EXHIBIT 10.6(a)
[EXECUTION COUNTERPART]
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MEDIACOM SOUTHEAST LLC
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CREDIT AGREEMENT
Dated as of January 23, 1998
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THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters.............. 1
1.01 Certain Defined Terms............................ 1
1.02 Accounting Terms and Determinations.............. 26
1.03 Classes and Types of Loans....................... 27
1.04 Subsidiaries..................................... 28
Section 2. Commitments, Loans and Prepayments.............. 28
2.01 Loans............................................ 28
2.02 Borrowings....................................... 30
2.03 Letters of Credit................................ 30
2.04 Changes of Commitments........................... 35
2.05 Commitment Fee................................... 37
2.06 Lending Offices.................................. 37
2.07 Several Obligations; Remedies Independent........ 37
2.08 Loan Accounts; Promissory Notes.................. 38
2.09 Optional Prepayments and Conversions or
Continuations of Loans............................ 38
2.10 Mandatory Prepayments and Reductions of
Commitments....................................... 39
Section 3. Payments of Principal and Interest.............. 43
3.01 Repayment of Loans............................... 43
3.02 Interest......................................... 44
3.03 Determination of Applicable Margin............... 45
Section 4. Payments; Pro Rata Treatment; Computations; Etc. 46
4.01 Payments......................................... 46
4.02 Pro Rata Treatment............................... 47
4.03 Computations..................................... 47
4.04 Minimum Amounts.................................. 48
4.05 Certain Notices.................................. 48
4.06 Non-Receipt of Funds by the Administrative Agent. 49
4.07 Sharing of Payments, Etc......................... 50
(i)
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Section 5. Yield Protection, Etc........................... 52
5.01 Additional Costs................................. 52
5.02 Limitation on Types of Loans..................... 54
5.03 Illegality....................................... 54
5.04 Treatment of Affected Loans...................... 54
5.05 Compensation..................................... 55
5.06 Additional Costs in Respect of Letters of Credit. 56
5.07 U.S. Taxes....................................... 56
5.08 Replacement of Lenders........................... 57
Section 6. Conditions Precedent............................ 58
6.01 Initial Extension of Credit...................... 58
6.02 Initial and Subsequent Extensions of Credit...... 61
Section 7. Representations and Warranties.................. 62
7.01 Corporate Existence.............................. 62
7.02 Financial Condition.............................. 62
7.03 Litigation....................................... 63
7.04 No Breach........................................ 63
7.05 Action........................................... 64
7.06 Approvals........................................ 64
7.07 ERISA............................................ 64
7.08 Taxes............................................ 65
7.09 Investment Company Act........................... 65
7.10 Public Utility Holding Company Act............... 65
7.11 Material Agreements and Liens.................... 65
7.12 Environmental Matters............................ 66
7.13 Capitalization................................... 66
7.14 Subsidiaries, Etc................................ 67
7.15 True and Complete Disclosure..................... 67
7.16 Franchises....................................... 68
7.17 The CATV Systems................................. 68
7.18 Rate Regulation.................................. 70
7.19 Acquisition Agreement............................ 71
Section 8. Covenants of the Borrower....................... 71
8.01 Financial Statements Etc......................... 71
8.02 Litigation....................................... 74
8.03 Existence, Etc................................... 75
8.04 Insurance........................................ 75
8.05 Prohibition of Fundamental Changes............... 76
8.06 Limitation on Liens.............................. 80
(ii)
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8.07 Indebtedness..................................... 81
8.08 Investments...................................... 81
8.09 Restricted Payments.............................. 82
8.10 Certain Financial Covenants...................... 84
8.11 Management Fees.................................. 86
8.12 Capital Expenditures............................. 87
8.13 Interest Rate Protection Agreements.............. 88
8.14 Affiliate Subordinated Indebtedness.............. 88
8.15 Lines of Business................................ 89
8.16 Transactions with Affiliates..................... 89
8.17 Use of Proceeds.................................. 90
8.18 Certain Obligations Respecting Subsidiaries...... 90
8.19 Modifications of Certain Documents............... 91
Section 9. Events of Default............................... 92
9.01 Events of Default................................ 92
9.02 Certain Cure Rights.............................. 96
Section 10. The Administrative Agent....................... 97
10.01 Appointment, Powers and Immunities.............. 97
10.02 Reliance by Administrative Agent................ 98
10.03 Defaults........................................ 99
10.04 Rights as a Lender.............................. 99
10.05 Indemnification................................. 99
10.06 Non-Reliance on Administrative Agent and Other
Lenders......................................... 100
10.07 Failure to Act.................................. 100
10.08 Resignation or Removal of Administrative Agent.. 100
10.09 Consents under Other Loan Documents............. 101
Section 11. Miscellaneous.................................. 101
11.01 Waiver.......................................... 101
11.02 Notices......................................... 102
11.03 Expenses, Etc................................... 102
11.04 Amendments, Etc................................. 103
11.05 Successors and Assigns.......................... 104
11.06 Assignments and Participations.................. 104
11.07 Survival........................................ 107
11.08 Captions........................................ 107
11.09 Counterparts.................................... 107
11.10 Governing Law; Submission to Jurisdiction....... 107
11.11 Waiver of Jury Trial............................ 108
11.12 Treatment of Certain Information;
Confidentiality................................. 108
(iii)
SCHEDULE I -- Commitments
SCHEDULE II -- Material Agreements and Liens
SCHEDULE III -- Investments
SCHEDULE IV -- Franchises
SCHEDULE V -- Certain Matters Related to CATV Systems
SCHEDULE VI -- Certain Adjustments to Operating Cash Flow and System
Cash Flow
SCHEDULE VII -- Regions
EXHIBIT A -- Form of Assignment and Acceptance
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 Affiliate Subordinated Indebtedness
Subordination Agreement
(iv)
CREDIT AGREEMENT dated as of January 23, 1998, between: MEDIACOM SOUTHEAST
LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware (the "Borrower"); each of the lenders that is a
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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
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"Lenders"); and THE CHASE MANHATTAN BANK, a New York banking corporation, as
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administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
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The Borrower has requested that the Lenders extend credit to it (by making
loans and issuing letters of credit) in an aggregate principal or face amount
not exceeding $225,000,000 (which may, in the circumstances herein provided, be
increased to $275,000,000) at any one time outstanding and the Lenders are
prepared to extend such credit upon the terms and conditions hereof.
Accordingly, the parties hereto agree 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 Cablevision Acquisition
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Agreement and any Subsequent Acquisition Agreements.
"Acquisitions" shall mean, collectively, the Cablevision Acquisition and any
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Subsequent Acquisitions.
"Adjusted Operating Cash Flow" shall mean, for any period during which the
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Borrower shall have consummated an Acquisition, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) Operating Cash Flow minus (ii) without duplication of the
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Management Fees actually paid during such period, the additional Management Fees
that would have been paid during such period at a rate equal to 4.5% of the
gross operating revenue of the Borrower and its Subsidiaries for such period
(determined, as specified above, under the assumption that such Acquisition had
been consummated on the first day of such period).
"Adjusted System Cash Flow" shall mean, for any period during which the
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Borrower shall have consummated an Acquisition, the sum, for the Borrower and
its Subsidiaries
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(determined on a consolidated basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) System Cash Flow for such period plus (ii) the sum of (x) non-
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recurring expenses incurred by the relevant sellers prior to the actual closing
of such Acquisition (to the extent such items were included as operating
expenses in the determination of System Cash Flow for such period) and (y) in
the case of the Cablevision Acquisition, the amounts set forth in Schedule VI
hereto for such period, or, in the case of any Subsequent Acquisition, the
amounts set forth in a statement of adjustments to System Cash Flow provided by
the Borrower in connection with such Subsequent Acquisition and acceptable to
the Admininistrative Agent and Majority Lenders (in each case representing
certain cost savings and programming cost increases in respect of the CATV
Systems being acquired in such Acquisition).
"Administrative Questionnaire" shall mean an Administrative 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, the 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 the Borrower or any of its Subsidiaries and (b) none of the
Wholly Owned Subsidiaries of the Borrower shall be Affiliates.
"Affiliate Subordinated Indebtedness" shall mean Indebtedness to an Affiliate
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(i) for which the 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 Borrower to pay principal of and
interest on the Loans, Reimbursement Obligations, fees and other amounts payable
hereunder pursuant to an Affiliate Subordinated Indebtedness Subordination
Agreement, (iv) that does not mature prior to June 30, 2007, 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
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principal and interest in respect thereof shall only be payable to the extent
permitted under Section 8.09 hereof.
"Affiliate Subordinated Indebtedness Subordination Agreement" shall mean an
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Affiliate Subordinated Indebtedness Subordination Agreement substantially in the
form of Exhibit J hereto between any Person to whom the Borrower or any of its
Subsidiaries may be obligated to pay Affiliate Subordinated Indebtedness, the
Borrower and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"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 Borrower as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Margin" shall mean, with respect to Loans of any Type, the
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respective rates indicated below for Loans of such Type opposite the then-
current Rate Ratio (determined pursuant to Section 3.03 hereof) indicated below
(except that anything in this Agreement to the contrary notwithstanding, the
Applicable Margin with respect to any Loans shall be the highest rates provided
for below (i.e., 1.25% with respect to Base Rate Loans and 2.25% with respect to
Eurodollar Loans) during any period when an Event of Default shall have occurred
and be continuing):
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Range Applicable Margin (% p.a.)
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of
Rate Ratio Base Rate Loans Eurodollar Loans
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Greater than 5.50 to 1 1.250% 2.250%
Greater than or equal to
5.00 to 1 but less than
or equal to 5.50 to 1 1.000% 2.000%
Greater than or equal to
4.50 to 1 but less than
5.00 to 1 0.750% 1.750%
Greater than or equal to
3.50 but less than
4.50 to 1 0.500% 1.500%
Less than 3.50 to 1 0.250% 1.250%
"Assignment and Acceptance" means an assignment and acceptance entered into by
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a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.05 hereof), and accepted by the Administrative Agent, in
the form of Exhibit A or any other form approved by the Administrative Agent.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as 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, the Acquisition Agreements and each Retained Franchise Management
Agreement.
"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
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household Subscriber (exclusive of "secondary outlets", as such term is commonly
understood in the cable television industry), plus (b) the number of Subscribers
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determined by dividing the aggregate dollar monthly amount billed for basic
service to bulk Subscribers (hotels, motels, apartment buildings, hospitals and
the like) located in each Region by the weighted average of the regular basic
monthly subscription rates for basic service charged by the CATV Systems in such
Region.
"Basle Accord" shall mean the proposals for risk-based capital 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 Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are not
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authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the 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.
"Cablevision" means Cablevision Systems Corporation, a Delaware corporation.
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"Cablevision Acquisition Agreement" shall mean the Asset Purchase Agreement
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dated as of August 29, 1997 by and among the Sellers, Cablevision and Mediacom,
as the same shall, subject to Section 8.19 hereof, be modified and supplemented
and in effect from time to time.
"Cablevision Acquisition" shall mean the acquisition by the Borrower (as the
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assignee of Mediacom under the Cablevision Acquisition Agreement) of CATV
Systems from the Sellers, pursuant to the Cablevision Acquisition Agreement.
"Capital Expenditures" shall mean, for any period, expenditures made by the
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Borrower or any of its 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
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Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property of any Person, any
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loss of or damage to, or any condemnation or other taking of, such Property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"CATV System" shall mean any cable distribution system that receives 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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"Closing Date" shall mean the date on which the initial extension of credit
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hereunder is made.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral Account" shall have the meaning assigned to such term in the
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Security Agreement.
"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.
"Commitments" shall mean, collectively, the Revolving Credit Commitments, the
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Term Loan Commitments and the Incremental Facility Commitments (if any).
"Continue", "Continuation" and "Continued" shall refer to the continuation
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pursuant to Section 2.09 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant
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to Section 2.09 hereof of one Type of Loans into another Type of Loans, which
may be
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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 Borrower after the date hereof that,
at the time the same are received by the Borrower are identified by the
Borrower, in a certificate of a Senior Officer delivered by the Borrower 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 the Borrower or any of its
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Subsidiaries after the Closing 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 Borrower and its
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Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) in the case of Revolving Credit
Loans under this Agreement, the aggregate amount of payments of principal of
such Loans that, giving effect to Commitment reductions or terminations
scheduled to be made during such period pursuant to Section 2.04(a) hereof, were
required to be made pursuant to Section 3.01(a) hereof during such period plus
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(b) in the case of Term Loans and Incremental Facility Loans under this
Agreement and all other Indebtedness (other than Revolving Credit Loans), all
regularly scheduled payments or regularly scheduled prepayments of principal of
such Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) made or payable during such
period (other than the principal component of any payments in respect of
Affiliate Subordinated Indebtedness) plus (c) all Interest Expense for such
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period.
"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
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of any Property (whether now owned or hereafter acquired) by the Borrower or any
of its 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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"ECC" means ECC Holding Corporation, a Delaware corporation.
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"Environmental Claim" shall mean, with respect to any Person, any written or
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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
costs, cleanup costs, governmental
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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 the
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Borrower after the Closing 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 Borrower pursuant to employee
benefit plans established in the ordinary course of business and any ownership
interests of the Borrower 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 Borrower or (b) the receipt by
the Borrower after the Closing Date of any equity capital contribution (whether
or not evidenced by any equity security issued by the recipient of such
contribution); provided that the issuance or sale by the Borrower of any equity
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interest to Mediacom, or the receipt by the Borrower of any equity capital
contribution from Mediacom, in connection with an Acquisition shall not
constitute an "Equity Issuance" hereunder.
"Equity Rights" shall mean, with respect to any Person, any subscriptions,
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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.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that is a
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member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which the 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 the
Borrower is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar Loan for any
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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
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referred to in the definition of "Eurodollar Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest Period
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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
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hereof.
"Excess Cash Flow" shall mean, for any period, the excess of (a) Operating
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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
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period plus (iii) the Tax Payment Amount for such period plus (iv) any decreases
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(or minus any increases) in Working Capital from the first day to the last day
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of such period.
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"Executive Compensation" shall mean, for any period, the aggregate amount of
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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.
"FCC" shall mean the Federal Communications Commission or any governmental
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authority substituted therefor.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
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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
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a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published for any
Business Day, the Federal Funds 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.
"Franchise" shall mean a franchise, license, authorization or right by
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contract or otherwise to construct, own, operate, promote, extend and/or
otherwise exploit any CATV System operated or to be operated by the 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 IV hereto.
"GAAP" shall mean generally accepted accounting principles applied on a basis
----
consistent with those that, in accordance with the last sentence of Section
1.02(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent agreement to
---------
purchase or to furnish funds for the payment or maintenance of, or otherwise to
be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
Credit Agreement
----------------
-11-
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
--------- ----------
correlative meaning.
"Guarantee and Pledge Agreement" shall mean a Guarantee and Pledge Agreement
------------------------------
substantially in the form of Exhibit D hereto between Mediacom 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.
"Incremental Facility Availability Period" shall mean the period from and
----------------------------------------
including the Closing Date to but excluding December 31, 1999 (or, if such date
is not a Business Day, to but excluding the immediately preceding Business Day).
"Incremental Facility Commitment" shall mean, for each Incremental Facility
-------------------------------
Lender, and for any Series thereof, the obligation of such Incremental Facility
Lender to make Incremental Facility Loans of such Series (as the same may be
reduced from time to time pursuant to Section 2.04 or 2.10 hereof or increased
or reduced from time to time pursuant to assignments permitted under Section
11.06(b) hereof). The amount of each Lender's Incremental Facility Commitment
of any Series shall be determined in accordance with the provisions of Section
2.01(d) hereof. The aggregate amount of the Incremental Facility Commitments of
all Series shall not exceed $50,000,000.
"Incremental Facility Lenders" shall mean, in respect of any Series of
----------------------------
Incremental Facility Loans, the Lenders from time to time holding Incremental
Facility Loans and Incremental Facility Commitments of such Series after giving
effect to any assignments thereof permitted by Section 11.06(b) hereof.
"Incremental Facility Loans" shall mean the loans provided for by Section
--------------------------
2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Indebtedness" shall mean, for any Person: (a) obligations created, issued or
------------
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt
Credit Agreement
----------------
-12-
securities or the sale of Property to another Person subject to an understanding
or agreement, contingent or otherwise, to repurchase such Property from such
Person), including, without limitation, Affiliate Subordinated Indebtedness; (b)
obligations of such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other than for borrowed
money) arising, and accrued expenses incurred, in the ordinary course of
business so long as such trade accounts payable are payable within 90 days of
the date the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been assumed
by such Person; (d) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of such
Person; and (f) Indebtedness of others Guaranteed by such Person; provided that
--------
Indebtedness shall exclude (i) obligations in respect of surety and performance
bonds backing pole rental or conduit attachments and the like, or backing
obligations under Franchises, arising in the ordinary course of business of the
CATV Systems and related telecommunications services of the Borrower and its
Subsidiaries and (ii) all obligations in respect of Interest Rate Protection
Agreements.
"Information Memorandum" shall mean the Confidential Information Memorandum
----------------------
dated December 4, 1997 prepared in connection with the syndication of the credit
facilities provided for in this Agreement.
"Interest Coverage Ratio" shall mean, as at any date, the ratio of (a)
-----------------------
Operating Cash Flow for the fiscal quarter ending on, or most recently ended
prior to, such date (which, for periods prior to the Closing Date, shall be
based upon the results of operations of Cablevision) to (b) Interest Expense for
such fiscal quarter.
Notwithstanding the foregoing, the Interest Coverage Ratio for any fiscal
quarter during which an Acquisition is consummated shall be deemed to be equal
to the ratio of Adjusted Operating Cash Flow for such fiscal quarter to Interest
Expense for such fiscal quarter.
"Interest Expense" shall mean, for any period, the sum, for the Borrower and
----------------
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period) and all commitment
fees payable hereunder, but excluding all interest in respect of Affiliate
Subordinated Indebtedness (to the extent not paid in cash during such period),
plus (b) the net amount payable (or minus the net amount receivable) under
---- -----
Interest Rate Protection Agreements during such period (whether or not actually
paid or received during such period) plus (c) the aggregate amount of upfront or
----
one-time fees or expenses payable in respect of Interest Rate Protection
Agreements to the extent such fees or expenses are amortized during such period
plus
----
Credit Agreement
----------------
-13-
(d) the aggregate amount of payments permitted pursuant to Section 8.09(d)
hereof made by the Borrower with respect to issued and outstanding Preferred
Membership Interests.
Notwithstanding the foregoing, if during any period for which Interest Expense
is being determined the Borrower or any of its Subsidiaries shall have
consummated any acquisition of any CATV System or other business, or consummated
any Disposition, then, for all purposes of this Agreement, Interest Expense
shall be determined on a pro forma basis as if such acquisition or Disposition
had been made or consummated (and any related Indebtedness incurred or repaid)
on the first day of such period.
"Interest Period" shall mean, with respect to any Eurodollar Loan, each period
---------------
commencing on the date such Eurodollar Loan is made or Converted from a Base
Rate Loan or (in the event of a Continuation) the last day of the next preceding
Interest Period for such Loan and (subject to the provisions of Section 2.01(d)
hereof) ending on the numerically corresponding day in the first, second, third
or sixth calendar month thereafter, as the Borrower may select as provided in
Section 4.05 hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing:
(i) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date, such
Interest Period shall end on the Revolving Credit Commitment Termination
Date;
(ii) no Interest Period for any Revolving Credit Loan may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto, the aggregate principal amount of
Revolving Credit Loans having Interest Periods that end after such
Revolving Credit Commitment Reduction Date shall be equal to or less than
the aggregate principal amount of Revolving Credit Loans scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Revolving Credit Commitment Reduction Date;
(iii) no Interest Period for any Term Loan may commence before
and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or
less than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(iv) no Interest Period for any Incremental Facility Loan of any
Series may commence before and end after any Principal Payment Date unless,
after giving effect
Credit Agreement
----------------
-14-
thereto, the aggregate principal amount of the Incremental Facility Loans
of such Series having Interest Periods that end after such Principal
Payment Date shall be equal to or less than the aggregate principal amount
of the Incremental Facility Loans of such Series scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(v) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(vi) notwithstanding clauses (i), (ii), (iii) and (iv) above, no
Interest Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any Person, an interest
----------------------------------
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more financial institutions providing for the transfer or mitigation
of interest risks either generally or under specific contingencies. For
purposes hereof, the "credit exposure" at any time of any Person under an
---------------
Interest Rate Protection Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Interest Rate Protection Agreement.
"Investment" shall mean, for any Person: (a) the acquisition (whether for
----------
cash, Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or extension
of credit having a term not exceeding 90 days arising in connection with the
sale of programming or advertising time by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; or (d) the entering into of any Interest Rate Protection
Agreement.
Credit Agreement
----------------
-15-
"Issuing Lender" shall mean Chase, as the issuer of Letters of Credit under
--------------
Section 2.03 hereof, together with its successors and assigns in such capacity.
"Letter of Credit" shall have the meaning assigned to such term in Section
----------------
2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter of Credit,
--------------------------
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit Lender, such
-------------------------
Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any time and
--------------------------
in respect of any Letter of Credit, the sum of (a) the undrawn face amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
----
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Lender) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Lender shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests under said
Section 2.03.
"Lien" shall mean, with respect to any Property, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Loan Documents" shall mean, collectively, this Agreement, the Letter of
--------------
Credit Documents, the Security Documents and each Management Fee Subordination
Agreement.
Credit Agreement
----------------
-16-
"Loans" shall mean, collectively, the Revolving Credit Loans, the Term Loans
-----
and the Incremental Facility Loans.
"Majority Incremental Facility Lenders" shall mean, with respect to any Series
-------------------------------------
of Incremental Facility Loans, Incremental Facility Lenders holding at least
66-2/3% of the aggregate outstanding principal amount of the Incremental
Facility Loans of such Series or, if the Incremental Facility Loans shall not
have been made, at least 66-2/3% of the Incremental Facility Commitments of such
Series.
"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, the aggregate outstanding principal amount of the Term Loan
Commitments plus (b) the aggregate outstanding principal amount of the
----
Incremental Facility Loans or, if the Incremental Facility Loans shall not have
been made, the aggregate outstanding principal amount of the Incremental
Facility Commitments plus (c) the sum of (i) the aggregate unused amount, if
----
any, of the Revolving Credit Commitments at such time plus (ii) the aggregate
----
outstanding principal amount of the Revolving Credit Loans at such time.
"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 sum of (a) the aggregate unpaid
principal amount of the Revolving Credit Loans plus (b) the aggregate amount of
----
all Letter of Credit Liabilities.
"Majority Term Loan Lenders" shall mean Term Loan Lenders holding at least
--------------------------
66-2/3% of the aggregate outstanding principal amount of the Term Loans or, if
the Term Loans shall not have been made, at least 66-2/3% of the Term Loan
Commitments.
"Management Agreement" shall mean the Management Agreement dated January 23,
--------------------
1998 among the Borrower 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.
"Management Fee Subordination Agreement" shall mean a Management Fee
--------------------------------------
Subordination Agreement substantially in the form of Exhibit F hereto between
the Manager (or, as contemplated by Section 8.11 hereof, any other Person to
whom the Borrower or any of its Subsidiaries may be obligated to pay Management
Fees), the Borrower 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
Credit Agreement
----------------
-17-
by the Borrower to Affiliates (other than Affiliates that are employees of the
Borrower and its Subsidiaries) in respect of services rendered in connection
with the management or supervision of the Borrower and its Subsidiaries,
provided that Management Fees shall exclude the aggregate amount of intercompany
--------
shared expenses payable to Mediacom that are allocated by Mediacom to the
Borrower and its 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 Borrower.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
-----------------------
Property, business, operations, financial condition, prospects, liabilities or
capitalization of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform its obligations under any of the Loan
Documents to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith.
"Mediacom" shall mean Mediacom LLC, a New York limited liability company.
--------
"Mediacom Notes" shall mean the promissory notes executed and delivered by
--------------
Mediacom to Chase on or prior to the Closing Date evidencing loans by Chase to
Mediacom in the aggregate principal amount of $20,000,000, the proceeds of which
are to be contributed by Mediacom to the Borrower as consideration for Preferred
Membership Interests to be issued to Mediacom.
"Missouri L.P." means Missouri Cable Partners, L.P., a Delaware limited
-------------
partnership.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
------------------
Section 3(37) of ERISA to which contributions have been made by the 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;
Credit Agreement
----------------
-18-
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Borrower and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Borrower and its Subsidiaries in
connection therewith and (B) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property and any
income and transfer taxes payable by the Borrower or any of its
Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Equity Issuance or Debt Issuance, the
aggregate amount of all cash received by the Borrower or any of its
Subsidiaries in respect of such Equity Issuance or Debt Issuance, net of
reasonable expenses incurred by the Borrower and its 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 Borrower and its 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 Borrower and its Subsidiaries in connection with such Disposition
and (b) Net Cash Payments shall be net of any repayments by the Borrower and its
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.
"Obligors" shall mean, collectively, the Borrower, Mediacom and, effective
--------
upon execution and delivery of any Subsidiary Guarantee Agreement, each
Subsidiary of the Borrower so executing and delivering such Subsidiary Guarantee
Agreement.
"Operating Agreement" shall mean the Operating Agreement of the Borrower dated
-------------------
as of January 23, 1998, as the same shall, subject to Section 8.19 hereof, be
modified and supplemented and in effect from time to time.
"Operating Cash Flow" shall mean, for any period, the sum, for the Borrower
-------------------
and its Subsidiaries (determined on a consolidated 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 4.5% of the
gross operating revenue of the Borrower and its Subsidiaries for such period.
"Pay TV Units" shall mean the aggregate number of premium or pay television
------------
services to which Subscribers subscribe.
Credit Agreement
----------------
-19-
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean: (a) direct obligations of the United
---------------------
States of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; and (c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Ratings Services, a division of XxXxxx-Xxxx Companies, Inc., or Xxxxx'x
Investors Services, Inc., respectively, maturing not more than 90 days from the
date of acquisition thereof; in each case so long as the same (x) provide for
the payment of principal and interest (and not principal alone or interest
alone) and (y) are not subject to any contingency regarding the payment of
principal or interest.
"Person" shall mean any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or maintained
----
by the 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.
"Preferred Membership Interests" shall mean the equity rights provided for in
------------------------------
Section 6.2 of the Operating Agreement.
"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 (a) in the case of the Term Loans, the
-----------------------
last Business Day of March, June, September and December of each year,
commencing with March
Credit Agreement
----------------
-20-
31, 2001, through and including June 30, 2006 and (b) in the case of Incremental
Facility Loans of any Series, such dates as shall have been agreed upon between
the Borrower and the respective Incremental Facility Lenders of such Series
pursuant to Section 2.10(c) hereof at the time such Lenders become obligated to
make such Incremental Facility Loans hereunder.
"Pro Forma Debt Service Coverage Ratio" shall mean, as at any date, the ratio
-------------------------------------
of (a) the product of (x) Operating Cash Flow for the fiscal quarter ending on,
or most recently ended prior to, such date (which, for periods prior to the
Closing Date, shall be based upon the results of operations of U.S. Cable) times
-----
(y) four to (b) Debt Service (other than payments in respect of Affiliate
Subordinated Indebtedness and Preferred Membership Interests) for the period of
four consecutive fiscal quarters immediately following the last day of the most
recently ended fiscal quarter, determined under the assumptions that (1) the
rate of interest applicable to Indebtedness of the Borrower and its Subsidiaries
(other than Affiliate Subordinated Indebtedness) during such period will not
change from the weighted average rate of interest in effect on such last day and
(2) all regularly scheduled payments or regularly scheduled prepayments of
principal of such Indebtedness required to made during such period will be made
when due (including, without limitation, the principal component of any payments
in respect of Capital Lease Obligations).
Notwithstanding the foregoing, the Pro Forma Debt Service Coverage Ratio for
any fiscal quarter during which an Acquisition is consummated shall be deemed to
be equal to the ratio of (a) the product of (x) Adjusted Operating Cash Flow for
such fiscal quarter times (y) four to (b) Debt Service (other than payments in
-----
respect of Affiliate Subordinated Indebtedness and Preferred Membership
Interests) for the period of four consecutive fiscal quarters immediately
following the last day of such fiscal quarter, determined on the assumptions set
forth above.
"Property" shall mean any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Price" shall mean, without duplication, with respect to any
--------------
Subsequent Acquisition, an amount equal to the sum of (i) the aggregate
consideration, whether cash, Property or securities (including, without
limitation, any Indebtedness incurred pursuant to paragraph (e) of Section 8.07
hereof), paid or delivered by the Borrower and its Subsidiaries in connection
with such acquisition plus (ii) the aggregate amount of liabilities of the
----
acquired business (net of current assets of the acquired business) that would be
reflected on a balance sheet (if such were to be prepared) of the Borrower and
its Subsidiaries after giving effect to such acquisition.
"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
Credit Agreement
----------------
-21-
Agreement; provided that if any such day is not a Business Day, then such
Quarterly Date shall be the next succeeding Business Day.
"Quarterly Officer's Report" shall mean a quarterly report of a Senior Officer
--------------------------
with respect to Basic Subscribers, homes passed, revenues per Subscriber and Pay
TV Units, substantially in the form of Exhibit B hereto.
"Quarterly Payment Period" shall mean each successive three-month period from
------------------------
and including a Quarterly Date (or, in the case of the initial Quarterly Payment
Period, from and including the Closing Date) to but not including the next
following Quarterly Date.
"Rate Ratio" shall mean, for any Quarterly Payment Period, the daily average
----------
of the Total Leverage Ratio during the fiscal quarter ending on, or most
recently ended prior to, the first day of such Quarterly Payment Period,
provided that (a) the Rate Ratio on the Closing Date shall be the Total Leverage
--------
Ratio on such date (after giving effect to the transactions contemplated
hereunder to occur on or prior to the Closing Date) and (b) for purposes of
determining the Rate Ratio for the period from and after the Closing Date until
such time as one complete fiscal quarter shall have elapsed subsequent to the
Closing Date, the daily average of the Total Leverage Ratio shall be determined
only for the portion of such fiscal quarter commencing on the Closing 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.
"Region" shall mean each geographic region into which the CATV Systems of the
------
Borrower and its Subsidiaries are divided for operating and management purposes.
The Regions of the Borrower and its Subsidiaries as of the Closing Date (after
giving effect to the Cablevision Acquisition) will be the Regions identified on
Schedule VII hereto.
"Register" shall have the meaning assigned to such term in Section 11.06(g)
--------
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
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applying to a class of banks including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reimbursement Obligations" shall mean, at any time, the obligations of the
-------------------------
Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reserve Requirement" shall mean, for any Interest Period for any Eurodollar
-------------------
Loan, the average maximum rate at which reserves (including, without limitation,
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Reserved Commitment Amount" shall have the meaning assigned to such term in
--------------------------
Section 2.01(a) hereof.
"Restricted Payment" shall mean, collectively, (a) all distributions of the
------------------
Borrower (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 Borrower 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 Borrower or any of its Subsidiaries), (b) any payments made by the Borrower
to any holders of any equity interests in the Borrower that are designed to
reimburse such holders for the payment of any taxes attributable to the
operations of the Borrower and its Subsidiaries, (c) any payments of principal
Credit Agreement
----------------
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of or interest on Affiliate Subordinated Indebtedness and (d) any payments in
respect of Management Fees.
"Retained Franchises" shall mean Franchises intended to be acquired in
-------------------
connection with the Cablevision Acquisition but which have not yet been acquired
for one of the reasons specified in Section 7.07 of the Cablevision Acquisition
Agreement and, accordingly, are to be managed by the Borrower pending resolution
of the matters preventing such acquisition as contemplated by Section 9.06 of
the Cablevision Acquisition Agreement.
"Retained Franchise Management Agreement" shall mean a Management Agreement
---------------------------------------
entered into by the Borrower and the applicable Seller pursuant to Section 9.06
of the Cablevision Acquisition Agreement regarding management services to be
provided by the Borrower to the Seller with respect to Retained Franchises.
"Revolving Credit Commitment" shall mean, as to each Revolving Credit Lender,
---------------------------
the obligation of such Lender to make Revolving Credit Loans, and to issue or
participate in Letters of Credit pursuant to Section 2.03 hereof, in an
aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set forth opposite the name of such Lender on Schedule I
hereto (as the same may be reduced from time to time pursuant to Section 2.04 or
2.10 hereof or increased or reduced from time to time pursuant to assignments
permitted under Section 11.06(b) hereof). The original aggregate principal
amount of the Revolving Credit Commitments is $140,000,000.
"Revolving Credit Commitment Percentage" shall mean, with respect to any
--------------------------------------
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Reduction Dates" shall mean the last Business Day
-------------------------------------------
of March, June, September and December in each year, commencing with March 31,
2001, through and including June 30, 2006.
"Revolving Credit Commitment Termination Date" shall mean the Revolving Credit
--------------------------------------------
Commitment Reduction Date falling on or nearest to June 30, 2006.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the Lenders
------------------------
having Revolving Credit Commitments on Schedule I hereto and (b) thereafter, the
Lenders from time to time holding Revolving Credit Loans and Revolving Credit
Commitments after giving effect to any assignments thereof permitted by Section
11.06(b) hereof.
Credit Agreement
----------------
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"Revolving Credit Loans" shall mean the loans provided for in Section 2.01(a)
----------------------
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Security Agreement" shall mean a Security Agreement substantially in the form
------------------
of Exhibit C hereto between the Borrower, 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
------------------
Guarantee and Pledge Agreement and the Subsidiary Guarantee Agreements, and all
Uniform Commercial Code financing statements required by the Security Agreement,
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 Guarantee and Pledge Agreement and the Subsidiary Guarantee
Agreements.
"Sellers" means, collectively, U.S. Cable, ECC and Missouri L.P.
-------
"Senior Officer" shall mean the chairman, chief executive officer or chief
--------------
financial officer of the Manager, acting for and on behalf of the Borrower.
"Senior Notes" shall mean, collectively, senior notes in an aggregate
------------
principal amount up to $150,000,000 to be issued by Mediacom after the Closing
Date, including any any notes issued by Mediacom in exchange for such senior
notes.
"Series" has the meaning set forth in Section 2.01(c).
------
"Subscriber" shall mean a Person who subscribes to one or more of the cable
----------
television services of the Borrower and its 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)(v) 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 the Borrower in
favor of the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrower that executes
--------------------
and delivers a Subsidiary Guarantee Agreement.
"Supplemental Capital" shall mean advances made by an Affiliate to the
--------------------
Borrower constituting Affiliate Subordinated Indebtedness (excluding any Cure
Monies).
"System Cash Flow" shall mean, for any period, the sum, for the Borrower and
----------------
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) gross operating revenues for such
period minus (b) all operating expenses for such period, including, without
-----
limitation, technical, programming and selling, general and administrative
expenses, but excluding (to the extent included in operating expenses) income
taxes, Management Fees, depreciation, amortization and interest expense
(including, without limitation, all items included in Interest Expense),
provided that gross operating revenues and operating expenses for any period
--------
shall exclude all extraordinary and unusual items and all non-cash items, plus
----
(c) all payments received by the Borrower during such period pursuant to any
Retained Franchise Management Agreement plus (d) all Capital Expenditures made
----
by the Sellers in respect of Retained Franchises during such period.
Notwithstanding the foregoing, if during any period for which System Cash Flow
is being determined the Borrower or any of its Subsidiaries shall have
consummated any acquisition of any CATV System or other business, or consummated
any Disposition, then, for all purposes of this Agreement (other than for
purposes of the definition of Excess Cash Flow), System Cash Flow shall be
determined on a pro forma basis as if such acquisition or Disposition had been
made or consummated on the first day of such period.
Credit Agreement
----------------
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"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 Borrower
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 Loan Commitment" shall mean, as to each Term Loan Lender, the obligation
--------------------
of such Lender to make one or more Term Loans in an aggregate principal amount
equal to the amount set opposite the name of such Lender on Schedule I hereto.
The original aggregate principal amount of the Term Loan Commitments is
$85,000,000.
"Term Loan Commitment Termination Date" shall mean January 31, 1998 (or, if
-------------------------------------
such date is not a Business Day, the immediately preceding Business Day).
"Term Loan Lenders" shall mean (a) on the date hereof, the Lenders having Term
-----------------
Loan Commitments on Schedule I hereto and (b) thereafter, the Lenders from time
to time holding Term Loans and Term Commitments after giving effect to any
assignments thereof permitted by Section 11.06(b) hereof.
"Term Loans" shall mean the loans provided for by Section 2.01(b) hereof,
----------
which may be Base Rate Loans and/or Eurodollar Loans.
"Total Leverage Ratio" shall mean, as at any date, the ratio of (a) the
--------------------
aggregate amount of all Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, Capital Lease Obligations, but excluding
Affiliate Subordinated Indebtedness) as at such date to (b) the product of (x)
System Cash Flow for the fiscal quarter ending on, or most recently ended prior
to, such date times (y) four.
-----
Notwithstanding the foregoing, the Total Leverage Ratio for any fiscal quarter
during which an Acquisition is consummated shall be deemed to be equal to the
ratio of (a) the aggregate amount of all Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, Capital Lease Obligations, but
excluding Affiliate Subordinated Indebtedness) as at the relevant date to (b)
the product of Adjusted System Cash Flow for such fiscal quarter times four.
-----
"Type" shall have the meaning assigned to such term in Section 1.03 hereof.
----
"U.S. Cable" shall mean U.S. Cable Television Group, L.P., a Delaware limited
----------
partnership.
"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
Credit Agreement
----------------
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under any laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation regardless of the
source of its income.
"U.S. Taxes" shall mean any present or future tax, assessment or other charge
----------
or levy imposed by or on behalf of the United States of America or any taxing
authority thereof.
"Wholly Owned Subsidiary" shall mean, with respect to any Person, any
-----------------------
corporation, partnership, limited liability company or other entity of which all
of the equity securities or other ownership interests (other than, in the case
of a corporation, directors' qualifying shares) are directly or indirectly owned
or controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Working Capital" shall mean, as at such date, for the Borrower and its
---------------
Subsidiaries (determined on a consolidated 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, 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 Borrower 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,
Credit Agreement
----------------
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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 Borrower 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 Borrower 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.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by
--------------------------
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan, a Term Loan or an
Incremental Facility Loan, each of which constitutes a Class. The "Type" of a
Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each
of which constitutes a Type. Loans may be identified by both Class and Type.
Incremental Facility Loans and Incremental Facility Commitments shall be
classified by Series, each of which shall be considered a separate Class.
1.04 Subsidiaries. The Borrower has no Subsidiaries on the date hereof;
------------
reference in this Agreement to Subsidiaries of the Borrower 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.
Section 2. Commitments, Loans and Prepayments.
2.01 Loans.
-----
(a) Revolving Credit Loans. Each Revolving Credit Lender severally agrees,
----------------------
on the terms and conditions of this Agreement, to make loans to the Borrower in
Dollars during the
Credit Agreement
----------------
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period from and including the Closing Date to but not including the Revolving
Credit Commitment Termination Date in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount of the Revolving Credit
Commitment of such Lender as in effect from time to time, provided that (i) in
--------
no event shall the aggregate principal amount of all Revolving Credit Loans,
together with the aggregate amount of all Letter of Credit Liabilities, exceed
the aggregate amount of the Revolving Credit Commitments as in effect from time
to time and (ii) after giving effect to the making of the initial Revolving
Credit Loans, and the issuance of the initial Letters of Credit, on the Closing
Date there shall be an aggregate of at least $10,000,000 of unutilized Revolving
Credit Commitments. Subject to the terms and conditions of this Agreement,
during such period the Borrower may borrow, repay and reborrow the amount of the
Revolving Credit Commitments by means of Base Rate Loans and Eurodollar Loans
and may Convert Revolving Credit Loans of one Type into Revolving Credit Loans
of another Type (as provided in Section 2.09 hereof) or Continue Revolving
Credit Loans of one Type as Revolving Credit Loans of the same Type (as provided
in Section 2.09 hereof). Anything herein to the contrary notwithstanding,
Revolving Credit Loans shall not be available hereunder unless the Term Loans
(in an aggregate principal amount equal to $85,000,000) are made on the Closing
Date.
Proceeds of Revolving Credit Loans shall be available for any use permitted
under Section 8.17 hereof, provided that, in the event that as contemplated by
--------
Section 2.10(d) hereof, the Borrower shall prepay Revolving Credit Loans from
the proceeds of a Disposition hereunder, then an amount of Revolving Credit
Commitments equal to the amount of such prepayment (herein the "Reserved
--------
Commitment Amount") shall be reserved and shall not be available for borrowings
-----------------
hereunder except and to the extent that the proceeds of such borrowings are to
be applied to make Subsequent Acquisitions permitted under Section 8.05 hereof
or to make prepayments of Loans under Section 2.10(d) hereof. The Borrower
agrees, upon the occasion of any borrowing of Revolving Credit Loans hereunder
that is to constitute a utilization of any Reserved Commitment Amount, to advise
the Administrative Agent in writing of such fact at the time of such borrowing,
identifying the amount of such borrowing that is to constitute such utilization,
the Subsequent Acquisition in respect of which the proceeds of such borrowing
are to be applied and the reduced Reserved Commitment Amount to be in effect
after giving effect to such borrowing.
(b) Term Loans. Each Term Lender severally agrees, on the terms and
----------
conditions of this Agreement, to make term loans to the Borrower in Dollars on
the Closing Date (provided that the same shall occur no later than the Term Loan
Commitment Termination Date) in an aggregate principal amount equal to the
amount of the Term Loan Commitment of such Lender. Subject to the terms and
conditions of this Agreement, on the Closing Date the Borrower may borrow the
Term Loan Commitments by means of Base Rate Loans and Eurodollar Loans, and
thereafter the Borrower may Convert Term Loans of one Type into Term Loans of
another Type
Credit Agreement
----------------
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(as provided in Section 2.09 hereof) or Continue Term Loans of one Type as Term
Loans of the same Type (as provided in Section 2.09 hereof).
Proceeds of Term Loans hereunder shall be available for any use permitted under
Section 8.17 hereof.
(c) Incremental Facility Loans. In addition to borrowings of Term Loans and
--------------------------
Revolving Credit Loans provided above, at any time during the Incremental
Facility Availability Period the Borrower may from time to time request
that the Lenders offer to enter into commitments to make additional term
loans to the Borrower hereunder, which commitment of any Lender shall not
be less than $10,000,000 and not greater than $50,000,000. In the event
that one or more of the Lenders offer, in their sole discretion, to enter
into such commitments, and such Lenders and the Borrower agree pursuant to
an instrument in writing (the form and substance of which shall be
satisfactory, and a copy of which shall be delivered, to the Administrative
Agent and the Lenders making such Loans) as to the amount of such
commitments that shall be allocated to the respective Lenders making such
offers, the fees (if any) to be payable by the Borrower in connection
therewith and the amortization to be applicable thereto, such Lenders shall
become obligated to make Incremental Facility Loans under this Agreement in
an amount equal to the amount of their respective Incremental Facility
Commitments. The Incremental Facility Loans to be made pursuant to any
such agreement between the Borrower and one or more Lenders in response to
any such request by the Borrower shall be deemed to be a separate "Series"
------
of Incremental Facility Loans for all purposes of this Agreement. Anything
herein to the contrary notwithstanding, (i) the minimum aggregate principal
amount of Incremental Facility Commitments entered into pursuant to any
such request (and, accordingly, the minimum aggregate principal amount of
any Series of Incremental Facility Loans) shall be $10,000,000, (ii) the
aggregate principal amount of all Commitments and Incremental Facility
Loans shall not exceed $50,000,000 and (iii) in no event shall the final
maturity date for the Incremental Facility Loans of any Series be earlier
than the final Principal Payment Date for the Term Loans, nor shall the
amortization for any Incremental Facility Loans of any Series be at a rate
faster (i.e. earlier) than the rate of amortization of the Term Loans (the
determination of whether or not such amortization is faster to be made by
the Administrative Agent).
Proceeds of Incremental Facility Loans hereunder shall be available for
any use permitted under Section 8.17 hereof.
(d) Limit on Eurodollar Loans. No more than seven separate Interest
-------------------------
Periods in respect of Eurodollar Loans of a Class from each Lender may be
outstanding at any one time, provided that, prior to February 15, 1998, all
--------
Eurodollar Loans of any Class must have an Interest Period of one month's
duration and be coterminous with the Interest Periods of all other Eurodollar
Loans of any Class, and, to the extent that prior to such date a Eurodollar Loan
would
Credit Agreement
----------------
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not satisfy such conditions, such Loan shall be made, or Continued as or
Converted into, a Base Rate Loan.
2.02 Borrowings. The Borrower 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 Borrower. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Borrower by depositing the same, in immediately available funds, in an account
of the Borrower designated by the Borrower and maintained with Chase at its
principal office.
2.03 Letters of Credit. Subject to the terms and conditions of this
-----------------
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Borrower, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Lender of letters of credit
(collectively, "Letters of Credit") for account of the Borrower or any of its
-----------------
Subsidiaries (as specified by the Borrower), provided that in no event shall (i)
--------
the aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of the Revolving Credit Loans, exceed the aggregate
amount of the Revolving Credit Commitments as in effect from time to time, (ii)
the outstanding aggregate amount of all Letter of Credit Liabilities exceed
$35,000,000 and (iii) the expiration date of any Letter of Credit extend beyond
the earlier of the date five Business Days prior to the Revolving Credit
Commitment Termination Date and the date twelve months following the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof,
twelve months after the then-current expiration date of such Letter of Credit,
so long as such renewal or extension occurs within three months of such then-
current expiration date). The following additional provisions shall apply to
Letters of Credit:
(a) The Borrower shall give the Administrative Agent at least three Business
Days' irrevocable prior notice (effective upon receipt) specifying the
Business Day (which shall be no later than 30 days preceding the Revolving
Credit Commitment Termination Date) each Letter of Credit is to be issued
and the account party or parties therefor and describing in reasonable
detail the proposed terms of such Letter of Credit (including the
beneficiary thereof) and the nature of the transactions or obligations
proposed to be supported thereby (including whether such Letter of Credit
is to be a commercial letter of credit or a standby letter of credit).
Upon receipt of any such notice, the Administrative Agent shall advise the
Issuing Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by the Issuing
Lender of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Revolving Credit Commitment of each
Revolving Credit Lender shall be
Credit Agreement
----------------
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deemed to be utilized for all purposes of this Agreement in an amount equal
to such Lender's Revolving Credit Commitment Percentage of the then undrawn
face amount of such Letter of Credit. Each Revolving Credit Lender (other
than the Issuing Lender) agrees that, upon the issuance of any Letter of
Credit hereunder, it shall automatically acquire a participation in the
Issuing Lender's liability under such Letter of Credit in an amount equal
to such Lender's Revolving Credit Commitment Percentage of such liability,
and each Revolving Credit Lender (other than the Issuing Lender) thereby
shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to the
Issuing Lender to pay and discharge when due, its Revolving Credit
Commitment Percentage of the Issuing Lender's liability under such Letter
of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any demand for
payment under such Letter of Credit, the Issuing Lender shall promptly
notify the Borrower (through the Administrative Agent) of the amount to be
paid by the Issuing Lender as a result of such demand and the date on which
payment is to be made by the Issuing Lender to such beneficiary in respect
of such demand. Notwithstanding the identity of the account party of any
Letter of Credit, the Borrower hereby unconditionally agrees to pay and
reimburse the Administrative Agent for account of the Issuing Lender for
the amount of each demand for payment under such Letter of Credit that is
in substantial compliance with the provisions of such Letter of Credit at
or prior to the date on which payment is to be made by the Issuing Lender
to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph (c) of this
Section 2.03, the Borrower shall advise the Administrative Agent whether or
not the Borrower intends to borrow hereunder to finance its obligation to
reimburse the Issuing Lender for the amount of the related demand for
payment and, if it does, submit a notice of such borrowing as provided in
Section 4.05 hereof.
(e) Each Revolving Credit Lender (other than the Issuing Lender) shall pay to
the Administrative Agent for account of the Issuing Lender at its principal
office in Dollars and in immediately available funds, the amount of such
Lender's Revolving Credit Commitment Percentage of any payment under a
Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Lender under this paragraph (e), and the Issuing Lender's right
to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
failure of any other Revolving Credit Lender to make its payment under this
paragraph (e), the financial condition of the
Credit Agreement
----------------
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Borrower (or any other account party), the existence of any Default or the
termination of the Commitments. Each such payment to the Issuing Lender
shall be made without any offset, abatement, withholding or reduction
whatsoever. If any Revolving Credit Lender shall default in its obligation
to make any such payment to the Administrative Agent for account of the
Issuing Lender, for so long as such default shall continue the
Administrative Agent may at the request of the Issuing Lender withhold from
any payments received by the Administrative Agent under this Agreement or
any Note for account of such Revolving Credit Lender the amount so in
default and, to the extent so withheld, pay the same to the Issuing Lender
in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to the Issuing
Lender pursuant to paragraph (e) above in respect of any Letter of Credit,
such Lender shall, automatically and without any further action on the part
of the Administrative Agent, the Issuing Lender or such Lender, acquire (i)
a participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Issuing Lender by the Borrower hereunder and under
the Letter of Credit Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Lender's Revolving Credit
Commitment Percentage in any interest or other amounts payable by the
Borrower hereunder and under such Letter of Credit Documents in respect of
such Reimbursement Obligation (other than the commissions, charges, costs
and expenses payable to the Issuing Lender pursuant to paragraph (g) of
this Section 2.03). Upon receipt by the Issuing Lender from or for account
of the Borrower of any payment in respect of any Reimbursement Obligation
or any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the Issuing Lender
shall promptly pay to the Administrative Agent for account of each
Revolving Credit Lender entitled thereto, such Revolving Credit Lender's
Revolving Credit Commitment Percentage of such payment, each such payment
by the Issuing Lender to be made in the same money and funds in which
received by the Issuing Lender. In the event any payment received by the
Issuing Lender and so paid to the Revolving Credit Lenders hereunder is
rescinded or must otherwise be returned by the Issuing Lender, each
Revolving Credit Lender shall, upon the request of the Issuing Lender
(through the Administrative Agent), repay to the Issuing Lender (through
the Administrative Agent) the amount of such payment paid to such Lender,
with interest at the rate specified in paragraph (j) of this Section 2.03.
(g) The Borrower shall pay to the Administrative Agent for account of each
Revolving Credit Lender (ratably in accordance with their respective
Commitment Percentages) a letter of credit fee in respect of each Letter of
Credit in an amount equal to the Applicable Margin, in effect from time to
time, for Revolving Credit Loans that are Eurodollar Loans on the daily
average undrawn face amount of such Letter of Credit for the period from
and including the date of issuance of such Letter of Credit (i) in the case
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of a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee to be non-
refundable, to be paid in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of Credit on
such day).
In addition, the Borrower shall pay to the Administrative Agent for
account of the Issuing Lender a fronting fee in respect of each Letter of
Credit in an amount equal to 1/4 of 1% per annum of the daily average
undrawn face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in the case of
a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee to be non-
refundable, to be paid in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of Credit on
such day) plus all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing Lender shall
deliver (through the Administrative Agent) to each Revolving Credit Lender
and the Borrower a notice describing the aggregate amount of all Letters of
Credit outstanding at the end of such month. Upon the request of any
Revolving Credit Lender from time to time, the Issuing Lender shall deliver
any other information reasonably requested by such Lender with respect to
each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 6 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
satisfactory to the Issuing Lender consistent with its then current
practices and procedures with respect to letters of credit of the same type
and (ii) the Borrower shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of Credit as the
Issuing Lender shall have reasonably requested consistent with its then
current practices and procedures with respect to letters of credit of the
same type, provided that in the event of any conflict between any such
--------
application, agreement or other instrument and the provisions of this
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----------------
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Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount required to be
paid pursuant to paragraph (e) or (f) of this Section 2.03 on the due date
therefor, such Lender shall pay interest to the Issuing Lender (through the
Administrative Agent) on such amount from and including such due date to
but excluding the date such payment is made at a rate per annum equal to
the Federal Funds Rate, provided that if such Lender shall fail to make
--------
such payment to the Issuing Lender within three Business Days of such due
date, then, retroactively to the due date, such Lender shall be obligated
to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or supplement to any
Letter of Credit hereunder shall be subject to the same conditions
applicable under this Section 2.03 to the issuance of new Letters of
Credit, and no such modification or supplement shall be issued hereunder
unless either (i) the respective Letter of Credit affected thereby would
have complied with such conditions had it originally been issued hereunder
in such modified or supplemented form or (ii) each Revolving Credit Lender
shall have consented thereto.
The Borrower hereby indemnifies and holds harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Lender under any Letter of Credit; provided that the Borrower shall
--------
not be required to indemnify any Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Lender in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Lender, such Lender's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended
to limit the other obligations of the Borrower, any Lender or the Administrative
Agent under this Agreement.
2.04 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,
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(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:
---------- ------- -------
March 31, 2001 $ 1,750,000 $138,250,000
June 30, 2001 $ 1,750,000 $136,500,000
September 30, 2001 $ 1,750,000 $134,750,000
December 31, 2001 $ 1,750,000 $133,000,000
March 31, 2002 $ 3,500,000 $129,500,000
June 30, 2002 $ 3,500,000 $126,000,000
September 30, 2002 $ 3,500,000 $122,500,000
December 31, 2002 $ 3,500,000 $119,000,000
March 31, 2003 $ 5,250,000 $113,750,000
June 30, 2003 $ 5,250,000 $108,500,000
September 30, 2003 $ 5,250,000 $103,250,000
December 31, 2003 $ 5,250,000 $ 98,000,000
March 31, 2004 $ 7,000,000 $ 91,000,000
June 30, 2004 $ 7,000,000 $ 84,000,000
September 30, 2004 $ 7,000,000 $ 77,000,000
December 31, 2004 $ 7,000,000 $ 70,000,000
March 31, 2005 $ 8,750,000 $ 61,250,000
June 30, 2005 $ 8,750,000 $ 52,500,000
September 30, 2005 $ 8,750,000 $ 43,750,000
December 31, 2005 $ 8,750,000 $ 35,000,000
March 31, 2006 $17,500,000 $ 17,500,000
June 30, 2006 $17,500,000 $ 0
(b) The Borrower shall have the right at any time or from time to time (i) so
long as no Revolving Credit Loans or Letter of Credit Liabilities are
outstanding, to terminate the
Credit Agreement
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Revolving Credit Commitments, (ii) so long as no Term Loans are outstanding, to
terminate the Term Loan Commitments, (iii) so long as no Incremental Facility
Loans of a Series are outstanding, to terminate the Incremental Facility
Commitments of such Series and (iv) to reduce the aggregate unused amount of the
Revolving Credit Commitments or Incremental Facility Commitments of any Series
(for which purpose use of the Revolving Credit Commitments shall be deemed to
include the aggregate amount of Letter of Credit Liabilities); provided that (x)
--------
the Borrower shall give notice of each such termination or reduction as provided
in Section 4.05 hereof, (y) each partial reduction shall be in an aggregate
amount at least equal to $1,000,000 (or a larger multiple of $500,000) and (z)
prior to the making of the initial Loans hereunder, each such reduction of
Commitments shall be applied ratably to the Commitments of each Class.
(c) Each reduction in the aggregate amount of the Revolving Credit
Commitments pursuant to paragraph (b) above, or pursuant to Section 2.10 hereof,
on any date shall be applied to the reductions set forth in the schedule in
paragraph (a) above ratably as follows: each such reduction shall result in an
automatic and simultaneous reduction (but not below zero) of the respective
amounts set forth in column (B) at the end of paragraph (a) above (ratably in
accordance with the respective remaining amounts thereof, after giving effect to
any prior reductions pursuant to this paragraph (c)), with appropriate
reductions (but not below zero) being made to the respective amounts set forth
in column (C) of said paragraph (a) after giving effect to such reduction of the
amounts in said column (B).
(d) The aggregate amount of the Term Loan Commitments shall be automatically
reduced to zero on the close of business on the Term Loan Commitment Termination
Date. The aggregate amount of the Incremental Facility Commitments shall be
automatically reduced to zero on the close of business on the last day of the
Incremental Facility Availability Period.
(e) The Commitments once terminated or reduced may not be reinstated.
2.05 Commitment Fee. The Borrower shall pay to the Administrative Agent
--------------
for account of each Revolving Credit Lender a commitment fee on the daily
average unused amount of such Lender's Revolving Credit Commitment (for which
purpose (i) the aggregate amount of any Letter of Credit Liabilities shall be
deemed to be a pro rata (based on the Revolving Credit Commitments) use of each
Lender's Revolving Credit Commitment and (ii) any Reserved Commitment Amount
shall be deemed to be unused), for the period from and including the date hereof
to but not including the earlier of the date such Revolving Credit Commitment is
terminated and the Revolving Credit Commitment Termination Date, at a rate per
annum equal (x) at any time the then-current Rate Ratio (determined pursuant to
Section 3.03 hereof) is greater than or equal to 5.50 to 1, 1/2 of 1% and (y) at
any time the then-current Rate Ratio (so determined) is less than 5.50 to 1, 3/8
of 1%, provided that commitment fee for the period from and including the date
--------
hereof to but excluding the Closing Date shall be determined on the assumption
that the Rate Ratio is greater than 5.50 to 1. The Borrower shall pay to the
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----------------
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Administrative Agent for account of each Incremental Facility Lender of any
Series a commitment fee in such amounts, and on such dates, as shall have been
agreed to by the Borrower and such Incremental Facility Lender upon the
allocation of the Incremental Facility Commitment of such Series to such Lender
pursuant to Section 2.01(c) hereof. Accrued commitment fee shall be payable on
each Quarterly Date and on the earlier of the date the relevant Commitments are
terminated and the Revolving Credit Commitment Termination Date or the
Incremental Facility Commitment Termination Date, as the case may be.
2.06 Lending Offices. The Loans of each Type made by each Lender shall be
---------------
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
2.07 Several Obligations; Remedies Independent. The failure of any Lender
-----------------------------------------
to make any Loan to be made by it on the date specified therefor shall not
relieve any other Lender of its obligation to make its Loan on such date, but
neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender. Anything in
this Agreement to the contrary notwithstanding, each Lender hereby agrees with
each other Lender that no Lender shall take any action to protect or enforce its
rights arising out of this Agreement (including, without limitation, exercising
any rights of off-set) without first obtaining the prior written consent of the
Administrative Agent or the Majority Lenders, it being the intent of the Lenders
that any such action to protect or enforce rights under this Agreement shall be
taken in concert and at the direction or with the consent of the Administrative
Agent or the Majority Lenders and not individually by a single Lender.
2.08 Loan Accounts; Promissory Notes.
-------------------------------
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender to the Borrower, including the
amounts of principal and interest payable and paid to such Lender by the
Borrower from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder to the Borrower, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower for the account of the
Lenders and each Lender's share thereof.
Credit Agreement
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(c) The entries made in the accounts maintained pursuant to paragraph (a) or
(b) of this Section shall be prima facie evidence of the existence and amounts
----- -----
of the obligations recorded therein; provided that the failure of any Lender or
--------
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans of any Class made by it to the Borrower
be evidenced by a promissory note. In such event, such Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans of the Borrower evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 11.06 hereof)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
2.09 Optional Prepayments and Conversions or Continuations of Loans. Subject
--------------------------------------------------------------
to Section 4.04 hereof, the Borrower 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 Borrower 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 Borrower shall pay any amounts owing under Section 5.05
--------
hereof in the event of any such prepayment or Conversion on any date other
than the last day of an Interest Period for such Loans;
(c) prepayments of any Term Loan shall be effected in such manner so that the
Term Loans (and, to the extent that Incremental Loans are outstanding, the
Incremental Loans of all Series) are concurrently prepaid ratably in
accordance with the respective outstanding principal amounts thereof and
the aggregate principal amount of all such concurrent prepayments is at
least equal to $1,000,000 or a greater multiple of $500,000;
(d) prepayments of the Term Loans and Incremental Facility Loans shall be
applied to the remaining installments of such Loans ratably in accordance
with the respective principal amounts thereof; and
Credit Agreement
----------------
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(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 Borrower to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Casualty Events. Upon the date 270 days following the receipt by the
---------------
Borrower or any of its Subsidiaries of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting any
Property of the Borrower or any of its Subsidiaries (or upon such earlier date
as the Borrower or such Subsidiary, as the case may be, shall have determined
not to repair or replace the Property affected by such Casualty Event), the
Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (g) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal to 100% of
the Net Available Proceeds of such Casualty Event not theretofore applied (or
committed to be applied pursuant to executed construction contracts or equipment
orders) to the repair or replacement of such Property, such prepayment to be
effected in each case in the manner and to the extent specified in paragraph (f)
of this Section 2.10. Notwithstanding the foregoing, the Borrower shall not be
required to make any prepayment (and/or provide cover for Letter of Credit
Liabilities) under this paragraph (a), and the Commitments shall not be subject
to automatic reduction, until the aggregate amount of the Net Available Proceeds
that must be prepaid under this paragraph (a) (reduced by the amount of such Net
Available Proceeds that has previously been applied to the prepayment of Loans
or reduction of Commitments hereunder as a result of previous Casualty Events)
is at least equal to $2,000,000.
Nothing in this paragraph (a) shall be deemed to limit any obligation of the
Borrower and its Subsidiaries pursuant to the Security Agreement to remit to the
Collateral Account the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event, and the Administrative
Agent shall release such proceeds to the Borrower in the manner and to the
extent provided in Section 4.01 of the Security Agreement.
(b) Excess Cash Flow. Not later than the date 150 days after the end of the
----------------
each fiscal year of the Borrower (or, if earlier, 30 days after the delivery of
the audited financial statements for such fiscal year pursuant to Section
8.01(c) hereof), commencing with the fiscal year ending on December 31, 2000,
the Borrower shall prepay the Loans (and/or provide cover
Credit Agreement
----------------
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for Letter of Credit Liabilities as specified in paragraph (g) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to the excess of (A) 50% of Excess Cash Flow for such fiscal year over (B)
the aggregate amount of voluntary prepayments of Term Loans and Incremental
Facility Loans made during such fiscal year pursuant to Section 2.09 hereof
(other than that portion, if any, of such prepayments applied to installments of
the Term Loans and Incremental Facility Loans falling due in such fiscal year),
such prepayment and reduction to be effected in each case in the manner and to
the extent specified in paragraph (f) of this Section 2.10.
(c) Equity and Debt Issuances. Upon any Equity Issuance or Debt Issuance,
-------------------------
the Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (g) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds thereof, such prepayment and reduction to be effected in each
case in the manner and to the extent specified in paragraph (f) of this Section
2.10.
(d) Sale of Assets. Without limiting the obligation of the Borrower to
--------------
obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to
any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
-------------------
of all prior Dispositions after the date hereof as to which a prepayment has not
yet been made under this Section 2.10(d), shall exceed $5,000,000 then, no later
than five Business Days prior to the occurrence of the Current Disposition, the
Borrower will deliver to the Lenders a statement, certified by a Senior Officer,
in form and detail satisfactory to the Administrative Agent, of the amount of
the Net Available Proceeds of the Current Disposition and of all such prior
Dispositions and will prepay the Loans (and/or provide cover for Letter of
Credit Liabilities as specified in paragraph (g) below), and the Commitments
shall be subject to automatic reduction, in an aggregate amount equal to 100% of
the Net Available Proceeds of the Current Disposition and such prior
Dispositions, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (f) of this Section 2.10.
Notwithstanding the foregoing, the Borrower shall not be required to make a
prepayment pursuant to this paragraph (d) with respect to Net Available Proceeds
from any Disposition in the event that the Borrower advises the Administrative
Agent at the time the Net Available Proceeds from such Disposition are received
that it intends to reinvest such Net Available Proceeds in replacement assets
pursuant to an acquisition permitted under Section 8.05(d)(v) hereof so long as
(x) such Net Available Proceeds are either (i) held by the Administrative
Agent in the Collateral Account pending such reinvestment, in which event
the Administrative Agent need not release such Net Available Proceeds
except upon
Credit Agreement
----------------
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presentation of evidence satisfactory to it that such Net Available
Proceeds are to be so reinvested in compliance with the provisions of this
Agreement or (ii) applied by the Borrower to the prepayment of Revolving
Credit Loans hereunder (in which event the Borrower agrees to advise the
Administrative Agent in writing at the time of such prepayment of Revolving
Credit Loans that such prepayment is being made from the proceeds of a
Disposition and that, as contemplated by Section 2.01(a) hereof, a portion
of the Revolving Credit Commitments hereunder equal to the amount of such
prepayment gives rise to a Reserved Commitment Amount that shall be
available hereunder only for purposes of making an acquisitions under
Section 8.05(d)(v) hereof),
(y) the Net Available Proceeds from any Disposition are in fact so reinvested
within 270 days of such Disposition (it being understood that, in the event
Net Available Proceeds from more than one Disposition are paid into the
Collateral Account or applied to the prepayment of Revolving Credit Loans
as provided in clause (x) above, such Net Available Proceeds shall be
deemed to be released (or, as the case may be, Revolving Credit Loans
utilizing the Reserved Commitment Amount shall be deemed to be made) in the
same order in which such Dispositions occurred and, accordingly, (A) any
such Net Available Proceeds so held for more than 270 days shall be
forthwith applied to the prepayment of Loans and reductions of Commitments
as provided above and (B) any Reserved Commitment Amount that remains so
unutilized for more than 270 days shall, subject to the satisfaction of the
conditions precedent to such borrowing in Section 6.02 hereof, be utilized
through the borrowing by the Borrower of Revolving Credit Loans the
proceeds of which shall be applied to the prepayment of Loans and
reductions of Commitments as provided in paragraph (f) of this Section
2.10) and
(z) the aggregate amount of Net Available Proceeds (together with investment
earnings thereon) so held at any time by the Administrative Agent pending
reinvestment as contemplated by this sentence, together with the aggregate
amount of the Reserved Commitment Amount, shall not at any time exceed
$40,000,000 or such greater amount as the Majority Lenders may otherwise
agree.
As contemplated by Section 4.01 of the Security Agreement, nothing in this
paragraph (d) shall be deemed to obligate the Administrative Agent to release
any of such proceeds from the Collateral Account to the Borrower for purposes of
reinvestment as aforesaid upon the occurrence and during the continuance of any
Event of Default.
(e) Retained Franchises. In the event that the Borrower receives any payment
-------------------
in respect of Retained Franchises pursuant to Section 9.06 of the Cablevision
Acquisition Agreement, the Revolving Credit Commitments shall be subject to
automatic reduction in an amount equal to such payment and, to the extent that,
after giving effect to such reduction, the aggregate principal amount of
Revolving Credit Loans, together with the aggregate amount of all
Credit Agreement
----------------
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Letter of Credit Liabilities, would exceed the Revolving Credit Commitments, the
Borrower shall, first, prepay Revolving Credit Loans and second, provide cover
for Letter of Credit Liabilities as specified in paragraph (g) below, in an
aggregate amount equal to such excess.
(f) Application. Prepayments and reductions of Commitments described in
-----------
paragraphs (a), (b), (c) and (d) of this Section 2.10 shall be effected as
follows:
(i) first, the amount of prepayment specified in such paragraphs shall be
applied to the Term Loans and Incremental Facility Loans of each Series
then outstanding, ratably as between the outstanding Term Loans and the
outstanding Incremental Facility Loans (if any) of each Series, (x) in the
case of prepayments pursuant to paragraphs (b) and (c) of this Section
2.10, to the respective installments thereof ratably in accordance with the
respective principal amounts of such installments and (y) in the case of
prepayments pursuant to paragraphs (a) and (d) of this Section 2.10, to the
remaining installments thereof in direct order of maturity (or, in the
event that the Closing Date shall not yet have occurred, the Term Loan
Commitments shall be automatically reduced in an aggregate amount equal to
the required prepayment); and
(ii) second, the Revolving Credit Commitments shall be automatically reduced in
an amount equal to any excess over the amount referred to in the foregoing
clause (i) and to the extent that, after giving effect to such reduction,
the aggregate principal amount of Revolving Credit Loans, together with the
aggregate amount of all Letter of Credit Liabilities, would exceed the
Revolving Credit Commitments, the Borrower shall, first, prepay Revolving
Credit Loans and second, provide cover for Letter of Credit Liabilities as
specified in paragraph (g) below, in an aggregate amount equal to such
excess.
(g) Cover for Letter of Credit Liabilities. In the event that the Borrower
--------------------------------------
shall be required pursuant to this Section 2.10, to provide cover for Letter of
Credit Liabilities, the Borrower shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided therein as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of the Letter of Credit Liabilities
paid in full.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
------------------
(a) The Borrower hereby promises to pay to the Administrative Agent for
account of each Lender the entire outstanding principal amount of such Lender's
Revolving Credit Loans,
Credit Agreement
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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 Borrower shall pay Revolving
Credit Loans, and provide cover for Letter of Credit Liabilities as specified in
Section 2.10(g), in an aggregate amount equal to such excess.
(b) The Borrower hereby promises to pay to the Administrative Agent for
account of the Term Loan Lenders the principal of the Term Loans in twenty-two
consecutive quarterly installments payable on the Principal Payment Dates as
follows:
Principal Payment Date Amount of Installment ($)
---------------------- -------------------------
March 31, 2001 $ 1,000,000
June 30, 2001 $ 1,000,000
September 30, 2001 $ 1,000,000
December 31, 2001 $ 1,000,000
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 $ 3,500,000
June 30, 2003 $ 3,500,000
September 30, 2003 $ 3,500,000
December 31, 2003 $ 3,500,000
March 31, 2004 $ 4,500,000
June 30, 2004 $ 4,500,000
September 30, 2004 $ 4,500,000
December 31, 2004 $ 4,500,000
March 31, 2005 $ 5,000,000
June 30, 2005 $ 5,000,000
September 30, 2005 $ 5,000,000
December 31, 2005 $ 5,000,000
March 31, 2006 $10,750,000
June 30, 2006 $10,750,000
Credit Agreement
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(c) The Borrower hereby promises to pay to the Administrative Agent for
account of the Incremental Facility Lenders of any Series the principal of the
Incremental Facility Loans of such Series on the respective Principal Payment
Dates agreed upon between the Borrower and such Incremental Facility Lenders
pursuant to Section 2.10(c) hereof at the time such Lenders become obligated to
make such Incremental Facility Loans hereunder.
3.02 Interest. The Borrower hereby promises 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 Borrower promises to pay to the
Administrative Agent for account of each Lender interest at the applicable Post-
Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and on any other amount payable by
the Borrower hereunder to or for account of such Lender, that shall not be paid
in full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date thereof
to but excluding the date the same is paid in full. Accrued interest on each
Loan shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, (iii) in the case of any Eurodollar Loan, upon the payment, prepayment
or Conversion thereof (but only on the principal amount so paid, prepaid or
Converted) and (iv) in the case of all Loans, upon the payment or prepayment in
full of the principal of the Loans, and the termination of the Commitments,
hereunder, except that interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Lenders to which such interest is payable
and to the Borrower.
3.03 Determination of Applicable Margin.
----------------------------------
(a) The Applicable Margin for the period from the Closing Date to the day
prior to the first Quarterly Date occurring after the Closing Date shall be
determined based upon the certificate delivered pursuant to Section 6.01(o)
hereof. Thereafter, the Applicable Margin for
Credit Agreement
----------------
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each Quarterly Payment Period shall be determined based upon a Rate Ratio
Certificate for such Quarterly Payment Period delivered by the Borrower 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 Borrower 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 Borrower 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
Borrower, the Applicable Margin for such Quarterly Payment Period shall be
deemed to be the highest Applicable Margin provided for in the definition of
such term in Section 1.01 hereof.
(d) In the event of any retroactive increase in the Applicable Margin for any
Quarterly Payment Period pursuant to paragraph (a), (b) or (c) above, the amount
of interest in respect of any Loan outstanding during all or any portion of such
Quarterly Payment Period shall be recalculated using the Applicable Margin as so
increased. On the Business Day immediately following receipt by the Borrower of
notice from the Administrative Agent of such increase, the Borrower 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
Borrower 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.
Credit Agreement
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Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrower under this Agreement, and except to the extent otherwise provided
therein, all payments to be made by the Borrower 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 Borrower, not later than 1:00 p.m. New York time
on the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day).
(b) Any Lender for whose account any such payment is to be made may (but
shall not be obligated to) debit the amount of any such payment that is not made
by such time to any ordinary deposit account of the Borrower with such Lender
(with notice to the Borrower and the Administrative Agent), provided that such
--------
Lender's failure to give such notice shall not affect the validity thereof.
(c) The Borrower shall, at the time of making each payment under this
Agreement for account of any Lender, specify to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans, Reimbursement
Obligations or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that the Borrower fails to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02 hereof,
may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of Section
2.03(e) hereof, each payment received by the Administrative Agent under this
Agreement for account of any Lender shall be paid by the Administrative Agent
promptly to such Lender, in immediately available funds, for account of such
Lender's Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made.
(e) If the due date of any payment under this Agreement would otherwise fall
on a day that is not a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any principal so
extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
Credit Agreement
----------------
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(a) each borrowing of Loans of a particular Class (including of a particular
Series of Incremental Facility Loans) from the Lenders under Section 2.01
hereof shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 hereof in respect of Commitments of a particular
Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular
Class under Section 2.04 hereof shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to
the amounts of their respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof, Eurodollar Loans of
any Class (including of a particular Series of Incremental Facility Loans)
having the same Interest Period shall be allocated pro rata among the
relevant Lenders according to the amounts of their respective Revolving
Credit, Term Loan and Incremental Facility Loan Commitments of the relevant
Series (in the case of the making of Loans) or their respective Revolving
Credit, Term and Incremental Facility Loans of the relevant Series (in the
case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Revolving Credit, Term and
Incremental Facility Loans by the Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and
(d) each payment of interest on Revolving Credit, Term and Incremental Facility
Loans by the Borrower shall be made for account of the relevant Lenders pro
rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans shall be computed on the
------------
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable and interest
on Base Rate Loans and Reimbursement Obligations, commitment fee and letter of
credit fees shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but, except as
otherwise provided in Section 2.03(g) hereof, excluding the last day) occurring
in the period for which payable. Notwithstanding the foregoing, for each day
that the Base Rate is calculated by reference to the Federal Funds Rate,
interest on Base Rate Loans shall be computed on the basis of a year of 360 days
and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant to
---------------
Section 2.10 hereof and Conversions or prepayments made pursuant to Section 5.04
hereof, each borrowing, Conversion and partial prepayment of principal of Base
Rate Loans (other than prepayments of Term Loans, as to which the provisions of
Section 2.09(c) hereof shall apply)
Credit Agreement
----------------
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shall be in an aggregate amount at least equal to $100,000 or a larger multiple
of $100,000 and each borrowing, Conversion and partial prepayment of Eurodollar
Loans (other than prepayments of Term Loans, as to which the provisions of
Section 2.09(c) hereof shall apply) shall be in an aggregate amount at least
equal to $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 Borrower to the Administrative Agent
---------------
of terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
1:00 p.m. New York time on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans (including, if applicable, the particular Series of Incremental
Facility Loans) to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or
Credit Agreement
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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 Borrower fails 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 Borrower (the
"Payor") prior to the date on which the Payor is to make payment to the
-----
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrower) 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 Borrower to the Lenders, the Borrower 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 Borrower 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 Borrower
under said Section 3.02 to pay interest at the Post-Default Rate in respect
of the Required Payment and
Credit Agreement
----------------
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(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to the Borrower, the Payor and the Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type of such Loan, it
being understood that the return by the Borrower of the Required Payment to
the Administrative Agent shall not limit any claim the Borrower may have
against the Payor in respect of such Required Payment.
4.07 Sharing of Payments, Etc.
-------------------------
(a) The 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 the Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to the Borrower), in which case it shall promptly
notify the 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 the Borrower payment of any principal of
or interest on any Loan of any Class or Letter of Credit Liability owing to it
or payment of any other amount under this Agreement or any other Loan Document
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise (other than from the Administrative Agent as provided
herein), and, as a result of such payment, such Lender shall have received a
greater percentage of the principal of or interest on the Loans of such Class or
Letter of Credit Liabilities or such other amounts then due hereunder or
thereunder by the Borrower to such Lender than the percentage received by any
other Lender, it shall promptly purchase from such other Lenders participations
in (or, if and to the extent specified by such Lender, direct interests in) the
Loans of such Class or Letter of Credit Liabilities or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class or Letter of
Credit Liabilities or such other amounts, respectively, owing to each of the
Lenders. To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored.
Credit Agreement
----------------
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(c) The 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 Borrower. 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 Borrower shall pay directly to each Lender from time to time such
amounts as such Lender may determine to be necessary to compensate such Lender
for any costs that such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
----------
Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of such
Loans or changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (excluding
changes in the rate of tax on the overall net income of such Lender or of
such Applicable Lending Office by the jurisdiction in which such Lender has
its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
Credit Agreement
----------------
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(iii) imposes any other condition affecting this Agreement (or
any of such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Borrower under this Section
5.01(a), the Borrower 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 Borrower 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 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 Borrower 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
Credit Agreement
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shall have no obligation to designate an Applicable Lending Office located in
the United States of America. Each Lender will furnish to the Borrower 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:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority Revolving
Credit Lenders, if the related Loans are Term Loans, the Majority Term Loan
Lenders, or if the related Loans are Incremental Facility Loans of any
Series, the Majority Incremental Facility Lenders of such Series determine,
which determination shall be conclusive, and notify the Administrative
Agent that the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower 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
Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
----------
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans hereunder
(and, in the sole opinion of such
Credit Agreement
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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 Borrower thereof (with a copy to the
Administrative Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, Eurodollar Loans shall be suspended until
such time as such Lender may again make and maintain Eurodollar Loans (in which
case the provisions of Section 5.04 hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to make
---------------------------
Eurodollar Loans of any Class or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans of any Class shall be suspended pursuant to Section 5.01
or 5.03 hereof, such Lender's Eurodollar Loans of such Class shall be
automatically Converted into Base Rate Loans of such Class on the last day(s) of
the then current Interest Period(s) for Eurodollar Loans (or, in the case of a
Conversion resulting from a circumstance described in Section 5.03 hereof, on
such earlier date as such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans of such Class have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans of such Class shall
be applied instead to its Base Rate Loans of such Class; and
(b) all Loans of such Class that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Class of such Lender that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower 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 Borrower shall pay to the Administrative Agent
------------
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such
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----------------
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amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a Eurodollar
Loan made by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9 hereof) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower 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 Additional Costs in Respect of Letters of Credit. Without limiting the
------------------------------------------------
obligations of the Borrower under Section 5.01 hereof (but without duplication),
if as a result of any Regulatory Change or any risk-based capital guideline or
other requirement heretofore or hereafter issued by any government or
governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrower shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate
Credit Agreement
----------------
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such Lender or Lenders (through the Administrative Agent) for such increased
costs or reductions in amount. A statement as to such increased costs or
reductions in amount incurred by any such Lender or Lenders, submitted by such
Lender or Lenders to the Borrower shall be conclusive in the absence of manifest
error as to the amount thereof.
5.07 U.S. Taxes.
----------
(a) The Borrower agrees 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:
(i) to any payment to any Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 11.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, either entitled to submit a Form
1001 (relating to such Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect of
the Loans) or a Form 4224 (relating to all interest to be received by such
Lender hereunder in respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure
by such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections
with the United States of America of such non-U.S. Person (or beneficial
owner, as the case may be) if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "Form 1001" shall mean Form 1001
---------
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America and (B) "Form 4224" shall mean Form
---------
4224 (Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms 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).
Credit Agreement
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(b) Within 30 days after paying any amount to the Administrative Agent or any
Lender from which it is required by law to make any deduction or withholding,
and within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Borrower shall
deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
5.08 Replacement of Lenders. If any Lender requests compensation pursuant
----------------------
to Section 5.01, 5.06 or 5.07 hereof, or any Lender's obligation to make or
Continue, or to Convert Loans of any Type into, the other Type of Loan shall be
suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender requesting
such compensation being herein called a "Requesting Lender"), the Borrower, upon
-----------------
three Business Days notice, may require that such Requesting Lender transfer all
of its right, title and interest under this Agreement to any bank or other
financial institution (a "Proposed Lender") identified by the Borrower that is
---------------
reasonably satisfactory to the Administrative Agent (i) if such Proposed Lender
agrees to assume all of the obligations of such Requesting Lender hereunder, and
to purchase all of such Requesting Lender's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such Requesting Lender's
Loans, together with interest thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Requesting Lender of all
other amounts payable hereunder to such Requesting Lender on or prior to the
date of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 hereof, as if all of such Requesting
Lender's Loans were being prepaid in full on such date) and (ii) if such
Requesting Lender has requested compensation pursuant to said Section 5.01, 5.06
or 5.07 hereof, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 5.01, 5.06 or 5.07 with respect to such Requesting
Lender's Loans is lower than that of the Requesting Lender. Subject to the
provisions of Section 11.06(b) hereof, such Proposed Lender shall be a "Lender"
for all purposes hereunder. Without prejudice to the survival of any other
agreement of the Borrower hereunder the agreements of the Borrower contained in
Sections 5.01, 5.06, 5.07 and 11.03 hereof (without duplication of any payments
made to such Requesting Lender by the Borrower or the Proposed Lender) shall
survive for the benefit of such Requesting Lender under this Section 5.08 with
respect to the time prior to such replacement.
Section 6. Conditions Precedent.
6.01 Initial Extension of Credit. The obligation of any Lender to make
---------------------------
its initial extension of credit hereunder (whether by making a Loan or issuing a
Letter of Credit) is subject to the conditions precedent that (i) such extension
of credit shall occur on or before January 31, 1998 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
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----------------
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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 Agreement
-------------------
and of the charter and by-laws (or equivalent documents) of each Obligor
and of all limited liability company and corporate authority for each
Obligor (including, without limitation, board of director resolutions,
member approvals and evidence of incumbency, including specimen signatures,
of officers of each Obligor) with respect to the execution, delivery and
performance of the Basic Documents to which such Obligor is to be a party
and each other document to be delivered by such Obligor from time to time
in connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor to the
contrary).
(b) Officer's Certificate. A certificate of a Senior Officer, dated the
---------------------
Closing Date, to the effect set forth in the first sentence of Section 6.02
hereof.
(c) Opinions of Counsel to the Obligors. An opinion, dated the Closing Date,
-----------------------------------
of Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel to the
Obligors, substantially in the form of Exhibit G hereto and covering such
other matters as the Administrative Agent or any Lender may reasonably
request (and the Borrower hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion, dated the
--------------------------------------------
Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel
to Chase, substantially in the form of Exhibit H hereto (and Chase hereby
instructs such counsel to deliver such opinion to the Lenders).
(e) Notes. Promissory notes for each Lender that shall have requested the
-----
execution and delivery of a promissory note, on or prior to the Closing
Date, pursuant to Section 2.08(d) hereof.
(f) Security Agreement. The Security Agreement, duly executed and delivered by
------------------
the Borrower, each of the Subsidiaries of the Borrower in existence on the
Closing 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.
Credit Agreement
----------------
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(g) Guarantee and Pledge Agreement. The Guarantee and Pledge Agreement, duly
------------------------------
executed and delivered by Mediacom and the Administrative Agent and the
certificates (if any) evidencing the ownership interests in the Borrower
held by Mediacom, accompanied by undated stock powers executed in blank.
In addition, Mediacom shall have taken such other action as the
Administrative Agent shall have requested in order to perfect the security
interests created pursuant to the Guarantee and Pledge Agreement,
including, without limitation, delivering to the Administrative Agent, for
filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements.
(h) Management Fee Subordination Agreement. A Management Fee Subordination
--------------------------------------
Agreement, duly executed and delivered by the Borrower, the Manager and the
Administrative Agent.
(i) Cablevision Acquisition. Evidence that (x) Mediacom shall have assigned
-----------------------
all of its rights to acquire the CATV Systems to be sold by the Sellers
under the Cablevision Acquisition Agreement to the Borrower, (y) the
Cablevision Acquisition shall have been duly consummated by the Borrower
for an aggregate purchase price not exceeding $315,000,000 (subject to
purchase price adjustments as set forth in the Cablevision Acquisition
Agreement) in all material respects in accordance with the terms of the
Cablevision Acquisition Agreement, including the schedules and exhibits
thereto (and no material provision thereof shall have been waived, amended,
supplemented or otherwise modified in any material respect without the
consent of the Majority Lenders) and (z) Franchises covering at least 90%
of the Basic Subscribers to the CATV Systems to be acquired in connection
with the Cablevision Acquisition shall have been transferred by the Sellers
to the Borrower; 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 the documents delivered in
connection with the closing thereunder, together with (in the case of each
legal opinion delivered to the Borrower 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.
(j) Release of Existing Liens. Evidence that, to the extent the assets
-------------------------
purchased in the Cablevision 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).
(k) Capitalization. Evidence that (i) not less than $94,000,000 shall have
--------------
been contributed to the Borrower as an equity contribution by Mediacom to
the Borrower and (ii) the Borrower shall have received an additional
$20,000,000 representing proceeds of
Credit Agreement
----------------
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the issuance of Preferred Membership Interests to Mediacom, 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
Preferred Membership Interests shall have been issued by Mediacom and the
Borrower, in each case certified by a Senior Officer.
(l) Pro Forma Financial Statements. An unaudited consolidated pro forma
------------------------------ --- -----
balance sheet of the Borrower and its Subsidiaries as at the Closing Date
giving effect to the Cablevision Acquisition and the initial Loans
hereunder to be outstanding on the Closing Date (subject, however, to asset
value adjustments based on subsequent appraisals), and a consolidated pro
---
forma calculation of Adjusted System Cash Flow of the Borrower and its
-----
Subsidiaries for the fiscal quarter ending September 30, 1997, in each case
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 and calculation fairly present the pro
forma financial condition and Adjusted System Cash Flow of the Borrower and
its Subsidiaries as at such date and period, as applicable, in accordance
with GAAP, after giving effect to the Cablevision Acquisition and the
initial Loans hereunder to be outstanding on the Closing Date.
(m) Adjusted System Cash Flow. Evidence that the product of Adjusted System
-------------------------
Cash Flow for the fiscal quarter ending on or most recently prior to the
Closing Date times four is at least equal to $35,750,000.
-----
(n) Approvals. Evidence of receipt of all material licenses, permits,
---------
approvals and consents, if any, required (or, in the discretion of the
Administrative Agent, advisable) with respect to the Cablevision
Acquisition (including, without limitation, the consents of the respective
municipal franchising authorities to the acquisition of the respective CATV
Systems being acquired by the Borrower pursuant to the Cablevision
Acquisition) other than the Retained Franchises.
(o) Total Leverage Ratio Certificate. A certificate of a Senior Officer, dated
--------------------------------
the Closing Date, setting forth, in reasonable detail, the calculation (and
the basis for such calculation) of Rate Ratio as of such date.
(p) Other Documents. Such other documents as the Administrative Agent or any
---------------
Lender or special New York counsel to Chase may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Borrower of such fees as the Borrower
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
Credit Agreement
----------------
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counsel to Chase, in connection with the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents and the extensions of
credit hereunder (to the extent that statements for such fees and expenses have
been delivered to the Borrower).
6.02 Initial and Subsequent Extensions of Credit. The obligation of the
-------------------------------------------
Lenders to make any Loan or otherwise extend any credit to the Borrower upon the
occasion of each borrowing or other extension of credit hereunder (including the
initial borrowing) is subject to the further conditions precedent that, both
immediately prior to the making of such Loan or other extension of credit and
also after giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrower in Section 7
hereof, and by each Obligor in the other Loan Documents to which it is a
party, shall be true and complete on and as of the date of the making of
such Loan or other extension of credit with the same force and effect as if
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Borrower hereunder shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 7. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and the Lenders that:
7.01 Corporate Existence. Each of the 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 failure so to qualify could
(either individually or in the aggregate) have a Material Adverse Effect.
Credit Agreement
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7.02 Financial Condition. The Borrower has heretofore furnished to each
-------------------
of the Lenders the following financial statements:
(i) the audited consolidated balance sheet of U.S. Cable for the
fiscal year ended December 31, 1996, and the related consolidated statement
of income for such fiscal year;
(ii) the unaudited consolidated balance sheets of U.S. Cable as
at March 31, 1997, June 30, 1997 and September 30, 1997 and the related
unaudited consolidated statements of income for the fiscal quarters ended
on such dates; and
(iii) an unaudited pro forma consolidated balance sheet of the
Borrower and its Subsidiaries as at September 30, 1997 and an unaudited pro
forma consolidated statement of System Cash Flow for the fiscal quarter
ended on such date, in each case prepared under the assumption that the
Cablevision Acquisition was consummated on July 1, 1997 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. The financial statements of U.S. Cable referred to in clauses (i) and
(ii) above include in the consolidation the financial position and results of
operations of ECC and Missouri L.P. and do not include the financial position
and results of operations of any other entity, whether or not a subsidiary of
any of the Sellers, or any other CATV Systems (other than CATV Systems to be
acquired pursuant to the Cablevision Acquisition, or CATV Systems covered by the
Retained Franchises). As of the date hereof, there are no material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments of U.S. Cable,
ECC or Missouri L.P., or any of the CATV Systems to be acquired pursuant to the
Cablevision Acquisition, except as referred to or reflected or provided for in
said unaudited financial statements as at June 30, 1997.
Since September 30, 1997, there has been no material adverse change in the
consolidated financial condition, operations, business or prospects (x) of the
Borrower and its Subsidiaries taken as a whole from that set forth in said pro
forma balance sheet as at said date referred to in clause (iii) above (other
than with respect to the Retained Franchises, to the extent not transferred to
the Borrower on the Closing Date), or (y) of the CATV Systems (taken as a whole)
to be purchased by the Borrower on the Closing Date from that set forth in said
financial statements as at said date referred to in clause (ii) above.
Credit Agreement
----------------
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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 the Borrower)
threatened against the Borrower or any of its Subsidiaries, or against the
Sellers (and in respect of which the Borrower would be obligated after giving
effect to the Cablevision 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 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 Agreement, 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 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 the
Borrower or any of its Subsidiaries pursuant to the terms of any such agreement
or instrument.
7.05 Action. The 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 the Borrower of each of the Basic Documents to which
it is a party have been duly authorized by all necessary limited liability
company action on its part (including, without limitation, any required member
approvals); and this Agreement has been duly and validly executed and delivered
by the Borrower and constitutes, and the other Basic Documents to which it is a
party when executed and delivered will constitute, its legal, valid and binding
obligation, enforceable against the 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 the 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 Cablevision Acquisition
Agreement (each of which shall have been made or obtained on or before the date
the Cablevision Acquisition is consummated,
Credit Agreement
----------------
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to the extent required under the Cablevision Acquisition Agreement 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 the 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 Borrower would be
under an obligation to furnish a report to the Lenders under Section 8.01(g)
hereof.
7.08 Taxes. The Borrower and each of its Subsidiaries has filed all
-----
Federal income tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the 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 the Borrower
in accordance with GAAP. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of the Borrower, adequate. The Borrower has not 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. Neither the Borrower 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. Neither the Borrower nor any of
----------------------------------
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.11 Material Agreements and Liens.
-----------------------------
(a) Part A of Schedule II hereto sets forth (i) a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement,
guarantee, letter of credit or other arrangement (other than the Loan
Documents) providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Borrower or any of its Subsidiaries, outstanding on the
date hereof, or that
Credit Agreement
----------------
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(after giving effect to the transactions contemplated hereunder to occur on
or before the Closing Date) will be outstanding on the Closing Date, the
aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $500,000, and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule II, and (ii) a statement of the
aggregate amount of obligations in respect of surety and performance bonds
backing pole rental or conduit attachments and the like, or backing
obligations under Franchises, of the Borrower or any of its Subsidiaries
outstanding on the date hereof, or that (after giving effect to the
transactions contemplated hereunder to occur on or before the Closing Date)
will be outstanding on the Closing Date.
(b) Part B of Schedule II hereto is a complete and correct list of each Lien
(other than the Liens created pursuant to the Security Documents) securing
Indebtedness of any Person outstanding on the date hereof, or that (after
giving effect to the transactions contemplated hereunder to occur on or
before the Closing Date) will be outstanding on the Closing Date, the
aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $500,000 and covering any Property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the Property covered by each such Lien is
correctly described in Part B of said Schedule II.
7.12 Environmental Matters. The Borrower and each of its 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 the Borrower and each of 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 Borrower's knowledge, no
investigation or review is pending or threatened by any governmental or other
entity with respect to any alleged failure by the Borrower or any of its
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 Borrower or any of its Subsidiaries or with
respect to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous Materials generated by
the Borrower or any of its Subsidiaries. All environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or that are in
the possession of the Borrower or any of its Subsidiaries in
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relation to facts, circumstances or conditions at or affecting
any site or facility now or previously owned, operated or leased by the Borrower
or any of its Subsidiaries and that could result in a Material Adverse Effect
have been made available to the Lenders.
7.13 Capitalization. The Borrower has heretofore delivered to the Lenders
--------------
true and complete copies of the Operating Agreement. The only member of the
Borrower on the date hereof is Mediacom. As of the date hereof, except for
Sections 6.2 and 7.3 of the Operating Agreement relating to Preferred Membership
Interests, (x) there are no outstanding Equity Rights with respect to the
Borrower and (y) except for the redemption permitted pursuant to Section 8.09(e)
hereof, there are no outstanding obligations of the Borrower or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any equity interests in
the Borrower nor are there any outstanding obligations of the Borrower or any of
its 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 the Borrower or any of its Subsidiaries.
7.14 Subsidiaries, Etc.
------------------
(a) As of the date hereof, the Borrower has no Subsidiaries.
(b) Set forth in Schedule III hereto is a complete and correct list of all
Investments (other than Investments of the type referred to in paragraphs
(b), (c) and (e) of Section 8.08 hereof) held by the Borrower or any of its
Subsidiaries in any Person on the date hereof and, for each such
Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in
Schedule III hereto, the Borrower and each of its 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 Borrower is, on the date hereof, subject to
any indenture, agreement, instrument or other arrangement of the type
described in Section 8.18(d) hereof.
7.15 True and Complete Disclosure. The information, reports, financial
----------------------------
statements, exhibits and schedules (including the Information Memorandum, other
than the information contained therein with respect to the Sellers and
Cablevision) furnished in writing by or on behalf of the Borrower 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. Nothing has
come to the attention of the Borrower which would lead the Borrower to believe
that the information contained in the Information Memorandum with respect to the
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Sellers and Cablevision includes any untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and its 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 Borrower
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.
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7.16 Franchises. Set forth in Schedule IV hereto is a complete and correct
----------
list of all Franchises (identified by issuing authority, franchisee and
expiration date) (i) owned by the Borrower and its Subsidiaries on the date
hereof or (ii) that, with the exception of any Retained Franchises, will by
owned by the Borrower on the Closing Date (after giving effect to the
Cablevision Acquisition), and identifying the respective Seller from which such
Franchises are to be purchased. The Borrower and each of its Subsidiaries
possesses or has the right to use, or will possess or have the right to use on
the Closing Date (after giving effect to the Cablevision Acquisition), all such
Franchises (other than any Retained 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 Borrower and its Subsidiaries, except for such of the foregoing
the absence of which could not have a Material Adverse Effect on the Borrower or
any of its Subsidiaries, and each of such Franchises, copyrights, licenses,
patents, trademarks, service marks, trade names and rights is (or on the Closing
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 Borrower or any of its Subsidiaries to operate the CATV Systems of
the Borrower and its Subsidiaries, except for approvals, applications, filings,
registrations, consents or other actions relating to the Retained Franchises or
that (if not made or obtained) could not have a Material Adverse Effect on the
Borrower or any of its Subsidiaries. Neither the Borrower or any of its
Subsidiaries nor (to the knowledge of the Borrower) any of the Sellers has
received any notice from the granting body or any other governmental authority
with respect to any breach of any covenant under, or any default with respect
to, any Franchise. Complete and correct copies of all Franchises have heretofore
been made available to the Administrative Agent.
7.17 The CATV Systems.
----------------
(a) The Borrower and each of its Subsidiaries, and, (after giving effect to
the transactions contemplated hereunder to occur on or before the Closing 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)
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reasonably be expected to have a Material Adverse Effect and except as set forth
in Schedule V hereto:
(i) the communities included in the areas covered by the
Franchises have been registered with the FCC;
(ii) all of the annual performance tests on such CATV Systems
required under the rules and regulations of the FCC have been performed and
the results of such tests demonstrate satisfactory compliance with the
applicable requirements being tested in all material respects;
(iii) to the knowledge of the Borrower, 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 Borrower, 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 Borrower, 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 Borrower, 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 (the "Copyright Filings") to be owned by
-----------------
the Borrower and its Subsidiaries (after giving effect to the transactions
contemplated hereunder to occur on or before the Closing 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. To the knowledge of the Borrower,
there is no pending claim, action, demand or litigation by any other person with
respect to the Copyright Filings or related royalty payments made by the CATV
Systems.
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----------------
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(c) The carriage of all off-air signals by the CATV Systems to be owned by
the Borrower and its Subsidiaries (after giving effect to the transactions
contemplated hereunder to occur on or before the Closing 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 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 Borrower and its
Subsidiaries (after giving effect to the transactions contemplated hereunder to
occur on or before the Closing Date) are adequate and sufficient in all material
respects for all of the current operations of such CATV Systems.
7.18 Rate Regulation. Each of the Borrower and its 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 Borrower and its
--------------
Subsidiaries of all applicable worksheets contemplated by the Rate Regulation
Rules for each CATV System to be owned by the Borrower and its Subsidiaries
(after giving effect to the transactions contemplated hereunder to occur on or
before the Closing Date):
(i) except as set forth in Schedule V hereto, to the knowledge
of the Borrower, none of such CATV Systems is subject to effective
competition as of the date hereof;
(ii) except as set forth in Schedule V hereto, no franchising
authority has notified the Borrower or any of its Subsidiaries or any
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 V hereto, no franchising
authority has notified the Borrower or any of its Subsidiaries or any
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;
(iv) except as set forth in Schedule V hereto, there have been
no cable programming rate complaints filed with the FCC; and
(v) 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 Borrower and its Subsidiaries.
7.19 Acquisition Agreement.
---------------------
The Borrower has heretofore delivered to the Administrative Agent a true and
complete copy of the Cablevision Acquisition Agreement
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----------------
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(including all modifications or supplements thereto) and the Cablevision
Acquisition Agreement has been duly executed and delivered by each party thereto
and is in full force and effect.
Section 8. Covenants of the Borrower. The Borrower covenants and agrees
with the Lenders and the Administrative Agent that, so long as any Commitment,
Loan or Letter of Credit Liability is outstanding and until payment in full of
all amounts payable by the Borrower hereunder:
8.01 Financial Statements Etc. The Borrower shall deliver to each of
------------------------
the Lenders:
(a) as soon as available and in any event within 60 days after the end of the
fiscal quarter ending December 31, 1997, pro forma consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for such
period and for the period from July 1, 1997 to the end of such period, and
the related pro forma consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such period, in each prepared under the
assumption that the Cablevision Acquisition was consummated on July 1, 1997
and that all of the transactions contemplated by Section 6.01 hereof had
been effected on such date, accompanied by a certificate of a Senior
Officer, which certificate shall state that said financial statements
fairly present the pro forma consolidated financial condition and results
of operations of the Borrower and its Subsidiaries;
(b) 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 Borrower ending after
December 31, 1997, consolidated statements of income, retained earnings and
cash flows of the Borrower and its Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such period, setting forth in each case
(other than financial statements for any period ending prior to December
31, 1998) in comparative form the corresponding figures for the
corresponding periods in the preceding fiscal year (except that, in the
case of balance sheets, such comparison shall be to the last day of the
prior fiscal year), accompanied by a certificate of a Senior Officer, which
certificate shall state that said financial statements fairly present the
consolidated financial condition and results of operations of the 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);
(c) as soon as available and in any event within 120 days after the end of each
fiscal year of the Borrower, consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for such
fiscal year and the related
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consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year, setting forth in each case (other than financial
statements for the fiscal year ending December 31, 1998) in comparative
form the corresponding consolidated figures for the preceding fiscal year
and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
said consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Borrower and its
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 Borrower was 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;
(d) as soon as available and in any event not later than April 30, 1998, the
audited consolidated financial statements for U.S. Cable and its
consolidated Subsidiaries as of and for the year ending December 31, 1997
to be delivered by the Sellers to the Borrower pursuant to Section 9.08 of
the Cablevision Acquisition Agreement;
(e) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, that the Borrower shall
have filed with the Securities and Exchange Commission (or any governmental
agency substituted therefor) or any national securities exchange;
(f) promptly upon the mailing thereof by the Borrower to the members of the
Borrower generally, to holders of Affiliate Subordinated Indebtedness
generally, or by Mediacom to the holders of its senior notes (if any),
copies of all financial statements, reports and proxy statements so mailed;
(g) as soon as possible, and in any event within ten days after the Borrower
knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan has occurred
or exists, a statement signed by a Senior Officer setting forth details
respecting such event or condition and the action, if any, that the
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 the 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
Credit Agreement
----------------
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ERISA, including, without limitation, the failure to make on or before
its due date a required installment under Section 412(m) of the Code
or Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under Section 412(d) of the Code
for any Plan;
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by the
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 the Borrower or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the 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 the 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 the 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 the Borrower or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with the provisions
of said Sections;
(h) within 60 days of the end of each quarterly fiscal period of the Borrower,
a Quarterly Officer's Report as at the end of such period;
(i) promptly after the 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 Borrower has taken or proposes to take
with respect thereto; and
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(j) from time to time such other information regarding the financial condition,
operations, business or prospects of the Borrower 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.
The Borrower 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 Borrower has taken or
proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrower is in
compliance with Sections 8.07, 8.08, 8.09, 8.10, 8.11, 8.12 and 8.15 hereof
(including, without limitation, calculations demonstrating compliance with the
requirements of Section 8.09(e)(ii) hereof after giving effect to any Capital
Expenditure pursuant to Section 8.12(b) hereof) as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 Litigation. The Borrower 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 Borrower or any of its 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 Borrower 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 Borrower or any of its 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 Borrower or any of its Subsidiaries under any Franchise
of a material default by the Borrower or any of its Subsidiaries in the
performance of its obligations thereunder.
8.03 Existence, Etc. The 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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(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).
8.04 Insurance. The 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 the 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. The Borrower will not, 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).
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(b) Restrictions on Acquisitions. The Borrower will not, 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. The Borrower will not, 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
Borrower and its Subsidiaries shall not have a fair market value in excess of
$2,000,000 and (ii) any equipment, programming rights or other Property sold or
disposed of in the ordinary course of business and on ordinary business terms).
(d) Certain Permitted Transactions. Notwithstanding the foregoing provisions
------------------------------
of this Section 8.05:
(i) Intercompany Mergers and Consolidations. Any Subsidiary of
---------------------------------------
the Borrower may be merged or consolidated with or into: (x) the Borrower
if the 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 the Borrower
-------------------------
may sell, lease, transfer or otherwise dispose of any or all of its
Property (upon voluntary liquidation or otherwise) to the Borrower or a
Wholly Owned Subsidiary of the Borrower.
(iii) Cablevision Acquisition. The Borrower may consummate the
-----------------------
Cablevision Acquisition, so long as the same is consummated in accordance
in all material respects with the Cablevision Acquisition Agreement.
(iv) Permitted Dispositions. The Borrower or any Wholly Owned
----------------------
Subsidiary of the Borrower may enter into one or more transactions intended
to trade (by means of either an exchange or a sale and subsequent purchase)
one or more of the CATV Systems owned by the Borrower and its Subsidiaries
for one or more CATV Systems owned by any other Person, which transactions
may be effected either by (i) the Borrower or such Wholly Owned Subsidiary
selling one or more CATV Systems owned by it, and either depositing the Net
Available Proceeds thereof into the Collateral Account, or prepaying
Revolving Credit Loans (and creating a Reserved Commitment Amount), as
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contemplated by the second paragraph of Section 2.10(d) hereof, and then
within 270 days acquiring one or more other CATV Systems or (ii) exchanging
one or more CATV Systems, together with cash not exceeding 20% of the fair
market value of such acquired CATV Systems, so long as (x) at the time of
any such transactions and after giving effect thereto, no Default shall
have occurred and be continuing and (y) with respect to any exchange of
CATV Systems pursuant to clause (ii), the sum of (A) the System Cash Flow
for the period of four fiscal quarters ending on, or most recently ended
prior to, the date of such exchange attributable to the CATV Systems being
exchanged plus (B) the System Cash Flow for such period attributable to all
----
other CATV Systems previously exchanged pursuant to said clause (ii) does
not exceed 20% of Adjusted System Cash Flow for such period. If, in
connection with an exchange permitted under this subparagraph (iv), the
Borrower or Wholly Owned Subsidiary receives cash in excess of 20% the fair
market value of the acquired CATV Systems, such exchange shall be permitted
as a sale under this subparagraph (iv) and the cash received by the
Borrower in connection with such transaction shall be applied in accordance
with Section 2.10(d).
(v) Subsequent Acquisitions. The Borrower or a Wholly Owned
-----------------------
Subsidiary of the Borrower may acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person, so long
as:
(A) the aggregate Purchase Price of any individual such acquisition shall
not exceed $50,000,000;
(B) such acquisition (if by purchase of assets, merger or consolidation)
shall be effected in such manner so that the acquired business, and
the related assets, are owned either by the Borrower or a Wholly Owned
Subsidiary of the Borrower and, if effected by merger or consolidation
involving the Borrower, the Borrower shall be the continuing or
surviving entity and, if effected by merger or consolidation involving
a Wholly Owned Subsidiary of the Borrower, such Wholly Owned
Subsidiary shall be the continuing or surviving entity;
(C) such acquisition (if by purchase of stock) shall be effected in such
manner so that the acquired entity becomes a Wholly Owned Subsidiary
of the Borrower;
(D) with respect to any acquisition involving an aggregate Purchase Price
in excess of $10,000,000, the Borrower shall deliver to the
Administrative Agent (which shall promptly forward a copy to each
Lender which requests one) (1) no later than five Business Days prior
to the consummation of each such acquisition (or such earlier date as
shall be five Business Days after the execution and delivery thereof),
copies of the respective agreements or instruments pursuant to
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which such acquisition is to be consummated (including, without
limitation, any related management, non-compete, employment, option or
other material agreements), any schedules to such agreements or
instruments and all other material ancillary documents to be executed
or delivered in connection therewith and (2) promptly following
request therefor (but in any event within three Business Days
following such request), copies of such other information or documents
relating to each such acquisition as the Administrative Agent shall
have requested;
(E) with respect to any acquisition involving an aggregate Purchase Price
in excess of $10,000,000, the Administrative Agent shall have received
(and shall promptly forward a copy thereof to each Lender which
requests one) a letter (in the case of each legal opinion delivered to
the Borrower pursuant to such acquisition) from each Person delivering
such opinion (which shall in any event include an opinion of special
FCC counsel) authorizing reliance thereon by the Administrative Agent
and the Lenders;
(F) with respect to any acquisition involving an aggregate Purchase Price
in excess of $10,000,000, the Borrower shall have delivered to the
Administrative Agent and the Lenders evidence satisfactory to the
Administrative Agent and the Majority Lenders of receipt of all
licenses, permits, approvals and consents, if any, required with
respect to such acquisition (including, without limitation, the
consents of the respective municipal franchising authorities to the
acquisition of the respective CATV Systems being acquired (if any));
(G) the entire amount of the consideration payable by the Borrower and its
Subsidiaries in connection with such acquisition (other than customary
post-closing adjustments and indemnity obligations, and other than
Indebtedness incurred in connection with such acquisition that is
permitted under paragraphs (c) or (e) of Section 8.07 hereof) shall be
payable on the date of such acquisition;
(H) neither the Borrower nor any of its Subsidiaries shall, in connection
with such acquisition, assume or remain liable in respect of (x) any
Indebtedness of the seller or sellers (except for Indebtedness
permitted under Section 8.07(e) hereof) or (y) other obligations of
the seller or sellers (except for obligations incurred in the ordinary
course of business in operating the CATV System so acquired and
necessary and desirable to the continued operation of such CATV
System);
(I) to the extent the assets purchased in such acquisition shall be
subject to any Liens not permitted hereunder, such Liens shall have
been released (or
Credit Agreement
----------------
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arrangements for such release satisfactory to the Administrative Agent
shall have been made);
(J) to the extent applicable, the Borrower shall have complied with the
provisions of Section 8.18 hereof, including, without limitation, to
the extent not theretofore delivered, delivery to the Administrative
Agent of (x) the shares of stock or other ownership interests,
accompanied by undated stock powers or other powers executed in blank,
and (y) the agreements, instruments, opinions of counsel and other
documents required under Section 8.18 hereof;
(K) after giving effect to such acquisition the Borrower shall be in
compliance with Section 8.10 hereof (the determination of such
compliance to be calculated on a pro forma basis, as at the end of and
for the fiscal quarter most recently ended prior to the date of such
acquisition for which financial statements of the Borrower and its
Subsidiaries are available, under the assumption that such acquisition
shall have occurred, and any Indebtedness in connection therewith
shall have been incurred, at the beginning of the applicable period,
and under the assumption that interest for such period had been equal
to the actual weighted average interest rate in effect for the Loans
hereunder on the date of such acquisition), and the Borrower shall
have delivered to the Administrative Agent a certificate of a Senior
Officer showing such calculations in reasonable detail to demonstrate
such compliance;
(L) immediately prior to such acquisition and after giving effect thereto,
no Default shall have occurred and be continuing; and
(M) the Borrower shall deliver such other documents and shall have taken
such other action as the Majority Lenders or the Administrative Agent
may request (which may include evidence that the Borrower shall have
received an equity contribution from Mediacom or the proceeds of the
issuance of Affiliate Subordinated Indebtedness pursuant to
documentation and in amounts in form and substance satisfactory to the
Majority Lenders and the Administrative Agent).
8.06 Limitation on Liens. The Borrower will not, nor will it permit any
-------------------
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of Schedule II
hereto (or, to the extent not meeting the minimum thresholds for required
listing on said
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Schedule II pursuant to Section 7.11 hereof, in an aggregate amount not
exceeding $5,000,000);
(c) Liens imposed by any governmental authority for taxes, assessments or
charges not yet due or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the 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 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 its
Subsidiaries; and
(h) Liens upon real and/or tangible personal Property acquired after the date
hereof (by purchase, construction or otherwise) by the Borrower or any of
its 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 the 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).
Credit Agreement
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8.07 Indebtedness. The Borrower will not, nor will it permit any of
------------
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder, including, without limitation,
Incremental Facility Loans in an aggregate principal amount up to but not
exceeding $50,000,000;
(b) Indebtedness outstanding on the date hereof and listed in Part A of
Schedule II hereto (or, to the extent not meeting the minimum thresholds
for required listing on said Schedule II pursuant to Section 7.11 hereof,
in an aggregate amount not exceeding $5,000,000);
(c) Affiliate Subordinated Indebtedness incurred in accordance with Section
8.14 hereof;
(d) Indebtedness of the Borrower to any Subsidiary of the Borrower, and of any
Subsidiary of the Borrower to the Borrower or its other Subsidiaries; and
(e) additional Indebtedness of the Borrower and its 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 $10,000,000 at any one time outstanding.
In addition to the foregoing, the Borrower will not, nor will it permit its
Subsidiaries to, incur or suffer to exist any obligations in an aggregate amount
in excess of $5,000,000 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 Borrower and its Subsidiaries.
8.08 Investments. The Borrower will not, 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 III
hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
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(d) Investments by the Borrower in its Subsidiaries and Investments by any
Subsidiary of the Borrower in the Borrower and its other Subsidiaries;
(e) Interest Rate Protection Agreements; provided that, without limiting the
--------
obligation of the Borrower 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
$15,000,000;
(f) Investments by the Borrower and its Subsidiaries consisting of acquisitions
permitted under subparagraphs (iv) or (v) of Section 8.05(d); and
(g) additional Investments (including, without limitation, Investments by the
Borrower or any of its Subsidiaries in Affiliates of the Borrower), so long
as the aggregate amount of all such Investments shall not exceed
$7,500,000.
Without limiting the generality of the forgoing, the Borrower will not create,
or make any Investment in, any Subsidiary after the date hereof without the
prior written consent of the Majority Lenders.
8.09 Restricted Payments. The Borrower will not make any Restricted
-------------------
Payment at any time, provided that, so long as at the time thereof, and after
--------
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, the Borrower may make the following Restricted Payments (subject, in
each case, to the applicable conditions set forth below):
(a) the Borrower 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 Borrower 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 Borrower's 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 Borrower may make payments in respect of Management Fees to the extent
permitted under Section 8.11 hereof;
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(c) the Borrower may make payments in respect of the interest on Affiliate
Subordinated Indebtedness constituting Supplemental Capital or Cure Monies;
(d) the Borrower may make payments in respect of Preferred Membership Interests
in an aggregate amount up to but not exceeding (prior to the issuance of
the Senior Notes by Mediacom) the amount of interest payable by Mediacom on
the Mediacom Notes and (following the issuance of Senior Notes by Mediacom)
the amount of interest payable by Mediacom on Senior Notes having a
principal amount equal to the amount of capital contributions made by
Mediacom in consideration for the issuance of such Preferred Membership
Interests, provided that such payments shall not include any payment in
--------
respect of, or the setting apart of money for a sinking or other analogous
fund for, the purchase, redemption, retirement or other acquisition by the
Borrower of, such Preferred Membership Interests or any rights related
thereto; and
(e) the Borrower may make payments in respect of the principal of Affiliate
Subordinated Indebtedness constituting Supplemental Capital or Cure Monies
or to redeem, retire or otherwise acquire Preferred Membership Interests,
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 Borrower shall have
utilized its cure rights under Section 9.02 hereof, without the
occurrence of any Event of Default (and, for purposes hereof, unless
the Borrower indicates 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 such payment during any fiscal
quarter (the "current fiscal quarter"), and to the making of any
----------------------
Capital Expenditures pursuant to Section 8.12(b) hereof during the
current fiscal quarter, the Borrower would (as at the last day of the
most recent fiscal quarter immediately prior to the current fiscal
quarter) have been in compliance on a pro forma basis with Section
8.10 hereof and the Total Leverage Ratio calculated on a pro forma
basis is at the time less than 5.50 to 1 (or, if lower, the applicable
requirement at the time under Section 8.10(a) hereof), the
determination of such compliance and such Total Leverage Ratio to be
determined as if (x) for purposes of calculating the Total Leverage
Ratio, the amount of such payment, together with the amount of any
such Capital Expenditures, were added to Indebtedness, and (y) for
purposes of calculating the Interest Coverage Ratio and Pro Forma Debt
Service Coverage Ratio, the amount of such payment (and any Cure
Monies received during the period for which the Interest Coverage
Ratio or Pro Forma Debt Service Coverage
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----------------
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Ratio is calculated), together with the amount of any such Capital
Expenditures, 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 or the amount of such payment in respect of the redemption,
retirement or other acquisition by the Borrower of Preferred
Membership Interests; and
(iii) at least three Business Days prior to the date of any
such payment, the Borrower 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 (e) after giving
effect to such payment.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Borrower to such Borrower or to any other Subsidiary of the
Borrower.
8.10 Certain Financial Covenants.
---------------------------
(a) Total Leverage Ratio. The Borrower will not permit the Total Leverage
--------------------
Ratio to exceed the following respective ratios at any time during the following
respective periods:
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Total
Period Leverage Ratio
------ --------------
From the Closing Date
through December 30, 1998 6.00 to 1
From December 31, 1998
through December 30, 1999 5.50 to 1
From December 31, 1999
through December 30, 2000 5.00 to 1
From December 31, 2000
through December 30, 2001 4.50 to 1
From December 31, 2001
through December 30, 2002 4.00 to 1
From December 31, 2002
through December 30, 2003 3.50 to 1
From December 31, 2003
and at all times thereafter 3.00 to 1
(b) Interest Coverage Ratio. The Borrower 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:
Period Ratio
------ -----
From the Closing Date
through December 30, 1998 1.50 to 1
From December 31, 1998
through December 30, 1999 1.75 to 1
From December 31, 1999
and at all times thereafter 2.00 to 1
Credit Agreement
----------------
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(c) Pro Forma Debt Service Coverage Ratio. The Borrower will not permit the
-------------------------------------
Pro Forma Debt Service Coverage Ratio to be less than 1.15 to 1 at any time.
8.11 Management Fees. The Borrower will not permit the aggregate amount
---------------
of Management Fees accrued in respect of any fiscal year of the Borrower to
exceed 4.5% of the Gross Operating Revenue of the Borrower and its Subsidiaries
for such fiscal year. In addition, the Borrower will not, as at the last day of
the first, second and third fiscal quarters in any fiscal year, permit the
amount of Management Fees paid during the portion of such fiscal year ending
with such fiscal quarter to exceed 4.5% of the Gross Operating Revenue of the
Borrower and its Subsidiaries for such portion of such fiscal year (based upon
the financial statements of the Borrower provided pursuant to Section 8.01(b)
hereof), provided that in any event the Borrower 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 Borrower from its CATV Systems and from
other telecommunications services as determined in accordance with GAAP
excluding, however, revenue or income derived by the Borrower 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 Borrower or any of its
Subsidiaries and (iv) extraordinary gains in accordance with GAAP.
Neither the Borrower nor any of its Subsidiaries shall be obligated to pay
Management Fees to any Person, unless the Borrower and such Person shall have
executed and delivered to the Administrative Agent a Management Fee
Subordination Agreement, and neither the Borrower nor any of its Subsidiaries
shall pay Management Fees to any person except to the extent permitted under the
respective Management Fee Subordination Agreement to which such Person is a
party.
Neither the Borrower nor any of its Subsidiaries shall employ or retain any
executive management personnel (or pay any Person, other than the Manager, in
respect of executive management personnel or matters, for the Borrower or any of
its Subsidiaries), it being the intention of the parties hereto that all
executive management personnel required in connection with the business or
operations of the Borrower and its Subsidiaries shall be
Credit Agreement
----------------
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employees of the Manager (and that the Executive Compensation for such employees
shall be covered by Management Fees payable hereunder). For purposes hereof,
"executive management personnel" shall not include any individual (such as a
system manager or a regional manager) who is employed solely in connection with
the day-to-day operations of a CATV System or a Region.
8.12 Capital Expenditures.
--------------------
(a) Scheduled Capital Expenditures. The Borrower will not permit the
------------------------------
aggregate amount of Capital Expenditures to exceed the following respective
amounts for the following respective fiscal years of the Borrower:
Fiscal Year Ending Amount
------------------ ------
December 31, 1998 $ 25,000,000
December 31, 1999 $ 25,500,000
December 31, 2000 $ 29,000,000
December 31, 2001 $ 29,500,000
December 31, 2002 $ 21,200,000
December 31, 2003 $ 18,000,000
December 31, 2004 $ 16,000,000
December 31, 2005 $ 16,000,000
December 31, 2006 $ 16,000,000,
provided that, the amounts set forth above for any fiscal year of the Borrower
--------
in which the Borrower enters into a Subsequent Acquisition pursuant to Section
8.05(d)(v) shall be increased by such amount as the Borrower shall propose in a
notice to the Administrative Agent and the Lenders (which amount shall be based
on a proposed budget and operating plan set forth in such notice) which increase
shall become effective unless Requisite Lenders object to such amount, by notice
to the Administrative Agent, within 10 Business Days following receipt of the
Borrower's notice. For purposes of this Section 8.12(a), "Requisite Lenders"
-----------------
shall mean Lenders having at least 33-1/3% of the sum of (a) the aggregate
outstanding principal amount of the Term Loans or, if the Term Loans shall not
have been made, the aggregate outstanding principal amount of the Term Loan
Commitments plus (b) the aggregate outstanding principal amount of the
----
Incremental Facility Loans or, if the Incremental Facility Loans shall not have
been made, the aggregate outstanding principal amount of the Incremental
Facility Commitments plus (c) the sum of (i) the aggregate unused amount, if
----
any, of the Revolving Credit Commitments at such time plus (ii) the aggregate
----
outstanding principal amount of the Revolving Credit Loans at such time
If the aggregate amount of Capital Expenditures for any fiscal year of the
Borrower shall be less than the amount set forth opposite such fiscal year in
the schedule above,
Credit Agreement
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then the shortfall shall be added to the amount of Capital Expenditures
permitted for the immediately succeeding (but not any other) fiscal year and,
for purposes hereof, the amount of Capital Expenditures made during any fiscal
year shall be deemed to have been made first from the carryover from any
previous year and last from the permitted amount for such fiscal year.
(b) Additional Capital Expenditures. In addition to the Capital Expenditures
-------------------------------
permitted under paragraph (a) above, the Borrower and its Subsidiaries may make
additional Capital Expenditures during any fiscal quarter in such amounts as
would be permitted under Section 8.09(e)(ii) (in the case of a payment of
principal of Affiliate Subordinated Indebtedness, as if such Capital Expenditure
constituted a payment in respect of Supplemental Capital thereunder).
8.13 Interest Rate Protection Agreements. The Borrower will within 90 days
-----------------------------------
of the Closing Date, enter into, and thereafter maintain in full force and
effect, one or more Interest Rate Protection Agreements with one or more of the
Lenders or their affiliates (and/or with a bank or other financial institution
having capital, surplus and undivided profits of at least $500,000,000), that
effectively enables the Borrower (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 40%
of the aggregate outstanding principal amount of the Loans.
8.14 Affiliate Subordinated Indebtedness.
-----------------------------------
(a) The Borrower may at any time after the date hereof incur Affiliate
Subordinated Indebtedness to Mediacom or one or more other Affiliates, so long
as the proceeds of any such Affiliate Subordinated Indebtedness constituting
Cure Monies are immediately applied to the reduction of the Revolving Credit
Commitments and the prepayment of principal of the Term Loans and Incremental
Facility Loans of each Series hereunder, applied ratably to the Revolving Credit
Commitments, the Term Loans and the Incremental Facility Loans of each Series in
accordance with the respective then-outstanding aggregate amounts of such
Commitments and Loans (and to the simultaneous prepayment of the Revolving
Credit Loans in an amount equal to such required reduction of Revolving Credit
Commitments), provided that to the extent any such required prepayment of
--------
Revolving Credit Loans shall exceed the then-outstanding aggregate principal
amount of Revolving Credit Loans, such excess shall be applied to the ratable
prepayment of Term Loans and Incremental Facility Loans of each Series.
(b) The Borrower will not, nor will it permit any of its 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
Credit Agreement
----------------
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owing in respect of, any Affiliate Subordinated Indebtedness, except to the
extent permitted under Section 8.09 hereof.
(c) After December 31, 1999, so long as no Default has occurred and is
continuing, Preferred Membership Interests may be converted into Affiliate
Subordinated Indebtedness on terms and conditions in form and substance
satisfactory to the Majority Lenders.
8.15 Lines of Business. The Borrower will at all times ensure that not
-----------------
more than 15% of gross operating revenue of the Borrower and its Subsidiaries
for any fiscal year shall be derived from any line or lines of business activity
other than the business of owning and operating CATV Systems and related
communications businesses.
8.16 Transactions with Affiliates. Except as expressly permitted by this
----------------------------
Agreement, the Borrower will not, 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(g), provided that, the monetary or
--------
business consideration arising therefrom would be substantially as advantageous
to the Borrower and its Subsidiaries as the monetary or business consideration
that would obtain in a comparable transaction with a Person not an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any Property to an
Affiliate; (c) merge into or consolidate with or purchase or acquire Property
from an Affiliate; (d) make any contribution towards, or reimbursement for, any
Federal income taxes payable by any member of the Borrower or any of its
Subsidiaries in respect of income of the 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 the Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity,
(ii) the Borrower and its Subsidiaries may enter into
transactions (other than extensions of credit by the Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of equipment,
programming rights, advertising time and other Property in the ordinary
course of business if the monetary or business consideration arising
therefrom would be substantially as advantageous to the Borrower and its
Subsidiaries as the monetary or business consideration that would obtain in
a comparable transaction with a Person not an Affiliate,
(iii) the Borrower may enter into and perform its obligations
under, the Management Agreement, and
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----------------
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(iv) the Borrower and its Subsidiaries may pay to the Manager
the aggregate amount of intercompany shared expenses payable to Mediacom
that are allocated by Mediacom to the Borrower and its Subsidiaries in
accordance with Section 5.05 of the Guarantee and Pledge Agreement.
8.17 Use of Proceeds. The Borrower 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, (iv) make Investments permitted under Section 8.08 hereof and
(v) finance capital expenditures and working capital needs of the Borrower and
its Subsidiaries and acquisitions permitted hereunder (in each case in
compliance with all applicable legal and regulatory requirements); provided that
--------
(x) any borrowing of Revolving Credit Loans hereunder that would constitute a
utilization of any Reserved Commitment Amount shall be applied solely to make
acquisitions permitted under Section 8.05(d)(v) hereof, or to make prepayments
of Loans under Section 2.10(d) hereof and (y) neither the Administrative Agent
nor any Lender shall have any responsibility as to the use of any of such
proceeds.
8.18 Certain Obligations Respecting Subsidiaries.
-------------------------------------------
(a) Subsidiary Guarantors. In the event that the Borrower or any of its
---------------------
Subsidiaries shall form or acquire any Subsidiary after the date hereof (after
obtaining any necessary consent of the Lenders), the Borrower shall cause, and
shall cause its Subsidiaries to cause, such Subsidiary to:
(i) execute and deliver to the Administrative Agent a Subsidiary
Guarantee Agreement in the form of Exhibit E hereto (and, thereby, to
become a "Subsidiary Guarantor", and an "Obligor" hereunder and a "Securing
Party" under the 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
(iii) deliver such proof of corporate action, limited liability
company action or partnership action, as the case may be, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 6.01 hereof on the
Closing Date or as the Administrative Agent shall have reasonably
requested.
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(b) Ownership of Subsidiaries. The Borrower will, and will cause each of its
-------------------------
Subsidiaries to, take such action from time to time as shall be necessary to
ensure that each of its Subsidiaries is a Wholly Owned Subsidiary. In the event
that any additional shares of stock or other ownership interests shall be issued
by any Subsidiary, the 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 Borrower will, and will cause each of its
------------------
Subsidiaries to, take such action from time to time (including filing
appropriate Uniform Commercial Code financing statements and executing and
delivering such assignments, security agreements and other instruments) as shall
be requested by the Administrative Agent to create, in favor of the
Administrative Agent for the benefit of the Lenders, perfected security
interests and Liens in substantially all of the personal Property of the
Borrower and each of its Subsidiaries.
(d) Certain Restrictions. The Borrower will not, and will not permit any of
--------------------
its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets securing
the obligations of the Borrower or any Subsidiary under any of the Loan
Documents, or in respect of any Interest Rate Protection Agreement, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any Subsidiary or to Guarantee Indebtedness of the Borrower or any
Subsidiary under any of the Loan Documents; provided that (i) the foregoing
--------
shall not apply to restrictions and conditions imposed by law or by any of the
Loan Documents, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement or
any other Loan Document if such restrictions or conditions apply only to the
property or assets securing such Indebtedness and (iv) clause (a) of the
foregoing shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
Credit Agreement
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8.19 Modifications of Certain Documents. The Borrower will not consent to
----------------------------------
any modification, supplement or waiver of any of the provisions of the
Management Agreement, any Acquisition Agreement, or any agreement, instrument or
other document evidencing or relating to Affiliate 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) The 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 or any Reimbursement Obligation, any fee or any other
amount payable by it hereunder or under any other Loan Document; or
(b) The Borrower or any Subsidiary of the Borrower shall default in the payment
when due of any principal of or interest on any of its other Indebtedness
aggregating $3,000,000 or more; or any event specified in any note,
agreement, indenture or other document evidencing or relating to any such
Indebtedness shall occur if the effect of such event is to cause, or
(without the lapse of time or the taking of any action, other than the
giving of notice) to permit the holder or holders of such Indebtedness (or
a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; or the Borrower shall default in the payment when due of any
amount aggregating $3,000,000 or more under any Interest Rate Protection
Agreement; or any event specified in any Interest Rate Protection Agreement
shall occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, termination or
liquidation payment or payments aggregating $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
thereto) by the 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
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pursuant to the respective escrow agreements under the relevant Acquisition
Agreement); or
(d) The Borrower shall default in the performance of any of its obligations
under any of Sections 8.01(i), 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 the 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
Borrower 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 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) The Borrower shall be terminated, dissolved or liquidated (as a matter of
law or otherwise), or proceedings shall be commenced by the Borrower
seeking the termination, dissolution or liquidation of the Borrower, or
proceedings shall be
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commenced by any Person (other than the Borrower) seeking the termination,
dissolution or liquidation of the 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 $2,500,000 or
more in the aggregate (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) or of $10,000,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against the Borrower or any
of its 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
Borrower or relevant 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(g) 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 Borrower 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 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 the Borrower or
any of its Subsidiaries, or any predecessor in interest of the Borrower or
any of its Subsidiaries or Affiliates, of (or there shall have been
asserted against the 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 the 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 the 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 Borrower;
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----------------
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(iii) Mediacom shall cease to own 100% of the aggregate
ownership interests in the 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 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
the Borrower on a fully-diluted basis (in other words, 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 date hereof; or
(m) Except for Franchises that cover fewer than 10% of the Subscribers of the
Borrower and its Subsidiaries (determined as at the last day of the most
recent fiscal quarter for which a Quarterly Officers' Report shall have
been delivered) and except for any Retained Franchises, one or more
Franchises relating to the CATV Systems of the Borrower and its
Subsidiaries shall be terminated or revoked such that the Borrower or
relevant Subsidiary is no longer able to operate such Franchises and retain
the revenue received therefrom or the Borrower or relevant Subsidiary or
the grantors of such Franchises shall fail to renew such Franchises at the
stated expiration thereof such that the Borrower or relevant 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 the Borrower; or
(o) The Operating Agreement shall be modified in any manner that would
adversely affect the obligations of the Borrower, or the rights of the
Lenders or the
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----------------
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Administrative Agent, hereunder or under any of the other Loan Documents
(including, without limitation, in respect of any Preferred Membership
Interests);
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 Borrower, the
Administrative Agent shall, if instructed by the Majority Lenders, by notice to
the Borrower, terminate the Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by the Borrower hereunder (including,
without limitation, any amounts payable under Section 5.05 or 5.06 hereof) to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrower; 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 Borrower, the Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans, Reimbursement Obligations and all other amounts payable
by the Borrower hereunder (including, without limitation, any amounts payable
under Section 5.05 or 5.06 hereof) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Borrower.
In addition, upon the occurrence and during the continuance of any Event of
Default (if the Administrative Agent has declared the principal amount then
outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Borrower hereunder to be due and payable), the
Borrower agrees that it shall, if requested by the Administrative Agent or the
Majority Revolving Credit Lenders through the Administrative Agent (and, in the
case of any Event of Default referred to in clause (f) or (g) of this Section 9
with respect to the Borrower, forthwith, without any demand or the taking of any
other action by the Administrative Agent or such Lenders) provide cover for the
Letter of Credit Liabilities by paying to the Administrative Agent immediately
available funds in an amount equal to the then aggregate undrawn face amount of
all Letters of Credit, which funds shall be held by the Administrative Agent in
the Collateral Account as collateral security in the first instance for the
Letter of Credit Liabilities and be subject to withdrawal only as therein
provided.
9.02 Certain Cure Rights.
-------------------
(a) Notwithstanding the provisions of Section 9.01 hereof, but without
limiting the obligations of the Borrower under Section 8.10(a) hereof, a breach
by the Borrower 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
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----------------
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statements for the Borrower and its Subsidiaries with respect to such fiscal
quarter or fiscal year, as the case may be, are delivered pursuant to Section
8.01(b) or 8.01(c) hereof or (b) the latest date on which such financial
statements are required to be delivered pursuant to said Section 8.01(b) or
8.01(c), provided that, if following the last day of such fiscal quarter or
--------
fiscal year and prior to the Cut-Off Date, the Borrower 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 Borrower into compliance with said Section
8.10(a) assuming that the Total Leverage Ratio, as of the last day of such
fiscal quarter or fiscal year, as the case may be, were recalculated to subtract
such prepayment from the aggregate outstanding amount of Indebtedness, then such
breach or breaches shall be deemed to have been cured; provided, further, that
-------- -------
breaches of Section 8.10 hereof (including pursuant to paragraph (b) below) may
not be deemed to be cured pursuant to this Section 9.02 (x) more than three
times during the term of this Agreement or (y) during consecutive fiscal
quarters.
(b) Notwithstanding the provisions of Section 9.01 hereof, but without
limiting the obligations of the Borrower under Section 8.10(b) or 8.10(c)
hereof, a breach by the Borrower 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 Borrower and its
Subsidiaries with respect to such fiscal quarter or fiscal year, as the case may
be, are delivered pursuant to Section 8.01(b) or 8.01(c) hereof or (b) the
latest date on which such financial statements are required to be delivered
pursuant to said Section 8.01(b) or 8.01(c), provided that, if following the
--------
last day of such fiscal quarter or fiscal year and prior to the Cut-Off Date,
the Borrower 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 Borrower into
compliance with said Section 8.10(b) or 8.10(c) assuming that the Interest
Coverage Ratio and the Pro Forma Debt Service Coverage Ratio (as the case may
be), as of the last day of such fiscal quarter or fiscal year, as the case may
be, were recalculated to deduct from Interest Expense the aggregate amount of
interest that would not have been required to be paid hereunder if such
prepayment had been made on the first day of the period for which the Interest
Coverage Ratio and the Pro Form Debt Service Coverage Ratio is determined under
said Section 8.10(b) or 8.10(c), then such breach or breaches shall be deemed to
have been cured; provided, further, that breaches of Section 8.10 hereof
-------- -------
(including pursuant to paragraph (a) above) may not be deemed to be cured
pursuant to this Section 9.02 (x) more than three times during the term of this
Agreement or (y) during consecutive fiscal quarters.
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Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Lender hereby appoints
----------------------------------
and authorizes the Administrative Agent to act as its agent hereunder and under
the other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and under the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
10.05 and the first sentence of Section 10.06 hereof shall include reference to
its affiliates and its own and its affiliates' officers, directors, employees
and agents):
(a) shall have no duties or responsibilities except those expressly set forth
in this Agreement and in the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or in any other
Loan Document, or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any
other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or any other document referred to or provided for herein or
therein or for any failure by the Borrower or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the Majority
Lenders with respect to the collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Loan Document or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or attorneys-
in-fact selected by it in good faith.
10.02 Reliance by Administrative Agent. The Administrative Agent shall be
--------------------------------
entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be
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genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Majority Lenders or, if provided herein, in accordance
with the instructions given by the Majority Revolving Credit Lenders, the
Majority Term Loan Lenders, the Majority Incremental Facility Lenders of a
Series or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 10.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders , the Majority Term Loan
Lenders or the Majority Incremental Facility Lenders of a Series, provided that,
--------
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interest of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or not be taken,
only with the consent or upon the authorization of the Majority Lenders, the
Majority Revolving Credit Lenders, the Majority Term Loan Lenders or the
Majority Incremental Facility Lenders of a Series or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and the Loans
------------------
made by it, Chase (and any successor acting as Administrative Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. Chase (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Borrower (and any of its
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 Borrower for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
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10.05 Indemnification. The Lenders agree to indemnify the Administrative
---------------
Agent (to the extent not reimbursed under Section 11.03 hereof, but without
limiting the obligations of the Borrower under said Section 11.03) ratably in
accordance with the aggregate principal amount of the Loans and Reimbursement
Obligations held by the Lenders (or, if no Loans or Reimbursement Obligations
are at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent (including by any Lender) arising out of or by
reason of any investigation in or in any way relating to or arising out of this
Agreement or any other Loan Document any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Borrower is
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 Borrower and its
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 Borrower 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 Borrower or any of its
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
Borrower or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent or any of its affiliates.
10.07 Failure to Act. Except for action expressly required of the
--------------
Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under
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Section 10.05 hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent. Subject to the
----------------------------------------------
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving five days prior
notice thereof to the Lenders and the Borrower, 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 Borrower, 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
Borrower, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
10.09 Consents under Other Loan Documents. Except as otherwise provided
-----------------------------------
in Section 11.04 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the Loan Documents,
provided that, without the prior consent of each Lender, the Administrative
--------
Agent shall not (except as provided herein or in the Security Documents) release
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.
Credit Agreement
----------------
-103-
Section 11. Miscellaneous.
-------------
11.01 Waiver. No failure on the part of the Administrative Agent or any
------
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
The 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 the Borrower relating in any way to this Agreement whether or not
commenced earlier. To the fullest extent permitted by applicable law, the
Borrower shall take all measures necessary for any such action or proceeding
commenced by the Administrative Agent or any Lender to proceed to judgment prior
to the entry of judgment in any such action or proceeding commenced by the
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 Borrower and the
Administrative Agent, at the "Address for Notices" specified below its name on
the signature pages hereof and (ii) in the case of each of the Lenders, the
address (or telecopy number) set forth in its Administrative Questionnaire; or,
as to any party, at such other address as shall be designated by such party in a
notice to each other party. Notwithstanding the foregoing, notices of borrowing,
prepayment and Conversion of Loans pursuant to Section 4.05 hereof may be made
by telephone, so long as the same are promptly confirmed in writing. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 Expenses, Etc. The Borrower agrees 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
extension of credit 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
Credit Agreement
----------------
-104-
expenses of the Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 11.03; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
any of the other Loan Documents or any other document referred to herein or
therein and all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of any
security interest contemplated by any Security Document or any other document
referred to therein.
The Borrower hereby agrees 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
extensions of credit hereunder or any actual or proposed use by the Borrower or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified).
11.04 Amendments, Etc. Except as otherwise expressly provided in this
---------------
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Borrower and the Majority Lenders, or
by the Borrower 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, the Reimbursement Obligations or any fee hereunder, (iii)
reduce the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon or any fee is payable hereunder, (v) alter the
manner in which payments or prepayments of principal, interest
Credit Agreement
----------------
-105-
or other amounts hereunder shall be applied as between the Lenders or
Classes of Loans, (vi) alter the terms of this Section 11.04, (vii) modify the
definition of the term "Majority Lenders", "Majority Revolving Credit Lenders",
"Majority Term Loan Lenders" or "Majority Incremental Facility 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 provision
hereof, or (viii) 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 Borrower to satisfy a
condition precedent to the making of a Revolving Credit Loan or Incremental
Facility Loan of any Series shall be effective against the Revolving Credit
Lenders for the purposes of the Revolving Credit Commitments and Incremental
Facility Commitments of such Series unless the Majority Revolving Credit Lenders
or Majority Incremental Facility Lenders of such Series, as applicable, shall
have concurred with such waiver or modification, and no waiver or modification
of any provision of this Agreement or any other Loan Document that could
reasonably be expected to adversely affect the Lenders of any Class shall be
effective against the Lenders of such Class unless the Majority Revolving Credit
Lenders, Majority Term Loan Lenders or Majority Incremental Facility Lenders or
the applicable Series, as the case may be, shall have concurred with such waiver
or modification.
11.05 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.06 Assignments and Participations.
------------------------------
(a) The Borrower may not assign any of its rights or obligations hereunder
without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Commitments and, if such
Lender is a Revolving Credit Lender, its Letter of Credit Interest (but only
with the consent of, in the case of its outstanding Commitments, the Borrower
and the Administrative Agent and, in the case of the Revolving Credit Commitment
or a Letter of Credit Interest, the Issuing Lender, which consents shall not be
unreasonably withheld or delayed); provided that
--------
(i) no such consent by the Borrower or the Administrative Agent
shall be required in the case of any assignment to another Lender or an
affiliate of a Lender;
Credit Agreement
----------------
-106-
(ii) except to the extent the Borrower and the Administrative
Agent shall otherwise consent, any such partial assignment (other than to
another Lender or an affiliate) shall be in an amount at least equal to
$5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit
Loans or Revolving Credit Commitment or Letter of Credit Interest shall be
made in such manner so that the same portion of its Revolving Credit Loans,
Revolving Credit Commitment and Letter of Credit Interest is assigned to
the respective assignee;
(iv) each such assignment by a Lender of its Term Loans or Term
Loan Commitment shall be made in such manner so that the same portion of
its Term Loans and Term Loan Commitment is assigned to the respective
assignee;
(v) each such assignment by a Lender of its Incremental Facility
Loans of any Series shall be made in such manner so that the same portion
of its Incremental Facility Loans and Incremental Facility Commitment of
such Series is assigned to the respective assignee; and
(vi) upon each such assignment, the assignor and assignee shall
deliver to the Borrower, the Administrative Agent and the Issuing Lender an
Assignment and Acceptance in the form of Exhibit A hereto and the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Upon execution and delivery by the assignor and the assignee to the Borrower,
the Administrative Agent and the Issuing Lender of such Assignment and
Acceptance, and upon consent thereto by the Borrower, the Administrative Agent
and the Issuing Lender to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Borrower,
the Administrative Agent and the Issuing Lender), the obligations, rights and
benefits of a Lender hereunder holding the Commitment(s), Loans and, if
applicable, Letter of Credit Interest (or portions thereof) assigned to it and
specified in such Assignment and Acceptance (in addition to the Commitment(s),
Loans and Letter of Credit Interest, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment the assigning Lender shall pay the Administrative Agent an assignment
fee of $3,500.
(c) A Lender may sell or agree to sell to one or more other Persons (each a
"Participant") a participation in all or any part of any Loans or Letter of
------------
Credit Interest held by it, or in its Commitments, provided that (i) such
--------
Participant shall not have any rights or obligations under this Agreement or any
other Loan Document (the Participant's rights against such Lender in respect of
such participation to be those set forth in the agreements executed by such
Lender in
Credit Agreement
----------------
-107-
favor of the Participant) and (ii) such Lender shall promptly notify
the Borrower of the sale of such participation. All amounts payable by the
Borrower to any Lender under Section 5 hereof in respect of Loans and Letter of
Credit Interests held by it, and its Commitments, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans, Letter
of Credit Interest and Commitments, and as if such Lender were funding each of
such Loan, Letter of Credit Interest and Commitments in the same way that it is
funding the portion of such Loan, Letter of Credit Interest and Commitments in
which no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
Commitment or extend the amount or date of any scheduled reduction of such
Commitment pursuant to Section 2.04 hereof, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans, Reimbursement
Obligations or any portion of any fee hereunder payable to the Participant,
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee or (v) consent to any modification, supplement or
waiver hereof or of any of the other Loan Documents to the extent that the same,
under Section 10.09 or Section 11.04 hereof, requires the consent of each
Lender.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 11.06, any Lender may (without notice to
the Borrower, the Administrative Agent or any other Lender and without payment
of any fee) (i) assign and pledge all or any portion of its Loans to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Lender and (ii) assign all or any
portion of its rights under this Agreement and its Loans to an affiliate. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(e) A Lender may furnish any information concerning the Borrower or any of
its Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants), subject,
however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan or Reimbursement Obligation
held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries
without the prior consent of each Lender.
(g) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to,
Credit Agreement
----------------
-108-
each Lender pursuant to the terms hereof from time to time (the "Register"). The
--------
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) above, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
11.07 Survival. The obligations of the Borrower under Sections 5.01,
--------
5.05, 5.06, 5.07 and 11.03 hereof, and the obligations of the Lenders under
Section 10.05 hereof, shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments and, in the case of any
Lender that may assign any interest in its Commitments, Loans or Letter of
Credit Interest hereunder, shall survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit (whether by means of a Loan or a Letter of
Credit), herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of a Loan
or a Letter of Credit), any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
11.08 Captions. The table of contents and captions and section headings
--------
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This Agreement shall
------------------------------------------
be governed by, and construed in accordance with, the law of the State of New
York. The Borrower
Credit Agreement
----------------
-109-
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 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.
11.11 Waiver of Jury Trial. EACH OF THE BORROWER, THE ADMINISTRATIVE
--------------------
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 Treatment of Certain Information; Confidentiality.
-------------------------------------------------
(a) The Borrower acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to the Borrower
or one or more of its Subsidiaries (in connection with this Agreement or
otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender and the Borrower hereby authorize each Lender to share any information
delivered to such Lender by the Borrower and its Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Lender to enter into this
Agreement, to any such subsidiary or affiliate, it being understood that any
such subsidiary or affiliate receiving such information shall be bound by the
provisions of paragraph (b) below as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, employees and representatives) to
use reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same nature
and in accordance with safe and sound banking practices, any non-public
information supplied to it by any Obligor pursuant to this Agreement or any
other Loan Document that is identified by the Borrower 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
Credit Agreement
----------------
-110-
other Lender (or to Chase Securities Inc.), (vi) in connection with any
litigation to which any one or more of the Lenders or the Administrative Agent
is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (vii) to a subsidiary or affiliate
of such Lender as provided in paragraph (a) above or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to the respective Lender a Confidentiality Agreement substantially in the form
of Exhibit I hereto (or executes and delivers to such Lender an acknowledgement
to the effect that it is bound by the provisions of this Section 11.12(b), which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans or Letter of Credit Interest hereunder); provided,
--------
further, that obligations of any assignee that has executed a Confidentiality
-------
Agreement in the form of Exhibit I hereto shall be superseded by this Section
11.12 upon the date upon which such assignee becomes a Lender hereunder pursuant
to Section 11.06(b) hereof.
Credit Agreement
----------------
-111-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
MEDIACOM SOUTHEAST LLC
By MEDIACOM LLC, a Member
By_______________________________
Title: Manager
Address for Notices:
Mediacom Southeast LLC
c/o Mediacom LLC
000 Xxxxxxx Xxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Credit Agreement
----------------
-112-
Lenders
-------
THE CHASE MANHATTAN BANK
By________________________________
Title:
BANK OF MONTREAL
By________________________________
Title:
CIBC INC.
By________________________________
Title:
CREDIT SUISSE FIRST BOSTON
By________________________________
Title:
Credit Agreement
----------------
-113-
FIRST UNION NATIONAL BANK
By________________________________
Title:
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
----------------
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SCHEDULE I
Commitments
-----------
Revolving Term
Lender Credit Commitment Loan Commitment
------ ----------------- ---------------
The Chase Manhattan Bank $ 48,666,666.66 $28,333,333.34
Bank of Montreal 28,000,000.00 17,000,000.00
Credit Suisse First Boston 28,000,000.00 17,000,000.00
CIBC Inc. 18,666,666.67 11,333,333.33
First Union National Bank 18,666,666.67 11,333,333.33
--------------- --------------
Total $140,000,000.00 $85,000,000.00
Schedule I
----------
SCHEDULE II
-----------
Material Agreements and Liens
-----------------------------
[See Sections 7.11, 8.06(b) and 8.07(b)]
Part A: Material Agreements
-------------------
As of the closing date, Mediacom Southeast will have outstanding
approximately 146 surety and performance bonds of varied types,
including Franchise Bonds, Pole Lease Bonds, Performance Bonds,
Retailer's Sales Tax Bonds, Pole Attachment Bonds, Construction
Permit Bonds, Encroachment Permit Bonds, Highway Permit Bonds and
Utility Bonds, having an aggregate amount of approximately
$2,300,000.
Part B: Liens
-----
None
SCHEDULE III
------------
Investments
-----------
None
Schedule III
------------
Mediacom Southeast LLC SCHEDULE IV
---------------------- -----------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
----------------------------------------------------------------------
AL Ardmore 7/9/10 NO US
----------------------------------------------------------------------
XX Xxxxxx 8/7/02 YES ECC
----------------------------------------------------------------------
XX Xxxxxxx County 4/9/01 NO US
----------------------------------------------------------------------
AL Bayou LaBatre 2/19/05 NO US
----------------------------------------------------------------------
XX Xxxxxxx 9/5/06 YES US
----------------------------------------------------------------------
AL Camden 12/10/00 NO ECC
----------------------------------------------------------------------
AL Citronelle 11/13/00 NO US
----------------------------------------------------------------------
XX Xxxxxx County 1/28/07 NO ECC
----------------------------------------------------------------------
AL Conecun County (Evergreen) 11/28/04 NO ECC
----------------------------------------------------------------------
AL Creois 6/17/01 NO ECC
----------------------------------------------------------------------
AL Xxxxxx 2/13/06 NO US
----------------------------------------------------------------------
AL East Xxxxxxx 10/24/06 YES ECC
----------------------------------------------------------------------
AL Escambia County (Brewton) 1/7/05 NO ECC
----------------------------------------------------------------------
AL Evergreen 6/20/05 NO ECC
----------------------------------------------------------------------
AL Excel 2/12/06 NO ECC
----------------------------------------------------------------------
AL Frisco City 11/12/05 NO ECC
----------------------------------------------------------------------
AL Greensboro 2/13/06 NO ECC
----------------------------------------------------------------------
AL Gulf Shores 11/28/00 YES US
----------------------------------------------------------------------
XX Xxxx County 5/30/99 NO ECC
----------------------------------------------------------------------
XX Xxxxxxx 5/9/07 NO ECC
----------------------------------------------------------------------
AL Limestone County 4/30/05 NO US
----------------------------------------------------------------------
XX Xxxxxx 11/17/01 NO ECC
----------------------------------------------------------------------
XX Xxxxxxxxxx 3/1/02 NO ECC
----------------------------------------------------------------------
XX Xxxxxx 10/18/98 NO US
----------------------------------------------------------------------
AL Madison County 11/20/99 NO US
----------------------------------------------------------------------
XX XxXxxxxx 4/8/07 NO US
----------------------------------------------------------------------
AL Mobile 1/6/02 NO US
----------------------------------------------------------------------
AL Mobile County 4/29/02 YES US
----------------------------------------------------------------------
XX Xxxxxx County 8/9/06 NO US
----------------------------------------------------------------------
AL Monroeville 5/12/04 NO US
----------------------------------------------------------------------
AL Mt. Xxxxxx 1/13/08 NO US
----------------------------------------------------------------------
AL Orange Beach 2/27/00 YES US
----------------------------------------------------------------------
XX Xxxxxx 11/13/04 NO ECC
----------------------------------------------------------------------
AL Robertsdale 10/16/98 NO US
----------------------------------------------------------------------
AL Saraland 4/30/03 NO ECC
----------------------------------------------------------------------
AL Satsuma 9/16/00 NO US
----------------------------------------------------------------------
AL Silverhill 12/17/99 NO US
----------------------------------------------------------------------
AL Thomasville 1/13/01 NO US
----------------------------------------------------------------------
XX Xxxxxxxxxx County 12/9/07 NO US
----------------------------------------------------------------------
XX Xxxxxx County (Camden) 5/1/07 NO ECC
----------------------------------------------------------------------
AL York 5/4/99 NO US
----------------------------------------------------------------------
FL Apalachicola 10/3/00 NO ECC
----------------------------------------------------------------------
FL Bay County 11/10/01 NO US
----------------------------------------------------------------------
FL Bonifay 7/28/02 NO US
----------------------------------------------------------------------
FL Carrabelle 12/9/02 NO ECC
----------------------------------------------------------------------
FL Escambia County 11/8/04 NO US
----------------------------------------------------------------------
Glossary:
--------
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC: EEC Holding Corp. 1 of 6
Schedule IV
-----------
Medlacom Southeast LLC SCHEDULE IV
---------------------- -----------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
----------------------------------------------------------------------
FL Franklin County 6/30/10 NO US
----------------------------------------------------------------------
FL Gadsden County (Havana) 6/30/03 NO ECC
----------------------------------------------------------------------
FL Greensboro 8/2/97 NO US
----------------------------------------------------------------------
FL Gretna 11/4/04 NO US
----------------------------------------------------------------------
FL Gulf Breeze 4/13/01 NO US
----------------------------------------------------------------------
FL Gulf County 3/24/01 NO ECC
----------------------------------------------------------------------
FL Gulf County 5/26/07 NO ECC
----------------------------------------------------------------------
FL Havana 2/23/98 NO ECC
----------------------------------------------------------------------
FL Xxxxxx Co. (Bonifay) 1/5/07 NO US
----------------------------------------------------------------------
FL Mexico Beach 1/27/01 NO US
----------------------------------------------------------------------
FL Milton 12/29/07 NO US
----------------------------------------------------------------------
FL PensacolaNAS 2/9/05 NO ECC
----------------------------------------------------------------------
FL Santa Xxxx County 9/14/03 NO US
----------------------------------------------------------------------
FL Xxxxxxx AFB 9/30/00 NO US
----------------------------------------------------------------------
FL Xxxxxx (Bonifay) 9/24/04 NO US
----------------------------------------------------------------------
FL Xxxxxx County 8/12/02 NO US
----------------------------------------------------------------------
FL Wewahitchka 8/24/98 NO US
----------------------------------------------------------------------
FL WhitingNAS 7/1/04 NO US
----------------------------------------------------------------------
IL Alto Pass 9/7/12 NO US
----------------------------------------------------------------------
IL Xxxx 1/5/12 NO US
----------------------------------------------------------------------
IL Cambria 1/4/12 NO US
----------------------------------------------------------------------
IL Cobden 12/7/06 NO US
----------------------------------------------------------------------
IL Coulterville 5/17/12 NO US
----------------------------------------------------------------------
IL Xxxxxx 4/18/12 NO US
----------------------------------------------------------------------
IL Elkville 1/25/12 NO US
----------------------------------------------------------------------
IL Franklin County 6/15/12 NO US
----------------------------------------------------------------------
IL Hecker 11/17/12 NO US
----------------------------------------------------------------------
IL Xxxxx 11/23/11 NO US
----------------------------------------------------------------------
IL Mound City 12/1/06 NO US
----------------------------------------------------------------------
IL Mounds 10/5/11 NO US
----------------------------------------------------------------------
IL Perry County 1/8/99 NO US
----------------------------------------------------------------------
IL Red Bud 10/18/02 NO US
----------------------------------------------------------------------
IL Royalton 10/19/06 NO US
----------------------------------------------------------------------
IL Smithton 3/1/08 NO US
----------------------------------------------------------------------
IL Xxxxxx 5/18/12 NO US
----------------------------------------------------------------------
IL Xxxxxxxxxx County 3/6/98 NO US
----------------------------------------------------------------------
IL Xxxxxxx 6/7/12 NO XX
----------------------------------------------------------------------
XX Xxxxxxx 0/00/00 XX XX
----------------------------------------------------------------------
XX Xxxxxxx City 1/14/00 YES US
----------------------------------------------------------------------
KS Burlingame 7/19/03 NO XX
----------------------------------------------------------------------
XX Xxxxxxxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Carbondale 11/1/03 NO US
----------------------------------------------------------------------
KS Edgerton 3/13/00 YES US
----------------------------------------------------------------------
KS Eureka 4/11/03 NO XX
----------------------------------------------------------------------
XX Xxxxxx 00/0/00 XX XX
----------------------------------------------------------------------
XX Gridley 6/1/99 NO XX
----------------------------------------------------------------------
XX Xxxxxxxx 00/0/00 XX XX
----------------------------------------------------------------------
XX Lobo 5/4/02 YES XX
----------------------------------------------------------------------
XX Xxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Xxxxxx 7/6/02 NO XX
----------------------------------------------------------------------
XX Xxxxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Mulberry 12/11/03 NO XX
----------------------------------------------------------------------
XX Xxx Xxxxxx 0/0/00 XXX XX
----------------------------------------------------------------------
XX Osage City 4/27/01 NO US
----------------------------------------------------------------------
Glossary:
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC: EEC Holding Corp. Schedule IV 2 of 6
-----------
Mediacom Southeast LLC SCHEDULE IV
------------------------- -----------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
----------------------------------------------------------------------
KS Oswego 8/13/99 NO XX
----------------------------------------------------------------------
XX Xxxxxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Xxxxxx 5/13/05 NO US
----------------------------------------------------------------------
KS Toronto 12/2/02 NO XX
----------------------------------------------------------------------
XX Xxxxxx 0/00/00 XX XX
----------------------------------------------------------------------
XX Wellsville 11/29/99 YES US
----------------------------------------------------------------------
KY Albany 2/19/05 NO US
----------------------------------------------------------------------
KY Bonnieville 10/5/07 NO US
----------------------------------------------------------------------
KY Bremen 9/27/00 NO US
----------------------------------------------------------------------
KY Burkesville 5/5/11 YES US
----------------------------------------------------------------------
KY Cadiz 7/1/01 YES XX
----------------------------------------------------------------------
XX Xxxxxxxx Xxxxxx 00/00/00 XX XX
----------------------------------------------------------------------
XX Xxxxxxxx County 5/8/98 NO US
----------------------------------------------------------------------
KY Christian County 5/24/98 NO US
----------------------------------------------------------------------
XX Xxxxxxx County 8/15/09 NO US
----------------------------------------------------------------------
XX Xxxxxxxxxx County 8/12/98 NO US
----------------------------------------------------------------------
KY Crofton 6/26/01 NO US
----------------------------------------------------------------------
KY Cumberland County 12/9/01 YES XX
----------------------------------------------------------------------
XX Xxxxxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Elkton 9/20/07 NO US
----------------------------------------------------------------------
KY Fredonia 1/25/13 NO US
----------------------------------------------------------------------
KY Gamaliel 1/7/07 NO US
----------------------------------------------------------------------
XX Xxxxxxx 1/31/99 NO US
----------------------------------------------------------------------
XX Xxxxxx 11/2/98 NO US
----------------------------------------------------------------------
XX Xxxx County 6/19/02 NO US
----------------------------------------------------------------------
XX Xxxxxxx County 7/14/01 NO US
----------------------------------------------------------------------
KY Marion 4/8/06 NO US
----------------------------------------------------------------------
XX Xxxxxxxx County 8/3/12 NO US
----------------------------------------------------------------------
XX Xxxxxxxx County 1/6/00 NO US
----------------------------------------------------------------------
XX Xxxxxx County 8/19/07 NO US
----------------------------------------------------------------------
KY Munfordville 6/29/02 NO US
----------------------------------------------------------------------
KY Nebo 2/7/13 NO US
----------------------------------------------------------------------
KY Nortonville 7/14/01 NO US
----------------------------------------------------------------------
KY Oak Grove 10/12/11 NO US
----------------------------------------------------------------------
KY Pembroke 1/3/13 NO US
----------------------------------------------------------------------
KY Princeton 8/22/98 NO US
----------------------------------------------------------------------
KY Sacramento 2/19/00 NO US
----------------------------------------------------------------------
KY Salem 8/12/98 NO US
----------------------------------------------------------------------
XX Xxxx County 3/12/13 NO US
----------------------------------------------------------------------
KY Tompkinsville 8/3/10 NO XX
----------------------------------------------------------------------
XX Xxxxxxx 0/0/00 XX XX
----------------------------------------------------------------------
XX Xxxxx County 8/20/01 YES US
----------------------------------------------------------------------
MO Airport Drive 12/16/02 NO US
----------------------------------------------------------------------
MO Alba 4/9/07 NO US
----------------------------------------------------------------------
MO Albany 8/21/04 YES MO
----------------------------------------------------------------------
MO Anderson 4/14/04 NO US
----------------------------------------------------------------------
MO Appleton City 12/31/99 NO US
----------------------------------------------------------------------
MO Xxxxxx 12/31/99 NO US
----------------------------------------------------------------------
MO Ash Grove 1/13/98 NO US
----------------------------------------------------------------------
MO Ave 11/11/09 NO US
----------------------------------------------------------------------
MO Xxxxxxx 6/15/00 YES MO
----------------------------------------------------------------------
MO Billings 9/8/07 NO US
----------------------------------------------------------------------
MO Brunswick 7/9/98 NO US
----------------------------------------------------------------------
Glossary:
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC: EEC Holding Corp. Schedule IV 3 of 6
-----------
SCHEDULE IV
-----------
Mediacom Southeast LLC
----------------------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
-----------------------------------------------------------------------
MO Butler 12/17/03 NO US
-----------------------------------------------------------------------
MO Cabool 11/8/89 NO US
-----------------------------------------------------------------------
MO Cameron 7/21/02 YES MO
-----------------------------------------------------------------------
MO Xxxx Junction 8/1/99 NO US
-----------------------------------------------------------------------
MO Carrollton 4/19/03 NO US
-----------------------------------------------------------------------
MO Cassville 11/24/07 NO XX
-----------------------------------------------------------------------
XX Xxxxx 0/00/00 XX XX
-----------------------------------------------------------------------
XX Crystal Lakes 11/11/13 NO MO
-----------------------------------------------------------------------
MO Diamond 6/7/02 NO US
-----------------------------------------------------------------------
MO Duenweg 7/2/12 NO US
-----------------------------------------------------------------------
MO Duquesne 2/8/07 NO US
-----------------------------------------------------------------------
MO Everton 2/8/10 NO US
-----------------------------------------------------------------------
MO Excelsior Estates 6/17/12 NO MO
-----------------------------------------------------------------------
MO Excelsior Springs 2/15/98 NO MO
-----------------------------------------------------------------------
MO Exeter 12/9/07 NO XX
-----------------------------------------------------------------------
XX Xxxxxxx 00/00/00 XX XX
-----------------------------------------------------------------------
XX Golden City 4/19/02 NO US
-----------------------------------------------------------------------
MO Goodman 6/20/04 NO US
-----------------------------------------------------------------------
MO Granby 10/12/01 NO US
-----------------------------------------------------------------------
MO Xxxxxx County 3/30/01 NO US
-----------------------------------------------------------------------
MO Greenfield 2/16/02 NO US
-----------------------------------------------------------------------
MO Xxxxxxxxx 8/8/03 NO MO
-----------------------------------------------------------------------
MO Homestead Village 11/9/13 NO MO
-----------------------------------------------------------------------
MO Jasper 3/1/02 NO US
-----------------------------------------------------------------------
MO Kimbering City 12/6/02 NO US
-----------------------------------------------------------------------
MO Xxxxxx 7/21/07 NO MO
-----------------------------------------------------------------------
MO Liberal 7/21/02 NO XX
-----------------------------------------------------------------------
XX Xxxxxxxx 0/00/00 XX XX
-----------------------------------------------------------------------
XX Xxxxx City 9/9/07 NO US
-----------------------------------------------------------------------
MO Mansfield 11/19/12 NO US
-----------------------------------------------------------------------
MO Marceline 11/3/00 NO US
-----------------------------------------------------------------------
MO Marshfield 10/8/95 NO US
-----------------------------------------------------------------------
MO Xxxxxx 9/23/08 NO US
-----------------------------------------------------------------------
MO Mt. Xxxxxx 11/8/09 NO US
-----------------------------------------------------------------------
MO Neck City 4/9/05 NO US
-----------------------------------------------------------------------
MO Norborne 10/26/03 NO US
-----------------------------------------------------------------------
MO Oronogo 2/6/05 NO US
-----------------------------------------------------------------------
MO Osceola 5/28/11 YES US
-----------------------------------------------------------------------
MO Xxxxxxx 4/2/05 NO US
-----------------------------------------------------------------------
MO Xxxxx 5/8/02 NO US
-----------------------------------------------------------------------
MO Richmond 12/15/02 NO MO
-----------------------------------------------------------------------
MO Rogersville 12/4/07 NO US
-----------------------------------------------------------------------
MO Salisbury 10/8/05 NO US
-----------------------------------------------------------------------
MO Sarcoxie 10/5/01 NO US
-----------------------------------------------------------------------
MO Seymour 8/13/11 NO XX
-----------------------------------------------------------------------
XX Xxxxxxxxx 00/00/00 XX XX
-----------------------------------------------------------------------
XX Walnut Grove 5/20/99 NO US
-----------------------------------------------------------------------
MO Xxxxxxx County 3/8/07 NO US
-----------------------------------------------------------------------
MO Willard 6/12/98 NO US
-----------------------------------------------------------------------
MO Wood Heights 2/13/04 NO MO
-----------------------------------------------------------------------
MS Bay St. Louis 6/27/98 NO US
-----------------------------------------------------------------------
XX Xxxxxxxx 10/5/98 NO US
-----------------------------------------------------------------------
Glossary:
--------
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC: EEC Holding Corp.
Schedule IV 4 of 6
-----------
Mediacom Southeast LLC SCHEDULE IV
---------------------- -----------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
----------------------------------------------------------------------
MS Decatur 4/1/99 NO ECC
----------------------------------------------------------------------
XX Xxxxxx County 4/6/01 YES US
----------------------------------------------------------------------
XX Xxxxxxx County 6/19/08 NO US
----------------------------------------------------------------------
XX Xxxxxxx 2/8/14 NO ECC
----------------------------------------------------------------------
XX Xxxxxxx County 5/12/07 NO US
----------------------------------------------------------------------
MS Louisville 12/3/98 NO ECC
----------------------------------------------------------------------
MS Lucedale 5/20/95 NO US
----------------------------------------------------------------------
XX Xxxxxx 4/18/05 NO US
----------------------------------------------------------------------
MS Noxepater 7/4/10 NO US
----------------------------------------------------------------------
MS Pontotoc City 1/2/09 NO US
----------------------------------------------------------------------
MS Pontotoc Count 7/23/04 NO US
----------------------------------------------------------------------
XX Xxxxx County 5/1/05 NO US
----------------------------------------------------------------------
MS Union 12/2/11 NO US
----------------------------------------------------------------------
MS Water Valley 3/18/16 YES ECC
----------------------------------------------------------------------
MS Waveland 2/6/06 NO US
----------------------------------------------------------------------
XX Xxxxxxx 9/18/03 NO US
----------------------------------------------------------------------
NC Arrowhead Beach 5/19/07 NO US
----------------------------------------------------------------------
NC Xxxx County 6/6/98 NO US
----------------------------------------------------------------------
NC Xxxxxx County 12/5/98 NO US
----------------------------------------------------------------------
NC Camden County 5/7/99 NO US
----------------------------------------------------------------------
NC Chowan County 3/2/06 YES US
----------------------------------------------------------------------
NC Colerain 4/6/02 NO US
----------------------------------------------------------------------
NC Columbia 5/16/04 NO US
----------------------------------------------------------------------
NC Xxxxxx 4/2/04 NO US
----------------------------------------------------------------------
NC Creswell 5/7/04 NO US
----------------------------------------------------------------------
NC Currituck 11/5/99 YES US
----------------------------------------------------------------------
NC Dillsboro 10/7/05 NO US
----------------------------------------------------------------------
NC Edenton 7/9/06 YES US
----------------------------------------------------------------------
NC Flat Rock 7/11/06 YES US
----------------------------------------------------------------------
NC Fletcher 5/31/10 YES US
----------------------------------------------------------------------
NC Franklin 10/1/99 YES US
----------------------------------------------------------------------
NC Xxxxxxxxx County 9/1/06 YES ECC
----------------------------------------------------------------------
NC Hendersonville 12/5/06 YES ECC
----------------------------------------------------------------------
NC Hartford 2/12/06 YES US
----------------------------------------------------------------------
NC Xxxxxxx 8/1/04 NO US
----------------------------------------------------------------------
NC Xxxxxxx County 10/15/10 NO US
----------------------------------------------------------------------
NC Jamesville 11/14/98 NO US
----------------------------------------------------------------------
NC Jefferson 10/22/05 NO US
----------------------------------------------------------------------
NC Kelford 3/5/04 NO US
----------------------------------------------------------------------
NC Lansing 11/11/98 NO US
----------------------------------------------------------------------
NC Laurel Park 10/5/06 YES ECC
----------------------------------------------------------------------
NC Lewiston/Woody 3/5/04 NO US
----------------------------------------------------------------------
NC Macon County 9/30/99 YES US
----------------------------------------------------------------------
NC Xxxxxx County 12/5/98 NO US
----------------------------------------------------------------------
NC XxXxxxxx County 8/25/07 NO US
----------------------------------------------------------------------
NC Northhampton County 9/10/04 NO US
----------------------------------------------------------------------
NC Perqulmans County 6/3/06 YES US
----------------------------------------------------------------------
NC Plymouth 11/14/98 NO US
----------------------------------------------------------------------
NC Powellsville 4/7/02 NO US
----------------------------------------------------------------------
NC Rich Square 3/1/04 NO US
----------------------------------------------------------------------
NC Roper 3/12/04 No US
----------------------------------------------------------------------
NC Roxobel 3/13/04 NO US
----------------------------------------------------------------------
NC Seaboard 8/14/04 NO US
----------------------------------------------------------------------
Glossary:
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC: EEC Holding Corp. Schedule IV 5 of 6
-----------
SCHEDULE IV
-----------
Mediacom Southeast LLC
----------------------
Franchise Schedule
------------------
CURRENT
ST FRANCHISOR EXPIRATION REGULATED SELLER
--------------------------------------------------------------------------------
NC Severn 4/2/04 NO US
--------------------------------------------------------------------------------
NC Sylva 10/12/03 YES US
--------------------------------------------------------------------------------
NC Tyrell County 4/2/04 NO US
--------------------------------------------------------------------------------
NC Washington County 5/18/12 NO US
--------------------------------------------------------------------------------
NC Xxxxxxx 10/14/05 NO US
--------------------------------------------------------------------------------
NC West Jefferson 9/2/06 YES ECC
--------------------------------------------------------------------------------
NC Windsor 12/12/03 NO US
--------------------------------------------------------------------------------
NC Winfall 10/2/02 NO US
--------------------------------------------------------------------------------
NC Woodland 5/3/04 NO US
--------------------------------------------------------------------------------
OK Cardin 2/5/11 NO US
--------------------------------------------------------------------------------
OK Picher 10/8/05 NO US
--------------------------------------------------------------------------------
OK Quapaw 10/12/05 NO US
--------------------------------------------------------------------------------
TN Ardmore 7/6/10 NO US
--------------------------------------------------------------------------------
TN Dover 3/29/06 NO US
--------------------------------------------------------------------------------
TN Elkton 1/12/10 NO US
--------------------------------------------------------------------------------
TN Xxxxx County 1/16/10 NO US
--------------------------------------------------------------------------------
TN Huntland 7/18/05 NO US
--------------------------------------------------------------------------------
TN Lincoln County 3/20/10 NO US
--------------------------------------------------------------------------------
TN Xxxxxxx County 11/16/02 NO US
--------------------------------------------------------------------------------
Total Franchises: 277
Total Regulated: Yes 35
Total Regulated: No 242
Glossary:
--------
US: U.S. Cable Television Group, L.P.
MO: Missouri Cable Partners, L.P.
EEC:EEC Holding Corp.
Schedule IV 6 of 6
-----------
SCHEDULE V
----------
For purposes of making the representations regarding the CATV Systems contained
at Sections 7.17 and 7.18 of the Credit Agreement, Borrower has relied upon the
representations and warranties made by Sellers in the Cablevision Acquisition
Agreement and by Sellers' FCC counsel in the FCC counsel opinion letter
delivered pursuant to that Acquisition Agreement. In addition Borrower has
relied on its own knowledge acquired to date regarding the operations of the
CATV Systems. However, certain areas covered in Sections 7.17 and 7.18 of the
Credit Agreement are outside the scope of Borrower's actual knowledge or outside
the scope of the representations of Sellers and Sellers' FCC counsel that
Borrower is relying upon for purposes of this Credit Agreement. These
substantive areas are:
1. The necessity to reduce rates or institute rate refunds in most of the
communities served by the CATV Systems. In the communities which have certified
to regulate basic service rates, there are no current decisions ordering rate
reductions or refunds. In certain communities, challenges to cable programming
service tier rate increases have been unsuccessful. The Borrower, however, has
not conducted a detailed review of the rate worksheets for every community
served by the CATV systems. Therefore, Borrower cannot represent that in the
future no community will challenge the rates existing as of the date of this
Agreement.
2. The provision of subscriber privacy notices.
Subject to the limitations on Borrower's knowledge described above, Borrower
is aware of the following exceptions to the representations made in Sections
7.17 and 7.18:
a. Seller (Cablevision) is not authorized to use all the frequencies on the
following Community Antenna Relay Service (CARS) licenses from the Federal
Communications Commission:
Everton, Missouri
Osage City, Kansas
Ardmore, Alabama
Burlington, Kansas
Both Cablevision and Borrower will, prior to closing, file the appropriate
applications to claim temporary authorization to continue using those
frequencies.
b. Cablevision has permitted the lapse of two business radio licenses in
Gulf Breeze and Cape San Blas, Florida. Cablevision has sought reinstatement of
the licenses and will assign the same to Borrower once the FCC authorizes their
reissuance. In the interim Cablevision and Borrower have entered into an
agreement to permit Mediacom to utilize those facilities.
c. Of the 277 franchises being transferred, 35 franchises have been
certified to adopt regulations as provided in the cable rate regulations. These
franchises are listed by state as follows:
ALABAMA KANSAS KENTUCKY
------- ------ --------
Atmore Xxxxxxx City Burkesville
Xxxxxxx Xxxxxxxx Cadiz
East Xxxxxxx Xxxx Cumberland County
Gulf Shores New Xxxxxx Xxxxx County
Mobile County Wellsville
Orange Beach
MISSOURI MISSISSIPPI NORTH CAROLINA
-------- ----------- --------------
Albany Xxxxxx County Chowan County
Xxxxxxx Water Valley Currituck
Xxxxxxx Xxxxxxx
Osceola Flat Rock
Xxxxxxxx
Xxxxxxxx
Xxxxxxxxx County
Hendersonville
Xxxxxxx
Xxxxxx Park
Macon
Perquimans County
Xxxxx
Xxxx Xxxxxxxxx
2
Mediacom Southeast LLC SCHEDULE VI
---------------------- -----------
Adjusted System Cash Flow (ASCF)
Adjusted Operating Cash Flow (AOCF)
For the Three Months Ending September 30, 1997
Adjusted System Cash Flow (ASCF)
System Cash Flow
U.S. Cable Acquisition $ 7,964,800
--------------
Total System Cash Flow $ 7,964,800
==============
Adjustment to System Cash Flow
Programming Increases $ (855,000)
Operational Savings realized by Buyer $ 1,968,100
--------------
Total Adjustments to SCF $ 1,113,100
==============
ASCF $ 9,077,900
--------------
--------------
Annualized ASCF $ 35,311,600
==============
Adjusted Operating Cash Flow (AOCF)
Revenues/1/ $ 23,171,700
System Cash Flow
U.S. Cable Acquisition $ 7,964,800
--------------
Total System Cash Flow $ 7,964,800
==============
Management Fees $ 1,042,730
--------------
Operating Cash Flow $ 6,922,000
Adjustment to Operating Cash Flow
Programming increases $ (855,000)
Operational Savings realized by Buyer $ 1,968,100
--------------
Total Adjustments to SCF $ 1,113,100
==============
AOCF $ 8,035,100
--------------
--------------
Annualized AOCF $ 32,140,400
==============
/1/ Based on actual financial information provided by Cablevision Systems
Corporation
Schedule VI
-----------
SCHEDULE VII
------------
Regions
-------
Alabama Region
Florida Region
Kentucky Region
Missouri Region
North Carolina Region
Schedule VII
------------
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of January 23, 1998 (as
modified and supplemented and in effect from time to time, the "Credit
------
Agreement"), between Mediacom Southeast 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
Borrower, any of its Subsidiaries or any other obligation or the performance or
observance by the Borrower, any of its 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 any promissory note(s) held by it evidencing the
Assigned Facilities and requests that the Administrative Agent exchange such
promissory note(s) for a new promissory note or notes payable to the Assignor
(if the Assignor has retained any interest in the Assigned Facility) and a new
promissory 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,
-2-
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 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 Borrower 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 Credit Agreement
dated as of January 23, 1998,
between Mediacom Southeast LLC,
the lenders named therein and
The Chase Manhattan Bank,
as Administrative Agent
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Percentage
Facility Assigned Amount Assigned Assigned
----------------- --------------- --------
Revolving Credit Commitment
Revolving Credit Loans
Term Loan Commitment
Term Loans
[Incremental Term Commitment]
[Incremental Term Loans]
[ASSIGNEE] [ASSIGNOR]
By: By:
------------------------------ -----------------------------
Title: Title:
-2-
Consented to and Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
--------------------------
Title:
Consented to:
MEDIACOM SOUTHEAST LLC
By MEDIACOM LLC, a Member
By:
--------------------------
Title:
EXHIBIT B
[Form of Quarterly Officer's Report]
MEDIACOM SOUTHEAST LLC
Fiscal quarter ended: ______________, 19__
This Report is delivered pursuant to Section 8.01(h) of the Credit
Agreement (the "Credit Agreement") dated as of January 23, 1998, between
----------------
Mediacom Southeast LLC (the "Borrower"), the lenders named therein and The Chase
--------
Manhattan Bank, as Administrative Agent. 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
Borrower and its 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: ,
------------ ----
EXHIBIT C
[Form of Security Agreement]
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of January 23, 1998 between: MEDIACOM SOUTHEAST
LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware (the "Borrower"); 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 Borrower, 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").
--------------------
The Borrower, certain lenders and the Administrative Agent are parties to a
Credit Agreement dated as of January 23, 1998 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), providing, subject to the
----------------
terms and conditions thereof, for extensions of credit (by the making of loans
and the issuance of letters of credit) to be made by said lenders to the
Borrower in an aggregate principal or face amount not exceeding $225,000,000
(which amount may, in accordance with the provisions thereof, be increased to
$275,000,000). In addition, the Borrower may from time to time be obligated to
various of said lenders or their affiliates 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 Borrower 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). 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.
---------
-2-
"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
-------------------
Borrower, the principal of and interest on the Loans made by the Lenders to
the Borrower, all Reimbursement Obligations and interest thereon and all other
amounts from time to time owing to the Lenders (or, in respect of any Interest
Rate Protection Agreement, any affiliate of a Lender) or the Administrative
Agent by the Borrower under the Loan Documents (including, without limitation,
all Hedging Indebtedness of the Borrower), and all obligations of the Borrower
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
-3-
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, for the benefit of the Lenders as hereinafter 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
Subsidiary of the Borrower now or hereafter owned by any 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 such Subsidiary 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 Borrower 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, 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
-4-
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,
any escrow agreements entered into by such Securing Party in connection
therewith, any Retained Franchise Management Agreement 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;
(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;
-5-
(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 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. The Administrative Agent will cause to be
------------------
established, or has caused to be established, with The Chase Manhattan Bank a
"securities account" as defined in Section 8-501 of the Uniform Commercial Code
(herein, the "Collateral Account") in the name of the Administrative Agent as
------------------
"entitlement holder" (as defined in Section 8-102-(a)(7)
-6-
of the Uniform Commercial Code) 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. Property from time to
time standing to the credit of 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 any collected cash
standing to the credit of the Collateral Account to or upon the order of any
Securing Party as such Securing Party through the Borrower 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 the
collected cash from time to time standing to the credit of the Collateral
Account to the payment of the Secured Obligations in the manner specified in
Section 5.09 hereof. Property from time to time standing to the credit of the
Collateral Account shall be subject to withdrawal only as provided herein.
Notwithstanding the foregoing, to the extent that the Administrative Agent is
not a "qualified intermediary" within the meaning of Section 1.1031(k)-
1(g)(4)(iii) of the Treasury Department regulations promulgated under the Code
(a "Qualified Intermediary"), the cash proceeds held in the Collateral Account
--------- ------------
may be held by a Qualified Intermediary selected by the Borrower (and
satisfactory to the Administrative Agent) acting as a sub-agent of the
Administrative Agent for the benefit of the Lenders as collateral security
hereunder.
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 Borrower (or, after the occurrence and during the continuance
of a 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 Borrower 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 it shall in its 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 Borrower
as it shall in its discretion determine.
-7-
4.03 Cover for Letter of Credit Liabilities. Cash standing to the
--------------------------------------
credit of the Collateral Account as cover for Letter of Credit Liabilities under
the Credit Agreement pursuant to Section 2.10(f) or Section 9.01 thereof shall
be held by the Agent in a separate sub-account (designated "Letter of Credit
Liabilities Sub-Account") and all amounts held in such sub-account shall
constitute collateral security first for the Letter of Credit Liabilities
-----
outstanding from time to time and second as collateral security for the other
------
Secured Obligations hereunder.
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);
(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
-8-
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;
(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.
-9-
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
or other ownership interests of each Subsidiary of the Borrower 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
Agreement 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 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 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.
-10-
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;
(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 Parties, any such demand,
-11-
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 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
-12-
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 and except as provided below in this Section 5.09, 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.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "Letter of Credit Liabilities Sub-Account" of the Collateral Account
pursuant to Section 4.03 hereof shall be applied first to the Letter of Credit
-----
Liabilities outstanding from time to time and second to the other Secured
------
Obligations in the manner provided above in this Section 5.09.
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.
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
-13-
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 and all
Letter of Credit Liabilities 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 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
-14-
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 the Borrower 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, 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.
-15-
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 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 Borrower formed by the Borrower
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 D 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.
-16-
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.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to
be duly executed and delivered as of the day and year first above written.
MEDIACOM SOUTHEAST 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]
EXHIBIT D
[Form of Guarantee and Pledge Agreement]
GUARANTEE AND PLEDGE AGREEMENT
GUARANTEE AND PLEDGE AGREEMENT dated as of January 23, 1998 between MEDIACOM
LLC, a limited liability company duly organized and validly existing under the
laws of New York (the "Parent Guarantor") 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 Southeast LLC, a Delaware limited liability company (the "Borrower"),
--------
certain lenders and the Administrative Agent are parties to a Credit Agreement
dated as of January 23, 1998 (as modified and supplemented and in effect from
time to time, the "Credit Agreement"), providing, subject to the terms and
----------------
conditions thereof, for extensions of credit (by the making of loans and the
issuance letters of credit) to be made by said lenders to the Borrower in an
aggregate principal or face amount not exceeding $225,000,000 (which amount may,
in accordance with the provisions thereof, be increased to $275,000,000). In
addition, the Borrower may from time to time be obligated to various of said
lenders or their affiliates 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 Borrower that would constitute Hedging
Indebtedness, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the 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). 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.
"Instrument" shall have the meaning ascribed thereto in Section 4(b) hereof.
----------
-2-
"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 Guarantor in respect of its Guarantee under Section 2
hereof and (b) all other obligations of the Parent Guarantor 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
-------------
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 the Borrower, all Reimbursement
Obligations and interest thereon and all other amounts from time to time owing
to the Lenders (or, in respect of any Interest Rate Protection Agreement, any
affiliate of a Lender) or the Administrative Agent by the Borrower under the
Credit Agreement, and all Hedging Indebtedness of the Borrower, 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 Guarantor hereby further agrees that if the Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Parent 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. Subject to Section 7.13 hereof, the
-------------------------
obligations of the Parent Guarantor under Section 2.01 hereof are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of the Credit Agreement 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 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 Parent
Guarantor hereunder which shall remain absolute and unconditional as described
above:
-3-
(i) at any time or from time to time, without notice to the
Parent 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 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 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 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 Borrower under the Credit Agreement 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 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 Borrower 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 Guarantor agrees that it 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. The 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 the Borrower for the
benefit of each of its creditors (including, without limitation, each Lender and
the
-4-
Administrative Agent) that any such payment by it shall constitute a
contribution of capital by the Parent Guarantor to the Borrower (or an
investment in the equity capital of the Borrower by the Parent Guarantor).
2.05 Remedies. The Parent Guarantor agrees that, as between the Parent
--------
Guarantor and the Lenders, the obligations of the Borrower under the Credit
Agreement 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 Borrower 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 Borrower) shall
forthwith become due and payable by the Parent Guarantor for purposes of said
Section 2.01.
2.06 Instrument for the Payment of Money. The 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 the
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. The Parent Guarantor represents
------------------------------
and warrants to the Lenders and the Administrative Agent that:
3.01 Corporate Existence. The Parent Guarantor (a) is a limited liability
-------------------
company duly organized and validly existing under the laws of the State of
Delaware; (b) has all requisite limited liability company 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 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 its operating agreement or other organizational
documents, or any applicable law or regulation, or any order, writ, injunction
or decree of any court or governmental authority or agency, or any
-5-
agreement or instrument to which the 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 the Parent Guarantor or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument.
3.03 Action. The Parent Guarantor has all necessary limited liability
------
company power and authority to execute, deliver and perform its obligations
under this Agreement; the execution, delivery and performance by the Parent
Guarantor of this Agreement have been duly authorized by all necessary limited
liability company action on its part; and this Agreement has been duly and
validly executed and delivered by the Parent Guarantor and constitutes its
legal, valid and binding obligation, enforceable against the 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 the 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.
3.05 Collateral.
----------
(a) The Parent Guarantor has all right, title and interest in, to and under,
the Collateral in which it purports to grant a security interest pursuant to
Section 4 hereof, and is the record owner of the Pledged LLC Interest, 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 the
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 the Operating Agreement).
-6-
(c) The Pledged LLC Interest constitutes all of the ownership interests of
the Borrower beneficially owned by the Parent Guarantor on the date hereof
(whether or not registered in the name of the Parent Guarantor), and the Parent
Guarantor is the registered owner of all such ownership interests.
3.06 Investment Company Act. The 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. The 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, the Parent Guarantor hereby pledges and grants to the
Administrative Agent, for the benefit of the Lenders as hereinafter provided, a
security interest in all of the Parent Guarantor's right, title and interest in
the following property, whether now owned by the 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 the Parent Guarantor in the Borrower, all
certificates, (if any) representing or evidencing such ownership interests
and all right, title and interest in, to and under the 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 Borrower
and all of its ownership interests under the Operating Agreement), and all
present and future rights of the 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 the Operating Agreement,
now or hereafter owned by the Parent Guarantor (including, without
limitation, any rights relating to Preferred Membership Interests), in each
case together with any certificates evidencing the same (collectively, the
"Pledged LLC Interest");
--------------------
(b) all Affiliate Subordinated Indebtedness held by the Parent Guarantor, and
all instruments (as defined in the Uniform Commercial Code) evidencing such
Affiliate Subordinated Indebtedness (herein collectively called
"Instruments"); and
-----------
(c) all proceeds of and to any of the foregoing (including, without limitation,
all causes of action, claims and warranties now or hereafter held by the
Parent Guarantor in respect of any of the items listed above) and, to the
extent related to any property
-7-
described in said clauses or such proceeds, all books, correspondence,
credit files, records, invoices and other papers.
Section 5. Covenants. The Parent Guarantor 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 and all
Letter of Credit Liabilities:
5.01 Financial Statements Etc.
-------------------------
The Parent Guarantor 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 the Parent Guarantor
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 the Parent Guarantor
generally, or to holders of any debt securities of the Parent Guarantor,
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 the Guarantor 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. The Parent Guarantor 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 Borrower or any of its 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, provided that
--------
the foregoing shall not apply to (x) any indenture, agreement or other
instrument entered into in connection with the issuance of the Senior Notes
(subject to such indenture, agreement or other instrument being satisfactory in
form and substance to the Majority Lenders) and (y) any other indenture,
agreement or other instrument containing covenants not more restrictive in any
instance than those applicable to the Senior Notes.
-8-
5.03 Indebtedness. The Parent Guarantor will not create,
------------
incur or suffer to exist any secured Indebtedness other than
(i) Indebtedness hereunder,
(ii) Indebtedness in an aggregate amount up to but not exceeding
$20,000,000, the proceeds of which are applied to make an equity
contribution to the Borrower, so long as (x) such Indebtedness is repaid
with the proceeds of the Senior Notes and (y) such Indebtedness is secured
only by the right of the Parent Guarantor to receive additional equity
investments,
(iii) Indebtedness incurred by the Parent Guarantor as an
account party in respect of letters of credit issued in connection with
acquisitions, so long as the obligations of the Parent Guarantor in respect
of such letters of credit are secured by assets of the Parent Guarantor
other than equity interests in the Borrower and
(iv) the Guarantee by the Parent Guarantor of Indebtedness
incurred by any Subsidiary of the Parent Guarantor, so long as (x) the
obligations of the Parent Guarantor 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 the Parent Guarantor of its
equity interests in such Subsidiary, and subordinated indebtedness issued
by 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 the Parent Guarantor of additional Indebtedness or equity securities.
5.04 Modifications of Certain Documents. The Parent Guarantor 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. The Parent Guarantor will allocate
-----------------------------------
to its Subsidiaries any expenses or other items 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.
5.06 Issuance of Senior Notes. Any proceeds of the issuance of the Senior
------------------------
Notes advanced or contributed to the Borrower shall be advanced as additional
equity capital to the Borrower in respect of the issuance of Preferred
Membership Interests to the Parent Guarantor.
-9-
Section 6. Further Assurances; Remedies. In furtherance of the
----------------------------
grant of the pledge and security interest pursuant to Section 4 hereof, the
Parent Guarantor hereby agrees with each Lender and the Administrative Agent as
follows:
6.01 Delivery and Other Perfection. The Parent Guarantor shall:
-----------------------------
(a) with respect to the ownership interests in the Borrower held
by the 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 the 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) 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;
(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
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
Parent Guarantor copies of any notices and communications received by it
with respect to the Collateral pledged by the Parent Guarantor
hereunder);
(d) 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; and
(e) 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 the 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 the Parent
Guarantor with respect to the Collateral, all in such manner as the
Administrative Agent may require.
-10-
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), the Parent
Guarantor 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.
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 Guarantor will cause the Pledged LLC Interest to
constitute at all times 100% of the aggregate ownership interests of the
Borrower then outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Parent Guarantor shall have the right to exercise all
voting, consensual and other powers of ownership pertaining to the
Pledged LLC Interest for all purposes not inconsistent with the terms of
this Agreement, the Credit Agreement or any other instrument or agreement
referred to herein or therein, provided that the Parent Guarantor agrees
--------
that it will not vote the Pledged LLC Interest in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or
any such other instrument or agreement; and the Administrative Agent
shall execute and deliver to the Parent Guarantor or cause to be executed
and delivered to the Parent Guarantor all such proxies, powers of
attorney, dividend and other orders, and all such instruments, without
recourse, as the Parent Guarantor may reasonably request for the purpose
of enabling the Parent Guarantor to exercise the rights and powers that
it is 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 Guarantor shall be entitled to receive and retain
any payments in respect of the Pledged LLC Interest permitted under the
Credit Agreement.
(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 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 Guarantor agrees to execute and
deliver to the Administrative Agent appropriate additional dividend,
distribution and other
-11-
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 Guarantor (except
to the extent theretofore applied to the Secured Obligations), be
returned by the Administrative Agent to the Parent Guarantor.
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
Administrative Agent were the sole and absolute owner thereof (and the
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 Guarantor 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 Guarantor 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 Guarantor, 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
-12-
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 Guarantor recognizes 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 Parent Guarantor acknowledges 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
Borrower 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 Guarantor shall remain liable for
any deficiency.
6.07 Removals, Etc. Without at least 30 days' prior written
-------------
notice to the Administrative Agent, the Parent Guarantor shall not (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. The 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
-13-
hereto, and any other cash at the time held by the 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 Parent Guarantor, or its
-------
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
Guarantor 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 the 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 the 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, the Parent Guarantor 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 Borrower
hereunder for purposes of Article 8 of the Uniform Commercial Code and (iii)
deliver to the Administrative Agent any Instruments and any certificates
representing the Pledged LLC Interest, accompanied by undated stock powers duly
executed in blank.
-14-
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 Parent Guarantor.
6.13 Further Assurances. The Parent Guarantor agrees that,
------------------
from time to time upon the written request of the Administrative Agent, the
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 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 Guarantor agrees 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 Guarantor in respect of the Collateral that the Parent Guarantor
has 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
-15-
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 the 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 the Parent Guarantor.
7.05 Successors and Assigns. This Agreement shall be binding up
----------------------
on and inure to the benefit of the respective successors and assigns of the
Parent Guarantor, the Administrative Agent, the Lenders and each holder of any
of the Secured Obligations (provided, however, that the Parent Guarantor shall
--------
not 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. The 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. The 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 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
-16-
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 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 Borrower or any of its Subsidiaries) applicable to or having jurisdiction
over the Parent Guarantor (or any entity under the control of the Parent
Guarantor), 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 Guarantor (or any entity under the control of
the Parent Guarantor). 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 Guarantor except in accordance with
the provisions of such statutory requirements, rules and regulations and the
Franchises. The 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.
7.13 Limitation of Liability. It is understood that, except for
-----------------------
the representations and warranties made by the Parent Guarantor herein, the sole
recourse of the Administrative Agent and the Lenders in respect of the
obligations of the Parent Guarantor hereunder shall be to the Collateral
hereunder and that nothing contained herein shall create any obligation of or
right to look to the Parent Guarantor or its assets individually for the
satisfaction of such obligations.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this 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
000 Xxxxxxx Xxx Xxxx
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
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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 Southeast LLC, a Delaware limited liability company (the
"Borrower"), certain lenders and the Administrative Agent are parties to a
--------
Credit Agreement dated as of January 23, 1998 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), providing, subject to the
----------------
terms and conditions thereof, for extensions of credit (by the making of loans
and the issuance of letters of credit) to be made by said lenders to the
Borrower in an aggregate principal or face amount not exceeding $225,000,000
(which amount may, in accordance with the provisions thereof, be increased to
$275,000,000). In addition, the Borrower may from time to time be obligated to
various of said lenders or their affiliates 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 Borrower 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:
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 the Borrower, all Reimbursement Obligations and interest thereon and all
other amounts from time to time owing to the Lenders (or, in respect of
-2-
any Interest Rate Protection Agreement, any affiliate of a Lender) or the
Administrative Agent by the Borrower under the Credit Agreement, and all Hedging
Indebtedness of the Borrower, 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
-----------
Borrower 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 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 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 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 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.
-3-
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 Borrower under the Credit Agreement 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 Borrower 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 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 the 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 Borrower under the
Credit Agreement 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 Borrower 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
Borrower) 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.
-4-
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.
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
-5-
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 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
-6-
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 the Borrower 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 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.
-7-
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 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.
-8-
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]
MANAGEMENT FEE SUBORDINATION AGREEMENT
MANAGEMENT FEE SUBORDINATION AGREEMENT dated as of January 23, 1998, between:
(i) MEDIACOM MANAGEMENT CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware
("Manager Entity");
----------------
(ii) MEDIACOM SOUTHEAST LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware (the
"Borrower"); and
--------
(iii) 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 Borrower, certain lenders and the Administrative Agent are
parties to a Credit Agreement dated as of January 23, 1998 (as modified and
supplemented and in effect from time to time, the "Credit Agreement"),
----------------
providing, subject to the terms and conditions thereof, for extensions of credit
(by the making of loans and the issuance of letters of credit) to be made by
said lenders to the Borrower in an aggregate principal or face amount not
exceeding $225,000,000 (which amount may, in accordance with the provisions
thereof, be increased to $275,000,000). In addition, the Borrower 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 Borrower 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. 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:
-2-
"Obligor Entity" shall mean, collectively, the Borrower and,
--------------
effective upon execution and delivery of any Subsidiary Guarantee Agreement, any
Subsidiary of the 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 Borrower under
the Credit Agreement and the other Loan Documents, including
all interest, expenses, indemnities and penalties and all
commitment and agency fees payable from time to time under
the Credit Agreement and the other Loan Documents;
(b) all Hedging Indebtedness;
(c) all obligations of any Subsidiary of the 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 Borrower
-----------------
or its Subsidiaries with respect to any Management Fee payable by the Borrower
or any of its 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
-3-
(ii) seek any other remedy allowed at law or in equity against the Obligor
Entities for 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 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;
-4-
(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.
2.03 Certain Payments Permitted. Notwithstanding the fore-
--------------------------
going, 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
-5-
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.
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
-6-
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 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 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.
-7-
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 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.
-8-
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
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-9-
MEDIACOM SOUTHEAST LLC
By MEDIACOM LLC, a Member
By
-----------------
Title:
Address for Notices:
Mediacom Southeast LLC
c/o Mediacom LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-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]
_______, 199_
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 Southeast LLC (the "Borrower"),
--------
Mediacom LLC ("Mediacom") and Mediacom Management Corporation (the "Manager
-------- -------
Entity") in connection with (i) the Credit Agreement (the "Credit Agreement")
------- ----------------
dated as of January 23, 1998, between the Borrower, the lenders party thereto
and The Chase Manhattan Bank, as Administrative Agent, providing for extensions
of credit in an aggregate principal or face amount not exceeding $225,000,000
(which amount may, in accordance with the provisions thereof, be increased to
$275,000,000) and (ii) the various other agreements, instruments and other
documents referred to in the next following paragraph. All capitalized terms
used but not defined herein have the respective meanings given to such terms in
the Credit Agreement or, if not defined in the Credit Agreement, in Annex 1
hereto. 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) any promissory 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;
(e) the Management Fee Subordination Agreement executed and delivered
by the Manager Entity;
(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
--------------------
-2-
(g) such records of the Borrower 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 Borrower, 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 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.
-3-
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. The 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. The Borrower has all requisite power to borrow under the Credit
Agreement.
3. The execution, delivery and performance by each Relevant Party of
each Credit Document to which it is a party, and the borrowings by the
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
-4-
borrowings by the Borrower 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.
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, 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
-5-
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 portion of the Collateral constituting a right to receive
proceeds of a letter of credit requires that the action contemplated by
paragraph 10(a) 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 an Instrument, a letter of credit or a Certificated
Security represented by a Security Certificate in bearer form or in
registered form Indorsed to the Administrative Agent or in blank by an
effective Indorsement or registered in the name of the Administrative
Agent will, upon the creation of such security interest, be perfected by
the Administrative Agent taking possession in the State of New York of
such Instrument, letter of credit or Security Certificate, and such
perfected security interest will remain perfected thereafter so long as
such Instrument, letter of credit or Security Certificate is retained by
the Administrative Agent in its possession in the State of New York; and
(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, to the extent constituting
a General Intangible, be perfected by filing the Financing Statements in
the appropriate filing offices.
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)
-6-
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, (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, (i) we
express no opinion as to the creation, perfection or priority of any security
interest in (or other lien on) any portion of the Collateral (x) 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 (y) consisting of goods that
are or will be commingled with or processed into other goods or are or will
become accessions to other goods; (ii) we express no opinion as to the
perfection or priority of any security interest in (or other lien on) Collateral
(as defined in the Security Agreement) consisting of fixtures, consumer goods,
timber to be cut, minerals or the like (including oil and gas), accounts arising
from the sale of minerals or the like (including oil and gas), equipment used in
farming operations, farm products, accounts or general intangibles arising from
or relating to the sale of farm products by a xxxxxx or consumer goods or in
Collateral covered by a certificate of title; and (iii) we have assumed that
each Indorsement referred to therein is effective in accordance with Section 8-
107 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 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).
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,
Annex 1
DEFINED TERMS
"bearer form", when used with respect to a Certificated Security, means
-----------
a form in which the Security is payable to the bearer of the Security
Certificate according to its terms but not by reason of an Indorsement.
"Certificated Security" means a Security that is represented by a
---------------------
certificate.
"General Intangibles" has the meaning given to such term in Section 9-
-------------------
106 of the Uniform Commercial Code.
"Indorsement" has the meaning given to such term in Section 8-102(a)(11)
-----------
of the Uniform Commercial Code. The term "Indorsed" has a correlative meaning.
--------
"Instrument" has the meaning given to such term in Section 9-105 of the
----------
Uniform Commercial Code.
"registered form", when used with respect to a Certificated Security,
---------------
means a form in which: (a) the Security Certificate specifies a Person entitled
to the Security; and (b) a transfer of the Security may be registered upon books
maintained for that purpose by or on behalf of the issuer of such Security, or
the Security Certificate so states.
"Security Certificate" means a certificate representing a Security.
--------------------
"Security", except as otherwise provided in Section 8-103 of the Uniform
--------
Commercial Code, means an obligation of an issuer or a share, participation or
other interest in an issuer or in property or an enterprise of an issuer: (a)
which is represented by a Security Certificate in bearer or registered form, or
the transfer of which may be registered upon books maintained for that purpose
by or on behalf of the issuer; (b) which is one of a class or series or by its
terms is divisible into a class or series of shares, participations, interests
or obligations; and (c) which either (i) is, or is of a type, dealt in or traded
on securities exchanges or securities markets; or (ii) is a medium for
investment and by its terms expressly provides that it is a security governed by
Article 8 of the Uniform Commercial Code.
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 Credit Agreement dated as of January 23,
-----
1998 (the "Credit Agreement") between Mediacom Southeast LLC (the "Borrower"),
---------------- --------
the lenders party thereto, and Chase, as Administrative Agent, providing for
extensions of credit in an aggregate principal or face amount not exceeding
$225,000,000 (which amount may, in accordance with the provisions thereof, be
increased to $275,000,000) and (ii) the various other agreements, instruments
and other documents referred to in the next following paragraph. All
capitalized terms used but not defined herein have the respective meanings given
to such terms in the Credit Agreement or, if not defined in the Credit
Agreement, in Annex 1 hereto. 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) any promissory 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").
--------------
The agreements, instruments and other documents referred to in the foregoing
lettered clauses are collectively referred to as the "Credit Documents"; the
----------------
Borrower, the Parent Guarantor and the Manager Entity are herein collectively
referred to as the "Relevant Parties".
----------------
-2-
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.
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 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, moratorium, fraudulent
conveyance or transfer 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
-3-
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
portion of the Collateral constituting a right to receive proceeds of a
letter of credit requires that the action contemplated by paragraph 3
below.
3. The security interest referred to in paragraph 2 above in that
portion of the Collateral consisting of an Instrument, a letter of credit
or a Certificated Security represented by a Security Certificate in bearer
form or in registered form Indorsed to the Administrative Agent or in blank
by an effective Indorsement or registered in the name of the Administrative
Agent will, upon the creation of such security interest, be perfected by
the Administrative Agent taking possession in the State of New York of such
Instrument, letter of credit or Security Certificate, and such perfected
security interest will remain perfected thereafter so long as such
Instrument, letter of credit or Security Certificate is retained by the
Administrative Agent in its possession in the State of New York; and
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), insofar as such sentence
-4-
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, (i) we
express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any portion of the Collateral (x)
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
(y) consisting of goods that are or will be commingled with or processed
into other goods or are or will become accessions to other goods and (ii)
we have assumed that each Indorsement referred to therein is effective in
accordance with Section 8-107 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).
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).
-5-
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,
RJW/CDP
Annex 1
DEFINED TERMS
"bearer form", when used with respect to a Certificated Security, means
-----------
a form in which the Security is payable to the bearer of the Security
Certificate according to its terms but not by reason of an Indorsement.
"Certificated Security" means a Security that is represented by a
---------------------
certificate.
"General Intangibles" has the meaning given to such term in Section 9-
-------------------
106 of the Uniform Commercial Code.
"Indorsement" has the meaning given to such term in Section 8-102(a)(11)
-----------
of the Uniform Commercial Code. The term "Indorsed" has a correlative meaning.
--------
"Instrument" has the meaning given to such term in Section 9-105 of the
----------
Uniform Commercial Code.
"registered form", when used with respect to a Certificated Security,
---------------
means a form in which: (a) the Security Certificate specifies a Person entitled
to the Security; and (b) a transfer of the Security may be registered upon books
maintained for that purpose by or on behalf of the issuer of such Security, or
the Security Certificate so states.
"Security Certificate" means a certificate representing a Security.
--------------------
"Security", except as otherwise provided in Section 8-103 of the Uniform
--------
Commercial Code, means an obligation of an issuer or a share, participation or
other interest in an issuer or in property or an enterprise of an issuer: (a)
which is represented by a Security Certificate in bearer or registered form, or
the transfer of which may be registered upon books maintained for that purpose
by or on behalf of the issuer; (b) which is one of a class or series or by its
terms is divisible into a class or series of shares, participations, interests
or obligations; and (c) which either (i) is, or is of a type, dealt in or traded
on securities exchanges or securities markets; or (ii) is a medium for
investment and by its terms expressly provides that it is a security governed by
Article 8 of the Uniform Commercial Code.
EXHIBIT I
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of January 23, 1998 (the "Credit
------
Agreement"), between Mediacom Southeast LLC (the "Borrower"), the
--------- --------
lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent
Dear Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have agreed with the
Borrower 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 Borrower 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 Borrower) that (A) such
information will 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
-2-
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.
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 ]
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EXHIBIT J
[Form of Affiliate Subordinated Indebtedness Subordination Agreement]
AFFILIATE SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT
AFFILIATE SUBORDINATED INDEBTEDNESS SUBORDINATION AGREEMENT dated as of
__________ __, ____, between:
(i) [NAME OF AFFILIATE], a ____________ duly organized and validly
existing under the laws of the State of ___________ (the "Subordinated
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Lender");
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(ii) MEDIACOM SOUTHEAST LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware (the
"Borrower"); and
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(iii) 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").
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The Borrower, certain lenders and the Administrative Agent are parties
to a Credit Agreement dated as of January 23, 1998 (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), providing, subject to
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the terms and conditions thereof, for extensions of credit (by the making of
loans and the issuance of letters of credit) to be made by said lenders to the
Borrower in an aggregate principal or face amount not exceeding $225,000,000
(which amount may, in accordance with the provisions thereof, be increased to
$275,000,000). In addition, the Borrower 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").
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To induce said lenders to extend credit under the Credit Agreement and
to extend credit to the Borrower that would constitute Hedging Indebtedness, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Subordinated Lender 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. Accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
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herein as defined therein. In addition, as used herein:
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"Obligor Entity" shall mean, collectively, the Borrower and, effective
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upon execution and delivery of any Subsidiary Guarantee Agreement, any
Subsidiary of the Borrower so executing and delivering such Subsidiary Guarantee
Agreement.
"Senior Debt" shall mean, collectively, the following indebtedness and
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obligations:
(a) all indebtedness or other obligations of the Borrower under the
Credit Agreement and the other Loan Documents, including all interest,
expenses, indemnities and penalties and all commitment and agency fees
payable from time to time under the Credit Agreement and the other Loan
Documents;
(b) all Hedging Indebtedness;
(c) all obligations of any Subsidiary of the 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 indebtedness, liabilities, and
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obligations of each Borrower to the Subordinated Lender whether now existing or
hereafter arising in respect of Affiliate Subordinated Indebtedness incurred in
accordance with Section 8.14 of the Credit Agreement.
Section 2. Subordination.
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2.01 Subordination of Subordinated Debt. The Borrower, for itself and
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its successors and assigns, covenants and agrees, and the Subordinated Lender,
on its own behalf and on behalf of each subsequent holder of Subordinated Debt,
likewise 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 principal of, and interest and premium (if any) on, 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.
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2.02 Payment of Proceeds Upon Dissolution. In the event of (a) any
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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 Subordinated Lender
shall be entitled to receive any payment on account of principal of, or
interest or premium (if any) on, 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 Subordinated Lender 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 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 Subordinated Lender 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 Subordinated
Lender 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
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(4) if the Subordinated Lender 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 Subordinated Lender 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.
2.03 Certain Payments Permitted. Notwithstanding the foregoing, the
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Subordinated Lender shall be entitled to receive and retain any payment in
respect of Affiliate Subordinated Indebtedness either (i) permitted under
Sections 8.09(c) or (e) 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
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Debt, the Subordinated Lender 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
principal of, and interest and premium (if any) on, 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
Subordinated Lender 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 Subordinated Lender, shall, as between the Subordinated Lender,
its creditors other than the Lenders, and the Subordinated Lender, be deemed to
be a payment or distribution by the Subordinated Lender to or on account of the
Senior Debt.
2.05 Provisions Solely to Define Relative Rights. The provisions of
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this Section 2 are and are intended solely for the purpose of defining the
relative rights of the Subordinated Lender 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 Subordinated Lender, the obligation of the Obligor
Entities to pay to the Subordinated Lender the principal and of and
interest on 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
Subordinated Lender and creditors of the Obligor Entities other than the
Lenders.
2.06 No Waiver of Subordination Provisions. No right of the
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Administrative Agent or any Lender to enforce subordination as herein provided
shall at any time in any way be
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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 Subordinated Lender, without incurring responsibility to the
Subordinated Lender and without impairing or releasing the subordination
provided in this Section 2 or the obligations hereunder of the Subordinated
Lender 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 Subordinated Lender
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represents and warrants to the Administrative Agent and each Lender that:
3.01 Existence. The Subordinated Lender is a _____________ duly
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organized and validly existing under the laws of the State of ___________.
3.02 No Breach. None of the execution and delivery of this Agreement,
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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 Subordinated Lender, 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 Subordinated Lender is a
party or by which the Subordinated Lender is bound or to which the Subordinated
Lender 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 Subordinated Lender pursuant to the terms of any such
agreement or instrument.
3.03 Action. The Subordinated Lender has all necessary corporate or
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other power, authority and legal right to execute, deliver and perform its
obligations under this Agreement; the execution, delivery and performance by the
Subordinated Lender 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 Subordinated Lender and constitutes the
legal, valid and binding obligation of the Subordinated Lender, enforceable in
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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
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filings or registrations with, any governmental or regulatory authority or
agency are necessary for the execution, delivery or performance by the
Subordinated Lender of this Agreement or for the validity or enforceability
hereof.
Section 4. Miscellaneous.
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4.01 No Waiver. No failure on the part of the Administrative Agent or
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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
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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 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,
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altered or amended only by an instrument in writing duly executed by the
Subordinated Lender 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 Subordinated Lender.
4.04 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the respective successors and assigns of the
Subordinated Lender 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
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included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
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4.06 Counterparts. This Agreement may be executed in any number of
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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
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governed by, and construed in accordance with, the law of the State of New York.
The Subordinated Lender 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 Subordinated Lender
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.
4.08 Waiver of Jury Trial. EACH OF THE SUBORDINATED LENDER AND THE
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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.
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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.
[NAME OF AFFILIATE]
By
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Title:
Address for Notices:
MEDIACOM SOUTHEAST LLC
By MEDIACOM LLC, a Member
By
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Title:
Address for Notices:
Mediacom Southeast LLC
c/o Mediacom LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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THE CHASE MANHATTAN BANK,
as Administrative Agent
By
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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
