for
lease, fuel, tires and other spare parts, all goods obtained by such
Securing Party in exchange for such inventory, and any products made or
processed from such inventory including all substances, if any, commingled
therewith or added thereto (herein collectively called "Inventory");
---------
(g) all other accounts or general intangibles of such Securing Party
not constituting Accounts, including, without limitation, all right, title
and interest of any Securing Party in, to and under the Acquisition
Agreements, the Escrow Agreements under and as defined therein, and any
other document or instrument executed in connection with the Acquisition
Agreements;
(h) all equipment (as defined in the Uniform Commercial Code) of such
Securing Party, including all Motor Vehicles, all cables, receivers,
amplifiers, test equipment, descramblers, satellite dishes and mounts,
modulators, head-end equipment, towers, taps, traps, pedestals, conduits,
converters, spare parts and tools (herein collectively called "Equipment");
---------
(i) each contract and other agreement of such Securing Party relating
to the sale or other disposition of Inventory or Equipment;
- 6 -
(j) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Securing Party covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
---------
(k) all rights, claims and benefits of such Securing Party against
any Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Securing Party, including, without limitation,
any such rights, claims or benefits against any Person storing or
transporting such Inventory or Equipment;
(l) all Franchises and all pole attachment agreements, licenses,
railroad or highway crossing agreements, property access agreements,
private cable agreements and permits and all other contracts, agreements
and permits used in connection with or relating to the CATV Systems of the
Securing Parties (except that any such Franchise, agreement or other
contract or permit that would by its terms or under applicable law become
void, voidable, terminable or revocable by being subjected to the lien of
this Agreement or in which a Lien is not permitted to be granted is hereby
excluded from such Lien to the extent necessary so as to avoid such
voidness, avoidability, terminability or revocability);
(m) all of such Securing Party's rights under or relating to any
licenses issued by the FCC and the proceeds of any such licenses, provided
--------
that such security interest does not include at any time any such licenses
to the extent (but only to the extent) that at such time the Administrative
Agent may not validly possess a security interest therein pursuant to the
Communications Act of 1934, as amended, and the regulations promulgated
thereunder, as in effect at such time, but such security interest does
include, to the maximum extent permitted by law, all rights incident or
appurtenant to such licenses and the right to receive all proceeds derived
from or in connection with the sale, assignment or transfer of such
licenses; and
(n) the balance from time to time in the Collateral Account; and
(o) all other tangible and intangible personal property and fixtures
of such Securing Party, including, without limitation, all proceeds,
products, offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the property of such
Securing Party described in the preceding clauses of this
- 7 -
Section 3 (including, without limitation, any proceeds of insurance thereon
and all causes of action, claims and warranties now or hereafter held by
such Securing Party in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit files,
records, invoices and other papers, including without limitation all tapes,
cards, computer runs and other papers and documents in the possession or
under the control of such Securing Party or any computer bureau or service
company from time to time acting for such Securing Party.
Section 4. Cash Proceeds of Collateral.
---------------------------
4.01 Collateral Account. There is hereby established with the
------------------
Administrative Agent a cash collateral account (the "Collateral Account") in the
------------------
name and under the control of the Administrative Agent into which there shall be
deposited from time to time the cash proceeds of any of the Collateral
(including proceeds of insurance thereon) required to be delivered to the
Administrative Agent pursuant hereto and into which any Securing Party may from
time to time deposit any additional amounts that it wishes to pledge to the
Administrative Agent for the benefit of the Lenders as additional collateral
security hereunder. The balance from time to time in the Collateral Account
shall constitute part of the Collateral hereunder and shall not constitute
payment of the Secured Obligations until applied as hereinafter provided. Except
as expressly provided in the next sentence, the Administrative Agent shall remit
the collected balance outstanding to the credit of the Collateral Account to or
upon the order of any Securing Party as such Securing Party through Mediacom
California shall from time to time instruct. However, at any time following the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may (and, if instructed by the Majority Lenders as specified in Section
10.03 of the Credit Agreement, shall) in its (or their) discretion apply or
cause to be applied (subject to collection) the balance from time to time
outstanding to the credit of the Collateral Account to the payment of the
Secured Obligations in the manner specified in Section 5.09 hereof. The balance
from time to time in the Collateral Account shall be subject to withdrawal only
as provided herein.
4.02 Investment of Balance in Collateral Account. Amounts on deposit
-------------------------------------------
in the Collateral Account shall be invested from time to time in such Permitted
Investments as the Borrowers (or, after the occurrence and during the
continuance of a
- 8 -
Default, the Administrative Agent) shall determine, which Permitted Investments
shall be held in the name and be under the control of the Administrative Agent
and the Borrowers may at any time and from time to time (so long as no Event of
Default shall have occurred and be continuing) instruct the Administrative to
liquidate any such Permitted Investment and reinvest or withdraw the proceeds
thereof as they shall in their discretion determine. Notwithstanding the
forgoing, at any time after the occurrence and during the continuance of an
Event of Default, the Administrative Agent may (and, if instructed by the
Lenders as specified in Section 10.03 of the Credit Agreement, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
Permitted Investments and to apply or cause to be applied the proceeds thereof
to the payment of the Secured Obligations in the manner specified in Section
5.09 hereof. All interest, dividends and other earnings in respect of
Investments in the Collateral Account and, all proceeds of such Investments
shall be retained in the Collateral Account or (so long as no Event of Default
shall have occurred and be continuing) be withdrawn by the Borrowers as they
shall in their discretion determine.
Section 5. Further Assurances; Remedies. In furtherance of the grant
----------------------------
of the pledge and security interest pursuant to Section 3 hereof, the Securing
Parties hereby jointly and severally agree with each Lender and the
Administrative Agent as follows:
5.01 Delivery and Other Perfection. Each Securing Party shall:
-----------------------------
(a) if any of the shares, securities, moneys or property required to
be pledged by such Securing Party under clauses (a), (b) and (c) of Section
3 hereof are received by such Securing Party, forthwith either (x) transfer
and deliver to the Administrative Agent such shares or securities or other
ownership interests so received by such Securing Party (together with the
certificates for any such shares and securities or other ownership
interests duly endorsed in blank or accompanied by undated stock powers or
other powers duly executed in blank), all of which thereafter shall be held
by the Administrative Agent, pursuant to the terms of this Agreement, as
part of the Collateral or (y) take such other action as the Administrative
Agent shall deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, other ownership interests, moneys or
property in said clauses (a), (b) and (c);
- 9 -
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Administrative Agent may
request; provided, that so long as no Default shall have occurred and be
--------
continuing, such Securing Party may retain for collection in the ordinary
course any Instruments received by it in the ordinary course of business
and the Administrative Agent shall, promptly upon request of such Securing
Party, make appropriate arrangements for making any Instrument pledged by
it available to such Securing Party for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent
deemed appropriate by the Administrative Agent, against trust receipt or
like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Administrative Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Administrative Agent to exercise and
enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, causing any or all of the Stock
Collateral to be transferred of record into the name of the Administrative
Agent or its nominee (and the Administrative Agent agrees that if any Stock
Collateral is transferred into its name or the name of its nominee, the
Administrative Agent will thereafter promptly give to the respective
Securing Party copies of any notices and communications received by it with
respect to the Stock Collateral pledged by such Security Party hereunder),
provided that notices to account debtors in respect of any Accounts or
--------
Instruments shall be subject to the provisions of clause (g) below;
(d) upon the request of the Administrative Agent, cause the
Administrative Agent to be listed as the lienholder on any certificate of
title covering any Motor Vehicle owned by such Securing Party and within
120 days of the acquisition thereof deliver evidence of the same to the
Administrative Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
- 10 -
(f) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Administrative Agent to be present at such
Securing Party's place of business to receive copies of all communications
and remittances relating to the Collateral, and forward copies of any
notices or communications received by such Securing Party with respect to
the Collateral, all in such manner as the Administrative Agent may require;
and
(g) upon the occurrence and during the continuance of any Default,
upon request of the Administrative Agent, promptly notify (and each
Securing Party hereby authorizes the Administrative Agent so to notify)
each account debtor in respect of any Accounts or Instruments that such
Collateral has been assigned to the Administrative Agent hereunder, and
that any payments due or to become due in respect of such Collateral are to
be made directly to the Administrative Agent.
5.02 Other Financing Statements and Liens. Except as otherwise
------------------------------------
permitted under Section 8.06 of the Credit Agreement, without the prior written
consent of the Administrative Agent (granted with the authorization of the
Lenders as specified in Section 10.09 of the Credit Agreement), the Securing
Parties shall not file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Collateral in which the Administrative Agent is
not named as the sole secured party for the benefit of the Lenders.
5.03 Preservation of Rights. The Administrative Agent shall not be
----------------------
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
5.04 Special Provisions Relating to Stock Collateral.
-----------------------------------------------
(a) The Securing Parties will cause the Stock Collateral to
constitute at all times 100% of the total number of shares of each class of
capital stock of each Subsidiary of the Borrowers then outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Securing Parties shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Stock Collateral for
all purposes not inconsistent with the terms of this Agreement, the Credit
-11-
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Securing Parties jointly and severally agree that
--------
they will not vote the Stock Collateral in any manner that is inconsistent with
the terms of this Agreement, the Credit Agreement, the Notes or any such other
instrument or agreement; and the Administrative Agent shall execute and deliver
to the Securing Parties or cause to be executed and delivered to the Securing
Parties all such proxies, powers of attorney, dividend and other orders, and all
such instruments, without recourse, as the Securing Parties may reasonably
request for the purpose of enabling the Securing Parties to exercise the rights
and powers that they are entitled to exercise pursuant to this Section 5.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, the Securing Parties shall be entitled to receive and retain any
dividends on the Stock Collateral paid in cash out of earned surplus.
(d) If any Event of Default shall have occurred, then so long as such
Event of Default shall continue, and whether or not the Administrative Agent or
any Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Stock Collateral shall be paid directly to the
Administrative Agent and retained by it in the Collateral Account as part of the
Stock Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, each Securing Party agrees to
execute and deliver to the Administrative Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided that if such
--------
Event of Default is cured, any such dividend or distribution theretofore paid to
the Administrative Agent shall, upon request of the Securing Parties (except to
the extent theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to the Securing Parties.
5.05 Events of Default, Etc. During the period during which an Event
----------------------
of Default shall have occurred and be continuing:
(a) each Securing Party shall, at the request of the Administrative
Agent, assemble the Collateral owned by it at such place or places,
reasonably convenient to both the Administrative Agent and such Securing
Party, designated in its request;
-12-
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to the
maximum extent permitted by law, to exercise all voting, consensual and
other powers of ownership pertaining to the Collateral as if the
Administrative Agent were the sole and absolute owner thereof (and each
Securing Party agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in
the name of the Securing Parties or otherwise, demand, xxx for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Administrative Agent may, upon ten business days' prior
written notice to the Securing Parties of the time and place, with respect
to the Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Administrative Agent deems best, and for
cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Securing
-13-
Parties, any such demand, notice and right or equity being hereby expressly
waived and released. The Administrative Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05 shall be applied in accordance with Section 5.09 hereof.
The Securing Parties recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Securing Parties acknowledge that any such private sales may be at prices and on
terms less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective issuer
thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
----------
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Securing Parties shall remain jointly
and severally liable for any deficiency.
5.07 Removals, Etc. Without at least 30 days' prior written notice
-------------
to the Administrative Agent, no Securing Party shall (i) maintain any of its
books and records with respect to the Collateral at any office or maintain its
principal place of business at any place, or permit any Inventory or Equipment
to be located anywhere, other than at the address indicated beneath the
signature of such Securing Party to the Credit Agreement or at one of the
locations identified in Annex 1 hereto (including as supplemented pursuant to
any Subsidiary Guarantee Agreement) or in transit from one of such locations to
another or (ii) change its name, or the name under which it does business, from
the name
-14-
shown on the signature pages hereto (or, as the case may be, on the
respective Subsidiary Guarantee Agreement pursuant to which such Securing Party
became a party hereto).
5.08 Private Sale. The Administrative Agent and the Lenders shall
------------
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 hereof conducted in a
commercially reasonable manner. Each Securing Party hereby waives any claims
against the Administrative Agent or any Lender arising by reason of the fact
that the price at which the Collateral may have been sold at such a private sale
was less than the price that might have been obtained at a public sale or was
less than the aggregate amount of the Secured Obligations, even if the
Administrative Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise herein expressly
-----------------------
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Administrative Agent under Section 4 hereof or this Section 5, shall be
applied by the Administrative Agent:
First, to the payment of the costs and expenses of such collection,
-----
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each case
----
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
Finally, after payment in full of the Secured Obligations, to the
-------
payment to the respective Securing Parties, or their successors or assigns,
or as a court of competent jurisdiction may direct, of any surplus then
remaining.
As used in this Section 5, "proceeds" of Collateral shall mean cash,
--------
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Securing Parties or any issuer of or
obligor on any of the Collateral.
-15-
5.10 Attorney-in-Fact. Without limiting any rights or powers granted
----------------
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the attorney-
in-fact of each Securing Party for the purpose of carrying out the provisions of
this Section 5 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 5 to make collections
in respect of the Collateral, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
any Securing Party representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the
same.
5.11 Perfection. Prior to or concurrently with the execution and
----------
delivery of this Agreement, each Securing Party shall (i) file such financing
statements and other documents in such offices as the Administrative Agent may
request to perfect the security interests granted by Section 3 of this Agreement
and (ii) deliver to the Administrative Agent any certificates representing any
of the Pledged Stock, in each case accompanied by undated stock powers duly
executed in blank.
5.12 Termination. When all Secured Obligations shall have been paid
-----------
in full and the Commitments of the Lenders under the Credit Agreement shall have
expired or been terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof,
including without limitation, the balance (including any Investments) in the
Collateral Account, to or on the order of the respective Securing Parties. The
Administrative Agent shall also execute and deliver to the respective Securing
Parties upon such termination such Uniform Commercial Code termination
statements, certificates for terminating the Liens on the Motor Vehicles and
such other documentation as shall be reasonably requested by the Securing
Parties to effect the termination and release of the Liens on the Collateral.
5.13 Further Assurances. The Securing Parties jointly and severally
------------------
agree that, from time to time upon the written request of the Administrative
Agent, they will execute and
-16-
deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
5.14 Release of Motor Vehicles. So long as no Default shall have
-------------------------
occurred and be continuing, upon the request of the Securing Parties, the
Administrative Agent shall execute and deliver to the Securing Parties such
instruments as the Securing Parties shall reasonably request to remove the
notation of the Administrative Agent as lienholder on any certificate of title
for any Motor Vehicle; provided that any such instruments shall be delivered,
--------
and the release effective only upon receipt by the Administrative Agent of a
certificate from the respective Securing Party stating that the Motor Vehicle
the lien on which is to be released is to be sold or has suffered a casualty
loss.
Section 6. Miscellaneous.
-------------
6.01 No Waiver. No failure on the part of the Administrative Agent
---------
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
6.02 Notices. All notices, requests, consents and demands hereunder
-------
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 11.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 11.02, it being understood that any such notice to a Subsidiary
Guarantor shall be given to Mediacom California in accordance with said Section
11.02.
6.03 Expenses. The Securing Parties jointly and severally agree to
--------
reimburse each of the Lenders and the Administrative Agent for all reasonable
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 proceeding
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (w) performance by the Administrative Agent of any
obligations of the Securing Parties in respect of the Collateral that the
Securing Parties have failed or refused to perform, (x) bankruptcy,
-17-
insolvency, receivership, foreclosure, winding up or liquidation proceedings, or
any actual or attempted sale, or any exchange, enforcement, collection,
compromise or settlement in respect of any of the Collateral, and for the care
of the Collateral and defending or asserting rights and claims of the
Administrative Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (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 6.03, and all such costs and expenses shall be
Secured Obligations entitled to the benefits of the collateral security provided
pursuant to Section 3 hereof.
6.04 Amendments, Etc. The terms of this Agreement may be waived,
---------------
altered or amended only by an instrument in writing duly executed by each
Securing Party and the Administrative Agent (with the consent of the Lenders as
specified in Section 10.09 of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Administrative Agent and each Lender, each
holder of any of the Secured Obligations and each Securing Party.
6.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of the
Securing Parties, the Administrative Agent, the Lenders and each holder of any
of the Secured Obligations (provided, however, that no Securing Party shall
--------
assign or transfer its rights hereunder without the prior written consent of the
Administrative Agent).
6.06 Captions. The 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.
6.07 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.
6.08 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the law of the State of New York.
6.09 Certain Regulatory Requirements. Any provision contained herein
-------------------------------
to the contrary notwithstanding, no action shall be taken hereunder by the
Administrative Agent or any Lender with respect to any item of Collateral unless
and until all applicable
-18-
requirements (if any) of the FCC under the Federal Communications Act of 1934,
as amended, and the respective rules and regulations thereunder and thereof, as
well as any other federal, state or local laws, rules and regulations of other
regulatory or governmental bodies (including, without limitation, any
municipality that has issued any Franchise to a Securing Party or any of its
Subsidiaries) applicable to or having jurisdiction over such Securing Party (or
any entity under the control of such Securing Party), have been satisfied with
respect to such action and there have been obtained such consents, approvals and
authorizations (if any) as may be required to be obtained from the FCC, any
operating municipality and any other governmental authority under the terms of
any Franchise, any license or similar operating right held by such Securing
Party (or any entity under the control of such Securing Party). It is the
intention of the parties hereto that the Liens in favor of the Administrative
Agent on the Collateral shall in all relevant aspects be subject to and governed
by said statutes, rules and regulations and the Franchise(s) and that nothing in
this Agreement shall be construed to diminish the control exercised by any
Securing Party except in accordance with the provisions of such statutory
requirements, rules and regulations and the Franchises. Each Secured Party
agrees that upon request from time to time by the Administrative Agent it will
use its best efforts to obtain any governmental, regulatory or third party
consents, approvals or authorizations referred to in this Section 6.09.
6.10 Agents and Attorneys-in-Fact. The Administrative Agent may
----------------------------
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-in-
fact selected by it in good faith.
6.11. Additional Securing Parties. As contemplated by Section 8.18(a)
---------------------------
of the Credit Agreement, new Subsidiaries of the Borrowers formed by the
Borrowers after the date hereof may become a "Subsidiary Guarantor" under a
Subsidiary Guarantee Agreement and a "Securing Party" under this Agreement, by
executing and delivering to the Administrative Agent a Subsidiary Guarantee
Agreement in the form of Exhibit E to the Credit Agreement. Accordingly, upon
the execution and delivery of any such Subsidiary Guarantee Agreement by any
such new Subsidiary, such new Subsidiary shall automatically and immediately,
and without any further action on the part of any Person, become a "Securing
Party" for all purposes of this Agreement, and Annex 1 hereto shall be deemed to
be supplemented in the manner specified in said Subsidiary Guarantee Agreement.
-19-
6.12 Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Security Agreement to be duly executed and delivered as of the day
and year first above written.
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By
--------------------------
Title:
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By
--------------------------
Title:
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By
--------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
-------------------------------
Title:
ANNEX 1
LIST OF LOCATIONS
[See Section 5.07]
Mediacom California LLC
-----------------------
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
0 Xxxxxx, Xxx X
Xxxxxxxxx, Xxxxxxxxxx 00000
00000 Xxxxxx Xxxxxx Xxxx
Xxxxx X
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Mediacom Delaware LLC
---------------------
Country Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Xxx Xxxxx Xxxx Xxxx
Xxxx 000
Xxxxxxxx, XX 00000
Mediacom Arizona LLC
--------------------
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
EXHIBIT D
[Form of Guarantee and Pledge Agreement]
SECOND AMENDED AND RESTATED GUARANTEE AND PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED GUARANTEE AND PLEDGE AGREEMENT dated as of
June 24, 1997 between MEDIACOM LLC, a limited liability company duly organized
and validly existing under the laws of New York, and MEDIACOM MANAGEMENT
CORPORATION, a corporation duly organized and validly existing under the laws of
Delaware (each, individually, a "Parent Guarantor" and, collectively, the
----------------
"Parent Guarantors"); and THE CHASE MANHATTAN BANK, as administrative agent for
------------------
the lenders or other financial institutions or entities party, as lenders, to
the Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
--------------------
The Parent Guarantors and the Administrative Agent are parties to an
Amended and Restated Guarantee and Pledge Agreement dated as of December 27,
1996 (the "Existing Guarantee and Pledge Agreement"), pursuant to which the
---------------------------------------
Parent Guarantors have agreed to guarantee the Guaranteed Obligations (as
defined therein) and have pledged and granted a security interest in the
Collateral (as so defined) as security for the Secured Obligations (as so
defined) including, inter alia, obligations of Mediacom California LLC
----- ----
("Mediacom California") and Mediacom Arizona LLC ("Mediacom Arizona") under an
--------------------- ----------------
Amended and Restated Credit Agreement dated as of December 27, 1996 (the
"Existing Credit Agreement") between Mediacom California, Mediacom Arizona,
--------------------------
certain lenders and the Administrative Agent. Concurrently with the execution
and delivery of this Agreement, the parties to the Existing Credit Agreement are
amending and restating the Existing Credit Agreement to increase the amount of
credit available thereunder, to add the New Lenders (as defined therein) as
parties thereto, to add Mediacom Delaware LLC ("Mediacom Delaware" and, together
-----------------
with Mediacom California and Mediacom Arizona, the "Borrowers") as an additional
---------
borrower thereunder and to amend certain of the other provisions thereof
pursuant to a Second Amended and Restated Credit Agreement dated as of June 24,
1997 (as modified and supplemented and in effect from time to time, the "Credit
------
Agreement"). In addition, the Borrowers may from time to time be obligated to
---------
various of said lenders in respect of Interest Rate Protection Agreements
permitted under Section 8.08(e) of the Credit Agreement (such indebtedness being
herein referred to as the "Hedging Indebtedness").
--------------------
To induce said lenders to amend and restate the Existing Credit
Agreement pursuant to the Credit Agreement and to extend credit thereunder and
to extend credit to the Borrowers that would constitute Hedging Indebtedness,
and for other good
-2-
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Parent Guarantor has agreed to guarantee the Guaranteed
Obligations (as hereinafter defined), and to pledge and grant a security
interest in the Collateral (as so defined) as security for the Secured
Obligations (as so defined), and to confirm the prior pledge and grant of a
security interest in the Collateral pursuant to the Existing Guarantee and
Pledge Agreement and, in that connection to amend and restate in its entirety
the Existing Guarantee and Pledge Agreement. Accordingly, the parties hereto
agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
-----------
used herein as defined therein. In addition, as used herein:
"Collateral" shall have the meaning ascribed thereto in Section 4
----------
hereof.
"Guaranteed Obligations" shall have the meaning ascribed thereto in
----------------------
Section 2.01 hereof.
"Pledged LLC Interest" shall have the meaning ascribed thereto in
--------------------
Section 4(a) hereof.
"Secured Obligations" shall mean, collectively, (a) all obligations of
-------------------
the Parent Guarantors in respect of their Guarantee under Section 2 hereof
and (b) all other obligations of the Parent Guarantors to the Lenders and
the Administrative Agent hereunder.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
-----------------------
effect from time to time in the State of New York.
Section 2. The Guarantee.
-------------
2.01 The Guarantee. Subject to Section 7.13 hereof, the Parent
-------------
Guarantors hereby jointly and severally guarantee to each Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to,
and the Note(s) held by each Lender of, the Borrowers and all other amounts from
time to time owing to the Lenders or the Administrative Agent by the Borrowers
under the Credit Agreement and under the Notes, and all Hedging Indebtedness of
the
-3-
Borrowers, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations").
----------------------
Subject to Section 7.13 hereof, the Parent Guarantors hereby further jointly and
severally agree that if the Borrowers shall fail to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Parent Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. Subject to Section 7.13 hereof, the
-------------------------
obligations of the Parent Guarantors under Section 2.01 hereof are absolute and
unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the Credit Agreement, the Notes or any
other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.02 that the obligations of the
Parent Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of
the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the Parent Guarantors
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Parent Guarantors, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Credit Agreement or the Notes or any other agreement or instrument referred
to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the
-4-
Notes or any other agreement or instrument referred to herein or therein
shall be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in part
or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Parent Guarantors hereby expressly waive diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrowers under the Credit Agreement or the Notes or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.
2.03 Reinstatement. The obligations of the Parent Guarantors under
-------------
this Section 2 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrowers in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Parent Guarantors jointly and
severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
2.04 Subrogation. Each Parent Guarantor hereby waives all rights of
-----------
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 2 and further agrees with each Borrower for the
benefit of each of its creditors (including, without limitation, each Lender and
the Administrative Agent) that any such payment by it shall constitute a
contribution of capital by such Parent Guarantor to such Borrower (or an
-5-
investment in the equity capital of such Borrower by such Parent Guarantor).
2.05 Remedies. The Parent Guarantors jointly and severally agree
--------
that, as between the Parent Guarantors and the Lenders, the obligations of the
Borrowers under the Credit Agreement and the Notes may be declared to be
forthwith due and payable as provided in Section 9 of the Credit Agreement (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 9) for purposes of Section 2.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrowers and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrowers) shall forthwith
become due and payable by the Parent Guarantors for purposes of said Section
2.01.
2.06 Instrument for the Payment of Money. Each Parent Guarantor
-----------------------------------
hereby acknowledges that the guarantee in this Section 2 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Parent Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
2.07 Continuing Guarantee. The guarantee in this Section 2 is a
--------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
Section 3. Representations and Warranties. Each Parent Guarantor
------------------------------
represents and warrants to the Lenders and the Administrative Agent that:
3.01 Corporate Existence. Each Parent Guarantor (a) is a
-------------------
corporation, partnership, limited liability company or other entity duly
organized and validly existing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate, partnership, limited liability
company 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 conducted; and (c) is qualified
to do business in all jurisdictions in which the nature of the business
conducted by it makes such qualification
-6-
necessary and where failure so to qualify could (either individually or in the
aggregate) have a Material Adverse Effect.
3.02 No Breach. None of the execution and delivery of this
---------
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws, the
partnership agreement, the limited liability company agreement or other
organizational instrument of such Parent Guarantor, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which such
Parent Guarantor or any of its Subsidiaries is a party or by which any of them
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 hereto)
result in the creation or imposition of any Lien upon any of the revenues or
assets of such Parent Guarantor or any of its Subsidiaries pursuant to the terms
of any such agreement or instrument.
3.03 Action. Such Parent Guarantor has all necessary corporate,
------
partnership, limited liability company or other power and authority to execute,
deliver and perform its obligations under this Agreement; the execution,
delivery and performance by such Parent Guarantor of this Agreement have been
duly authorized by all necessary corporate or other action on its part; and this
Agreement has been duly and validly executed and delivered by such Parent
Guarantor and constitutes its legal, valid and binding obligation, enforceable
against such Parent Guarantor in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws or general applicability affecting the
enforcement of creditors' rights and (b) the application of general principles
of equity (regardless of whether considered in a proceeding in equity or at
law).
3.04 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 such Parent Guarantor of this Agreement or for the validity or
enforceability hereof except for the filings and recordings in respect of the
Liens created hereby, except for (i) filings and recordings in respect of the
Liens created pursuant hereto and (ii) the exercise of remedies hereunder the
Security Documents may require the prior approval of the FCC or the issuing
municipalities or States under one or more of the Franchises.
-7-
3.05 Pledged LLC Interest.
--------------------
(a) Such Parent Guarantor has all right, title and interest in, to
and under, and is the record owner of, the Collateral in which it purports to
grant a security interest pursuant to Section 4 hereof, and no Lien exists or
will exist upon such Collateral at any time (and no right or option to acquire
the same exists in favor of any other Person), except for the pledge and
security interest in favor of the Administrative Agent for the benefit of the
Lenders created or provided for herein, which pledge and security interest
constitute a first priority perfected pledge and security interest in and to all
of such Collateral.
(b) The Pledged LLC Interest, and all other Pledged LLC Interest in
which such Parent Guarantor shall hereafter grant a security interest pursuant
to Section 4 hereof will be, duly authorized, validly existing, fully paid and
non-assessable and none of such Pledged LLC Interest is or will be subject to
any contractual restriction, upon the transfer of such Pledged LLC Interest
(except for any such restriction contained herein or under any of the Operating
Agreements).
(c) The Pledged LLC Interest constitutes all of the ownership
interests of the Borrowers beneficially owned by such Parent Guarantor on the
date hereof (whether or not registered in the name of such Parent Guarantor),
and such Parent Guarantor is the registered owner of all such ownership
interests.
3.06 Investment Company Act. Such Parent Guarantor is not an
----------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
3.07 Public Utility Holding Company Act. Such Parent Guarantor is
----------------------------------
not 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.
Section 4. The Pledge. As collateral security for the prompt payment
----------
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, each Parent Guarantor hereby pledges and grants to the
Administrative Agent (and hereby confirms the prior pledge and grant to the
Administrative Agent pursuant to the Existing Guarantee and
-8-
Pledge Agreement), for the benefit of the Lenders as hereinafter provided, a
security interest in all of such Parent Guarantor's right, title and interest in
the following property, whether now owned by such Parent Guarantor or hereafter
acquired and whether now existing or hereafter coming into existence (all being
collectively referred to herein as "Collateral"):
----------
(a) all the ownership interests of such Parent Guarantor in any
Borrower, all certificates, (if any) representing or evidencing such
ownership interests and all right, title and interest in, to and under any
Operating Agreement (including without limitation all of the right, title
and interest (if any) as a member to participate in the operation or
management of the respective Borrower and all of its ownership interests
under such Operating Agreement), and all present and future rights of such
Parent Guarantor to receive payment of money or other distribution of
payments arising out of or in connection with its ownership interests and
its rights under such Operating Agreement, now or hereafter owned by such
Parent Guarantor, in each case together with any certificates evidencing
the same (collectively, the "Pledged LLC Interest"); and
--------------------
(b) all proceeds of and to any of the foregoing (including, without
limitation, all causes of action, claims and warranties now or hereafter
held by either Parent Guarantor in respect of any of the items listed
above) and, to the extent related to any property described in said clauses
or such proceeds, all books, correspondence, credit files, records,
invoices and other papers.
Section 5. Covenants. Mediacom agrees that, until the payment and
---------
satisfaction in full of the Secured Obligations and the expiration or
termination of the Commitments of the Lenders under the Credit Agreement:
5.01 Financial Statements Etc.
-------------------------
Mediacom shall deliver to each of the Lenders:
(a) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that Mediacom
shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefor) or any national securities
exchange;
(b) promptly upon the mailing thereof to the members of Mediacom
generally, or to holders of any debt securities
-9-
of Mediacom, copies of all financial statements, reports and proxy
statements so mailed; and
(c) from time to time such other information regarding the financial
condition, operations, business or prospects of Mediacom or any of its
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.
5.02 Covenant Restrictions. Mediacom will not enter into, after the
---------------------
date of this Agreement, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon the Borrowers or any of their Subsidiaries with respect to (i) the
incurrence or payment of Indebtedness, (ii) the granting of Liens, (iii) the
declaration or payment of dividends, (iv) the making of loans, advances or
Investments or (v) the sale, assignment, transfer or other disposition of
Property.
5.03 Indebtedness. Mediacom will not create, incur or suffer to
------------
exist any Indebtedness other than (i) Indebtedness hereunder, (ii) unsecured
Indebtedness in respect of debt instruments issued by Mediacom under one or more
effective registration statements under the Securities Act of 1933, as amended,
so long as none of the Subsidiaries of Mediacom are directly or indirectly
obligated in respect of such Indebtedness and (iii) the Guarantee by Mediacom of
Indebtedness incurred by any Subsidiary of Mediacom, so long as (x) the
obligations of Mediacom in respect of such Guarantee is limited in recourse in a
manner consistent with the provisions of Section 7.13 hereof (i.e. limited in
recourse to a pledge by Mediacom of its equity interests in such Subsidiary as
provided herein) and (y) such Indebtedness shall not be entitled, directly or
indirectly, to the benefits of mandatory payment, prepayment or redemption
provisions based upon the issuance or incurrence by Mediacom of additional
Indebtedness or equity securities.
5.04 Modifications of Certain Documents. Mediacom will not consent
----------------------------------
to any modification, supplement or waiver of any of the provisions of the
Acquisition Agreements without the prior consent of the Administrative Agent
(with the approval of the Majority Lenders).
5.05 Allocation of Intercompany Expenses. Mediacom will allocate to
-----------------------------------
its Subsidiaries any expenses or other items
-10-
incurred by it on behalf of more than one of its Subsidiaries (such as data
processing, accounting, legal and other corporate overhead items) for any period
ratably in accordance with the gross operating revenue (excluding extraordinary
and unusual items and all non-cash items) of its Subsidiaries for such period.
Section 6. Further Assurances; Remedies. In furtherance of the grant
----------------------------
of the pledge and security interest pursuant to Section 4 hereof, the Parent
Guarantors hereby jointly and severally agree with each Lender and the
Administrative Agent as follows:
6.01 Delivery and Other Perfection. Each Parent Guarantor shall:
-----------------------------
(a) with respect to the ownership interests in any Borrower held by
such Parent Guarantor, execute and deliver written instructions to such
Borrower to register the Lien created hereunder in such ownership interests
in the registration books maintained by such Borrower for such purpose and
cause such Parent Guarantor to execute and deliver to the Administrative
Agent a written confirmation to the effect that the Lien created hereunder
in such ownership interests has been duly registered in such registration
books;
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Administrative Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Administrative Agent to exercise and
enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, causing any or all of the
Collateral to be transferred of record into the name of the Administrative
Agent or its nominee (and the Administrative Agent agrees that if any
Collateral is transferred into its name or the name of its nominee, the
Administrative Agent will thereafter promptly give to the respective Parent
Guarantor copies of any notices and communications received by it with
respect to the Collateral pledged by such Parent Guarantor hereunder);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Administrative Agent may
-11-
reasonably require in order to reflect the security interests granted by
this Agreement; and
(d) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Administrative Agent to be present at such
Parent Guarantor's place of business to receive copies of all
communications and remittances relating to the Collateral, and forward
copies of any notices or communications received by such Parent Guarantor
with respect to the Collateral, all in such manner as the Administrative
Agent may require.
6.02 Other Financing Statements and Liens. Without the prior written
------------------------------------
consent of the Administrative Agent (granted with the authorization of the
Lenders as specified in Section 10.09 of the Credit Agreement), neither Parent
Guarantor shall file or suffer to be on file, or authorize or permit to be filed
or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Collateral in which the Administrative Agent is
not named as the sole secured party for the benefit of the Lenders.
6.03 Preservation of Rights. The Administrative Agent shall not be
----------------------
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
6.04 Collateral.
----------
(a) The Parent Guarantors will cause the Collateral (together with
any "Pledged Stock" under the Security Agreement constituting ownership
interests of the Borrowers) to constitute at all times 100% of the aggregate
ownership interests of the Borrowers then outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Parent Guarantors shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Parent Guarantors jointly and severally agree that
--------
they will not vote the Collateral in any manner that is inconsistent with the
terms of this Agreement, the Credit Agreement, the Notes or any such other
instrument or agreement; and the Administrative Agent shall execute and deliver
-12-
to the Parent Guarantors or cause to be executed and delivered to the Parent
Guarantors all such proxies, powers of attorney, dividend and other orders, and
all such instruments, without recourse, as the Parent Guarantors may reasonably
request for the purpose of enabling the Parent Guarantors to exercise the rights
and powers that they are entitled to exercise pursuant to this Section 6.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, the Parent Guarantors shall be entitled to receive and retain any
dividends on the Collateral paid in cash out of earned surplus.
(d) If any Event of Default shall have occurred, then so long as such
Event of Default shall continue, and whether or not the Administrative Agent or
any Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Collateral shall be paid directly to the Administrative
Agent and retained by it in the Collateral Account as part of the Collateral,
subject to the terms of this Agreement, and, if the Administrative Agent shall
so request in writing, the Parent Guarantors jointly and severally agree to
execute and deliver to the Administrative Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided that if such
--------
Event of Default is cured, any such dividend or distribution theretofore paid to
the Administrative Agent shall, upon request of the Parent Guarantors (except to
the extent theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to the Parent Guarantors.
6.05 Events of Default, Etc. During the period during which an Event
----------------------
of Default shall have occurred and be continuing:
(a) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to the
maximum extent permitted by law, to exercise all voting, consensual and
other powers of ownership pertaining to the Collateral as if the
-13-
Administrative Agent were the sole and absolute owner thereof (and each
Parent Guarantor agrees to take all such action as may be appropriate to
give effect to such right);
(b) the Administrative Agent in its discretion may, in its name or in
the name of the Parent Guarantors or otherwise, demand, xxx for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(c) the Administrative Agent may, upon ten business days' prior
written notice to the Parent Guarantors of the time and place, with respect
to the Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Administrative Agent deems best, and for
cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Parent
Guarantors, any such demand, notice and right or equity being hereby
expressly waived and released. The Administrative Agent may, without
notice or publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which
the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
6.05 shall be applied in accordance with Section 6.09 hereof.
The Parent Guarantors recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Administrative Agent may be compelled, with respect
to any sale of all or any
-14-
part of the Collateral, to limit purchasers to those who will agree, among other
things, to acquire the Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. The Parent Guarantors
acknowledge that any such private sales may be at prices and on terms less
favorable to the Administrative Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agree
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Administrative Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit the Borrowers or issuer thereof to
register it for public sale.
6.06 Deficiency. If the proceeds of sale, collection or other
----------
realization of or upon the Collateral pursuant to Section 6.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Parent Guarantors shall remain liable
for any deficiency.
6.07 Removals, Etc. Without at least 30 days' prior written notice
-------------
to the Administrative Agent, neither Parent Guarantor shall (i) maintain any of
its books and records with respect to the Collateral at any office or maintain
its principal place of business at any place other than at the address indicated
beneath its signature hereto or (ii) change its corporate name, or the name
under which it does business, from the name shown on the signature pages hereto.
6.08 Private Sale. The Administrative Agent and the Lenders shall
------------
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 6.05 hereof conducted in a
commercially reasonable manner. Each Parent Guarantor hereby waives any claims
against the Administrative Agent or any Lender arising by reason of the fact
that the price at which the Collateral may have been sold at such a private sale
was less than the price that might have been obtained at a public sale or was
less than the aggregate amount of the Secured Obligations, even if the
Administrative Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
6.09 Application of Proceeds. Except as otherwise herein expressly
-----------------------
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the
-15-
Administrative Agent under this Section 6, shall be applied by the
Administrative Agent:
First, to the payment of the costs and expenses of such collection,
-----
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each case
----
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
Finally, to the payment to the respective Parent Guarantor, or their
-------
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
As used in this Section 6, "proceeds" of Collateral shall mean cash,
--------
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Parent Guarantors or any issuer of or
obligor on any of the Collateral.
6.10 Attorney-in-Fact. Without limiting any rights or powers granted
----------------
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the attorney-
in-fact of each Parent Guarantor for the purpose of carrying out the provisions
of this Section 6 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 6 to make collections
in respect of the Collateral, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
either Parent Guarantor representing any dividend, payment or other distribution
in respect of the Collateral or any part thereof and to give full discharge for
the same.
6.11 Perfection. Prior to or concurrently with the execution and
----------
delivery of this Agreement, each Parent Guarantor
-16-
shall (i) file such financing statements and other documents in such offices as
the Administrative Agent may request to perfect the security interests granted
in Section 3 of this Agreement, (ii) register the pledge of its ownership
interests in the Borrowers hereunder for purposes of Article 8 of the Uniform
Commercial Code and (iii) deliver to the Administrative Agent any certificates
representing the Pledged LLC Interest, accompanied by undated stock powers duly
executed in blank.
6.12 Termination. When all Secured Obligations shall have been paid
-----------
in full and the Commitments of the Lenders under the Credit Agreement shall have
expired or been terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the respective Parent Guarantor.
6.13 Further Assurances. Each Parent Guarantor agrees that, from
------------------
time to time upon the written request of the Administrative Agent, such Parent
Guarantor will execute and deliver such further documents and do such other acts
and things as the Administrative Agent may reasonably request in order fully to
effect the purposes of this Agreement.
Section 7. Miscellaneous.
-------------
7.01 No Waiver. No failure on the part of the Administrative Agent
---------
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
7.02 Notices. All notices, requests, consents and demands hereunder
-------
shall be in writing and telecopied or delivered to the intended recipient at the
"Address for Notices" specified beneath its name on the signature pages hereof
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or
-17-
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
7.03 Expenses. The Parent Guarantors jointly and severally agree to
--------
reimburse each of the Lenders and the Administrative Agent for all reasonable
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 proceeding
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (w) performance by the Administrative Agent of any
obligations of the Parent Guarantors in respect of the Collateral that the
Parent Guarantors have failed or refused to perform, (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Administrative
Agent in respect thereof, by litigation or otherwise, (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 7.03, and all such
costs and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to Section 3 hereof.
7.04 Amendments, Etc. The terms of this Agreement may be waived,
---------------
altered or amended only by an instrument in writing duly executed by each Parent
Guarantor and the Administrative Agent (with the consent of the Lenders as
specified in Section 10.09 of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Administrative Agent and each Lender, each
holder of any of the Secured Obligations and each Parent Guarantor.
-18-
7.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of each Parent
Guarantor, the Administrative Agent, the Lenders and each holder of any of the
Secured Obligations (provided, however, that neither Parent Guarantor shall
--------
assign or transfer its rights hereunder without the prior written consent of the
Administrative Agent).
7.06 Captions. The 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.
7.07 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.
7.08 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 Parent Guarantor 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 Parent Guarantor
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 forum.
7.09 Waiver of Jury Trial. EACH OF THE PARENT GUARANTORS AND THE
--------------------
ADMINISTRATIVE AGENT (FOR ITSELF AND ON BEHALF OF 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.
7.10 Certain Regulatory Requirements. Any provision contained herein
-------------------------------
to the contrary notwithstanding, no action shall be taken hereunder by the
Administrative Agent or any Lender with
-19-
respect to any item of Collateral unless and until all applicable requirements
(if any) of the FCC under the Federal Communications Act of 1934, as amended,
and the respective rules and regulations thereunder and thereof, as well as any
other federal, state or local laws, rules and regulations of other regulatory or
governmental bodies (including, without limitation, any municipality that has
issued any Franchise to the Borrowers or any of their Subsidiaries) applicable
to or having jurisdiction over the Parent Guarantors (or any entity under the
control of the Parent Guarantors), have been satisfied with respect to such
action and there have been obtained such consents, approvals and authorizations
(if any) as may be required to be obtained from the FCC, any operating
municipality and any other governmental authority under the terms of any
Franchise, any license or similar operating right held by the Parent Guarantors
(or any entity under the control of the Parent Guarantors). It is the intention
of the parties hereto that the Liens in favor of the Administrative Agent on the
Collateral shall in all relevant aspects be subject to and governed by said
statutes, rules and regulations and the Franchise(s) and that nothing in this
Agreement shall be construed to diminish the control exercised by the Parent
Guarantors except in accordance with the provisions of such statutory
requirements, rules and regulations and the Franchises. Each Parent Guarantor
agrees that upon request from time to time by the Administrative Agent it will
use its best efforts to obtain any governmental, regulatory or third party
consents, approvals or authorizations referred to in this Section 7.10.
7.11 Agents and Attorneys-in-Fact. The Administrative Agent may
----------------------------
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-in-
fact selected by it in good faith.
7.12 Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
-20-
7.13 Limitation of Liability. It is understood that, except for the
-----------------------
representations and warranties made by the Parent Guarantors herein, the sole
recourse of the Administrative Agent and the Lenders in respect of the
obligations of the Parent Guarantors hereunder shall be to the Collateral
hereunder and that nothing contained herein shall create any obligation of or
right to look to either Parent Guarantor or its assets individually for the
satisfaction of such obligations.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Guarantee and Pledge Agreement to be duly executed and delivered as
of the day and year first above written.
MEDIACOM LLC
By _______________________________
Title:
Address for Notices:
Mediacom LLC
00 Xxxxxxx Xxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
MEDIACOM MANAGEMENT CORPORATION
By _________________________________
Title:
Address for Notices:
Mediacom Management Corporation
00 Xxxxxxx Xxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
-00-
XXX XXXXX XXXXXXXXX BANK,
as Administrative Agent
By ______________________________
Title:
Address for Notices:
The Chase Manhattan Bank, as
Administrative Agent
Agent Bank Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Vice President
EXHIBIT E
[Form of Subsidiary Guarantee Agreement]
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT dated as of ____________, 199__ by
[NAME OF SUBSIDIARY GUARANTOR], a ___________ corporation (the "Subsidiary
----------
Guarantor") in favor of THE CHASE MANHATTAN BANK, as administrative agent for
---------
the banks or other financial institutions or entities party, as lenders, to the
Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
--------------------
Mediacom California LLC, a Delaware limited liability company
("Mediacom California"), Mediacom Delaware LLC, a Delaware limited liability
---------------------
company ("Mediacom Delaware"), Mediacom Arizona LLC, a Delaware limited
-----------------
liability company ("Mediacom Arizona" and, together with Mediacom California and
----------------
Mediacom Delaware, the "Borrowers"), certain lenders, the Administrative Agent
---------
and First Union National Bank, as Documentation Agent, are parties to a Second
Amended and Restated Credit Agreement dated as of June 24, 1997 (as modified and
supplemented and in effect from time to time, the "Credit Agreement"),
----------------
providing, subject to the terms and conditions thereof, for loans to be made by
said lenders to the Borrowers in an aggregate principal amount not exceeding
$100,000,000. In addition, the Borrowers may from time to time be obligated to
various of said lenders in respect of Interest Rate Protection Agreements
permitted under Section 8.08(e) of the Credit Agreement (such indebtedness being
herein referred to as the "Hedging Indebtedness").
--------------------
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder and to extend credit to the Borrowers that would
constitute Hedging Indebtedness, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Subsidiary
Guarantor has agreed to guarantee the Guaranteed Obligations (as hereinafter
defined) and to become a Securing Party under the Security Agreement (as so
defined) and to pledge and grant a security interest in the Collateral (as so
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
-2-
Section 1. Definitions. Terms defined in the Credit Agreement are
-----------
used herein as defined therein. In addition, the terms "Collateral" and
"Securing Party" shall have the respective meanings assigned to such terms in
the Security Agreement.
Section 2. The Guarantee.
-------------
2.01 The Guarantee. The Subsidiary Guarantor hereby guarantees to
-------------
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Note(s) held by each Lender of, the Borrowers and all
other amounts from time to time owing to the Lenders or the Administrative Agent
by the Borrowers under the Credit Agreement and under the Notes, and all Hedging
Indebtedness of the Borrowers, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "Guaranteed
----------
Obligations"). The Subsidiary Guarantor hereby further agrees that if the
-----------
Borrowers shall fail to pay in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise) any of the Guaranteed
Obligations, the Subsidiary Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of the Subsidiary
-------------------------
Guarantor under Section 2.01 hereof are absolute and unconditional irrespective
of the value, genuineness, validity, regularity or enforceability of the Credit
Agreement, the Notes or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 2.02 that the
obligations of the Subsidiary Guarantor hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the Subsidiary Guarantor
-3-
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantor, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Credit Agreement or the Notes or any other agreement or instrument referred
to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantor hereby expressly waives diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrowers under the Credit Agreement or the Notes or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.
2.03 Reinstatement. The obligations of the Subsidiary Guarantor
-------------
under this Section 2 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrowers in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Subsidiary Guarantor agrees
that it will indemnify the
-4-
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
2.04 Subrogation. The Subsidiary Guarantor hereby waives all rights
-----------
of subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 2 and further agrees with each Borrower for the
benefit of each of its creditors (including, without limitation, each Lender and
the Administrative Agent) that any such payment by it shall constitute a
contribution of capital by the Subsidiary Guarantor to such Borrower (or an
investment in the equity capital of such Borrower by the Subsidiary Guarantor).
2.05 Remedies. The Subsidiary Guarantor agrees that, as between the
--------
Subsidiary Guarantor and the Lenders, the obligations of the Borrowers under the
Credit Agreement and the Notes may be declared to be forthwith due and payable
as provided in Section 9 of the Credit Agreement (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 9) for purposes of Section 2.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrowers and that,
in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Borrowers) shall forthwith become due and payable by the
Subsidiary Guarantor for purposes of said Section 2.01.
2.06 Instrument for the Payment of Money. The Subsidiary Guarantor
-----------------------------------
hereby acknowledges that the guarantee in this Section 2 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by the
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
-5-
2.07 Continuing Guarantee. The guarantee in this Section 2 is a
--------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.08 General Limitation on Guarantee Obligations. In any action or
-------------------------------------------
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Subsidiary Guarantor under
Section 2.01 hereof would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under said Section 2.01, then, notwithstanding
any other provision hereof to the contrary, the amount of such liability shall,
without any further action by the Subsidiary Guarantor, the Administrative
Agent, the Lenders or any other Person, be automatically limited and reduced to
the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
2.09 Obligations Joint and Several. The obligations of the
-----------------------------
Subsidiary Guarantor hereunder shall be joint and several with the obligations
of each other Securing Party under each other Subsidiary Guarantee Agreement or
under the Credit Agreement, as the case may be.
Section 3. Grant of Security. The Subsidiary Guarantor hereby agrees
-----------------
to become a "Securing Party" under and for all purposes of the Security
Agreement and hereby undertakes all of the obligations of a Securing Party
thereunder as if it had been an original signatory thereto. Without limiting
the foregoing, the Subsidiary Guarantor hereby pledges and grants to the
Administrative Agent, for the benefit of the Lenders as provided in the Security
Agreement, a security interest in all of the Subsidiary Guarantor's right, title
and interest in all Collateral, whether now owned by the Subsidiary Guarantor or
hereafter acquired and whether now existing or hereafter coming into existence,
and wherever located. In addition, (x) the Subsidiary Guarantor hereby makes
the representations and warranties set forth in Section 2 of the Security
Agreement and (y) Annex 1 to the Security Agreement shall be deemed to be
supplemented in respect of the Subsidiary Guarantor as specified in Appendix A
hereto.
-6-
Section 4. Representations and Warranties. The Subsidiary Guarantor
------------------------------
represents and warrants to the Lenders and the Administrative Agent that:
4.01 Corporate Existence. The Subsidiary Guarantor: (a) is a
-------------------
corporation, partnership, limited liability company or other entity duly
organized and validly existing under the laws of its jurisdiction of
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
conducted; and (c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify would (either individually or in the aggregate) have
a Material Adverse Effect.
4.02 No Breach. None of the execution and delivery of this
---------
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter, by-laws or other
organizational instrument of the Subsidiary Guarantor, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which the
Subsidiary Guarantor is a party or by which it is bound or to which it is
subject, or constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any of the revenues or
assets of the Subsidiary Guarantor pursuant to the terms of any such agreement
or instrument.
4.03 Action. The Subsidiary Guarantor has all necessary corporate or
------
other power and authority to execute, deliver and perform its obligations under
this Agreement; the execution, delivery and performance by the Subsidiary
Guarantor of this Agreement have been duly authorized by all necessary corporate
or other action on its part; and this Agreement has been duly and validly
executed and delivered by the Subsidiary Guarantor and constitutes its legal,
valid and binding obligation, enforceable against the Subsidiary Guarantor in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws or
general applicability affecting the enforcement of creditors' rights and (b) the
application of
-7-
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
4.04 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 the Subsidiary Guarantor of this Agreement or for the validity or
enforceability hereof, except for filings and recordings in respect of the Liens
created pursuant to the Security Agreement (as supplemented hereby), and except
that the exercise of remedies under the Security Agreement (and the creation of
a valid security interest in the Franchises as described to Section 8.19 of the
Credit Agreement) may require the prior approval of the FCC, or of the issuing
municipalities or States under one or more of the Franchises.
Section 5. Miscellaneous.
-------------
5.01 No Waiver. No failure on the part of the Administrative Agent
---------
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.02 Notices. All notices, requests, consents and demands hereunder
-------
shall be in writing and telecopied or delivered to the Subsidiary Guarantor at
the "Address for Notices" specified for Mediacom California pursuant to the
Credit Agreement and, to the Administrative Agent, at its "Address for Notices"
specified pursuant to the Credit Agreement or, as to either party, at such other
address as shall be designated by such party in a notice to the other party.
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.
5.03 Expenses. The Subsidiary Guarantor agrees to reimburse each of
--------
the Lenders and the Administrative Agent for all reasonable costs and expenses
of the Lenders and the
-8-
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceeding 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 5.03.
5.04 Amendments, Etc. The terms of this Agreement may be waived,
----------------
altered or amended only by an instrument in writing duly executed by the
Subsidiary Guarantor and the Administrative Agent (with the consent of the
Lenders as specified in Section 10.09 of the Credit Agreement). Any such
amendment or waiver shall be binding upon the Administrative Agent and each
Lender, each holder of any of the Guaranteed Obligations and the Subsidiary
Guarantor.
5.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of the
Subsidiary Guarantor, the Administrative Agent, the Lenders and each holder of
any of the Guaranteed Obligations (provided, however, that the Subsidiary
--------
Guarantor shall not assign or transfer its rights hereunder without the prior
written consent of the Administrative Agent).
5.06 Captions. The 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.
5.07 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.08 Governing Law; Submission to Jurisdiction. This Agreement
-----------------------------------------
shall be governed by, and construed in accordance with, the law of the State of
New York. The Subsidiary Guarantor 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
-9-
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. The
Subsidiary Guarantor 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
forum.
5.09 Waiver of Jury Trial. EACH OF THE SUBSIDIARY GUARANTOR AND THE
--------------------
ADMINISTRATIVE AGENT (FOR ITSELF AND ON BEHALF OF 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.
5.10. Opinion of Counsel. The Subsidiary Guarantor hereby instructs
------------------
its counsel to deliver the opinions referred to in Section 8.18(a)(iii) of the
Credit Agreement to the Lenders and the Administrative Agent.
5.11 Agents and Attorneys-in-Fact. The Administrative Agent may
----------------------------
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-in-
fact selected by it in good faith.
5.12 Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
-10-
IN WITNESS WHEREOF, the Subsidiary Guarantor has caused this
Subsidiary Guarantee Agreement to be duly executed and delivered as of the day
and year first above written.
[NAME OF SUBSIDIARY GUARANTOR]
By ________________________
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By ________________________
Title:
Appendix A
to
Subsidiary Guarantee
Agreement
Supplement to Annex 1:
[to be completed]
EXHIBIT F
[Form of Management Fee Subordination Agreement]
SECOND AMENDED AND RESTATED MANAGEMENT FEE
SUBORDINATION AGREEMENT
SECOND AMENDED AND RESTATED MANAGEMENT FEE SUBORDINATION AGREEMENT dated as of
June 24, 1997, between:
(i) MEDIACOM MANAGEMENT CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware
("Manager Entity");
----------------
(ii) MEDIACOM CALIFORNIA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("Mediacom California");
---------------------
(iii) MEDIACOM DELAWARE LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("Mediacom Delaware");
-------------------
(iv) MEDIACOM ARIZONA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("Mediacom Arizona" and, together with Mediacom California and Mediacom
------------------
Delaware, the "Borrowers"); and
---------
(v) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the lenders or other financial institutions or
entities party, as lenders, to the Credit Agreement referred to below (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
---------------------
The Manager Entity, Mediacom California, Mediacom Arizona and the
Administrative Agent are parties to an Amended and Restated Management Fee
Subordination Agreement dated as of December 27, 1996 (the "Existing Management
-------------------
Subordination Agreement"), pursuant to which the Manager Entity has agreed to
-----------------------
subordinate the Subordinated Debt (as defined therein) to the Senior Debt (as
defined therein) including, inter alia, obligations of Mediacom California and
----- ----
Mediacom Arizona under an Amended and Restated Credit Agreement dated as of
December 27, 1996 (the "Existing Credit Agreement") between Mediacom California,
-------------------------
Mediacom Arizona, certain lenders and the Administrative Agent. Concurrently
with the execution and delivery of this Agreement, the parties to the Existing
Credit
-2-
Agreement are amending and restating the Existing Credit Agreement to
increase the amount of credit available thereunder, to add the New Lenders (as
defined therein) as parties thereto, to add Mediacom Delaware as an additional
borrower thereunder and to amend certain of the other provisions thereof
pursuant to a Second Amended and Restated Credit Agreement dated as of June 24,
1997 (as modified and supplemented and in effect from time to time, the "Credit
------
Agreement"). In addition, the Borrowers may from time to time be obligated to
---------
various of said lenders in respect of Interest Rate Protection Agreements
permitted under Section 8.08(e) of the Credit Agreement (such indebtedness being
herein referred to as the "Hedging Indebtedness").
--------------------
To induce said lenders to amend and restate the Existing Credit Agreement
pursuant to the Credit Agreement and to extend credit thereunder and to extend
credit to the Borrowers that would constitute Hedging Indebtedness, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Manager Entity has agreed to subordinate the
Subordinated Debt (as hereinafter defined) to the Senior Debt (as so defined)
all in the manner and to the extent hereinafter provided, and to confirm its
prior subordination of the Subordinated Debt to the Senior Debt pursuant to the
Existing Management Subordination Agreement and, in that connection to amend and
restate in its entirety the Existing Management Subordination Agreement.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
-----------
herein as defined therein. In addition, as used herein:
"Obligor Entity" shall mean, collectively, the Borrowers and, effective upon
--------------
execution and delivery of any Subsidiary Guarantee Agreement, any Subsidiary of
a Borrower so executing and delivering such Subsidiary Guarantee Agreement.
"Senior Debt" shall mean, collectively, the following indebtedness and
-----------
obligations:
(a) all indebtedness or other obligations of the Borrowers under the
Credit Agreement and the other Loan Documents, including all interest,
expenses, indemnities and penalties and all commitment and agency fees
payable from
-3-
time to time under the Credit Agreement and the other Loan Documents;
(b) all Hedging Indebtedness;
(c) all obligations of any Subsidiary of a Borrower in respect of any
Subsidiary Guarantee Agreement executed and delivered by such Subsidiary;
and
(d) any deferrals, renewals, extensions or refinancings of any of the
foregoing.
The term "Senior Debt" shall include any interest, and any expenses of the type
described in Section 11.03 of the Credit Agreement (or comparable provisions of
any other Loan Document), accruing or arising after the date of any filing by
any Obligor Entity of any petition in bankruptcy or the commencing of any
bankruptcy, insolvency or similar proceedings with respect to any Obligor
Entity, whether or not such interest or expenses are allowable as a claim in any
such proceeding.
"Subordinated Debt" shall mean all obligations of the Borrowers or their
-----------------
Subsidiaries with respect to any Management Fee payable by the Borrowers or any
of their Subsidiaries to the Manager Entity.
Section 2. Subordination.
-------------
2.01 Subordination of Subordinated Debt. The Manager Entity, on its own
----------------------------------
behalf and on behalf of each subsequent holder of Subordinated Debt, hereby
covenants and agrees, that, to the extent and in the manner set forth in this
Agreement, the Subordinated Debt, and the payment from whatever source of the
Subordinated Debt, are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Senior Debt and in that
connection hereby agrees that, except and to the extent permitted under Section
2.03 hereof, (a) no payment on account of the Subordinated Debt or any judgment
with respect thereto shall be made by or on behalf of the Obligor Entities and
(b) the Manager Entity shall not (i) ask, demand, xxx for, take or receive from
the Obligor Entities, by set-off or in any other manner, or (ii) seek any other
remedy allowed at law or in equity against the Obligor Entities for
-4-
breach of any Obligor Entity's obligations under the instruments representing
such Subordinated Debt.
In the event that, notwithstanding the foregoing provisions of this Section
2.01, the Manager Entity shall have received any payment not permitted by the
provisions of Section 2.03 hereof, including, without limitation, any such
payment arising out of the exercise by the Manager Entity of a right of set-off
or counterclaim and any such payment received by reason of other indebtedness of
any Obligor Entity being subordinated to the Subordinated Debt, then, and in any
such event, such payment shall be held in trust for the benefit of, and shall be
immediately paid over or delivered to, the Administrative Agent, to be paid to
the Lenders, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and interest and premium (if any) on, the Senior
Debt held or represented by each Lender, for application to such Senior Debt
remaining unpaid, whether or not then due and payable.
2.02 Payment of Proceeds Upon Dissolution. Without limiting the generality
------------------------------------
of the provisions of Section 2.01 hereof, in the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith, relative to any
Obligor Entity or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of any Obligor Entity, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of any Obligor Entity, then and in any such event:
(1) the Lenders shall be entitled to receive payment in full in cash of
all amounts due or to become due on or in respect of all Senior Debt, or
provision shall be made for such payment, before the Manager Entity shall
be entitled to receive any payment on account of the Subordinated Debt;
(2) any payment or distribution of assets of any Obligor Entity of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Manager Entity would be entitled but for the
provisions of this Agreement, including any such payment or distribution
that may be payable or deliverable by reason of
-5-
the payment of any other indebtedness of any Obligor Entity being
subordinated to the payment of the Subordinated Debt, shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the Administrative Agent, to be paid to
the Lenders, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and interest and premium (if any) on, the
Senior Debt held or represented by each Lender, to the extent necessary to
make payment in full in cash of all Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution to the Lenders;
(3) in the event that, notwithstanding the foregoing provisions of
this Section 2.02, the Manager Entity shall have received, before all
Senior Debt is paid in full in cash or payment thereof provided for, any
such payment or distribution of assets of any Obligor Entity of any kind or
character, whether in cash, property or securities, including any such
payment or distribution arising out of the exercise by the Manager Entity
of a right of set-off or counterclaim and any such payment or distribution
received by reason of any other indebtedness of any Obligor Entity being
subordinated to the Subordinated Debt, then, and in such event, such
payment or distribution shall be held in trust for the benefit of, and
shall be immediately paid over or delivered to, the Administrative Agent,
to be paid to the Lenders, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and interest and premium
(if any) on, the Senior Debt held or represented by each Lender, to the
extent necessary to make payment in full in cash of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or
distribution to the Lenders; and
(4) if the Manager Entity shall have failed to file claims or proofs
of claim with respect to the Subordinated Debt earlier than 30 days prior
to the deadline for any such filing, the Manager Entity shall execute and
deliver to the Administrative Agent such powers of attorney, assignments or
other instruments as the Administrative Agent may reasonably request to
file such claims or proofs of claim.
-6-
2.03 Certain Payments Permitted. Notwithstanding the foregoing, the Manager
--------------------------
Entity shall be entitled to receive and retain any payment of Management Fees
either (i) permitted under Section 8.11 of the Credit Agreement or (ii) made
after all Senior Debt shall have been paid in full and the Commitments of the
Lenders under the Credit Agreement shall have expired or been terminated.
2.04 Subrogation. Subject to the payment in full in cash of all Senior Debt,
-----------
the Manager Entity shall be subrogated (equally and ratably with the holders of
all indebtedness of the Obligor Entities that by its express terms is
subordinated to Senior Debt of the Obligor Entities to the same extent as the
Subordinated Debt is subordinated and that is entitled to like rights of
subrogation) to the rights of the Lenders to receive payments and distributions
of cash, property and securities applicable to the Senior Debt until the
Subordinated Debt shall be paid in full in cash. For purposes of such
subrogation, no payments or distributions to the Lenders of any cash, property
or securities to which the Manager Entity would be entitled except for the
provisions of this Section 2, and no payments over pursuant to the provisions of
this Section 2 to the Lenders by the Manager Entity, shall, as between the
Obligor Entities, their creditors other than the Lenders, and the Manager
Entity, be deemed to be a payment or distribution by the Obligor Entities to or
on account of the Senior Debt.
2.05 Provisions Solely to Define Relative Rights. The provisions of this
-------------------------------------------
Section 2 are and are intended solely for the purpose of defining the relative
rights of the Manager Entity on the one hand and the Lenders on the other hand.
Nothing contained in this Section 2 or elsewhere in this Agreement is intended
to or shall:
(a) impair, as among the Obligor Entities, their creditors other than
the Lenders and the Manager Entity, the obligation of the Obligor Entities
to pay to the Manager Entity the Subordinated Debt as and when the same
shall become due and payable in accordance with its terms; or
(b) affect the relative rights against the Obligor Entities of the
Manager Entity and creditors of the Obligor Entities other than the
Lenders.
-7-
2.06 No Waiver of Subordination Provisions. No right of the Administrative
-------------------------------------
Agent or any Lender to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Obligor Entities or by any act or failure to act, in good faith, by
the Administrative Agent or any Lender, or by any non-compliance by any Obligor
Entity with the terms, provisions and covenants of this Agreement, regardless of
any knowledge thereof the Administrative Agent or any Lender may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
Lenders may, at any time and from time to time, without the consent of or notice
to the Manager Entity, without incurring responsibility to the Manager Entity
and without impairing or releasing the subordination provided in this Section 2
or the obligations hereunder of the Manager Entity to the holders of Senior
Debt, do any one or more of the following: (a) change the time, manner or place
of payment of Senior Debt, or otherwise modify or supplement in any respect any
of the provisions of the Credit Agreement or any other instrument evidencing or
relating to any of the Senior Debt; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior Debt; (c)
release any Person liable in any manner for the collection of Senior Debt; and
(d) exercise or refrain from exercising any rights against the Obligor Entities
and any other Person.
Section 3. Representations and Warranties. The Manager Entity represents and
------------------------------
warrants to the Administrative Agent and each Lender that:
3.01 Existence. The Manager Entity is a corporation duly organized and
---------
validly existing under the laws of the State of Delaware.
3.02 No Breach. None of the execution and delivery of this Agreement, the
---------
consummation of the transactions herein contemplated or compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws or other organizational
instrument of the Manager Entity, any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the Manager Entity is a party or
by which the Manager Entity is bound or to which the Manager Entity is subject,
or constitute a default under any such agreement or
-8-
instrument, or result in the creation or imposition of any Lien upon any of the
revenues or assets of the Manager Entity pursuant to the terms of any such
agreement or instrument.
3.03 Action. The Manager Entity has all necessary corporate or other power,
------
authority and legal right to execute, deliver and perform its obligations under
this Agreement; the execution, delivery and performance by the Manager Entity of
this Agreement have been duly authorized by all necessary corporate or other
action on its part; and this Agreement has been duly and validly executed and
delivered by the Manager Entity and constitutes the legal, valid and binding
obligation of the Manager Entity, enforceable 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).
3.04 Approvals. No authorizations, approvals or consents of, and no filings
---------
or registrations with, any governmental or regulatory authority or agency are
necessary for the execution, delivery or performance by the Manager Entity of
this Agreement or for the validity or enforceability hereof.
Section 4. Miscellaneous.
-------------
4.01 No Waiver. No failure on the part of the Administrative Agent or any
---------
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Administrative Agent or
any Lender of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
4.02 Notices. All notices, requests, consents and demands hereunder shall be
-------
in writing and telecopied or delivered to the intended recipient at the "Address
for Notices" specified
-9-
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice to the other
party. 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.
4.03 Amendments, Etc. The terms of this Agreement may be waived, altered or
---------------
amended only by an instrument in writing duly executed by the Manager Entity and
(as to the Administrative Agent and the Lenders) by the Administrative Agent
with the consent of the Lenders as specified in Section 10.09 of the Credit
Agreement. Any such amendment or waiver shall be binding upon the
Administrative Agent and each Lender (and each other holder of Senior Debt) and
the Manager Entity.
4.04 Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the respective successors and assigns of the Manager Entity
and the Administrative Agent and each Lender (and each other holder of Senior
Debt).
4.05 Captions. The 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.
4.06 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
4.07 Governing Law; Submission to Jurisdiction. This Agreement shall be
-----------------------------------------
governed by, and construed in accordance with, the law of the State of New York.
The Manager Entity 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. The Manager Entity hereby
irrevocably waives, to the fullest extent permitted by applicable
- 10 -
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 forum.
4.08 Waiver of Jury Trial. EACH OF THE MANAGER ENTITY AND THE ADMINISTRATIVE
--------------------
AGENT (FOR ITSELF AND ON BEHALF OF 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.
-11-
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Management Fee Subordination Agreement to be duly executed and
delivered as of the day and year first above written.
MEDIACOM MANAGEMENT CORPORATION
By _______________________________
Title:
Address for Notices:
Mediacom Management Corporation
00 Xxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-12-
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
Address for Notices:
Mediacom California LLC
c/o Mediacom LLC
00 Xxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
Address for Notices:
Mediacom Delaware LLC
c/o Mediacom LLC
00 Xxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-13-
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
Address for Notices:
Mediacom Arizona LLC
c/o Mediacom LLC
00 Xxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-00-
XXX XXXXX XXXXXXXXX BANK,
as Administrative Agent
By _____________________________
Title:
Address for Notices:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Vice President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
EXHIBIT G
[Form of Opinion of Counsel to the Obligors]
_______, 1997
To the Lenders party to the
Credit Agreement referred to
below and The Chase Manhattan
Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to Mediacom California LLC ("Mediacom California"),
-------------------
Mediacom Delaware LLC ("Mediacom Delaware"), Mediacom Arizona LLC ("Mediacom
----------------- --------
Arizona" and, together with Mediacom California and Mediacom Delaware, the
-------
"Borrowers") Mediacom LLC ("Mediacom") and Mediacom Management Corporation (the
---------- --------
"Manager Entity") in connection with (i) the Second Amended and Restated Credit
--------------
Agreement (the "Credit Agreement") dated as of June 24, 1997, between the
----------------
Borrowers, the lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent, and First Union National Bank, as Documentation Agent,
providing for loans to be made by said lenders to the Borrowers in an aggregate
principal amount not exceeding $100,000,000 and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Except as otherwise expressly provided herein, terms defined in the
Credit Agreement are used herein as defined therein. This opinion letter is
being delivered pursuant to Section 6.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the following
agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes;
(c) the Security Agreement;
(d) the Guarantee and Pledge Agreement;
(e) the Management Fee Subordination Agreement executed and
delivered by the Manager Entity;
-2-
(f) financing statements being executed and delivered pursuant to
Section 6.01 of the Credit Agreement concurrently with the
delivery of this opinion (collectively, the "Financing
---------
Statements"); and
(g) such records of the Borrowers and such other documents as we have
deemed necessary as a basis for the opinions expressed below.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses (other than clauses (f) and (g) above) are collectively
referred to as the "Credit Documents"; the Borrowers, Mediacom and the Manager
----------------
Entity are herein collectively referred to as the "Relevant Parties".
----------------
We have also examined originals, or copies certified to our satisfaction, of
such corporate records, certificates of public officials of pertinent states,
certificates of corporate officers of the Relevant Parties and such other
instruments or documents as we have deemed necessary as a basis for the opinions
hereinafter set forth. As to questions of fact, we have, to the extent that
such facts were not independently established by us, relied upon such
certificates and we have assumed that any such certificates or other evidence
which was given or dated earlier than the date of this letter has remained
accurate, as far as relevant to the opinions contained herein, from such earlier
date through and including the date of this letter. In rendering the opinions
hereinafter set forth as to factual matters, we have also relied upon, and
assumed the accuracy of, the representations and warranties made in the Credit
Documents by the Relevant Parties. Whenever any statement herein is qualified
by our knowledge, it is intended to indicate that, during the course of our
representation of the Relevant Parties no information that would give us actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys presently in this firm and who are actively engaged in the
representation of the Relevant Parties.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as copies.
In rendering the opinions expressed below, we have assumed, with respect to
all of the documents referred to in this
-3-
opinion letter, that (except, to the extent set forth in the opinions expressed
below, as to the Relevant Parties):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid, binding
and enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate,
limited liability company, partnership or other) to execute,
deliver and perform such documents.
We have further assumed for purposes of paragraph 10 below, that the Financing
Statements will be filed in the appropriate office(s) no later than 10 days
after the initial Loans under the Credit Agreement.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and having considered such questions of law as
we have deemed necessary as a basis for the opinions expressed below, we are of
the opinion that:
1. Each Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Mediacom is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of New York. The Manager
Entity is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware.
2. Each Relevant Party has all requisite power to execute and deliver,
and to perform its obligations under, the Credit Documents to which it is a
party. Each Borrower has all requisite power to borrow under the Credit
Agreement.
-4-
3. The execution, delivery and performance by each Relevant Party of
each Credit Document to which it is a party, and the borrowings by each
Borrower under the Credit Agreement, have been duly authorized by all
necessary corporate or other action (as the case may be) on the part of
such Relevant Party.
4. Each Credit Document has been duly executed and delivered by each
Relevant Party party thereto.
5. Each of the Credit Documents constitutes the legal, valid and
binding obligation of each Relevant Party party thereto, enforceable
against such Relevant Party in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency of
the United States of America or the State of New York is required on the
part of any Relevant Party for the execution, delivery or performance by
any Relevant Party of any of the Credit Documents or for the borrowings by
each of the Borrowers under the Credit Agreement, except for (i) filings
and recordings in respect of the Liens created pursuant to the Security
Documents, (ii) the authorizations, approvals, consents, filings and
registrations contemplated by the Acquisition Agreements (each of which has
been made or obtained on or before the date hereof to the extent required
under the Acquisition Agreements to be obtained before the date hereof) and
(iii) the exercise of remedies under the Security Documents (and the
creation of a valid security interest in Franchises and the other
Collateral as described in Sections 6.01(f) and 8.18 of the Credit
Agreement) may require the prior approval of the FCC or the issuing
municipalities or States under one or more of the Franchises.
-5-
7. The execution, delivery and performance by each Relevant Party,
and the consummation by each Relevant Party of the transactions
contemplated by, the Credit Documents to which such Relevant Party is a
party do not and will not (a) violate any provision of the limited
liability company agreement, articles of organization, certificate of
formation or the charter or by-laws or other organizational instrument of
any Relevant Party, (b) violate any applicable law, rule or regulation, (c)
violate any order, writ, injunction or decree of any court or governmental
authority or agency or any arbitral award applicable to the Relevant
Parties of which we have knowledge (after due inquiry) or (d) result in a
breach of, constitute a default under, require any consent under, or result
in the acceleration or required prepayment of any indebtedness pursuant to
the terms of, any agreement or instrument of which we have knowledge to
which any Relevant Party is a party or by which any of them is bound or to
which any of them is subject, or (except for the Liens created pursuant to
the Security Documents) result in the creation or imposition of any Lien
upon any Property of any Relevant Party pursuant to, the terms of any such
agreement or instrument.
8. We have no knowledge of any legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or
agency, pending or threatened against or affecting the Relevant Parties or
any of their respective Properties that, if adversely determined, could
have a Material Adverse Effect.
9. The Security Agreement and the Guarantee and Pledge Agreement
(collectively, the "Collateral Documents") are each effective to create, in
--------------------
favor of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders, a valid security interest under the Uniform
Commercial Code as in effect in the State of New York (the "Uniform
-------
Commercial Code"), but only to the extent the Uniform Commercial Code is
---------------
applicable thereto, in all of the right, title and interest of each Obligor
in, to and under the Collateral (as defined in each Collateral Document)
owned by such Obligor as collateral security for the payment of the Secured
Obligations (as defined in each Collateral Document) of such Obligor,
except that (a) such security interest will continue in Collateral after
its sale,
-6-
exchange or other disposition only to the extent provided in
Sections 9-306 and 9-307 of the Uniform Commercial Code, (b) the security
interest in Collateral in which an Obligor acquires rights after the
commencement of a case under the Bankruptcy Code in respect of such Obligor
may be limited by Section 552 of the Bankruptcy Code, and (c) the creation
of a security interest in any Pledged Stock (as defined in the Security
Agreement) or Pledged LLC Interest (as defined in the Guarantee and Pledge
Agreement) constituting a "security" (as defined in Section 8-102(1)(c) of
the Uniform Commercial Code) requires the transfer of said Pledged Stock to
the Administrative Agent pursuant to Section 8-313(1) of the Uniform
Commercial Code, which transfer in the case of a "certificated security"
(as defined in Section 8-102(1)(a) of the Uniform Commercial Code) may be
effected in the manner contemplated by paragraph 10(a) below and which
transfer, in the case of an "uncertificated security" (as defined in
Section 8-102(1)(b) of the Uniform Commercial Code) may be effected in the
manner contemplated by paragraph 10(b)(ii) below.
10. The security interests referred to in paragraph 9 above in the
types of Collateral described below will be perfected as described below:
(a) such security interest in that portion of the Collateral
consisting of a certificated security (including the Pledged Stock
under and as defined in the Security Agreement) will, upon the
creation of such security interest, be perfected by the Administrative
Agent taking and thereafter retaining possession thereof (or any
certificates representing any such certificated security) in the State
of New York, except (i) in the case of the issuance of additional
shares or other distributions in respect of the Pledged Stock or
Pledged LLC Interest consisting of certificated securities, the
security interest of the Administrative Agent therein will be
perfected only if possession thereof is obtained in accordance with
the provisions of the Uniform Commercial Code and (ii) in the case of
the proceeds, continuation of the perfection of the security interest
of the Administrative Agent therein is limited to the extent set forth
in Section 9-306 of the Uniform Commercial Code; and
-7-
(b) such security interest in that portion of the Collateral
consisting of an ownership interest in a limited liability company
will, upon the creation of such security interest, be perfected (i) to
the extent constituting a general intangible under the Uniform
Commercial Code, by filing the Financing Statements in the appropriate
filing offices and (ii) to the extent constituting an uncertificated
security under the Uniform Commercial Code, by registration of such
security interest in the books of the respective issuing limited
liability company (which registration has, in the case of the pledge
pursuant to the Security Agreement and the Guarantee and Pledge
Agreement of Mediacom California's, Mediacom's and the Manager
Entity's ownership interests in the Borrowers, been duly effected).
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement
(and any similar provisions in any of the other Credit Documents) may be
limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) Clause (iii) of the second sentence of Section 2.02 of the
Guarantee and Pledge Agreement (and any similar provisions in any of the
other Credit Documents) may not be enforceable to the extent that the
Guaranteed Obligations under and as defined therein are materially
modified.
-8-
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 11.10 of the Credit Agreement (and any similar
provisions in any of the other Credit Documents), insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to any of the Credit Documents and (iv) the applicability to the
obligations of the Subsidiary Guarantors (or the enforceability of such
obligations) of Section 548 of the Bankruptcy Code, Article 10 of the New
York Debtor Creditor Law, or any provision of law relating to fraudulent
conveyances, transfers or obligations.
(E) We wish to point out that the obligations of the Obligors, and
the rights and remedies of the Administrative Agent and the Lenders, under
the Collateral Documents may be subject to possible limitations upon the
exercise of remedial or procedural provisions contained in the Collateral
Documents, provided that such limitations do not, in our opinion (but
subject to the other comments and qualifications set forth in this opinion
letter), make the remedies and procedures that will be afforded to the
Administrative Agent and the Lenders inadequate for the practical
realization of the substantive benefits purported to be provided to the
Administrative Agent and the Lenders by the Collateral Documents.
(F) With respect to our opinion in paragraphs 9 or 10 above, we
express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any Collateral (as defined in each
Collateral Document) (i) to the extent that, pursuant to Section 9-104 of
the Uniform Commercial Code, Article 9 of the Uniform Commercial Code does
not apply thereto, (ii) consisting of uncertificated securities (as defined
in Section 8-102(b) of the Uniform Commercial Code), except for the
ownership interests in any limited liability company referred to in
paragraphs 9 and 10 above, (iii) consisting of fixtures, timber to be cut
or minerals (including oil and gas) or (iv) covered by a certificate of
title.
-9-
(G) We wish to point out that the acquisition by an Obligor after
the initial Loan under the Credit Agreement of an interest in Property that
becomes subject to the Lien of any Collateral Document may constitute a
voidable preference under Section 547 of the Bankruptcy Code.
(H) We express no opinion as to the existence of, or the right,
title or interest of the Obligors in, to or under, any of the Collateral
(as defined in each Collateral Document).
(I) Except as expressly provided in paragraphs 9 and 10 above, we
express no opinion as to the creation, perfection or priority of any
security interest in, or other Lien on, the Collateral (as defined in each
Collateral Document).
We express no opinion (a) as to the, and the effect of, compliance or non-
compliance by the Lenders or the Administrative Agent with any law, rule or
regulation applicable because of the legal or regulatory status or the specific
nature of the business of such Lender or Administrative Agent and (b) regarding
any law, rule or regulation to which any of the Relevant Parties may be subject,
or any approval which any of the Relevant Parties may be required to obtain,
because of the legal or regulatory status of the Lenders or the Administrative
Agent or because of any facts specifically pertaining to the Lenders or the
Administrative Agent.
Our opinions are limited to the specific issues addressed and are limited in
all respects to laws and facts existing on the date hereof. By rendering our
opinions, we do not undertake to advise you of any changes in such laws or facts
which may occur after the date hereof.
The foregoing opinions are limited to matters involving the Federal laws of
the United States, the Delaware General Corporation Law, the Delaware Limited
Liability Company Act and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction (nor do we express
any opinion as to the applicability to, or the effect upon, the transactions
contemplated by the Credit Documents of the Federal Communications Act of 1934,
as amended, and the rules and regulations promulgated thereunder or the policies
of the FCC).
-10-
At the request of our clients, this opinion letter is, pursuant to Section
6.01(c) of the Credit Agreement, provided to you by us in our capacity as
counsel to the Relevant Parties and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
EXHIBIT H
[Form of Opinion of Special New York Counsel to Chase]
_______, 1997
To the Lenders party to the
Credit Agreement referred to
below and The Chase Manhattan
Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
("Chase") in connection with (i) the Second Amended and Restated Credit
-----
Agreement dated as of June 24, 1997 (the "Credit Agreement") between Mediacom
----------------
California LLC ("Mediacom California"), Mediacom Delaware LLC ("Mediacom
------------------- --------
Delaware"), Mediacom Arizona LLC ("Mediacom Arizona" and, together with Mediacom
-------- ----------------
California and Mediacom Delaware, the "Borrowers"), the lenders party thereto,
---------
Chase, as Administrative Agent, and First Union National Bank, as Documentation
Agent, providing for loans to be made by said lenders to the Borrowers in an
aggregate principal amount not exceeding $100,000,000 and (ii) the various other
agreements, instruments and other documents referred to in the next following
paragraph. Terms defined in the Credit Agreement are used herein as defined
therein. This opinion letter is being delivered pursuant to Section 6.01(d) of
the Credit Agreement.
In rendering the opinions expressed below, we have examined the following
agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes being executed and delivered to the Lenders on the date
hereof (herein, the "Notes);
-----
(c) the Security Agreement;
(d) the Guarantee and Pledge Agreement; and
(e) the Management Fee Subordination Agreement executed and delivered
by Mediacom Management Corporation (the "Manager Entity").
--------------
-2-
The agreements, instruments and other documents referred to in the foregoing
lettered clauses are collectively referred to as the "Credit Documents"; the
----------------
Borrowers, the Parent Guarantors and the Manager Entity are herein collectively
referred to as the "Relevant Parties".
----------------
In our examination, we have assumed the authenticity of all documents
submitted to us as originals and the conformity with authentic original
documents of all documents submitted to us as copies. When relevant facts were
not independently established, we have relied upon representations made in or
pursuant to the Credit Documents.
In rendering the opinions expressed below, we have assumed, with respect to the
Credit Documents, that:
(i) the Credit Documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth in
the opinions below as to the Relevant Parties) constitute legal,
valid, binding and enforceable obligations of, all of the parties
thereto;
(ii) all signatories to the Credit Documents have been duly
authorized; and
(iii) all of the parties to the Credit Documents are duly organized
and validly existing and have the power and authority (corporate,
limited liability company, partnership or other) to execute,
deliver and perform the Credit Documents.
In addition, we have assumed that:
(i) all Lenders party to the Existing Credit Agreement on the
Effective Date are party to the Credit Agreement; and
(ii) upon delivery of this legal opinion, all of the conditions
precedent set forth in Section 6.01 of the Credit Agreement to
the effectiveness of the Credit Agreement shall have been
satisfied.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and
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having considered such questions of law as we have deemed necessary as a basis
for the opinions expressed below, we are of the opinion that:
1. Each of the Credit Documents constitutes the legal, valid and
binding obligation of each Relevant Party party thereto, enforceable
against such Relevant Party in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
2. The Security Agreement and the Guarantee and Pledge Agreement
(collectively, the "Collateral Documents") are each effective to create, in
--------------------
favor of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders, a valid security interest under the Uniform
Commercial Code as in effect in the State of New York (the "Uniform
-------
Commercial Code") in all of the right, title and interest of each Obligor
---------------
in, to and under the Collateral (as defined in each Collateral Document) as
collateral security for the payment of the Secured Obligations (as defined
in each Collateral Document) of such Obligor, except that (a) such security
interest will continue in Collateral after its sale, exchange or other
disposition only to the extent provided in Sections 9-306 and 9-307 of the
Uniform Commercial Code, (b) the security interest in Collateral in which
an Obligor acquires rights after the commencement of a case under the
Bankruptcy Code in respect of such Obligor may be limited by Section 552 of
the Bankruptcy Code, and (c) the creation of a security interest in any
Pledged Stock (as defined in the Security Agreement) or Pledged LLC
Interest (as defined in the Guarantee and Pledge Agreement) constituting a
"security" (as defined in Section 8-102(1)(c) of the Uniform Commercial
Code) requires the transfer of said Pledged Stock or Pledged LLC Interest,
as the case may be, to the Administrative Agent pursuant to Section 8-
313(1) of the Uniform Commercial Code, which transfer in the case
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of a "certificated security" (as defined in Section 8-102(1)(a) of the
Uniform Commercial Code) may be effected in the manner contemplated by
paragraph 3 below.
3. The security interest referred to in paragraph 2 above in that
portion of the Collateral consisting of a certificated security (including
the Pledged Stock under and as defined in the Security Agreement) will,
upon the creation of such security interest, be perfected by the
Administrative Agent taking and thereafter retaining possession thereof (or
any certificates representing any such certificated security) in the State
of New York.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement
(and any similar provisions in any of the other Credit Documents) may be
limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) Clause (iii) of the second sentence of Section 2.02 of the
Guarantee and Pledge Agreement may not be enforceable to the extent that
the Guaranteed Obligations under and as defined therein are materially
modified.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) Section 4.07(c) of the Credit Agreement and (iii) the second
sentence of Section 11.10 of the Credit Agreement (and any similar
provisions in any of the other Credit Documents),
-5-
insofar as such sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of New York to
adjudicate any controversy related to any of the Credit Documents.
(E) We wish to point out that the obligations of the Obligors, and
the rights and remedies of the Administrative Agent and the Lenders, under
the Collateral Documents may be subject to possible limitations upon the
exercise of remedial or procedural provisions contained in the Collateral
Documents, provided that such limitations do not, in our opinion (but
subject to the other comments and qualifications set forth in this opinion
letter), make the remedies and procedures that will be afforded to the
Administrative Agent and the Lenders inadequate for the practical
realization of the substantive benefits purported to be provided to the
Administrative Agent and the Lenders by the Collateral Documents.
(F) With respect to our opinion in paragraphs 2 and 3 above, we
express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any Collateral (as defined in each
Collateral Document) (i) to the extent that, pursuant to Section 9-104 of
the Uniform Commercial Code, Article 9 of the Uniform Commercial Code does
not apply thereto or (ii) consisting of uncertificated securities (as
defined in Section 8-102(b) of the Uniform Commercial Code).
(G) We wish to point out that the acquisition by an Obligor after the
initial Loan under the Credit Agreement of an interest in Property that
becomes subject to the Lien of any Collateral Document may constitute a
voidable preference under Section 547 of the Bankruptcy Code.
(H) We express no opinion as to the existence of, or the right, title
or interest of the Obligors in, to or under, any of the Collateral (as
defined in each Collateral Document).
(I) Except as expressly provided in paragraphs 2 and 3 above, we
express no opinion as to the creation, perfection or priority of any
security interest in, or other Lien on, the Collateral (as defined in each
Collateral Document).
-6-
The foregoing opinions are limited to matters involving the Federal laws of
the United States and the law of the State of New York, and we do not express
any opinion as to the laws of any other jurisdiction (nor do we express any
opinion as to the applicability to, or the effect upon, the transactions
contemplated by the Credit Documents of the Federal Communications Act of 1934,
as amended, the rules and regulations promulgated thereunder or the policies of
the FCC).
At the request of our client, this opinion letter is, pursuant to Section
6.01(d) of the Credit Agreement, provided to you by us in our capacity as
special New York counsel to Chase and may not be relied upon by any Person for
any purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
EXHIBIT I
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Second Amended and Restated Credit Agreement dated as of June
24, 1997 (the "Credit Agreement"), between Mediacom California
----------------
LLC ("Mediacom California"), Mediacom Delaware LLC ("Mediacom
------------------- --------
Delaware"),Mediacom Arizona LLC ("Mediacom Arizona" and, together
-------- ----------------
with Mediacom California and Mediacom California, the
"Borrowers"), the lenders party thereto, The Chase Manhattan
---------
Bank, as Administrative Agent, and First Union National Bank, as
Documentation Agent.
Dear Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have agreed with the Borrowers
pursuant to Section 11.12 of the Credit Agreement to use reasonable precautions
to keep confidential, except as otherwise provided therein, all non-public
information identified by the Borrowers as being confidential at the time the
same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide you, as a
prospective [holder of a participation in the Loans (as defined in the Credit
Agreement)] [assignee Lender], with certain of such non-public information
subject to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives and for the benefit of us and the Borrowers) that (A) such
information will
-2-
not be used by you except in connection with the proposed [participation]
[assignment] mentioned above and (B) you shall use reasonable precautions, in
accordance with your customary procedures for handling confidential information
and in accordance with safe and sound banking practices, to keep such
information confidential, 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 Section 11.12 of the Credit
Agreement), (ii) to the extent required by statute, rule, regulation or judicial
process, (iii) to your counsel or 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 you or any one
or more of the Lenders or the Administrative Agent are a party, or in connection
with the enforcement of rights or remedies under the Credit Agreement or under
any other Loan Document, (vii) to a subsidiary or affiliate of yours as provided
in Section 11.12(a) of the Credit Agreement 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 you a Confidentiality Agreement substantially in the form hereof; provided,
--------
further, that in no event shall you be obligated to return any materials
-------
furnished to you pursuant to this Confidentiality Agreement.
If you are a prospective assignee, your obligations under this Confidentiality
Agreement shall be superseded by Section 11.12 of the Credit Agreement on the
date upon which you become a Lender under the Credit Agreement pursuant to
Section 11.06(b) thereof.
-3-
Please indicate your agreement to the foregoing by signing as provided below
the enclosed copy of this Confidentiality Agreement and returning the same to
us.
Very truly yours,
[INSERT NAME OF LENDER]
By_________________________
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________]
EXHIBIT J
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement, dated
as of June 24, 1997 (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), between Mediacom California LLC, a Delaware
----------------
limited liability company, Mediacom Delaware LLC, a Delaware limited liability
company, Mediacom Arizona LLC, a Delaware limited liability company, the lenders
named therein, and The Chase Manhattan Bank, as administrative agent for such
lenders. Terms defined in the Credit Agreement are used herein as defined
therein.
____________________ (the "Assignor") and ____________________ (the "Assignee")
-------- --------
agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date as set forth in Schedule 1 hereto (the "Effective Date"), an interest (the
--------------
"Assigned Interest") in and to the Assignor's rights and obligations under the
-----------------
Credit Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 (individually, an "Assigned Facility";
-----------------
collectively, the "Assigned Facilities"), in a principal amount and percentage
-------------------
for each Assigned Facility as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, other than that it has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; (ii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers, any of their Subsidiaries or any
-2-
other obligation or the performance or observance by the Borrowers, any of their
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (iii) attaches the Note(s)
held by it evidencing the Assigned Facilities and requests that the
Administrative Agent exchange such Note(s) for a new Note or Notes payable to
the Assignor (if the Assignor has retained any interest in the Assigned
Facility) and a new Note or Notes payable to the Assignee in the respective
amounts which reflect the assignment being made hereby (and after giving effect
to any other assignments which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (ii) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 7.02 thereof, the financial statements delivered pursuant
to Section 8.01 thereof, if any, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (iii) agrees that it will, independently
and without reliance upon the Assignor, 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 credit decisions in taking or not taking
action under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (iv) appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental thereto;
and (v) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the
United States of America, its obligation pursuant to Section 5.06 of the Credit
Agreement to deliver the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement, or such other documents as are necessary to
-3-
indicate that all such payments are subject to such tax at a rate reduced by an
applicable tax treaty.
4. Upon delivery of this Assignment and Acceptance to the Administrative
Agent (and consent hereto by the Borrowers and the Administrative Agent to the
extent required pursuant to Section 11.06(b)), from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee which accrue subsequent to the Effective Date.
5. From and after the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement except as provided in Section 11.07 of the Credit Agreement.
6. This Assignment and Acceptance shall be governed by and construed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Schedule 1 to
Assignment and Acceptance
relating to the Second Amended and
Restated Credit Agreement,
dated as of June 24, 1997,
between Mediacom California LLC ("Mediacom California"),
-------------------
Mediacom Delaware ("Mediacom Delaware"),
-----------------
Mediacom Arizona ("Mediacom Arizona" and, together with
----------------
Mediacom California and Mediacom Delaware, the "Borrowers"),
---------
the lenders named therein and
The Chase Manhattan Bank, as administrative agent
for the Lenders (in such capacity,
the "Administrative Agent")
--------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Percentage
Facility Assigned Amount Assigned Assigned
----------------- --------------- --------
[ASSIGNEE] [ASSIGNOR]
By:___________________________ By:__________________________
Title: Title:
Consented to and Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:__________________________
Title:
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Consented to:
MEDIACOM CALIFORNIA LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
MEDIACOM DELAWARE LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
MEDIACOM ARIZONA LLC
By MEDIACOM LLC, a Member
By____________________________
Title:
