EXHIBIT 10.1(a)
EXECUTION COPY
MEDIACOM ILLINOIS LLC
MEDIACOM INDIANA LLC
MEDIACOM IOWA LLC
MEDIACOM MINNESOTA LLC
MEDIACOM WISCONSIN LLC
XXXXXXX COMMUNICATIONS CORP.
MEDIACOM ARIZONA LLC
MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM SOUTHEAST LLC
Dated as of October 21, 2004
X.X. XXXXXX SECURITIES INC.,
and
BANC OF AMERICA SECURITIES LLC,
As Joint Lead Arrangers and Joint Bookrunners
CITIBANK, N.A.,
As Syndication Agent
WACHOVIA BANK, N.A.
and
CREDIT SUISSE FIRST BOSTON,
As Co-Documentation Agents
JPMORGAN CHASE BANK,
as Administrative Agent
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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Page |
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Section 1. Definitions and Accounting Matters |
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2 |
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1.01 |
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Certain Defined Terms |
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2 |
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1.02 |
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Accounting Terms and Determinations |
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31 |
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1.03 |
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Classes and Types of Loans |
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32 |
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1.04 |
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Nature of Obligations of Borrowers |
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32 |
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Section 2. Commitments, Loans and Prepayments |
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32 |
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2.01 |
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Loans |
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32 |
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2.02 |
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Borrowings |
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37 |
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2.03 |
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Letters of Credit |
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37 |
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2.04 |
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Changes of Commitments |
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43 |
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2.05 |
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Commitment Fee |
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44 |
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2.06 |
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Lending Offices |
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44 |
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2.07 |
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Several Obligations; Remedies Independent |
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44 |
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2.08 |
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Loan Accounts; Promissory Notes |
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45 |
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2.09 |
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Optional Prepayments and Conversions or Continuations of Loans |
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45 |
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2.10 |
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Mandatory Prepayments and Reductions of Commitments |
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46 |
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Section 3. Payments of Principal and Interest |
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49 |
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3.01 |
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Repayment of Loans |
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49 |
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3.02 |
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Interest |
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52 |
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3.03 |
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Determination of Applicable Margin |
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53 |
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Section 4. Payments; Pro Rata Treatment; Computations; Etc. |
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54 |
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4.01 |
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Payments |
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54 |
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4.02 |
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Pro Rata Treatment |
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55 |
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4.03 |
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Computations |
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56 |
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4.04 |
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Minimum Amounts |
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56 |
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4.05 |
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Certain Notices |
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56 |
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4.06 |
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Non-Receipt of Funds by the Administrative Agent |
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57 |
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4.07 |
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Sharing of Payments, Etc. |
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58 |
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Section 5. Yield Protection, Etc |
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60 |
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5.01 |
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Additional Costs |
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60 |
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5.02 |
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Limitation on Types of Loans |
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61 |
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5.03 |
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Illegality |
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62 |
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5.04 |
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Treatment of Affected Loans |
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62 |
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5.05 |
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Compensation |
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63 |
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5.06 |
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Additional Costs in Respect of Letters of Credit |
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64 |
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5.07 |
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U.S. Taxes |
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64 |
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5.08 |
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Replacement of Lenders |
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65 |
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Section 6. Conditions Precedent |
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66 |
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6.01 |
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Initial Extension of Credit |
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66 |
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6.02 |
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Initial and Subsequent Extensions of Credit |
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68 |
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Section 7. Representations and Warranties |
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69 |
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7.01 |
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Existence |
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69 |
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7.02 |
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Financial Condition |
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69 |
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7.03 |
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Litigation |
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70 |
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7.04 |
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No Breach |
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70 |
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7.05 |
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Action |
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70 |
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7.06 |
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Approvals |
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71 |
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7.07 |
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ERISA |
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71 |
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7.08 |
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Taxes |
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71 |
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7.09 |
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Investment Company Act |
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71 |
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7.10 |
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Public Utility Holding Company Act |
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71 |
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7.11 |
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Material Agreements and Liens |
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71 |
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7.12 |
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Environmental Matters |
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72 |
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7.13 |
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Capitalization |
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73 |
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7.14 |
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Subsidiaries and Investments, Etc. |
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73 |
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7.15 |
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True and Complete Disclosure |
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73 |
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7.16 |
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Franchises |
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74 |
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7.17 |
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The CATV Systems |
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75 |
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7.18 |
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Rate Regulation |
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76 |
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7.19 |
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Use of Credit |
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77 |
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Section 8. Covenants of the Borrowers |
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77 |
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8.01 |
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Financial Statements Etc. |
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77 |
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8.02 |
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Litigation |
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80 |
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8.03 |
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Existence, Etc. |
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80 |
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8.04 |
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Insurance |
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81 |
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8.05 |
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Prohibition of Fundamental Changes |
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81 |
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8.06 |
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Limitation on Liens |
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85 |
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8.07 |
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Indebtedness |
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87 |
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Page |
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8.08 |
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Investments |
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87 |
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8.09 |
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Restricted Payments |
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88 |
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8.10 |
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Certain Financial Covenants |
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90 |
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8.11 |
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Management Fees |
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91 |
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8.12 |
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Capital Expenditures |
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92 |
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8.13 |
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Affiliate and Additional Subordinated Indebtedness |
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94 |
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8.14 |
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Lines of Business |
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94 |
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8.15 |
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Transactions with Affiliates |
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94 |
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8.16 |
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Use of Proceeds |
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95 |
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8.17 |
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Certain Obligations Respecting Subsidiaries; Further Assurances |
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96 |
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8.18 |
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Modifications of Certain Documents |
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98 |
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Section 9. Events of Default |
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98 |
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9.01 |
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Events of Default |
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98 |
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9.02 |
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Certain Cure Rights |
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102 |
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Section 10. The Administrative Agent |
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103 |
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10.01 |
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Appointment, Powers and Immunities |
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103 |
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10.02 |
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Reliance by Administrative Agent |
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104 |
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10.03 |
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Defaults |
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104 |
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10.04 |
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Rights as a Lender |
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104 |
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10.05 |
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Indemnification |
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105 |
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10.06 |
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Non-Reliance on Administrative Agent and Other Lenders |
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105 |
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10.07 |
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Failure to Act |
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105 |
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10.08 |
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Resignation or Removal of Administrative Agent |
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106 |
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10.09 |
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Consents under Other Loan Documents |
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106 |
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10.10 |
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Other Agents |
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107 |
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Section 11. Miscellaneous |
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107 |
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11.01 |
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Waiver |
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107 |
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11.02 |
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Notices |
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107 |
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11.03 |
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Expenses, Etc. |
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108 |
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11.04 |
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Amendments, Etc. |
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108 |
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11.05 |
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Successors and Assigns |
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110 |
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11.06 |
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Assignments and Participations |
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110 |
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11.07 |
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Survival |
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114 |
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11.08 |
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Captions |
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114 |
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11.09 |
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Counterparts |
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114 |
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11.10 |
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Governing Law; Submission to Jurisdiction |
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114 |
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11.11 |
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Waiver of Jury Trial |
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115 |
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11.12 |
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Treatment of Certain Information; Confidentiality |
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115 |
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SCHEDULE I
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Commitments |
SCHEDULE II
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—
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Taxes |
SCHEDULE III
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—
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Material Agreements and Liens |
SCHEDULE IV
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—
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Subsidiaries and Investments |
SCHEDULE V
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—
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Franchises |
SCHEDULE VI
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—
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Certain Matters Related to CATV Systems |
SCHEDULE VII
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—
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Rate Regulation Matters |
SCHEDULE VIII
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—
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Litigation |
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EXHIBIT A
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—
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Form of Assignment and Assumption |
EXHIBIT B
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—
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Form of Quarterly Officer’s Report |
EXHIBIT C
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—
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Form of Pledge Agreement |
EXHIBIT D
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—
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Form of Guarantee and Pledge Agreement |
EXHIBIT E
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—
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Form of Subsidiary Guarantee Agreement |
EXHIBIT F
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—
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Form of Management Fee Subordination Agreement |
EXHIBIT G
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—
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Form of Opinion of Counsel to the Obligors |
EXHIBIT H
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—
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Form of Opinion of Special New York Counsel to JPMCB |
EXHIBIT I
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—
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Form of Confidentiality Agreement |
EXHIBIT J
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—
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Form of Affiliate Subordinated Indebtedness Subordination
Agreement |
CREDIT AGREEMENT dated as of October 21, 2004, between each of the following
parties:
MEDIACOM ILLINOIS LLC, a limited liability company duly organized and validly existing
under the laws of the State of Delaware (“Mediacom Illinois”); MEDIACOM INDIANA LLC, a
limited liability company duly organized and validly existing under the laws of the State of
Delaware (“Mediacom Indiana”); MEDIACOM IOWA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware (“Mediacom Iowa”);
MEDIACOM MINNESOTA LLC, a limited liability company duly organized and validly existing under
the laws of the State of Delaware (“Mediacom Minnesota”); MEDIACOM WISCONSIN LLC, a limited
liability company duly organized and validly existing under the laws of the State of
Delaware (“Mediacom Wisconsin”); XXXXXXX COMMUNICATIONS CORP., a corporation duly organized
and validly existing under the laws of the State of Minnesota (“Xxxxxxx” and, together with
Mediacom Illinois, Mediacom Indiana, Mediacom Iowa, Mediacom Minnesota and Mediacom
Wisconsin, the “Mediacom Midwest Borrowers”); MEDIACOM ARIZONA LLC, a limited liability
company duly organized and validly existing under the laws of the State of Delaware
(“Mediacom Arizona”); MEDIACOM CALIFORNIA LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware (“Mediacom California”); MEDIACOM
DELAWARE LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware (“Mediacom Delaware”); and MEDIACOM SOUTHEAST LLC, a limited
liability company duly organized and validly existing under the laws of the State of Delaware
(“Mediacom Southeast” and, together with Mediacom Arizona, Mediacom California and
Mediacom Delaware, the “Mediacom USA Borrowers”; the Mediacom USA Borrowers together with the
Mediacom Midwest Borrowers, the “Borrowers”);
each of the lenders that is a signatory hereto identified under the caption “Lenders” on
the signature pages hereto and each lender that becomes a “Lender” after the date hereof
pursuant to Section 11.06(b) hereof (individually, a “Lender” and, collectively, the
“Lenders”); and
JPMORGAN CHASE BANK, a
New York banking corporation, as
administrative agent for the Lenders (in such capacity, together with its successors in such
capacity, the “Administrative Agent”).
The Borrowers have requested that the Lenders extend credit to them (by making loans and
issuing letters of credit) in an aggregate principal or face amount not exceeding $1,150,000,000
(which may, in the circumstances herein provided, be increased to $1,800,000,000) at any one time
outstanding to enable the Borrowers to refinance certain
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indebtedness and to provide funds for acquisitions and for general corporate purposes. The Lenders
are prepared to extend such credit on the terms and conditions hereof and, accordingly, the parties
hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall have
the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
“Acquisitions” shall mean any acquisition permitted under Section 8.05(d)(iv) hereof.
“Additional Capital Expenditures” shall mean Capital Expenditures made in accordance with the
requirements of Section 8.12(b) hereof.
“Adjusted Operating Cash Flow” shall mean, for any period during which the Borrowers shall
have consummated an Acquisition, the sum, for the Borrowers and their Subsidiaries (determined on a
combined basis without duplication in accordance with GAAP), of the following, in each case
determined under the assumption that such Acquisition had been consummated on the first day of such
period: (i) Adjusted System Cash Flow minus (ii) the sum of (x) Management Fees paid during such
period to the extent not exceeding 4.50% of the gross operating revenues of the Borrowers and their
Subsidiaries for such period plus (y) additional Management Fees that would have been paid during
such period at a rate equal to the lesser of (A) the percentage of gross operating revenues of the
Borrowers and their Subsidiaries actually paid as Management Fees during such period or (B) for any
Borrower, the then applicable rate or percentage specified in the Management Agreement for such
Borrower of the gross operating revenues of such 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 Borrowers shall have
consummated an Acquisition, the sum, for the Borrowers and their Subsidiaries (determined on a
combined basis without duplication in accordance with GAAP), of the following, in each case
determined under the assumption that such Acquisition had been consummated on the first day of such
period: (i) System Cash Flow for such period plus (ii) the sum of (x) non-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) the amounts set forth in a statement of adjustments to System Cash Flow provided by
the Borrowers in connection with such Acquisition and acceptable to the Administrative Agent and
Majority Lenders (in each case representing specified cost increases and savings in respect of the
CATV Systems being acquired in such Acquisition).
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“Administrative Questionnaire” shall mean an Administrative Questionnaire in a form supplied
by the Administrative Agent.
“Affiliate” shall mean any Person that directly or indirectly controls, or is under common
control with, or is controlled by, a Borrower and, if such Person is an individual, any member of
the immediate family (including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary is such individual or one or more members of such immediate
family and any Person who is controlled by any such member or trust. As used in this definition,
“control” (including, with its correlative meanings, “controlled by” and “under common control
with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any Person that owns directly or
indirectly securities having 5% or more of the voting power for the election of directors or other
governing body of a corporation or 5% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or employee of any Borrower or
any of its Subsidiaries and (b) none of the Borrowers or their Wholly Owned Subsidiaries
shall be Affiliates.
“Affiliate Letters of Credit” shall mean Letters of Credit issued in accordance with the
requirements of Section 8.08(g) hereof.
“Affiliate Subordinated Indebtedness” shall mean Indebtedness to an Affiliate (i) for which a
Borrower is directly and primarily liable, (ii) in respect of which none of its Subsidiaries is
contingently or otherwise obligated, (iii) that is subordinated to the obligations of the Borrowers
to pay principal of and interest on the Loans, Reimbursement Obligations, fees and other amounts
payable hereunder and under the other Loan Documents pursuant to an Affiliate Subordinated
Indebtedness Subordination Agreement, (iv) that does not mature prior to March 31, 2014, 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, (v) that states by its terms
that principal and interest in respect thereof shall only be payable to the extent permitted under
Section 8.09 hereof and (vi) that is pledged by the respective holder thereof to the Administrative
Agent in a manner that creates a first priority perfected security interest in favor of the
Administrative Agent, as collateral security for the obligations of the Borrowers hereunder,
pursuant to (in the case of Mediacom LLC) the Guarantee and Pledge Agreement and (in the case of
any other holder) a security document in form and substance satisfactory to the Administrative
Agent.
“Affiliate Subordinated Indebtedness Subordination Agreement” shall mean an Affiliate
Subordinated Indebtedness Subordination Agreement substantially in the form of Exhibit J hereto
between any Person to whom a Borrower or any of its Subsidiaries may be
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obligated to pay Affiliate Subordinated Indebtedness, the Borrowers and the Administrative Agent,
as the same shall be modified and supplemented and in effect from time to time.
“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or of an affiliate of such Lender) designated for such Type of
Loan in the Administrative Questionnaire submitted by such Lender or such other office of such
Lender (or of an affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office by which its Loans of such Type are to be made
and maintained.
“Applicable Margin” shall mean, with respect to the Loans of any Class and Type, the
respective rates indicated below for Loans of such Class and Type opposite the then-current Rate
Ratio (determined pursuant to Section 3.03 hereof) indicated below (except that (a) anything in
this Agreement to the contrary notwithstanding, the Applicable Margin with respect to the Loans of
any Class and Type shall be the highest margins indicated below during any period when an Event of
Default shall have occurred and be continuing and (b) for the period from the Closing Date through
but not including the last Business day of December 2004, the Applicable Margin shall be deemed to
be the rate below for a Rate Ratio of greater than or equal to 3.75 to 1 but less than 4.50 to 1):
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APPLICABLE MARGIN |
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REVOLVING CREDIT |
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FACILITY/TRANCHE A |
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TRANCHE B TERM LOAN |
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TERM LOAN FACILITY |
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FACILITIES |
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EURODOLLAR |
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BASE RATE |
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EURODOLLAR |
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BASE RATE |
RANGE OF RATE RATIO |
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LOANS |
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LOANS |
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LOANS |
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LOANS |
Greater than 5.00 to 1 |
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2.00 |
% |
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1.00 |
% |
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2.25 |
% |
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1.25 |
% |
Greater than or equal to 4.50
to 1 but less
than or equal to 5.00 to 1 |
|
|
1.75 |
% |
|
|
0.75 |
% |
|
|
2.25 |
% |
|
|
1.25 |
% |
Greater than or equal to 3.75
to 1 but less
than 4.50 to 1 |
|
|
1.50 |
% |
|
|
0.50 |
% |
|
|
2.25 |
% |
|
|
1.25 |
% |
Greater than or equal to 3.00
to 1 but less
than 3.75 to 1 |
|
|
1.25 |
% |
|
|
0.25 |
% |
|
|
2.25 |
% |
|
|
1.25 |
% |
Less than 3.00 to 1 |
|
|
1.00 |
% |
|
|
0.00 |
% |
|
|
2.25 |
% |
|
|
1.25 |
% |
The Applicable Margin for the Incremental Loans of any Series shall be
determined at the time such Series of Loans is established pursuant to
Section 2.01(d) hereof.
-5-
“Applicable Permitted Transaction Amount” shall mean, as at any date during any fiscal quarter
during any Fiscal Period, the sum of (a) the Equity Contribution Amount and the outstanding
principal amount of Affiliate Subordinated Indebtedness, as at the beginning of such fiscal quarter
plus (b) the total cash equity capital contributions made, and the aggregate principal amount of
Affiliate Subordinated Indebtedness advanced, to the Borrowers during the period (the “current
period”) commencing on the first day of such fiscal quarter through and including such date minus
(c) the sum of (i) the aggregate amount of repayments of Affiliate Subordinated Indebtedness, and
distributions in respect of equity capital, made during the current period plus (ii) the aggregate
face amount of Affiliate Letters of Credit issued during the current period or during the period
(the “prior period”) commencing on the Closing Date through and including the last day of the
fiscal quarter immediately preceding such fiscal quarter minus (iii) the aggregate amount of
reductions in the undrawn face amount of Affiliate Letters of Credit (i.e. excluding reductions in
such face amount that occur upon a drawing thereunder) during the current period or the prior
period, together with the aggregate amount of Affiliate Letters of Credit that expire or are
terminated during the current period or the prior period without being drawn.
“Approved Fund” shall mean any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 11.06 hereof),
and accepted by the Administrative Agent, in the form of Exhibit A-1 or any other form approved by
the Administrative Agent.
“Bankruptcy Code” shall mean the Federal Bankruptcy Code of 1978, as amended from time to
time.
“Base Rate” shall mean, for any day, a rate per annum equal to the higher of (a) the Federal
Funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate for such day. Each change in any
interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base Rate.
“Base Rate Loans” shall mean Loans that bear interest at rates based upon the Base Rate.
“Basic Documents” shall mean, collectively, this Agreement and the other Loan Documents.
-6-
“Basic Subscribers” shall mean, as at any date, (a) single household dwellings with one or
more television sets that receive a package of over-the-air-broadcast stations, local access
channels or certain satellite-delivered cable television services from a CATV System, plus, without
duplication, (b) the number of subscribers 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 a particular CATV System by the applicable combined limited and expanded
cable rate charged to basic subscribers in such CATV System, plus (c) connections to schools,
libraries, local government offices and employee households that may not be charged for limited and
expanded cable services but may be charged for premium units, pay-per-view events or high-speed
Internet service. This definition shall be subject to such modifications as the Borrowers from time
to time determine to be reasonably appropriate (and of which the Borrower shall notify the
Administrative Agent, which shall promptly notify the Lenders), provided that such modifications
are consistent with the periodic reports and/or registrations at the time being filed with the
Securities and Exchange Commission by Mediacom LLC or MCC.
“Basle Accord” shall mean the proposals for risk-based capital framework 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 authorized or required
to close in
New York City and (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a Conversion of or into, or an Interest Period for, a Eurodollar Loan
or a notice by a Borrower with respect to any such borrowing, payment, prepayment, Conversion or
Interest Period, that is also a day on which dealings in Dollar deposits are carried out in the
London interbank market.
“Capital Expenditures” shall mean, for any period, expenditures made by the Borrowers or any
of their Subsidiaries to acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs and the Acquisitions) during such
period computed in accordance with GAAP.
“Capital Lease Obligations” shall mean, for any Person, all obligations of such Person to pay
rent or other amounts under a lease of (or other agreement conveying the right to use) Property to
the extent such obligations are required to be classified and accounted for as a capital lease on a
balance sheet of such Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Casualty Event” shall mean, with respect to any Property of any Person, any loss of or damage
to, or any condemnation or other taking of, such Property for which such Person or
-7-
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 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.
“Change of Control” shall mean the occurrence of any one or more of the following events:
(i) any Person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act,
including any group acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than one or more
Permitted Holders is or becomes the “beneficial owner” (as defined in Rule 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have “beneficial
ownership” of all shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the happening of an event or
otherwise), directly or indirectly, of more than 50% of the aggregate voting power of the
ownership interests in Mediacom LLC;
(ii) Mediacom LLC consolidates with, or merges with or into, another Person or Mediacom
LLC sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially
all of the assets of Mediacom LLC and its Subsidiaries (determined on a consolidated basis)
to any Person, other than any such transaction where immediately after such transaction
the Person or Persons that “beneficially owned” (as defined in Rule 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all
shares that any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an event or
otherwise) immediately prior to such transaction, directly or indirectly, a majority of the
aggregate voting power of the then outstanding ownership interests in Mediacom LLC,
“beneficially own” (as so determined), directly or indirectly, more than 50% of the aggregate
voting power of the then outstanding ownership interests in the surviving or transferee
Person;
(iii) Mediacom LLC is liquidated or dissolved or adopts a plan of liquidation or dissolution;
(iv) a majority of the members of the Executive Committee of Mediacom LLC shall consist
of persons who are not Continuing Members; or
(v) the Borrowers and the Subsidiary Guarantors shall cease to be Subsidiaries of
Mediacom LLC;
-8-
provided, however, that a Change of Control will be deemed not to have occurred in any of the
circumstances described in clauses (i) through (iv) above if after the occurrence of any such
circumstance (A) MCC (or any successor thereto), or a Person (or successor thereto) more than 50%
of the aggregate voting power of the then outstanding ownership interests of which is beneficially
owned, directly or indirectly, by MCC (or any successor thereto), continues to be the manager of
Mediacom LLC (or the surviving or transferee Person in the case of clause (ii) above) and Xxxxx
Xxxxxxxx continues to be the chief executive officer or chairman of MCC (or any successor thereto)
or (B) Xxxxx Xxxxxxxx, or a Person more than 50% of the aggregate voting power of the then
outstanding ownership interests of which is beneficially owned, directly or indirectly by Xxxxx
Xxxxxxxx and the other Permitted Holders together with their respective designees, becomes the
manager of Mediacom LLC (or the surviving or transferee Person in the case of clause (ii) above) or
(C) Xxxxx Xxxxxxxx becomes and thereafter continues to be the chief executive officer or chairman
of Mediacom LLC (or the surviving or transferee Person in the case of clause (ii) above).
“Class” shall have the meaning assigned to such term in Section 1.03 hereof.
“Closing Date” shall mean the date on which the initial extension of credit hereunder is made.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral Account” shall have the meaning assigned to such term in the Pledge Agreement.
“Commitments” shall mean, collectively, the Revolving Credit Commitments, the Tranche A Term
Loan Commitments, the Tranche B Term Loan Commitments and the Incremental Facility Commitments (if
any).
“Continue”, “Continuation” and “Continued” shall refer to the continuation pursuant to Section
2.09 hereof of a Eurodollar Loan from one Interest Period to the next Interest Period.
“Continuing Member” shall mean, as of any date of determination thereof, any Person who: (i)
was a member of the Executive Committee of Mediacom LLC on the date hereof; (ii) was nominated for
election or elected to the Executive Committee of Mediacom LLC with the affirmative vote of a
majority of the Continuing Members who were members of the Executive Committee at the time of such
nomination or election; or (iii) is a representative of, or was approved by, a Permitted Holder.
-9-
“Convert”, “Conversion” and “Converted” shall refer to a conversion pursuant to Section 2.09
hereof of one Type of Loans into another Type of Loans, which may be accompanied by the transfer by
a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another.
“Cure Monies” shall mean proceeds of Affiliate Subordinated Indebtedness and/or equity
contributions received by the Borrowers after the date hereof that, at the time the same are
received by the Borrowers, are identified by the Borrowers in a certificate of a Senior Officer
delivered by the Borrowers to the Administrative Agent within one Business Day of such receipt, as
constituting “Cure Monies” for purposes of Section 9.02 hereof.
“Debt Issuance” shall mean any issuance or sale by a Borrower or any of its Subsidiaries after
the Closing Date of any debt securities, excluding, however, any Indebtedness incurred pursuant to
Section 8.07(a), 8.07(c) or 8.07(f) hereof.
“Debt Service” shall mean, for any period, the sum, for the Borrowers and their Subsidiaries
(determined on a combined basis without duplication in accordance with GAAP), of the following: (a)
in the case of Revolving Credit Loans and Incremental Facility 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, were required to be
made pursuant to Section 3.01(a) or 3.01(d) hereof during such period (provided that such amount
shall exclude repayment of the Revolving Credit Loans on the Revolving Credit Commitment
Termination Date and the repayment of any Incremental Facility Revolving Credit Loan on the
respective commitment termination date) plus (b) in the case of Term Loans and Incremental Facility
Term Loans under this Agreement and all other Indebtedness (other than Revolving Credit Loans and
Incremental Facility Revolving Credit Loans), all regularly scheduled payments or regularly
scheduled prepayments of principal of such Indebtedness (including, without limitation, the
principal component of any payments in respect of Capital Lease Obligations) made or payable during
such period (other than the principal component of any payments in respect of Affiliate
Subordinated Indebtedness) plus (c) all Interest Expense for such period.
“Debt Service Coverage Ratio” shall mean, for any date, the ratio of (a) the product of
Operating Cash Flow for the fiscal quarter ended on or most recently prior to such date times four
to (b) Debt Service for the period of four consecutive fiscal quarters ended on or most recently
prior to such date.
Notwithstanding the foregoing, the Debt Service Coverage Ratio as at the last day of 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 for the period of four consecutive fiscal quarters ended on or most recently ended
prior to such date.
-10-
“Default” shall mean an Event of Default or an event that with notice or lapse of time or both
would become an Event of Default.
“Disposition” shall mean any sale, assignment, transfer or other disposition of any Property
(whether now owned or hereafter acquired) by the Borrowers or any of their Subsidiaries to any
other Person excluding any sale, assignment, transfer or other disposition of any Property sold or
disposed of in the ordinary course of business and on ordinary business terms.
“Dollars” and “$” shall mean lawful money of the United States of America.
“Environmental Claim” shall mean, with respect to any Person, any written or oral notice,
claim, demand or other communication (collectively, a “claim”) by any other Person alleging or
asserting such Person’s liability for investigatory costs, cleanup costs, governmental response
costs, damages to natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the environment, of
any Hazardous Material at any location, whether or not owned by such Person, or (ii) circumstances
forming the basis of any violation, or alleged violation, of any Environmental Law. The term
“Environmental Claim” shall include, without limitation, any claim by any governmental authority
for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the
environment.
“Environmental Laws” shall mean any and all present and future Federal, state, local and
foreign laws, rules or regulations, and any orders or decrees, in each case as now or hereafter in
effect, relating to the regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or
toxic or hazardous substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or hazardous substances or
wastes.
“Equity Contribution Amount” shall mean, as at any date of determination, (a) the aggregate
amount of cash contributions made to the equity capital of the Borrowers during the period from and
including the respective dates of organization of the Borrowers through and including such date of
determination minus (b) the aggregate amount of distributions made in respect of the equity capital
of the Borrowers during such period.
“Equity Interest” in any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however
-11-
designated) corporate stock or other equity participations, including partnership interests,
whether general or limited, and membership interests in such Person.
“Equity Rights” shall mean, with respect to any Person, any subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without limitation, any
stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of capital stock of any class or other ownership
interests of any type in, such Person.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.
“ERISA Affiliate” shall mean any corporation or trade or business that is a member of any
group of organizations (i) described in Section 414(b) or (c) of the Code of which a Borrower is a
member and (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which a Borrower is a member.
“Eurodollar Base Rate” shall mean, for the Interest Period for any Eurodollar Loan, the rate
appearing on Page 3750 of the Telerate Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate quotations comparable
to those currently provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for the offering of Dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the Eurodollar Base Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
“Eurodollar Loans” shall mean Loans that bear interest at rates based on rates referred to in
the definition of “Eurodollar Base Rate” in this Section 1.01.
“Eurodollar Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the Eurodollar Base Rate for such Loan for such Interest Period
divided by 1 minus the Reserve Requirement (if any) for such Loan for such Interest Period.
-12-
“Event of Default” shall have the meaning assigned to such term in Section 9 hereof.
“Excess Cash Flow” shall mean, for any period, the excess of (a) Operating Cash Flow for such
period over (b) the sum of (i) Capital Expenditures made during such period plus (ii) the aggregate
amount of Debt Service for such period plus (iii) the Tax Payment Amount for such period plus (iv)
any decreases (or minus any increases) in Working Capital from the first day to the last day of
such period.
“Exchange Act” shall mean the United States Securities Exchange Act of 1934, as amended from
time to time.
“Executive Compensation” shall mean, for any period, the aggregate amount of compensation
(including, without limitation, salaries, withholding taxes, unemployment insurance contributions,
pension, health and other benefits) of the Manager’s executive management personnel during such
period. For purposes hereof, “executive management personnel” shall not include any individual
(such as a system manager) who is employed solely in connection with the day-to-day operations of a
CATV System.
“FAA” shall mean the Federal Aviation Administration or any governmental authority substituted
therefor.
“FCC” shall mean the Federal Communications Commission or any governmental authority
substituted therefor.
“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next
succeeding such day, provided that (a) if the day for which such rate is to be determined is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day and (b) if such
rate is not so published for any Business Day, the Federal Funds Rate for such Business Day shall
be the average rate charged to JPMCB on such Business Day on such transactions as determined by the
Administrative Agent.
“Fiscal Period” shall mean any fiscal year and, for the fiscal year ending December 31, 2004,
the period from the Closing Date to and including December 31, 2004.
-13-
“Franchise” shall have the meaning set forth in 47 U.S.C. Section 522(9). The term “Franchise”
shall include each of the Franchises set forth on Schedule V 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.
“Gross Operating Revenue” shall have the meaning assigned to such term in Section 8.11 hereof.
“Guarantee” shall mean a guarantee, an endorsement, a contingent agreement to purchase or to
furnish funds for the payment or maintenance of, or otherwise to be or become contingently liable
under or with respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the
stock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee or
lessor) Property, products, materials, supplies or services primarily for the purpose of enabling a
debtor to make payment of such debtor’s obligations or an agreement to assure a creditor against
loss, and including, without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person, but excluding
endorsements for collection or deposit in the ordinary course of business. The terms “Guarantee”
and “Guaranteed” used as a verb shall have a correlative meaning.
“Guarantee and Pledge Agreement” shall mean a Guarantee and Pledge Agreement substantially in
the form of Exhibit D hereto between Mediacom LLC, MCC (to the extent of its obligations under
Section 5.04 thereof) 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 Agreement” shall have the meaning assigned to such term in Section
2.01(d) hereof.
“Incremental Facility Commitments” shall mean the Incremental Facility Revolving Credit
Commitments and the Incremental Facility Term Loan Commitments. The aggregate amount of the
Incremental Facility Loan Commitments of all Series shall not exceed
-14-
the amount specified in clause (iii) of Section 2.01(d) hereof (or, in the case of Refinancing
Incremental Facility Revolving Credit Commitments and Refinancing Incremental Facility Term Loan
Commitments, the respective amounts specified in clauses (vi) or (vii) of said Section 2.01(d)).
“Incremental Facility Lenders” shall mean the Incremental Facility Revolving Credit Lenders
and the Incremental Facility Term Loan Lenders.
“Incremental Facility Letter of Credit” shall mean any letter of credit issued under the
Incremental Facility Revolving Credit Commitments of any Series.
“Incremental Facility Loans” shall mean the Incremental Facility Revolving Credit Loans and
the Incremental Facility Term Loans.
“Incremental Facility Revolving Credit Commitment” shall mean, for each Incremental Facility
Revolving Credit Lender, and for any Series thereof, the obligation of such Incremental Facility
Revolving Credit Lender to make Incremental Facility Revolving Credit Loans, and to issue or
participate in Incremental Facility Letters of Credit, 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 Revolving Credit Commitment of any Series shall be determined in accordance
with the provisions of Section 2.01(d) hereof.
“Incremental Facility Revolving Credit Lenders” shall mean, in respect of any Series of
Incremental Facility Revolving Credit Loans, the Lenders from time to time holding Incremental
Facility Revolving Credit Loans and Incremental Facility Revolving Credit Commitments of such
Series after giving effect to any assignments thereof permitted by Section 11.06(b) hereof.
“Incremental Facility Revolving Credit Loans” shall mean revolving credit loans provided for
pursuant to an Incremental Facility Agreement entered into pursuant to Section 2.01(d) hereof,
which may be Base Rate Loans and/or Eurodollar Loans.
“Incremental Facility Term Loan Commitment” shall mean, for each Incremental Facility Term
Loan Lender, and for any Series thereof, the obligation of such Incremental Facility Term Loan
Lender to make Incremental Facility Term 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 Term Loan Commitment of any Series shall be determined in accordance with the provisions
of Section 2.01(d) hereof.
“Incremental Facility Term Loan Lenders” shall mean, in respect of any Series of Incremental
Facility Term Loans, the Lenders from time to time holding Incremental Facility
-15-
Term Loans and Incremental Facility Term Loan Commitments of such Series after giving effect to any
assignments thereof permitted by Section 11.06(b) hereof.
“Incremental Facility Term Loans” shall mean term loans provided for pursuant to an
Incremental Facility Agreement entered into pursuant to Section 2.01(d) hereof, which may be Base
Rate Loans and/or Eurodollar Loans.
“Indebtedness” shall mean, for any Person: (a) obligations created, issued or incurred by such
Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of
Property to another Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person), including, without limitation, Affiliate Subordinated
Indebtedness; (b) obligations of such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other than for borrowed money) arising,
and accrued expenses incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 120 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 the account of such Person; (e) Capital
Lease Obligations of such Person; and (f) Indebtedness of others Guaranteed by such Person;
provided that Indebtedness shall exclude (i) obligations in respect of surety and performance bonds
backing pole rental or conduit attachments and the like, or backing obligations under Franchises,
arising in the ordinary course of business of the CATV Systems and related telecommunications
services of the Borrowers and their Subsidiaries and (ii) all obligations in respect of Interest
Rate Protection Agreements.
“Information Memorandum” shall mean the Confidential Information Memorandum dated September
2004 prepared in connection with the syndication of the credit facilities provided for in this
Agreement.
“Interest Coverage Ratio” shall mean, as at any date, the ratio of (a) Operating Cash Flow for
the fiscal quarter ending on, or most recently ended prior to, such date to (b) Interest Expense
for such fiscal quarter.
Notwithstanding the foregoing, the Interest Coverage Ratio as at the last day of any fiscal
quarter during which an Acquisition is consummated shall be deemed to be equal to the ratio of
Adjusted Operating Cash Flow for such fiscal quarter to Interest Expense for such fiscal quarter.
“Interest Expense” shall mean, for any period, the sum, for the Borrowers and their
Subsidiaries (determined on a combined basis without duplication in accordance with GAAP), of the
following: (a) all interest in respect of Indebtedness (including, without limitation, the interest
component of any payments in respect of Capital Lease Obligations) for
-16-
such period (whether or not actually paid during such period) and all commitment fees payable
hereunder, but excluding all interest in respect of Affiliate Subordinated Indebtedness (to the
extent not paid in cash during such period), plus (b) the net amount payable (or minus the net
amount receivable) under Interest Rate Protection Agreements during such period (whether or not
actually paid or received during such period) plus (c) the aggregate amount of upfront or one-time
fees or expenses payable in respect of Interest Rate Protection Agreements to the extent such fees
or expenses are amortized during such period.
Notwithstanding the foregoing, if during any period for which Interest Expense is being
determined the Borrowers or any of their Subsidiaries shall have consummated any acquisition of any
CATV System or other business, or consummated any Disposition, then, for all purposes of this
Agreement, Interest Expense shall be determined on a pro forma basis as if such acquisition or
Disposition had been made or consummated (and any related Indebtedness incurred or repaid) on the
first day of such period.
“Interest Period” shall mean, with respect to any Eurodollar Loan, each period commencing on
the date such Eurodollar Loan is made or Converted from a Base Rate Loan or (in the event of a
Continuation) the last day of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first week thereafter or in the first, second, third or sixth
calendar month thereafter (or such other period as may be agreed by all of the Lenders affected
thereby), as the Borrowers may select as provided in Section 4.05 hereof, except that each Interest
Period of one month’s (or a multiple of one month’s) duration 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) 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
(iii) the Administrative Agent may, in its discretion to facilitate the ease of
administration of Eurodollar Loans hereunder, shorten or lengthen by up to three Business
Days the duration of any Interest Period from that otherwise provided above in this
definition, provided that in no event shall any Interest Period for a Eurodollar Loan end on
any day other than a Business Day.
“Interest Rate Protection Agreement” shall mean, for any Person, an interest rate swap, cap or
collar agreement or similar arrangement between such Person and a financial
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institution providing for the transfer or mitigation of interest risks either generally or under
specific contingencies. For purposes hereof, the “credit exposure” at any time of any Person under
an Interest Rate Protection Agreement to which such Person is a party shall be determined at such
time in accordance with the standard methods of calculating credit exposure under similar
arrangements as prescribed from time to time by the Administrative Agent, taking into account
potential interest rate movements and the respective termination provisions and notional principal
amount and term of such Interest Rate Protection Agreement.
“Investment” shall mean, for any Person: (a) the acquisition (whether for cash, Property,
services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or
other ownership interests or other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any “short sale” or any sale of any securities at a
time when such securities are not owned by the Person entering into such sale); (b) the making of
any deposit with, or advance, loan or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection with the sale of
programming or advertising time by such Person in the ordinary course of business; (c) the entering
into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other
liability of any other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Interest Rate Protection Agreement.
“Issuing Lender” shall mean each of JPMCB and/or such other Lender designated by the Borrowers
as an “Issuing Lender” hereunder that has agreed to such designation (and is reasonably acceptable
to the Administrative Agent), each in its capacity as an issuer of Letters of Credit hereunder and
together with its successors and assigns in such capacity. Any Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing
Lender, in which case the term “Issuing Lender” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
“JPMCB” shall mean JPMorgan Chase Bank.
“Letter of Credit” shall mean, as applicable, a Revolving Credit Letter of Credit or an
Incremental Facility Letter of Credit.
“Letter of Credit Commitment Percentage” shall mean, with respect to any Revolving Credit
Lender or Incremental Facility Revolving Credit Lender, the ratio of (a) the amount of the
Revolving Credit Commitment or Incremental Facility Revolving Credit Commitment of such Lender to
(b) the aggregate amount of the Revolving Credit Commitments or Incremental Facility Revolving
Credit Commitments, as applicable, of all Lenders of such Class.
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“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 or Incremental
Facility Revolving Credit Lender, as applicable, such Lender’s participation interest (or, in the
case of an Issuing Lender, such Issuing Lender’s retained interest) in an Issuing Lender’s
liability under Letters of Credit of the applicable Class and such Lender’s rights and interests in
Reimbursement Obligations of such Class and fees, interest and other amounts payable in connection
with Letters of Credit and Reimbursement Obligations of such Class.
“Letter of Credit Liability” shall mean, without duplication, at any time and in respect of
any Letter of Credit, the sum of (a) the undrawn face amount of such Letter of Credit plus (b) the
aggregate unpaid principal amount of all Reimbursement Obligations of the Borrowers at such time
due and payable in respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender or Incremental Facility Revolving Credit Lender (other than an
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 such 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 (or, as applicable, Incremental Facility Revolving Credit Lender) other than such
Issuing Lender of their participation interests under said Section 2.03.
“Lien” shall mean, with respect to any Property, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such Property. For purposes of this Agreement and
the other Loan Documents, a Person shall be deemed to own subject to a Lien any Property that it
has acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an operating lease)
relating to such Property.
“Loan Documents” shall mean, collectively, this Agreement, the Letter of Credit Documents, the
Security Documents, each Management Fee Subordination Agreement and each Affiliate Subordinated
Indebtedness Subordination Agreement.
“Loans” shall mean, collectively, the Revolving Credit Loans, the Tranche A Term Loans, the
Tranche B Term Loans and the Incremental Facility Loans.
“Majority Lenders” shall mean, subject to the last paragraph of Section 11.04 hereof, Lenders
having more than 50% of the sum of (a) the aggregate outstanding principal
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amount of the Term Loans of each Class or, if the Term Loans of either Class shall not have been
made, the aggregate outstanding principal amount of the Term Loan Commitments of such Class plus
(b) the aggregate outstanding principal amount of the Incremental Facility Term Loans of each
Series or, if the Incremental Facility Term Loans of such Series shall not have been made, the
aggregate outstanding principal amount of the Incremental Facility Commitments of such Series plus
(c) the sum of (i) the aggregate unused amount, if any, of the Incremental Facility Revolving
Credit Commitments of each Series at such time plus (ii) the aggregate amount of Letter of Credit
Liabilities in respect of Incremental Facility Letters of Credit of each Series at such time plus
(iii) the aggregate outstanding principal amount of the Incremental Facility Revolving Credit Loans
of each Series at such time plus (d) the sum of (i) the aggregate unused amount, if any, of the
Revolving Credit Commitments at such time plus (ii) the aggregate amount of Letter of Credit
Liabilities in respect of Revolving Credit Letters of Credit at such time plus (iii) the aggregate
outstanding principal amount of the Revolving Credit Loans at such time.
The “Majority Lenders” of a particular Class of Loans shall mean Lenders having outstanding
Loans, Letter of Credit Liabilities, Commitments or unused Commitments (as applicable, and
determined in the manner provided above) of such Class representing more than 50% of the total
outstanding Loans, Letter of Credit Liabilities, Commitments or unused Commitments of such Class at
such time.
“Management Agreements” shall mean, collectively, (a) the Management Agreement dated as of
February 4, 2000 between Mediacom Illinois and MCC, (b) the Management Agreement dated as of
February 4, 2000 between Mediacom Indiana and MCC, (c) the Management Agreement dated as of
February 4, 2000 between Mediacom Iowa and MCC, (d) the Management Agreement dated as of February
4, 2000 between Mediacom Minnesota and MCC, (e) the Management Agreement dated as of February 4,
2000 between Mediacom Wisconsin and MCC, (f) the Management Agreement dated as of February 4, 2000
between Xxxxxxx and MCC, (g) the Management Agreement dated February 4, 2000 between Mediacom
Arizona and MCC, (h) the Management Agreement dated as of February 4, 2000 between Mediacom
California and MCC, (i) the Management Agreement dated as of February 4, 2000 between Mediacom
Delaware and MCC and (j) the Management Agreement dated as of February 4, 2000 between Mediacom
Southeast and MCC, in each case as the same shall, subject to Section 8.18 hereof, be modified and
supplemented and in effect from time to time.
“Management Fee Subordination Agreement” shall mean a Management Fee Subordination Agreement
substantially in the form of Exhibit F hereto between the Manager (or, as contemplated by Section
8.11 hereof, any other Person to whom the Borrowers or any of their Subsidiaries may be obligated
to pay Management Fees), the Borrowers and the Administrative Agent, as the same shall be modified
and supplemented and in effect from time to time.
“Management Fees” shall mean, for any period, the sum of all fees, salaries and other
compensation (including, without limitation, all Executive Compensation and any other amounts
payable under the Management Agreements) paid or incurred by the Borrowers and
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their Subsidiaries to Affiliates (other than Affiliates that are employees of the Borrowers and
their Subsidiaries) in respect of services rendered in connection with the management or
supervision of the Borrowers and their Subsidiaries, provided that Management Fees shall exclude
(a) the aggregate amount of intercompany shared expenses payable to Mediacom LLC or MCC that are
allocated by Mediacom LLC or MCC to the Borrowers and their Subsidiaries in accordance with Section
5.04 of the Guarantee and Pledge Agreement (other than the allocated amount of Executive
Compensation, which Executive Compensation shall in any event constitute Management Fees hereunder)
and (b) reimbursement by the Borrowers and their Subsidiaries of expenses incurred by an Affiliate
directly on behalf of the Borrowers and their Subsidiaries.
“Manager” shall mean MCC, or any successor in such capacity as manager of the Borrowers.
“Margin Stock” shall mean “margin stock” within the meaning of Regulations T, U and X.
“Material Adverse Effect” shall mean a material adverse effect on (a) the Property, business,
operations, financial condition, prospects, liabilities or capitalization of the Borrowers and
their Subsidiaries taken as a whole, (b) the ability of any Obligor to perform its obligations
under any of the Loan Documents to which it is a party, (c) the validity or enforceability of any
of the Loan Documents, (d) the rights and remedies of the Lenders and the Administrative Agent
under any of the Loan Documents or (e) the timely payment of the principal of or interest on the
Loans or the Reimbursement Obligations or other amounts payable in connection therewith.
“MCC” shall mean Mediacom Communications Corporation, a Delaware corporation.
“Mediacom LLC” shall mean Mediacom LLC, a
New York limited liability company.
“Mediacom Midwest
Credit Agreement” shall mean the
Credit Agreement dated as of November 5,
1999 between the Mediacom Midwest Borrowers, the lenders party thereto and The Chase Manhattan Bank
as administrative agent for such lenders, as heretofore modified, supplemented and in effect.
“Mediacom USA
Credit Agreement” shall mean the
Credit Agreement dated as of September 30, 1999
between the Mediacom USA Borrowers, the lenders party thereto and The Chase Manhattan Bank as
administrative agent for such lenders, as heretofore modified, supplemented and in effect.
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“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37) of ERISA
to which contributions have been made by a Borrower or any ERISA Affiliate and that is covered by
Title IV of ERISA.
“Net Available Proceeds” shall mean:
(i) in the case of any Disposition, the amount of Net Cash Payments received in
connection with such Disposition net of (A) the Tax Payment Amount, if any, attributable to
such Disposition and (B) any transfer taxes (without duplication of taxes deducted in
determining such Net Cash Payments) payable by the Borrowers or any of their Subsidiaries in
respect of such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of proceeds of insurance,
condemnation awards and other compensation received by the Borrowers and their Subsidiaries
in respect of such Casualty Event net of (A) reasonable expenses incurred by the Borrowers
and their Subsidiaries in connection therewith, (B) contractually required repayments
of Indebtedness to the extent secured by a Lien on such Property, (C) the Tax Payment Amount,
if any, attributable to such Casualty Event and (D) any transfer taxes payable by the
Borrowers or any of their Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Debt Issuance, the aggregate amount of all cash received by the
Borrowers or any of their Subsidiaries in respect of such Debt Issuance, net of reasonable
expenses incurred by the Borrowers and their Subsidiaries in connection therewith.
“Net Cash Payments” shall mean, with respect to any Disposition, the aggregate amount of all
cash payments, and the fair market value of any non-cash consideration, received by the Borrowers
and their Subsidiaries directly or indirectly in connection with such Disposition; provided that
(a) Net Cash Payments shall be net of the amount of any legal, accounting, broker, title and
recording tax expenses, commissions, finders’ fees and other fees and expenses paid by the
Borrowers and their Subsidiaries in connection with such Disposition and (b) Net Cash Payments
shall be net of any repayments by the Borrowers and their Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the Property that is the subject of such
Disposition and (ii) the transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property.
“Obligors” shall mean, collectively, the Borrowers, Mediacom LLC, MCC, Mediacom Management
Corporation, Mediacom Indiana Parternco LLC, Mediacom Indiana Holdings, L.P., Illini Cable Holding,
Inc., Illini Cablevision of Illinois, Inc. and, effective upon execution and delivery of any
Subsidiary Guarantee Agreement, each Subsidiary of the Borrowers so executing and delivering such
Subsidiary Guarantee Agreement.
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“Operating Agreement” shall mean, for any Borrower, the operating agreement (or, with respect
to Xxxxxxx, the Certificate of Incorporation and By-laws) of such Borrower as in effect on the date
hereof and as the same shall, subject to Section 8.18 hereof, be modified and supplemented and in
effect from time to time.
“Operating Cash Flow” shall mean, for any period, the sum, for the Borrowers and their
Subsidiaries (determined on a combined basis without duplication in accordance with GAAP), of the
following: (a) System Cash Flow minus (b) Management Fees paid during such period to the extent not
exceeding 4.50% of the gross operating revenues of the Borrowers and their Subsidiaries for such
period.
“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or
all of its functions under ERISA.
“Permitted Holder” shall mean: (i) Xxxxx X. Xxxxxxxx or his spouse or siblings, any of their
lineal descendants and their spouses; (ii) any controlled Affiliate of any individual described in
clause (i) above; (iii) in the event of the death or incompetence of any individual described in
clause (i) above, such Person’s estate, executor, administrator, committee or other personal
representative, in each case who at any particular date will beneficially own or have the right to
acquire, directly or indirectly, Equity Interests in Mediacom LLC; (iv) any trust or trusts created
for the benefit of each Person described in this definition, including any trust for the benefit of
the parents or siblings of any individual described in clause (i) above; or (v) any trust for the
benefit of any such trust.
“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 $5,000,000,000, 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.
“Permitted Transactions” shall have the meaning assigned to such term in Section 8.09 hereof.
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“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 Borrowers
or any ERISA Affiliates and that is covered by Title IV of ERISA, other than a Multiemployer Plan.
“Pledge Agreement” shall mean a Pledge Agreement substantially in the form of Exhibit C hereto
between the Borrowers, each of the additional parties, if any, that becomes a “Securing Party”
thereunder, and the Administrative Agent, as the same shall be modified and supplemented and in
effect from time to time.
“Post-Default Rate” shall mean a rate per annum equal to 2% plus the Base Rate as in effect
from time to time plus the Applicable Margin for Base Rate Loans, provided that, with respect to
principal of a Eurodollar Loan that shall become due (whether at stated maturity, by acceleration,
by optional or mandatory prepayment or otherwise) on a day other than the last day of the Interest
Period therefor, the “Post-Default Rate” shall be, for the period from and including such due date
to but excluding the last day of such Interest Period, 2% plus the interest rate for such Loan as
provided in Section 3.02(b) hereof and, thereafter, the rate provided for above in this definition.
“Preferred Membership Interests” shall mean the equity rights provided for in Section 6.2 of
the Operating Agreement of Mediacom Southeast.
“Prime Rate” shall mean the rate of interest from time to time announced by JPMCB at its
principal office in
New York City as its prime commercial lending rate.
“Principal Payment Dates” shall mean (a) in the case of the Tranche A Term Loans, the last
Business Day of March, June, September and December of each year, commencing with March 31, 2008,
through and including September 30, 2012, (b) in the case of the Tranche B Term Loans, the last
Business Day of March, June, September and December of each year, commencing with March 31, 2005,
through and including March 31, 2013 and (c) in the case of Incremental Facility Loans of any
Series, such dates as shall have been agreed upon between the Borrowers and the respective
Incremental Facility Lenders of such Series pursuant to Section 2.01(d) hereof at the time such
Lenders become obligated to make such Incremental Facility Loans hereunder.
“Property” shall mean any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible.
“Purchase Price” shall mean, without duplication, with respect to any Acquisition, an amount
equal to the sum of (i) the aggregate consideration, whether cash, Property or
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securities (including, without limitation, any Indebtedness incurred pursuant to
paragraph (f) of Section 8.07 hereof), paid or delivered by the Borrowers and their Subsidiaries in
connection with such acquisition plus (ii) the aggregate amount of liabilities of the acquired
business (net of current assets of the acquired business) that would be reflected on a balance
sheet (if such were to be prepared) of the Borrowers and their Subsidiaries after giving effect to
such acquisition.
“Quarterly Dates” shall mean the last Business Day of March, June, September and December in
each year, the first of which shall be the first such day after the date of this Agreement.
“Quarterly Officer’s Report” shall mean a quarterly report of a Senior Officer with respect to
Basic Subscribers, homes passed and revenues per Basic Subscriber, substantially in the form of
Exhibit B hereto, consisting of Basic Subscribers, digital customers, data customers, telephony
customers and average monthly revenues per Basic Subscriber for each three month period.
“Quarterly Payment Period” shall mean (i) initially, the period from and including the Closing
Date through but not including the Quarterly Date falling on the last Business Day of December,
2004 and (ii) thereafter, each successive three-month period from and including a Quarterly Date to
but not including the next following Quarterly Date.
“Rate Ratio” shall mean, for any Quarterly Payment Period, the ratio of (x) the daily average
of the aggregate amount of all Indebtedness of the Borrowers and their Subsidiaries (excluding
Affiliate Subordinated Indebtedness and the first $10,000,000 of Capital Lease Obligations and
non-recourse liens described in clauses (c) and (e) of the definition of Indebtedness as defined in
this Section 1.01) outstanding during the fiscal quarter ending immediately prior to the first
Business Day of such Quarterly Payment Period to (y) the product of (i) System Cash Flow for such
fiscal quarter times (ii) four. By way of illustration, the Rate Ratio for a Quarterly Payment
Period commencing on the last Business Day of June of any year shall be the ratio of (A) the daily
average of the Indebtedness referred to in clause (x) above during the fiscal quarter ending on the
March 31 immediately preceding the last Business Day of such June to (B) the product of (i) System
Cash Flow for such fiscal quarter times (ii) four.
Notwithstanding the foregoing, (a) during the second Quarterly Payment Period (i.e. the period
from and including the last Business day of December 2004 to but not including the last Business
Day of March 2005), the Rate Ratio shall be the Total Leverage Ratio as of the Closing Date and (b)
during the third Quarterly Payment Period (i.e. the period from and including the last Business Day
of March 2005 to but not including the last Business Day of June 2005), the Rate Ratio shall be the
ratio of (x) the daily average of the aggregate amount of all Indebtedness of the Borrowers and
their Subsidiaries (excluding Affiliate Subordinated Indebtedness and the first $10,000,000 of
Capital Lease Obligations and non-recourse liens described in clauses (c) and (e) of the definition
of Indebtedness as defined in this Section 1.01) outstanding during the period from and including
the Closing Date to but excluding the last
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Business Day of December 2004 to (y) the product of (i) System Cash Flow for the
fiscal quarter ending on the last Business Day of December 2004 times (ii) four.
“Rate Ratio Certificate” shall mean, for any Quarterly Payment Period commencing with the
Quarterly Payment Period beginning with the last Business Day of June 2005, 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.
“Refinancing”, when used with respect to any Incremental Facility Commitment, Incremental
Facility Loan or Incremental Facility Letter of Credit of any Series, shall refer to (a) any
Incremental Facility Revolving Credit Commitments of any Series that replace either the Revolving
Credit Commitments hereunder or the Incremental Facility Revolving Credit Commitments of any other
Series hereunder, such replacement to be effected by (i) concurrent reduction of Revolving Credit
Commitments or Incremental Facility Revolving Credit Commitments of the respective Series in an
amount equal to the replacement Incremental Facility Revolving Credit Commitments, (ii) the
concurrent repayment or prepayment of any Loans outstanding under the respective replaced
Commitments with Incremental Facility Revolving Credit Loans made under the replacement Incremental
Facility Revolving Credit Commitments and (iii) the concurrent designation of any Letters of Credit
or Incremental Facility Letters of Credit outstanding under such replaced Commitments with
Incremental Facility Letters of Credit under the replacement Incremental Facility Revolving Credit
Commitments and (b) any Incremental Facility Term Loans of any Series the proceeds of which are
applied to the repayment or prepayment of Term Loans of any Class or Incremental Facility Term
Loans of any Series.
“Region” shall mean each geographic region into which the CATV Systems of the Borrowers and
their Subsidiaries are divided for operating and management purposes.
“Register” shall have the meaning assigned to such term in Section 11.06(c) hereof.
“Regulations A, D, T, U and X” shall mean, respectively, Regulations A, D, T, U and X of the
Board of Governors of the Federal Reserve System (or any successor), as the same may be modified
and supplemented and in effect from time to time.
“Regulatory Change” shall mean, with respect to any Lender, any change after the date hereof
in Federal, state or foreign law or regulations (including, without limitation, Regulation D) or
the adoption or making after such date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any Federal, state or foreign law or regulations
(whether or not having the force of law and whether or not failure to comply therewith would be
unlawful) by any court or governmental or monetary authority charged with the interpretation or
administration thereof.
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“Reimbursement Obligations” shall mean, at any time, the obligations of the Borrowers then
outstanding, or that may thereafter arise in respect of all Letters of Credit then outstanding, to
reimburse amounts paid by an Issuing Lender in respect of any drawings under a Letter of Credit.
“Release” shall mean any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment,
including, without limitation, the movement of Hazardous Materials through ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata.
“Reserve Requirement” shall mean, for any Interest Period for any Eurodollar Loan, the average
maximum rate at which reserves (including, without limitation, any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in
New York City with deposits exceeding one billion
Dollars against “Eurocurrency liabilities” (as such term is used in Regulation D). Without limiting
the effect of the foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by such member banks by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to which the Eurodollar Base Rate is to
be determined as provided in the definition of “Eurodollar Base Rate” in this Section 1.01 or (ii)
any category of extensions of credit or other assets that includes Eurodollar Loans.
“Reserved Commitment Amount” shall have the meaning assigned to such term in Section 2.01(a)
hereof.
“Restricted Payments” shall mean, collectively, (a) all distributions of the Borrowers (in
cash, Property or obligations) on, or other payments or distributions on account of, or the setting
apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement
or other acquisition of, any portion of any ownership interest in the Borrowers or of any warrants,
options or other rights to acquire any such ownership interest (or to make any payments to any
Person, such as “phantom stock” payments, where the amount thereof is calculated with reference to
fair market or equity value of the Borrowers or any of their Subsidiaries), (b) any payments made
by a Borrower to any holders of any equity interests in the Borrowers that are designed to
reimburse such holders for the payment of any taxes attributable to the operations of the Borrowers
and their Subsidiaries, (c) any payments of principal of or interest on Affiliate Subordinated
Indebtedness, (d) any payments in respect of Management Fees and (e) any Affiliate Letters of
Credit issued by an Issuing Lender for the account of the Borrowers.
“Revolving Credit Commitment” shall mean, as to each Revolving Credit Lender, the obligation
of such Lender to make Revolving Credit Loans, and to issue or participate in Letters of Credit
pursuant to Section 2.03 hereof, in an aggregate principal or face amount at any
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one time outstanding up to but not exceeding the amount set forth opposite the name of
such Lender on Schedule I hereto under the caption “Revolving Credit Commitment” or, in the case of
a Person that becomes a Revolving Credit Lender pursuant to an assignment permitted under Section
11.06(b), as specified in the respective instrument of assignment pursuant to which such assignment
is effected (as the same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof
or increased or reduced from time to time pursuant to assignments permitted under said Section
11.06(b)). The original aggregate principal amount of the Revolving Credit Commitments is
$400,000,000.
“Revolving Credit Commitment Termination Date” shall mean the Quarterly Date falling on or
nearest to September 30, 2011.
“Revolving Credit Lenders” shall mean (a) on the date hereof, the Lenders having Revolving
Credit Commitments on Schedule I hereto and (b) thereafter, the Lenders from time to time holding
Revolving Credit Loans and Revolving Credit Commitments after giving effect to any assignments
thereof permitted by Section 11.06(b) hereof.
“Revolving Credit Letter of Credit” shall mean any letter of credit issued under Revolving
Credit Commitments.
“Revolving Credit Loans” shall mean the loans provided for in Section 2.01(a) hereof, which
may be Base Rate Loans and/or Eurodollar Loans.
“Security Documents” shall mean, collectively, the Pledge Agreement, the Guarantee and Pledge
Agreement and the Subsidiary Guarantee Agreements, and all Uniform Commercial Code financing
statements required by the Pledge Agreement, the Guarantee and Pledge Agreement and the Subsidiary
Guarantee Agreements, to be filed with respect to the security interests created pursuant to the
Pledge Agreement, the Guarantee and Pledge Agreement and the Subsidiary Guarantee Agreements.
“Senior Officer” shall mean an individual that is the chairman, chief executive officer, chief
financial officer, treasurer, controller or vice president of corporate finance of the Manager,
acting for and on behalf of the Borrowers.
“Series” has the meaning set forth in Section 2.01(d).
“Special Reductions” shall mean, as at any date during any fiscal quarter, the aggregate
amount of reductions during such fiscal quarter through such date in the undrawn face amount of
Affiliate Letters of Credit issued during such fiscal quarter (i.e. excluding reductions in such
face amount that occur upon a drawing under such Affiliate Letters of Credit), together with the
aggregate amount of Affiliate Letters of Credit issued during such fiscal quarter that expire or
are terminated during such fiscal quarter through such date without being drawn.
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“Subsidiary” shall mean, with respect to any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation, partnership, limited
liability company or other entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation, partnership, limited
liability company or other entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
“Subsidiary Guarantee Agreement” shall mean a Subsidiary Guarantee Agreement substantially in
the form of Exhibit E hereto by a Subsidiary of a Borrower in favor of the Administrative Agent, as
the same shall be modified and supplemented and in effect from time to time.
“Subsidiary Guarantor” shall mean any Subsidiary of the Borrowers that executes and delivers a
Subsidiary Guarantee Agreement.
“Supplemental Capital” shall mean (a) advances made by an Affiliate to the Borrowers
constituting Affiliate Subordinated Indebtedness (excluding any Cure Monies) and (b) equity
contributions by an Affiliate subsequent to the date of this Agreement (excluding any Cure Monies).
“System Cash Flow” shall mean, for any period, the sum, for the Borrowers and their
Subsidiaries (determined on a combined basis without duplication in accordance with GAAP), of the
following: (a) gross operating revenues (not including extraordinary or unusual items but including
business interruption insurance (to the extent it represents lost revenue for such period)) for
such period minus (b) all operating expenses (not including extraordinary or unusual items) 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, interest expense (including, without limitation, all
items included in Interest Expense) and any extraordinary or unusual items plus (c) any
compensation received for management services provided by the Borrowers during any such period in
respect of any Franchises retained by the seller pursuant to any agreement for the purchase of such
Franchises by the Borrowers during any such period. For the purposes of determining System Cash
Flow, gross operating revenues will include revenues received in cash in respect of investments, so
long as such investments are recurring (i.e. reasonably expected to continue for four or more
fiscal quarters) and do not for any period exceed 20% of gross operating revenues for such period
(not including (i) extraordinary or unusual items and (ii) such investment revenues).
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Notwithstanding the foregoing, if during any period for which System Cash Flow is being
determined the Borrowers or any of their Subsidiaries shall
have consummated any acquisition of any CATV System or other business, or consummated any
Disposition, then, for all purposes of this Agreement (other than for purposes of the definition of
Excess Cash Flow), System Cash Flow shall be determined on a pro forma basis as if such acquisition
or Disposition had been made or consummated on the first day of such period.
“Tax Payment Amount” shall mean, for any period, an amount not exceeding in the aggregate the
amount of Federal, state and local income taxes the Borrowers would otherwise have paid in the
event they were corporations (other than “S corporations” within the meaning of Section 1361 of the
Code) for such period and all prior periods.
“Term Loan Commitments” shall mean, collectively, the Tranche A Term Loan Commitments and the
Tranche B Term Loan Commitments.
“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, collectively, the Tranche A Term Loans and the Tranche B Term Loans.
“Total Leverage Ratio” shall mean, as at any date, the ratio of (a) the aggregate amount of
all Indebtedness of the Borrowers and their Subsidiaries (excluding Affiliate Subordinated
Indebtedness and the first $10,000,000 of Capital Lease Obligations and non-recourse liens
described in clauses (c) and (e) of the definition of Indebtedness as defined in this Section 1.01)
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 as at any date during any fiscal
quarter during which an Acquisition is consummated shall be deemed to be equal to the ratio of (a)
the aggregate amount of all Indebtedness of the Borrowers and their Subsidiaries (excluding
Affiliate Subordinated Indebtedness and the first $10,000,000 of Capital Lease Obligations and
non-recourse liens described in clauses (c) and (e) of the definition of Indebtedness as defined in
this Section 1.01) as at such date to (b) the product of Adjusted System Cash Flow for the
immediately preceding fiscal quarter times four.
“Tranche A Term Loan Commitment” shall mean, as to each Tranche A Term Loan Lender, the
obligation of such Lender to make Tranche A Term Loans in an aggregate principal amount up to, but
not exceeding, the amount set forth opposite the name of such Lender on Schedule I under the
caption “Tranche A Term Loan Commitment” or, in the case of a Person that becomes a Tranche A Term
Loan Lender pursuant to an assignment permitted under
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Section 11.06(b), as specified in the respective instrument of assignment pursuant to
which such assignment is effected (as the same may be reduced at any time or from time to time
pursuant to Section 2.04 or 2.10 or increased or
reduced from time to time pursuant to assignments permitted under said Section 11.06(b)). The
original aggregate principal amount of the Tranche A Term Loan Commitments is $200,000,000.
“Tranche A Term Loan Commitment Expiration Date” shall have the meaning assigned to such term
in Section 2.01(b) hereof.
“Tranche A Term Loan Lenders” shall mean (a) on the date hereof, the Lenders having Tranche A
Term Loan Commitments on Schedule I and (b) thereafter, the Lenders from time to time holding
Tranche A Term Loans and Tranche A Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 11.06(b).
“Tranche A Term Loans” shall mean the loans provided for in Section 2.01(b), which may be Base
Rate Loans and/or Eurodollar Loans.
“Tranche B Term Loan Commitment” shall mean, as to each Tranche B Term Loan Lender, the
obligation of such Lender to make Tranche B Term Loans in an aggregate principal amount up to, but
not exceeding, the amount set forth opposite the name of such Lender on Schedule I under the
caption “Tranche B Term Loan Commitment” or, in the case of a Person that becomes a Tranche B Term
Loan Lender pursuant to an assignment permitted under Section 11.06(b), as specified in the
respective instrument of assignment pursuant to which such assignment is effected (as the same may
be reduced at any time or from time to time pursuant to Section 2.04 or 2.10 or increased or
reduced from time to time pursuant to assignments permitted under said Section 11.06(b)). The
original aggregate principal amount of the Tranche B Term Loan Commitments is $550,000,000.
“Tranche B Term Loan Lenders” shall mean (a) on the date hereof, the Lenders having Tranche B
Term Loan Commitments on Schedule I and (b) thereafter, the Lenders from time to time holding
Tranche B Term Loans and Tranche B Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 11.06(b).
“Tranche B Term Loans” shall mean the loans provided for in Section 2.01(c), which may be Base
Rate Loans and/or Eurodollar Loans.
“Type” shall have the meaning assigned to such term in Section 1.03 hereof.
“U.S. Person” shall mean a citizen or resident of the United States of America, a corporation,
partnership, limited liability company or other entity created or organized in or under any laws of
the United States of America or any State thereof, or any estate or trust that is subject to
Federal income taxation regardless of the source of its income.
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“U.S. Taxes” shall mean any present or future tax, assessment or other charge or levy imposed
by or on behalf of the United States of America or any taxing authority thereof.
“Wholly Owned Subsidiary” shall mean, with respect to any Person,
any corporation, partnership, limited liability company or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a corporation, directors’
qualifying shares) are directly or indirectly owned or controlled by such Person or one or more
Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
“Working Capital” shall mean, as at such date, for the Borrowers and their Subsidiaries
(determined on a combined basis without duplication in accordance with GAAP) (a) current assets
(excluding cash and cash equivalents) minus (b) current liabilities (excluding the current portion
of long term debt and of any installments of principal payable hereunder).
1.02 Accounting Terms and Determinations.
(a) Accounting Terms and Determinations Generally. 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 or the
Administrative Agent 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, 2003, referred to in Section 7.02(a) 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, 2003 referred to in Section
7.02(a) hereof) unless
(i) the Borrowers shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or
(ii) the Majority Lenders shall so object in writing within 30 days after delivery of such
financial statements,
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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 audited financial statements referred to in
Section 7.02(a) hereof).
(b) Statement of Accounting Variations. The Borrowers shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly
financial statement under Section 8.01 hereof (i) a description in reasonable detail of any
material variation between the application of accounting principles employed in the preparation of
such statement and the application of accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements as to which no objection has been made in
accordance with the last sentence of paragraph (a) above and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) Changes in Fiscal Periods. To enable the ready and consistent determination of compliance with
the covenants set forth in Section 8 hereof, none of the Borrowers will change the last day of its
fiscal year from December 31, or the last days of the first three fiscal quarters in each of its
fiscal years from March 31, June 30 and September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by “Class” and by “Type”. The
“Class” of a Loan (or of a Commitment to make a Loan) refers to whether such Loan is a Revolving
Credit Loan, a Tranche A Term Loan, a Tranche B Term Loan, an Incremental Facility Revolving Credit
Loan or an Incremental Facility Term Loan of any Series, 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 also be classified by Series, each of which shall
be considered a separate Class.
1.04 Nature of Obligations of Borrowers. It is the intent of the parties hereto that the Borrowers
shall be jointly and severally obligated hereunder and under the notes executed and delivered by
the Borrowers pursuant to Section 2.08(d) hereof, as co-Borrowers under this Agreement and as
co-makers on such notes, in respect of the principal of and interest on, and all other amounts
owing in respect of, the Loans and such notes.
Section 2. Commitments, Loans and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender severally agrees, on the terms and
conditions of this Agreement, to make loans to the Borrowers in Dollars during the period from and
including the Closing Date to but not including the Revolving Credit Commitment Termination Date in
an aggregate principal amount at any one time outstanding up to but not exceeding the amount of the
Revolving Credit Commitment of such Lender as in effect from time to time, provided that in no
event shall the aggregate principal amount of all
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Revolving Credit Loans, together with the aggregate amount of all Letter of Credit
Liabilities in respect of Revolving Credit Letters of Credit, exceed the aggregate amount of the
Revolving Credit Commitments as in effect from time to time. Subject to the terms and conditions of
this Agreement, during such period the Borrowers may borrow, repay and reborrow the amount of the
Revolving Credit
Commitments by means of Base Rate Loans and Eurodollar Loans and may Convert Revolving Credit Loans
of one Type into Revolving Credit Loans of another Type (as provided in Section 2.09 hereof) or
Continue Revolving Credit Loans of one Type as Revolving Credit Loans of the same Type (as provided
in Section 2.09 hereof).
Proceeds of Revolving Credit Loans shall be available for any use permitted under Section
8.16(a) hereof, provided that, in the event that as contemplated by clause (x) of the second
paragraph of Section 2.10(d) hereof, the Borrowers shall prepay Revolving Credit Loans from the
proceeds of a Disposition hereunder, then an amount of Revolving Credit Commitments equal to the
amount of such prepayment (herein the “Reserved Commitment Amount”) shall be reserved and shall not
be available for borrowings hereunder except and to the extent that the proceeds of such borrowings
are to be applied to make Acquisitions permitted under Section 8.05 hereof or to make prepayments
of Loans under clause (y) of the second paragraph of Section 2.10(d) hereof. The Borrowers agree,
upon the occasion of any borrowing of Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative Agent in writing of
such fact at the time of such borrowing, identifying the amount of such borrowing that is to
constitute such utilization, the Acquisition, if any, 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) Tranche A Term Loans. Each Tranche A Term Loan Lender severally agrees, on the terms and
conditions of this Agreement, to make term loans to the Borrowers in Dollars in up to three
drawings at any time during the period from and including the Closing Date through and including
the date (the “Tranche A Term Loan Commitment Expiration Date”) 100 days after the Closing Date
(provided that if such date is not a Business Day, the Tranche A Term Loan Commitment Expiration
Date shall be the next succeeding Business Day) in an aggregate principal amount up to but not
exceeding the amount of the Tranche A Term Loan Commitment of such Lender. Subject to the terms and
conditions of this Agreement, on the date of such drawing, the Borrowers may borrow the Tranche A
Term Loan Commitments by means of Base Rate Loans and Eurodollar Loans, and thereafter the
Borrowers may Convert Tranche A Term Loans of one Type into Tranche A Term Loans of another Type
(as provided in Section 2.09 hereof) or Continue Tranche A Term Loans of one Type as Tranche A Term
Loans of the same Type (as provided in Section 2.09 hereof). Amounts prepaid or repaid in respect
of Tranche A Term Loans may not be reborrowed.
Proceeds of Tranche A Term Loans hereunder shall be available for any use permitted under
Section 8.16(a) hereof.
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(c) Tranche B Term Loans. Each Tranche B Term Loan Lender severally agrees, on the terms and
conditions of this Agreement, to make term loans to the Borrowers in Dollars in a single drawing on
the Closing Date in an aggregate principal amount up to but not exceeding the amount of the Tranche
B Term Loan Commitment of such Lender. Subject to the terms and conditions of this Agreement, on
the date of such drawing the Borrowers may borrow the Tranche B Term Loan Commitments by means of
Base Rate Loans and Eurodollar Loans, and
thereafter the Borrowers may Convert Tranche B Term Loans of one Type into Tranche B Term Loans of
another Type (as provided in Section 2.09 hereof) or Continue Tranche B Term Loans of one Type as
Tranche B Term Loans of the same Type (as provided in Section 2.09 hereof). Amounts prepaid or
repaid in respect of Tranche B Term Loans may not be reborrowed.
Proceeds of Tranche B Term Loans hereunder shall be available for any use permitted under
Section 8.16(a) hereof.
(d) Incremental Facility Loans. In addition to borrowings of Term Loans and Revolving Credit Loans
provided above, the Borrowers may at any time and from time to time request that the Lenders (or
additional financial institutions that will become Lenders hereunder) enter into commitments to
make Incremental Facility Revolving Credit Loans (and participate in Incremental Facility Letters
of Credit, under Incremental Facility Revolving Credit Commitments) or Incremental Facility Term
Loans of one or more Series hereunder. In the event that one or more Lenders (which term, as used
in this paragraph (d) shall include such additional financial institutions) offer, in their sole
discretion, to enter into such commitments, and such Lenders, the Borrowers and the Administrative
Agent (and, if applicable, the Issuing Lenders) 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 and, if applicable, the Issuing Lenders; any
such instrument for any Series of Incremental Loans being herein called an “Incremental Facility
Agreement” for such Series) 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 Borrowers in
connection therewith and the amortization and interest rate to be applicable thereto, such Lenders
shall become obligated to make Incremental Facility Loans, and (if applicable) to participate in
Incremental Facility Letters of Credit, under this Agreement in an amount equal to the amount of
their respective Incremental Facility Commitments. The Incremental Facility Loans to be made, and
(if applicable) Incremental Facility Letters of Credit to be issued, pursuant to any Incremental
Facility Agreement in response to any such request by the Borrowers shall be deemed to be a
separate “Series” of Incremental Facility Loans, or (if applicable) Incremental Facility Letters of
Credit, for all purposes of this Agreement.
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Anything herein to the contrary notwithstanding, the following additional provisions shall be
applicable to Incremental Facility Commitments and Incremental Facility Loans:
(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 and Incremental Facility Letters of Credit) shall be
$10,000,000,
(ii) any additional financial institution that is not already a Lender hereunder that will
provide all or any portion of the Incremental Facility Commitment of any Series shall be
approved by the Borrowers and
the Administrative Agent (which approval shall not be unreasonably withheld) and, in the
case of any Incremental Facility Revolving Credit Commitments that provide for Letters of
Credit, by each applicable Issuing Lender,
(iii) the aggregate amount of all unused Incremental Facility Commitments and Incremental
Facility Loans and Incremental Facility Letters of Credit of all Series shall not exceed
$650,000,000 at any time, except that the limitations of this clause (iii) shall not apply to
Refinancing Incremental Facility Commitments, Refinancing Incremental Facility Loans
and Refinancing Incremental Facility Letters of Credit,
(iv) in no event shall the final maturity date for the Incremental Facility Term Loans of any
Series, or the final commitment termination date of any Incremental Facility Revolving Credit
Commitments of any Series, be earlier than the final Principal Payment Date for the Tranche B
Term Loans, except that the limitations of this clause (iv) shall not apply to (x)
Incremental Facility Revolving Credit Commitments and Incremental Facility Term Loans in an
aggregate amount as to all Series up to but not exceeding $200,000,000, so long as the
commitment termination date or final maturity thereof is not earlier than the Revolving
Credit Commitment Termination Date (in the case of Incremental Facility Revolving
Credit Commitments) or the final Principal Payment Date for the Tranche A Term Loans (in the
case of Incremental Facility Term Loans) or (y) Refinancing Incremental Facility Commitments,
Refinancing Incremental Facility Loans and Refinancing Incremental Facility Letters of
Credit,
(v) the Incremental Facility Term Loans, and Incremental Facility Revolving Credit
Commitments, shall have an average life at least as long as any other Class of Loans with the
longest average life, except that the limitations of this clause (v) shall not apply to (x)
Incremental Facility Revolving Credit Commitments and Incremental Facility Term Loans in an
aggregate amount as to all Series up to but not exceeding $200,000,000, so long as the
weighted average life to maturity thereof is not earlier than the weighted average life to
maturity applicable to the Revolving Credit Commitments hereunder (in the case of Incremental
Facility Revolving Credit Commitments) or
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Tranche A Term Loans hereunder (in the case of Incremental Facility Term
Loans) or (y) Refinancing Incremental Facility Commitments, Refinancing Incremental Facility
Loans and Refinancing Incremental Facility Letters of Credit,
(vi) the aggregate amount of the Refinancing Incremental Facility Revolving Credit
Commitments of any Series shall not exceed the aggregate amount of the corresponding
Revolving Credit Commitments, or Incremental Facility Revolving Credit Commitments of any
Series, being replaced by such Refinancing Incremental Facility Revolving Credit Commitments,
and shall not have a commitment termination date earlier than the scheduled commitment
termination date for the Commitments being replaced or a commitment reduction schedule with
an average life to maturity earlier
than the average life to maturity of the commitment reduction schedule of the
Commitments being replaced,
(vii) the aggregate amount of the Refinancing Incremental Facility Term Loans of any Series
shall not exceed the aggregate amount of the corresponding Term Loans of a Class, or
Incremental Facility Term Loans of any Series, being refinanced by such Refinancing
Incremental Facility Term Loans, and shall not have a final maturity date earlier than the
final maturity date of the Loans being refinanced or an average life to maturity
earlier than the average life to maturity of the Loans being refinanced and
(viii) except for the amortization and interest rate and financial covenants (which may be
less restrictive than those set forth in Section 8.10 hereof) to be applicable thereto, any
fees to be paid in connection therewith and, if applicable, the terms upon which Incremental
Facility Letters of Credit are to be issued, the Incremental Facility Loans and
Incremental Facility Letters of Credit of any Series shall have the same terms applicable to
the Revolving Credit Loans, Term Loans and Letters of Credit hereunder, provided that any
Incremental Facility Loans may provide for any terms, whether or not the same as those
applicable to the Revolving Credit Loans, Term Loans and Letters of Credit hereunder, if
such terms become effective upon the payment in full of the Revolving Credit Loans, Term
Loans and Letters of Credit hereunder.
Following execution and delivery by the Borrowers, one or more Incremental Facility Lenders
and the Administrative Agent as provided above of an Incremental Facility Agreement with respect to
any Series then, subject to the terms and conditions set forth herein:
(x) if such Incremental Facility Loans are to be Incremental Facility Revolving Credit Loans,
each Incremental Facility Lender of such Series agrees to make Incremental Facility Revolving
Credit Loans of such Series to the Borrowers, and (if applicable) issue Incremental Facility
Letters of Credit of such Series for the account of the Borrowers, from time to time
during the availability period for such Loans as set forth in such Incremental Facility
Agreement, in each case in an aggregate amount that will not result in such Lender’s
Incremental Facility Revolving Credit Loans and Incremental
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Facility Letters of Credit of such Series exceeding such Lender’s
Incremental Facility Revolving Credit Commitment of such Series; within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay
and reborrow Incremental Facility Revolving Credit Loans of such Series; and
(y) if such Incremental Facility Loans are to be Incremental Facility Term Loans, each
Incremental Facility Term Loan Lender of such Series agrees to make Incremental Facility Term
Loans of such Series to the Borrowers from time to time during the availability period for
such Loans set forth in such Incremental Facility Agreement, in a principal
amount up to but not exceeding such Lender’s Incremental Facility Term Loan Commitment
of such Series.
Proceeds of Incremental Facility Loans and Incremental Facility Letters of Credit hereunder
shall be available for any use permitted under Section 8.16(b) hereof.
(e) Certain Limitations on Eurodollar Loans. No more than eight separate Interest Periods in
respect of Eurodollar Loans of a Class from each Lender may be outstanding at any one time.
2.02 Borrowings. The Borrowers shall give the Administrative Agent notice of each borrowing
hereunder as provided in Section 4.05 hereof. Not later than (a) with respect to same-day
borrowings of Base Rate Loans, 11:00 a.m.
New York time on the date specified for each borrowing
hereunder in the relevant borrowing notice delivered pursuant to Section 4.05 hereof and (b) with
respect to borrowings other than same-day Base Rate Loans, 1:00 p.m.
New York time on the date for
each borrowing hereunder specified in the relevant borrowing notice delivered pursuant to Section
4.05 hereof, 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 the account of the Borrowers. The amount so received
by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrowers by depositing the same, in immediately available funds, in an account of
the Borrowers designated by the Borrowers and maintained with JPMCB at its principal office.
2.03 Letters of Credit. Subject to the terms and conditions of this Agreement, the Revolving Credit
Commitments (and, if specified at the time they shall be established, the Incremental Facility
Revolving Credit Commitments of any Series) may be utilized, upon the request of the Borrowers, in
addition to the Revolving Credit Loans provided for by Section 2.01(a) hereof (and, if applicable,
in addition to the Incremental Facility Revolving Credit Loans provided for by Section 2.01(d)
hereof), by the issuance by any Issuing Lender of Letters of Credit of the applicable Class for the
account of the Borrowers or any of their Subsidiaries (as specified by the relevant Borrower),
provided that in no event shall
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(i) the aggregate amount of all Letter of Credit Liabilities of any Class, together with the
aggregate principal amount of the Loans of such Class, exceed (x) in the case of Letters of
Credit issued under the Revolving Credit Commitments, the aggregate amount of the Revolving
Credit Commitments as in effect from time to time or (y) in the case of Letters of
Credit issued under the Incremental Facility Revolving Credit Commitments of any Series, the
aggregate amount of the Incremental Facility Revolving Credit Commitments of such Series,
(ii) the outstanding aggregate amount of all Letter of Credit Liabilities under the Revolving
Credit Commitments exceed $200,000,000, or the outstanding aggregate amount of all Letters of
Credit under the Incremental Facility Revolving Credit Commitments of any Series exceed the
respective limits therefor specified at the time such Incremental Facility Revolving
Credit Commitments are established and
(iii) the expiration date of any Letter of Credit of any Class extend beyond the earlier of
the date five Business Days prior to the Revolving Credit Commitment Termination Date (or, in
the case of an Incremental Facility Letter of Credit, the commitment termination date of
the applicable Series of Incremental Facility Revolving Credit Commitments) and the date
twelve months following the issuance of such Letter of Credit (or, in the case of any renewal
or extension thereof, twelve months after the then-current expiration date of such Letter of
Credit, so long as such renewal or extension occurs within three months of such
then-current expiration date).
The Borrowers may request any Issuing Lender to issue Letters of
Credit for the account of the Borrowers to support an obligation of an Affiliate of the Borrowers
so long as the face amount of such Letter of Credit does not exceed the amount of Restricted
Payments the Borrowers may then make pursuant to Section 8.09(d). The following additional
provisions shall apply to Letters of Credit:
(a) Notice of Issuance. The Borrowers shall give the Administrative Agent at least three
Business Days’ irrevocable prior notice (effective upon receipt) specifying the Business Day
(which shall be no later than 30 days preceding the Revolving Credit Commitment Termination
Date or, if applicable, the commitment termination date for the respective Series of
Incremental Facility Revolving Credit Commitments) 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 relevant Issuing Lender of the
contents thereof.
(b) Participations in Letters of Credit. On each day during the period commencing with the
issuance by any Issuing Lender of any Letter of Credit of any Class
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and until such Letter of Credit shall have expired or been terminated, the
Revolving Credit Commitment of each Revolving Credit Lender (or, as applicable, the
Incremental Facility Revolving Credit Commitment of each Incremental Facility Revolving
Credit Lender) shall be deemed to be utilized for all purposes of this Agreement in an amount
equal to such Lender’s Letter of Credit Commitment Percentage of the then undrawn face
amount of such Letter of Credit. Each Revolving Credit Lender and each Incremental Facility
Revolving Credit Lender (other than the relevant Issuing Lender) agrees that, upon the
issuance of any Revolving Credit Letter of Credit or Incremental Facility Letter of Credit
hereunder, as applicable, it shall automatically acquire a participation in such Issuing
Lender’s liability under such Letter of Credit in an amount equal to such
Lender’s Letter of Credit Commitment Percentage of such liability, and each such Lender
(other than the relevant Issuing Lender) thereby shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and shall be unconditionally
obligated to such Issuing Lender to pay and discharge when due, its Letter of Credit
Commitment Percentage of such Issuing Lender’s liability under such Letter of Credit.
(c) Notice by Issuing Lender of Drawings. Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment under such Letter of Credit, the relevant Issuing Lender
shall promptly notify the Borrowers (through the Administrative Agent) of the amount to be
paid by such Issuing Lender as a result of such demand and the date on which payment is
to be made by such Issuing Lender to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Letter of Credit, the Borrowers
hereby jointly and severally unconditionally agree to pay and reimburse the Administrative
Agent for the account of the relevant 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 such Issuing
Lender to the beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind.
(d) Notice by the Borrowers of Borrowing for Reimbursement. Forthwith upon its receipt of a
notice referred to in paragraph (c) of this Section 2.03, the Borrowers shall advise the
Administrative Agent whether or not the Borrowers intend to borrow hereunder to finance their
obligation to reimburse such Issuing Lender for the amount of the related demand for
payment and, if they do, submit a notice of such borrowing as provided in Section 4.05
hereof.
(e) Payments by Lenders to Issuing Lender. Each Revolving Credit Lender and each Incremental
Facility Revolving Credit Lender (other than the relevant Issuing Lender), as applicable,
shall pay to the Administrative Agent for the account of such Issuing Lender at its
principal office in Dollars and in immediately available funds, the amount of such Lender’s
Letter of Credit Commitment Percentage of any payment under a Revolving Letter of Credit or
Incremental Facility Letter of Credit, as applicable, upon notice by such Issuing Lender
(through the Administrative Agent) to such Lender
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requesting such payment and specifying such amount. Each such Lender’s
obligation to make such payment to the Administrative Agent for the account of such Issuing
Lender under this paragraph (e), and such 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 Lender to make its payment
under this paragraph (e), the financial condition of the Borrowers (or any other account
party), the existence of any Default or the termination of the Commitments. Each such payment
to any Issuing Lender shall be made without any offset, abatement, withholding or reduction
whatsoever. If any
Revolving Credit Lender or Incremental Facility Revolving Credit Lender shall default in
its obligation to make any such payment to the Administrative Agent for the account of an
Issuing Lender, for so long as such default shall continue the Administrative Agent may at
the request of such Issuing Lender withhold from any payments received by the
Administrative Agent under this Agreement for the account of such Lender the amount so in
default and, to the extent so withheld, pay the same to such Issuing Lender in satisfaction
of such defaulted obligation.
(f) Participations in Reimbursement Obligations. Upon the making of each payment by a Lender
to an 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, such Issuing Lender or such Lender, acquire (i) a participation in an amount
equal to such payment in the Reimbursement Obligation owing to such Issuing Lender by the
Borrowers hereunder and under the Letter of Credit Documents relating to such Letter of
Credit and (ii) a participation in a percentage equal to such Lender’s Letter of Credit
Commitment Percentage in any interest or other amounts payable by the Borrowers hereunder and
under such Letter of Credit Documents in respect of such Reimbursement Obligation
(other than the commissions, charges, costs and expenses payable to such Issuing Lender
pursuant to paragraph (g) of this Section 2.03). Upon receipt by an Issuing Lender from or for
the account of the Borrowers of any payment in respect of any Reimbursement Obligation or any
such interest or other amount (including by way of setoff or application of proceeds of
any collateral security) such Issuing Lender shall promptly pay to the Administrative Agent
for the account of each Lender entitled thereto, such Lender’s Letter of Credit Commitment
Percentage of such payment, each such payment by such Issuing Lender to be made in the same
money and funds in which received by such Issuing Lender. In the event any payment
received by an Issuing Lender and so paid to a Lender hereunder is rescinded or must
otherwise be returned by such Issuing Lender, such Lender shall, upon the request of such
Issuing Lender (through the Administrative Agent), repay to such 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) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the
account of each Revolving Credit Lender or Incremental Facility Revolving Credit Lender
(ratably in accordance with their respective Letter of Credit Commitment
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Percentages) a letter of credit fee in respect of each Revolving Credit
Letter of Credit or Incremental Facility Letter of Credit, as applicable, in an amount equal
to the Applicable Margin, in effect from time to time, for Revolving Credit Loans or
Incremental Facility Revolving Credit Loans of the respective Series, as applicable, that are
Eurodollar Loans on the daily average undrawn face amount of such Letter of Credit for the
period from and including the date of issuance of such Letter of Credit (i) in the case
of a Letter of Credit that expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of
Credit that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such Letter of Credit is
drawn in full or is terminated (such fee to be non-refundable, to be paid in arrears not
later than the third Business Day following each Quarterly Date and on the Revolving Credit
Commitment Termination Date (or, as applicable, the commitment termination date for the
Incremental Facility Revolving Credit Commitments of the relevant Series) and to be
calculated for any day after giving effect to any payments made under such Letter of Credit
on such day).
In addition, the Borrowers shall pay to the Administrative Agent for the account of the
relevant Issuing Lender a fronting fee in respect of each Letter of Credit issued by such
Issuing Lender 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 not later than the
third Business Day following each Quarterly Date and on the Revolving Credit Commitment
Termination Date or, as applicable, the commitment termination date for the Incremental
Facility Revolving Credit Commitments of the relevant Series, 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 such
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) Information Provided by Issuing Lender. Promptly following the end of each calendar
month, the Issuing Lenders shall deliver (through the Administrative Agent) to each Revolving
Credit Lender or Incremental Facility Revolving Credit Lender, as applicable, and the
Borrowers a notice describing the aggregate amount of all Letters of Credit outstanding
at the end of such month. Upon the request of any Lender from time to time, the Issuing
Lenders shall deliver any other information reasonably requested by such Lender with respect
to each Letter of Credit then outstanding in which such Lender holds a Letter of Credit
Interest.
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(i) Conditions Precedent to Issuance. The issuance by any 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 such
Issuing Lender consistent with its then current practices and procedures with respect to
letters of credit of the same type and (ii) the Borrowers shall have executed and delivered
such applications, agreements and other instruments relating to such Letter of Credit as such
Issuing Lender shall have reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type, provided that in the
event of any conflict between any such application, agreement or other instrument and the
provisions of this Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) Interest Payable to Issuing Lender by Lenders. 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 relevant 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 such 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) Modifications and Supplements. The issuance by an 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) the Majority Lenders of
the applicable Class shall have consented thereto.
(l) Existing Letters of Credit. To the extent that on the Closing Date any “Letters of
Credit” under and as defined in the Existing
Credit Agreements shall be outstanding then, on
the Closing Date, subject to the satisfaction of the conditions precedent set forth in
Section 6 hereof, each of such “Letters of Credit” shall automatically, and without any
action on the part of any Person, become a Letter of Credit hereunder, and JPMCB, as the
“Issuing Lender” under the Existing Credit Agreements, hereby unconditionally releases each
“Revolving Credit Lender” under the Existing Credit Agreements from any liability under such
“Revolving Credit Lender’s” participation in respect of such “Letter of Credit”.
The
Borrowers hereby indemnify and hold harmless each Lender and the Administrative Agent from and
against any and all claims and damages, losses, liabilities, costs or expenses that such
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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 any Issuing Lender under any
Letter of Credit; provided that the Borrowers shall not be required to indemnify any Lender or the
Administrative Agent for any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (x) the willful misconduct or gross negligence of any 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 any Issuing Lender, such Lender’s failure to pay under any
Letter of Credit after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended to limit the other
obligations of the Borrowers, any Lender or the Administrative Agent under this Agreement.
2.04 Changes of Commitments.
(a) Optional Reductions of Commitments. The Borrowers shall have the right at any time or from time
to time (i) so long as no Revolving Credit Loans or Letter of Credit Liabilities in respect of
Revolving Credit Letters of Credit are outstanding, to terminate the Revolving Credit Commitments,
(ii) so long as no Incremental Facility Revolving Credit Loans or Incremental Facility Letters of
Credit of a Series are outstanding, to terminate the Incremental Facility Commitments of such
Series and (iii) to reduce the aggregate unused amount of the Revolving Credit Commitments or
Incremental Facility Revolving Credit Commitments of any Series (for which purpose use of such
Commitments shall be deemed to include the aggregate amount of Letter of Credit Liabilities in
respect of Letters of Credit issued under such Commitments); provided that (x) the Borrowers shall
give notice of each such termination or reduction as provided in Section 4.05 hereof, (y) each
partial reduction shall be in an aggregate amount at least equal to $1,000,000 (or a larger
multiple of $500,000) and (z) each such reduction of Commitments shall be applied ratably to the
Commitments of each Class.
(b) Mandatory Reductions or Terminations of Commitments. Unless previously terminated, the
aggregate amount of the Revolving Credit Commitments shall terminate on the Revolving Credit
Commitment Termination Date. In the event that the Tranche A Term Loan Commitments are not fully
drawn on the Tranche A Term Loan Commitment Expiration Date, then on such date the full aggregate
amount of the Tranche A Term Loan Commitments shall be terminated. In the event that the Tranche B
Term Loan Commitments are not fully drawn on the Closing Date as provided in Section 2.01(c)
hereof, then on such date the full aggregate amount of the Tranche B Term Loan Commitments shall be
terminated. The aggregate amount of the Incremental Facility Commitments of any Series shall be
automatically reduced to zero on the date specified at the time the Incremental Facility
Commitments of such Series are established.
(c) No Reinstatement. The Commitments once terminated or reduced may not be reinstated.
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2.05 Commitment Fee. The Borrowers shall pay to the Administrative Agent for the 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 in respect of Revolving Credit Letters of Credit 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 to (x) 5/8 of 1% at any time the then-current Rate Ratio (determined pursuant to Section 3.03
hereof) is greater than 3.00 to 1 and (y) 1/2 of 1% at any time the then-current Rate Ratio (so
determined) is equal to or less than 3.00 to 1, provided that for the period from the Closing Date
to the day prior to the first Quarterly Date occurring thereafter, such commitment fee shall be
determined based upon the certificate delivered pursuant to Section 6.01(l) hereof. The Borrowers
shall pay to the Administrative Agent for the account of each Incremental Facility Lender of any
Series a commitment fee in such amounts, and on such dates, as shall have been agreed to by the
Borrowers and such Incremental Facility Lender upon the establishment of the Incremental Facility
Commitment of such Series to such Lender pursuant to Section 2.01(d) hereof. Accrued commitment fee
shall be payable not later than the third Business Day following 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 Commitments of such Series terminate, 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.
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2.08 Loan Accounts; Promissory Notes.
(a) Maintenance of Records by Lenders. Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender to the Borrowers, including the amounts of principal
and interest payable and paid to such Lender by the Borrowers from time to time hereunder.
(b) Maintenance of Records by the Administrative Agent. The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of each Loan made hereunder to the
Borrowers, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from the Borrowers to
each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrowers for the account of the Lenders and each Lender’s share thereof.
(c) Effect of Entries. The entries made in the accounts maintained pursuant to paragraph (a)
or (b) of this Section 2.08 shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this Agreement.
(d) Promissory Notes. Any Lender may request that Loans of any Class made by it to the
Borrowers be evidenced by a promissory note. In such event, the Borrowers shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans of the Borrowers evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 11.06 hereof)
be represented by one or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
2.09 Optional Prepayments and Conversions or Continuations of Loans. Subject to Section 4.04
hereof, the Borrowers shall have the right to prepay Loans, or to Convert Loans of one Type into
Loans of another Type or Continue Loans of one Type as Loans of the same Type, at any time or from
time to time, provided that:
(a) the Borrowers shall give the Administrative Agent notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 hereof (and, upon the date specified
in any such notice of prepayment, the amount to be prepaid shall become due and payable
hereunder);
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(b) Eurodollar Loans may be prepaid or Converted at any time from time to time, provided
that the Borrowers shall pay any amounts owing under Section 5.05 hereof in the event of any
such prepayment or
Conversion on any date other than the last day of an Interest Period for such Loans;
(c) prepayments of any Class of Term Loans or Incremental Facility Term Loans shall be
applied to the remaining installments of such Loans ratably in accordance with the respective
principal amounts thereof; and
(d) any Conversion or Continuation of Eurodollar Loans shall be subject to the
provisions of Section 2.01(e) hereof.
It shall not be necessary in connection with the prepayment of any Class of Term Loans or
Incremental Facility Term Loans that concurrent prepayments be made of any other Class of Loans.
Notwithstanding the foregoing, and without limiting the rights and remedies of the Lenders under
Section 9 hereof, in the event that any Event of Default shall have occurred and be continuing, the
Administrative Agent may (and at the request of the Majority Lenders shall) suspend the right of
the Borrowers to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the respective Interest
Periods therefor) or Continued, as the case may be, as Base Rate Loans.
Notwithstanding the foregoing, any optional prepayment of Tranche B Term Loans effected on or
prior to the first anniversary of the Closing Date with the proceeds of a substantially concurrent
borrowing of Incremental Facility Term Loans under this Agreement (or any other class of term loans
permitted under this Agreement pursuant to an amendment hereto), shall be accompanied by a
prepayment fee equal to 1.00% of the aggregate amount of such prepayment in the event that the
Applicable Margin in respect of such Incremental Facility Term Loans (or other term loans) is less
than the corresponding Applicable Margin in respect of the Tranche B Term Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Casualty Events. Upon the date one year following the receipt by any Borrower or any of
its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect
of any Casualty Event affecting any Property of any of the Borrowers or any of their Subsidiaries
(or upon such earlier date as the Borrowers or any such Subsidiary, as the case may be, shall have
determined not to repair or replace the Property affected by such Casualty Event), the Borrowers
shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (f) below) in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of
such Casualty Event not theretofore applied (or committed to be applied pursuant to executed
construction contracts or equipment orders) to the repair or replacement of such Property, such
prepayment to be effected in each case in the manner and to the extent specified in paragraph (e)
of this Section 2.10. Notwithstanding the foregoing, the
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Borrowers shall not be required to make any prepayment (and/or provide cover for Letter of Credit
Liabilities) under this paragraph (a) until the aggregate
amount of the Net Available Proceeds that must be prepaid under this paragraph (a) exceeds
$20,000,000.
(b) Excess Cash Flow. Not later than the date 150 days after the end of each fiscal year of
the Borrowers (or, if earlier, 30 days after the delivery of the audited financial statements for
such fiscal year pursuant to Section 8.01(b) hereof), commencing with the fiscal year ending on
December 31, 2009, the Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (f) below) 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 Term 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 Term Loans falling due in such fiscal year), such prepayment to
be effected in each case in the manner and to the extent specified in paragraph (e) of this Section
2.10, provided that the provisions of this paragraph (b) shall not be applicable if as at the last
day of such fiscal year the Total Leverage Ratio shall be less than or equal to 4.50 to 1.
(c) Debt Issuances. Upon any Debt Issuance, the Borrowers shall prepay the Loans (and/or
provide cover for Letter of Credit Liabilities as specified in paragraph (f) below) in an aggregate
amount equal to 100% of the Net Available Proceeds thereof, such prepayment to be effected in each
case in the manner and to the extent specified in paragraph (e) of this Section 2.10.
(d) Sale of Assets. Without limiting the obligation of the Borrowers to obtain the consent of
the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted
hereunder, in the event that the Net Available Proceeds of any Disposition (herein, the “Current
Disposition”), and of all prior Dispositions after the date hereof (including amounts which were
set aside for reinvestment pursuant to the second paragraph of this Section 2.10(d) but were not in
fact so reinvested within one year) as to which a prepayment has not yet been made under this
Section 2.10(d), shall exceed $30,000,000 then, no later than five Business Days after the
occurrence of the Current Disposition, the Borrowers will deliver to the Administrative Agent
(which shall promptly provide a copy thereof to the Lenders) a statement, certified by a Senior
Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net
Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay
the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f)
below) in an aggregate amount equal to 100% of the Net Available Proceeds of the Current
Disposition and such prior Dispositions, such prepayment to be effected in each case in the manner
and to the extent specified in paragraph (e) of this Section 2.10.
Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment
pursuant to this paragraph (d) with respect to Net Available Proceeds from any Disposition in the
event that the Borrowers advise the Administrative Agent at the time the Net
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Available Proceeds from such Disposition are received that they intend to reinvest such Net
Available Proceeds in replacement assets pursuant to an Acquisition permitted under Section
8.05(d)(iv) hereof or otherwise as Capital Expenditures permitted under Section 8.12 hereof, so
long as
(x) such Net Available Proceeds are either (i) held by (A) the Administrative Agent or
(B) as permitted under Section 4.01 of the Pledge Agreement, a Qualified Intermediary (as
defined thereunder), in the Collateral Account pending such reinvestment, in which event the
Administrative Agent (or the Qualified Intermediary, as the case may be) need not
release such Net Available Proceeds except upon presentation of evidence satisfactory to it
that such Net Available Proceeds are to be so reinvested in compliance with the provisions of
this Agreement or (ii) applied by the Borrowers to the prepayment of Revolving Credit Loans
hereunder (in which event the Borrowers agree to advise the Administrative Agent in
writing at the time of such prepayment of Revolving Credit Loans that such prepayment is
being made from the proceeds of a Disposition and that, as contemplated by Section 2.01(a)
hereof, a portion of the Revolving Credit Commitments hereunder equal to the amount of such
prepayment gives rise to a Reserved Commitment Amount that shall be available hereunder
only for purposes of making an acquisition under Section 8.05(d)(iv) hereof or making of
Capital Expenditures permitted under Section 8.12 hereof),
(y) the Net Available Proceeds from any Disposition are in fact so reinvested within one
year 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 one year shall be forthwith applied to the prepayment of Loans as provided above and (B)
any Reserved Commitment Amount that remains so unutilized for more than one year shall,
subject to the satisfaction of the conditions precedent to such borrowing in Section 6.02
hereof, be utilized through the borrowing by the Borrowers of Revolving Credit Loans the
proceeds of which shall be applied to the prepayment of Loans as provided in paragraph (e) of
this Section 2.10) and
(z) the aggregate amount of Net Available Proceeds (together with investment earnings
thereon) so held at any time by the Administrative Agent (or the Qualified Intermediary)
pending reinvestment as contemplated by this sentence, together with the aggregate amount of
the Reserved Commitment Amount, shall not at any time exceed $100,000,000 or such
greater amount as the Majority Lenders may otherwise agree.
As contemplated by Section 4.01 of the Pledge Agreement, nothing in this paragraph (d) shall be
deemed to obligate the Administrative Agent to release any of such proceeds from the Collateral
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Account to the Borrowers for purposes of reinvestment as aforesaid upon the occurrence and during
the continuance of any Event of Default.
(e) Application. Prepayments and reductions of Commitments described above in this Section
2.10 shall be applied, first, to the Term Loans and Incremental Facility Term Loans of each Class
then outstanding ratably in accordance with the respective principal amounts of such Loans
outstanding at the time, second, following the prepayment in full of such Loans, to the Revolving
Credit Loans and the Incremental Facility Revolving Credit Loans, without reduction of the
Revolving Credit Commitments or the Incremental Facility Revolving Credit Commitments and, third,
to cover for outstanding Letter of Credit Liabilities as provided in paragraph (f) below, ratably
to Letter of Credit Liabilities under the Revolving Credit Commitments and Incremental Facility
Revolving Credit Commitments of each Series.
(f) Cover for Letter of Credit Liabilities. In the event that the Borrowers shall be required
pursuant to this Section 2.10, to provide cover for Letter of Credit Liabilities, the Borrowers
shall effect the same by paying to the Administrative Agent immediately available funds in an
amount equal to the required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as collateral security in the first instance for the Letter of Credit
Liabilities) until such time as the Letters of Credit shall have been terminated and all of the
Letter of Credit Liabilities paid in full.
(g) Change in Commitments. If at any time either (i) the aggregate outstanding amount of
Revolving Credit Loans and Letter of Credit Liabilities in respect of Revolving Credit Letters of
Credit exceeds the aggregate amount of the Revolving Credit Commitments then in effect, or (ii) the
aggregate outstanding amount of Incremental Facility Revolving Credit Loans of any Series and the
Letter of Credit Liabilities in respect of Incremental Facility Letters of Credit of such Series
exceeds the aggregate amount of the Incremental Facility Revolving Credit Commitments of such
Series, then and in either such event the Borrowers shall prepay such Loans (and/or provide cover
for such Letter of Credit Liabilities as specified in paragraph (f) above) in such amounts as shall
be necessary so that after giving effect to such prepayment (and cover), the aggregate outstanding
amount of such Loans and such Letter of Credit Liabilities does not exceed the aggregate amount of
such Commitments, provided that any such prepayment shall be accompanied by any amounts payable
under Section 5.05 hereof.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) Revolving Credit Loans. The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for the account of each Lender the entire outstanding principal amount of such
Lender’s Revolving Credit Loans, and each Revolving Credit Loan shall mature, on the Revolving
Credit Commitment Termination Date.
-50-
(b) Tranche A Term Loans. The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for the account of the Tranche A Term Loan Lenders the principal of the
Tranche A Term Loans on each Principal Payment Date set forth in column (A) below, by an amount
equal to the percentage of the Tranche A Closing Balance (as defined below) set forth in column (B)
below of the aggregate principal amount of the Tranche A Term Loans:
|
|
|
|
|
(A) |
|
(B) |
Principal Payment Date |
|
Percentage Reduction |
March 31, 2008 |
|
|
2.50 |
% |
June 30, 2008 |
|
|
2.50 |
% |
September 30, 2008 |
|
|
2.50 |
% |
December 31, 2008 |
|
|
2.50 |
% |
|
|
|
|
|
March 31, 2009 |
|
|
3.00 |
% |
June 30, 2009 |
|
|
3.00 |
% |
September 30, 2009 |
|
|
3.00 |
% |
December 31, 2009 |
|
|
3.00 |
% |
|
|
|
|
|
March 31, 2010 |
|
|
6.25 |
% |
June 30, 2010 |
|
|
6.25 |
% |
September 30, 2010 |
|
|
6.25 |
% |
December 31, 2010 |
|
|
6.25 |
% |
|
|
|
|
|
March 31, 2011 |
|
|
6.50 |
% |
June 30, 2011 |
|
|
6.50 |
% |
September 30, 2011 |
|
|
6.50 |
% |
December 31, 2011 |
|
|
6.50 |
% |
|
|
|
|
|
March 31, 2012 |
|
|
9.00 |
% |
June 30, 2012 |
|
|
9.00 |
% |
September 30, 2012 |
|
|
9.00 |
% |
For purposes hereof, the “Tranche A Closing Balance” shall mean the aggregate principal amount
of the Tranche A Term Loans outstanding hereunder on the close of business on the Tranche A Term
Loan Commitment Expiration Date.
(c) Tranche B Term Loans. The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for the account of the Tranche B Term Loan Lenders the principal of the
Tranche B Term Loans on each Principal Payment Date set forth in column (A) below, by an amount
equal to the percentage of the Tranche B Closing Balance (as
-51-
defined below) set forth in column (B) below of the aggregate principal amount of the Tranche B
Term Loans:
|
|
|
|
|
(A) |
|
(B) |
Principal Payment Date |
|
Percentage Reduction |
March 31, 2005 |
|
|
0.25 |
% |
June 30, 2005 |
|
|
0.25 |
% |
September 30, 2005 |
|
|
0.25 |
% |
December 31, 2005 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2006 |
|
|
0.25 |
% |
June 30, 2006 |
|
|
0.25 |
% |
September 30, 2006 |
|
|
0.25 |
% |
December 31, 2006 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2007 |
|
|
0.25 |
% |
June 30, 2007 |
|
|
0.25 |
% |
September 30, 2007 |
|
|
0.25 |
% |
December 31, 2007 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2008 |
|
|
0.25 |
% |
June 30, 2008 |
|
|
0.25 |
% |
September 30, 2008 |
|
|
0.25 |
% |
December 31, 2008 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2009 |
|
|
0.25 |
% |
June 30, 2009 |
|
|
0.25 |
% |
September 30, 2009 |
|
|
0.25 |
% |
December 31, 2009 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2010 |
|
|
0.25 |
% |
June 30, 2010 |
|
|
0.25 |
% |
September 30, 2010 |
|
|
0.25 |
% |
December 31, 2010 |
|
|
0.25 |
% |
|
|
|
|
|
March 31, 2011 |
|
|
0.25 |
% |
June 30, 2011 |
|
|
0.25 |
% |
September 30, 2011 |
|
|
0.25 |
% |
December 31, 2011 |
|
|
0.25 |
% |
-52-
|
|
|
|
|
(A) |
|
(B) |
Principal Payment Date |
|
Percentage Reduction |
March 31, 2012 |
|
|
0.25 |
% |
June 30, 2012 |
|
|
0.25 |
% |
September 30, 2012 |
|
|
0.25 |
% |
December 31, 2012 |
|
|
0.25 |
% |
|
March 31, 2013 |
|
|
92.00 |
% |
For purposes hereof, the “Tranche B Closing Balance” shall mean the aggregate principal amount
of the Tranche B Term Loans outstanding hereunder on the close of business on the Closing Date.
(d) Incremental Facility Revolving Credit Loans. The Borrowers hereby jointly and severally
promise to pay to the Administrative Agent for the
account of each Lender the entire outstanding principal amount of such Lender’s Incremental
Facility Revolving Credit Loans of any Series, and each Incremental Facility Revolving Credit Loan
of such Series shall mature, on the commitment termination date for such Series specified pursuant
to Section 2.01(d) hereof at the time the respective Incremental Facility Revolving Credit
Commitments of such Series are established.
(e) Incremental Facility Term Loans. The Borrowers hereby jointly and severally promise to pay
to the Administrative Agent for the account of the Incremental Facility Term Lenders of any Series
the principal of the Incremental Facility Term Loans of such Series on the respective Principal
Payment Dates agreed upon between the Borrowers and such Incremental Facility Term Lenders pursuant
to Section 2.01(d) hereof at the time such Lenders become obligated to make such Incremental
Facility Term Loans hereunder.
3.02 Interest. The Borrowers hereby jointly and severally promise to pay to the Administrative
Agent for the account of each Lender interest on the unpaid principal amount of each Loan made by
such Lender for the period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) plus the Applicable Margin and
(b) during such periods as such Loan is a Eurodollar Loan, for each Interest Period
relating thereto, the Eurodollar Rate for such Loan for such Interest Period plus the
Applicable Margin.
Notwithstanding the foregoing, the Borrowers jointly and severally promise to pay to the
Administrative Agent for the account of each Lender interest at the applicable Post-Default Rate on
any principal of any Loan made by such Lender, on any Reimbursement Obligation held by such Lender
and on any other amount payable by the Borrowers hereunder to or for the account of such Lender,
that shall not be paid in full when due (whether at stated maturity, by
-53-
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 not later than the third Business Day
following the Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three months, at three-month
intervals following the first day of such Interest Period, (iii) in the case of any Eurodollar
Loan, upon the payment, prepayment or Conversion thereof (but only on the principal amount so paid,
prepaid or Converted) and (iv) in the case of all Loans, upon the payment or prepayment in full of
the principal of the Loans, and the termination of the Commitments, hereunder, except that interest
payable at the Post-Default Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Lenders to which such interest is payable and to the
Borrowers.
3.03 Determination of Applicable Margin.
(a) Determinations Generally. The Applicable Margin for the period from the Closing Date to
the day prior to the Quarterly Date falling on or nearest to December 31, 2004 shall be determined
as provided in the definition of “Applicable Margin.” Thereafter, the Applicable Margin for each
Quarterly Payment Period shall be determined based upon a Rate Ratio Certificate for such Quarterly
Payment Period delivered by the Borrowers to the Administrative Agent under this Section 3.03. If
the Rate Ratio Certificate for any Quarterly Payment Period is delivered to the Administrative
Agent (which shall promptly provide a copy thereof to the Lenders) 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) Effectiveness of Adjustments. If the Rate Ratio Certificate for any Quarterly Payment
Period is delivered by the Borrowers to the Administrative Agent later than three days prior to the
commencement of such Quarterly Payment Period, then (i) any decrease in the Applicable Margin for
such Quarterly Payment Period shall not become effective on the first day of such Quarterly Payment
Period but shall instead become effective on the third day following receipt by the Administrative
Agent of such Rate Ratio Certificate and (ii) any increase in the Applicable Margin for such
Quarterly Payment Period shall become effective retroactively from the first day of such Quarterly
Payment Period.
(c) Retroactive Adjustments. 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 (solely with
respect to such Quarterly Payment Period or Periods), effective retroactively from the first day of
such Quarterly Payment Period, provided that in the event such certificate for any
-54-
fiscal quarter is not delivered pursuant to said Section 8.01 within 60 days of the end of such
fiscal quarter, then, unless the Borrowers shall deliver such certificate within 10 days after
notice of such non-delivery shall be given by any Lender or the Administrative Agent to the
Borrowers, the Applicable Margin for such Quarterly Payment Period shall be deemed to be the
highest Applicable Margin provided for in the definition of such term in Section 1.01 hereof.
(d) Recalculation of Interest. In the event of any retroactive increase in the Applicable
Margin for any Quarterly Payment Period pursuant to paragraph (a), (b) or (c) above, the amount of
interest in respect of any Loan outstanding during all or any portion of such Quarterly Payment
Period shall be recalculated using the Applicable Margin as so increased. On the Business Day
immediately following receipt by the Borrowers of notice from the Administrative Agent of such
increase, the Borrowers shall pay to the Administrative Agent, for the account of the Lenders, an
amount equal to the difference between (i) the
amount of interest previously paid or payable by the Borrowers in respect of such Loan for such
Quarterly Payment Period and (ii) the amount of interest in respect of such Loan as so recalculated
for such Quarterly Payment Period.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Payments by the Borrowers. Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by the Borrowers under
this Agreement, and except to the extent otherwise provided therein, all payments to be made by the
Borrowers under any other Loan Document shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent at an account designated by
the Administrative Agent to the Borrowers, not later than 1:00 p.m.
New York time on the date on
which such payment shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
(b) Debit for Payment. Any Lender for whose account any such payment is to be made may (but
shall not be obligated to) debit the amount of any such payment that is not made by such time to
any ordinary deposit account of the Borrowers with such Lender (with notice to the Borrowers and
the Administrative Agent), provided that such Lender’s failure to give such notice shall not affect
the validity thereof.
(c) Application of Payments. The Borrowers shall, at the time of making each payment under
this Agreement for the account of any Lender, specify to the Administrative Agent (which shall so
notify the intended recipient(s) thereof) the Loans, Reimbursement Obligations or other amounts
payable by the Borrowers hereunder to which such payment is to be applied (and in the event that
the Borrowers fail to so specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the
-55-
Lenders for application in such manner as it or the Majority Lenders, subject to Section 4.02
hereof, may determine to be appropriate).
(d) Forwarding of Payments by Administrative Agent. 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 the account of any Lender shall be paid by the Administrative Agent
promptly to such Lender, in immediately available funds, for the account of such Lender’s
Applicable Lending Office for the Loan or other obligation in respect of which such payment is
made.
(e) Extensions to Next Business Day. If the due date of any payment under this Agreement would
otherwise fall on a day that is not a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any principal so extended for the period
of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing of Loans of a particular Class (including of a particular Series of
Incremental Facility Loans) from the Lenders under Section 2.01 hereof shall be made from the
relevant Lenders, each payment of commitment fee under Section 2.05 hereof in respect of
Commitments of a particular Class shall be made for the 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, Tranche A Term Loan, Tranche B 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 Loans, Tranche A Term
Loans, Tranche B Term Loans and Incremental Facility Loans by the Borrowers shall be made for
the 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 Loans, Tranche A Term Loans, Tranche B
Term Loans and Incremental Facility Loans by the Borrowers shall be
-56-
made for the 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 mandatory prepayments of Term Loans or Incremental Facility Term Loans, as to which the
provisions of Section 2.10 hereof shall apply) shall be in an aggregate amount at least equal to
$1,000,000 or a larger multiple of $500,000 and each borrowing, Conversion and partial prepayment
of Eurodollar Loans (other than prepayments of Term Loans, as to which the provisions of Section
2.09(c) hereof shall apply) shall be in an aggregate amount at least equal to $3,000,000 or a
larger multiple of $1,000,000 (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of Eurodollar Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period). If any Eurodollar Loans would otherwise be in a
lesser principal amount for any period, such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Borrowers to the Administrative Agent of terminations or
reductions of the Commitments, of borrowings, Conversions, Continuations and optional prepayments
of Loans and of Classes of Loans, of Types of Loans and of the duration of Interest Periods shall
be irrevocable and shall be effective only if received by the Administrative Agent not later than
(a) with respect to same day borrowings or prepayments of Base Rate Loans, 11:00 a.m. New York time
on the date of the relevant borrowing or prepayment and (b) with respect to borrowings other than
same-day Base Rate Loans or prepayments of Loans other than Base Rate Loans, 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:
-57-
|
|
|
|
|
|
|
Number of |
|
|
Business |
Notice |
|
Days Prior |
Termination or reduction of Commitments |
|
|
3 |
|
Borrowing of same day Base Rate Loans
and prepayment of Base Rate Loans |
|
same day |
Borrowing of non-same day Base Rate Loans |
|
|
1 |
|
Conversions into Base Rate Loans |
|
|
1 |
|
Borrowing or prepayment of, Conversions
into, Continuations as, or duration of
Interest Period for,
Eurodollar Loans |
|
|
3 |
|
Each such notice of termination or reduction shall specify the amount and the Class of the
Commitments to be terminated or reduced. Each such notice of borrowing, Conversion, Continuation or
optional prepayment shall specify the
Class of Loans (including, if applicable, the particular Series of Incremental Facility Loans) to
be borrowed, Converted, Continued or prepaid and the amount (subject to Section 4.04 hereof) and
Type of each Loan to be borrowed, Converted, Continued or prepaid and the date of borrowing,
Conversion, Continuation or optional prepayment (which shall be a Business Day). Each such notice
of the duration of an Interest Period shall specify the Loans to which such Interest Period is to
relate.
The Administrative Agent shall promptly notify the Lenders of the contents of each such
notice. In the event that the Borrowers fail to select the Type of Loan, or the duration of any
Interest Period for any Eurodollar Loan, within the time period and otherwise as provided in this
Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be automatically Converted into
a Base Rate Loan on the last day of the then current Interest Period for such Loan or (if
outstanding as a Base Rate Loan) will remain as, or (if not then outstanding) will be made as, a
Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the Administrative Agent shall
have been notified by a Lender or the Borrowers (the “Payor”) prior to the date on which the Payor
is to make payment to the Administrative Agent of (in the case of a Lender) the proceeds of a Loan
to be made by such Lender hereunder or (in the case of the Borrowers) a payment to the
Administrative Agent for the account of one or more of the Lenders
-58-
hereunder (such payment being herein called the “Required Payment”), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required Payment has been made
and may, in reliance upon such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment shall, on demand,
repay to the Administrative Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date (the “Advance Date”) such amount was
so made available by the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if such recipient(s)
shall fail promptly to make such payment, the Administrative Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest as aforesaid, provided that if
neither the recipient(s) nor the Payor shall return the Required Payment to the Administrative
Agent within three Business Days of the Advance Date, then, retroactively to the Advance Date, the
Payor and the recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be made by the Borrowers to the
Lenders, the Borrowers and the recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of the Borrowers under Section 3.02 hereof to
pay interest on the Required Payment at the Post-Default Rate), it being understood that the
return by the recipient(s) of the Required
Payment to the Administrative Agent shall not limit such obligation of the Borrowers under
said Section 3.02 to pay interest at the Post-Default Rate in respect of the Required Payment
and
(ii) if the Required Payment shall represent proceeds of a Loan to be made by the
Lenders to the Borrowers, the Payor and the Borrowers shall each be obligated retroactively
to the Advance Date to pay interest in respect of the Required Payment pursuant to whichever
of the rates specified in Section 3.02 hereof is applicable to the Type of such Loan,
it being understood that the return by the Borrowers of the Required Payment to the
Administrative Agent shall not limit any claim the Borrowers may have against the Payor in
respect of such Required Payment.
4.07 Sharing of Payments, Etc.
(a) Right of Set-off. Each Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker’s lien or counterclaim a Lender may otherwise have, each Lender shall
be entitled, at its option (to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or other indebtedness, held by
it for the credit or account of such Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender’s Loans,
-59-
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 such Borrower),
in which case it shall promptly notify such Borrower and the Administrative Agent thereof, provided
that such Lender’s failure to give such notice shall not affect the validity thereof.
(b) Sharing. If any Lender shall obtain from any Borrower payment of any principal of or
interest on any Loan or Letter of Credit Liability of any Class owing to it or payment of any other
amount under this Agreement or any other Loan Document through the exercise of any right of
set-off, banker’s lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on the Loans or Letter of Credit
Liabilities of any Class or such other amounts then due hereunder or thereunder by such Borrower to
such Lender than the percentage received by any other Lender, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans or Letter of Credit Liabilities of any Class or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be equitable, to the end that
all the Lenders shall share the benefit of such excess payment (net of any expenses that may be
incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with
the unpaid principal of and/or interest on the Loans or Letter of Credit Liabilities of any Class
or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders
shall
make appropriate adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) Consent by the Borrowers. Each Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker’s lien, counterclaim
or similar rights with respect to such participation as fully as if such Lender were a direct
holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such
participation.
(d) Rights of Lenders; Bankruptcy. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or obligation of the
Borrowers. If, under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a set-off to which this Section 4.07 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits
of any recovery on such secured claim.
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Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) Costs of Making or Maintaining Eurodollar Loans. The Borrowers shall pay directly to each
Lender from time to time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its making or maintaining
of any Eurodollar Loans or its obligation to make any Eurodollar Loans hereunder, or any reduction
in any amount receivable by such Lender hereunder in respect of any of such Loans or such
obligation (such increases in costs and reductions in amounts receivable being herein called
“Additional Costs”), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for any of such Loans) to
any tax, duty or other charge in respect of such Loans or changes the basis of taxation of
any amounts payable to such Lender under this Agreement in respect of any of such Loans
(excluding changes in the rate of tax on the overall net income of such Lender or of
such Applicable Lending Office by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar requirements (other
than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such
Loan) relating to any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such Loans or any
deposits referred to in the definition of “Eurodollar Base Rate” in Section 1.01 hereof), or
any commitment of such Lender (including, without limitation, the Commitments of such Lender
hereunder); or
(iii) imposes any other condition affecting this Agreement (or any of such extensions of
credit or liabilities) or its Commitments.
If any Lender requests compensation from the Borrowers under this Section 5.01(a), the Borrowers
may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of
such Lender thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into
Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be applicable), provided that such
suspension shall not affect the right of such Lender to receive the compensation so requested.
(b) Capital Costs. Without limiting the effect of the foregoing provisions of this Section
5.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time
on request such amounts as such Lender may determine to be necessary to compensate such Lender (or,
without duplication, the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by
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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) Notification and Certification. Each Lender shall notify the Borrowers of any event
occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of
this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender
obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within
45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such
event, only be entitled to payment under this Section 5.01 for costs incurred from and after the
date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender affected by such event
if such designation will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to
designate an Applicable Lending Office located in the United States of America. Each Lender will
furnish to the Borrowers a certificate setting forth the basis and amount of each request by such
Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and
allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary notwithstanding, if, on or
prior to the determination of any Eurodollar Base Rate for any Interest Period:
(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
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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 of a particular Class, the Majority Lenders of such Class
determine, which determination shall be conclusive, and notify the Administrative Agent that
the relevant rates of interest referred to in the definition of “Eurodollar Base Rate” in
Section 1.01 hereof upon the basis of which the rate of interest for Eurodollar Loans
for such Interest Period is to be determined are not likely adequately to cover the cost to
such Lenders of making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrowers and each Lender prompt notice thereof and,
so long as such condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base Rate Loans into
Eurodollar Loans, and the Borrowers shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans into
Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this Agreement, in the event that it
becomes unlawful for any Lender or its Applicable Lending Office to honor its obligation to make or
maintain Eurodollar Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender), then such Lender shall promptly notify the Borrowers thereof (with
a copy to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert
Loans of any other Type
into, Eurodollar Loans shall be suspended until such time as such Lender may again make and
maintain Eurodollar Loans (in which case the provisions of Section 5.04 hereof shall be
applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to make Eurodollar Loans of
any Class or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans of any Class shall
be suspended pursuant to Section 5.01 or 5.03 hereof, such Lender’s Eurodollar Loans of such Class
shall be automatically Converted into Base Rate Loans of such Class on the last day(s) of the then
current Interest Period(s) for Eurodollar Loans (or, in the case of a Conversion resulting from a
circumstance described in Section 5.03 hereof, on such earlier date as such Lender may specify to
the Borrowers with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender’s Eurodollar Loans of such Class have been so
Converted, all payments and prepayments of principal that would otherwise be applied to such
Lender’s Eurodollar Loans of such Class shall be applied instead to its Base Rate Loans of
such Class; and
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(b) all Loans of such Class that would otherwise be made or Continued by such Lender as
Eurodollar Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate
Loans of such Class of such Lender that would otherwise be Converted into Eurodollar Loans
shall remain as Base Rate Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative Agent that the
circumstances specified in Section 5.01 or 5.03 hereof that gave rise to the Conversion of such
Lender’s Eurodollar Loans pursuant to this Section 5.04 no longer exist (which such Lender agrees
to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Loans of the
same Class made by other Lenders are outstanding, such Lender’s Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such
outstanding Eurodollar Loans, to the extent necessary so that, after giving effect thereto, all
Base Rate and Eurodollar Loans of such Class are allocated among the Lenders ratably (as to
principal amounts, Types and Interest Periods) in accordance with their respective Commitments of
such Class.
5.05 Compensation. The Borrowers shall pay to the Administrative Agent for the account of each
Lender, upon the request of such Lender through the Administrative Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost
or expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a Eurodollar Loan
made by such Lender for any reason (including, without limitation, the acceleration of the
Loans pursuant to Section 9 hereof) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrowers for any reason (including, without limitation, the
failure of any of the conditions precedent specified in Section 6 hereof to be satisfied) to
borrow a Eurodollar Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof.
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).
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5.06 Additional Costs in Respect of Letters of Credit. Without limiting the obligations
of the Borrowers under Section 5.01 hereof (but without duplication), if as a result of any
Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter
issued by any government or governmental or supervisory authority implementing at the national
level the Basle Accord there shall be imposed, modified or deemed applicable any tax, reserve,
special deposit, capital adequacy or similar requirement against or with respect to or measured by
reference to Letters of Credit issued or to be issued hereunder and the result shall be to increase
the cost to any Lender or Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of Credit hereunder or
reduce any amount receivable by any Lender hereunder in respect of any Letter of Credit (which
increases in cost, or reductions in amount receivable, shall be the result of such Lender’s or
Lenders’ reasonable allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative Agent), the
Borrowers shall pay immediately to the Administrative Agent for the account of such Lender or
Lenders, from time to time as specified by such Lender or Lenders (through the Administrative
Agent), such additional amounts as shall be sufficient to compensate such Lender or Lenders
(through the Administrative Agent) for such increased costs or reductions in amount. A statement as
to such increased costs or reductions in amount incurred by any such Lender or Lenders, submitted
by such Lender or Lenders to the Borrowers shall be conclusive in the absence of manifest error as
to the amount thereof.
5.07 U.S. Taxes.
(a) Gross-up for Deduction or Withholding of U.S. Taxes. The Borrowers jointly and severally
agree to pay to each Lender that is not a U.S. Person such additional amounts as are necessary in
order that the payment of any amount due to such Lender hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such payment 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) (A) to any payment to any Lender that is a “bank” within the meaning of Section
881(c)(3)(A) of the Code unless such Lender is, on the date hereof (or on the date it becomes a
Lender hereunder as provided in Section 11.06 hereof) and on the date of any change in the
Applicable Lending Office of such Lender, either entitled to submit a Form W-8BEN claiming complete
exemption from withholding of U.S. Taxes with respect to any payment of interest to be received by
it hereunder in respect of the Loans under an income tax convention or a Form W-8ECI claiming a
complete exemption from withholding of U.S. Taxes on income effectively connected to a U.S. trade
or business, or (B) to any payment to any Lender that is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code unless such Lender is, on the date hereof (or on the date it becomes a
Lender hereunder as provided in Section 11.06 hereof) entitled to submit a Form W-8BEN claiming a
complete exemption from withholding of U.S. Taxes under
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Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, or is
entitled to the withholding exemptions set forth in clause (A) above; or
(ii) to any U.S. Taxes imposed solely by reason of the failure by a Lender (or, if such Lender is
not the beneficial owner of the relevant Loan, such beneficial owner) to properly complete, duly
execute and 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 Lender (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.
In addition, if a Lender or the Administrative Agent receives a refund in respect of any U.S. Taxes
as to which a Lender or the Administrative Agent has been indemnified by a Borrower pursuant to
this Section 5.07(a), such Lender or the Administrative Agent shall, within 30 days from the date
of receipt of such refund, pay over such refund to such Borrower.
For the purposes of this Section 5.07(a), (A) “Form W-8BEN” shall mean Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding) of the
Department of the Treasury of the United States of America and (B) “Form W-8ECI” shall mean Form
W-8ECI (Certificate of Foreign Person’s Claim for Exemption from Withholding on Income Effectively
Connected with the Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form such successor and
related forms (including Form W-8IMY or Form W-8EXP) as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim to which such Form
relates).
(b) Evidence of Deduction, Etc. Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or withholding, and
within 30 days after it is required by law to remit such deduction or withholding to any relevant
taxing or other authority, the Borrowers shall deliver to the Administrative Agent for delivery to
such Lender evidence satisfactory to such Lender of such deduction or withholding (as the case may
be).
5.08 Replacement of Lenders. If any Lender or the Administrative Agent on behalf of any Lender
requests compensation pursuant to Section 5.01, 5.06 or 5.07 hereof, or any Lender’s obligation to
make or Continue, or to Convert Loans of any Type into, the other Type of Loan shall be suspended
pursuant to Section 5.01 or 5.03 hereof (any such Lender requesting such compensation being herein
called a “Requesting Lender”), the Borrowers, upon three Business Days notice, may require that
such Requesting Lender transfer all of its right, title and interest under this Agreement to any
bank or other financial institution (a “Proposed Lender”) identified by the Borrowers that is
reasonably satisfactory to the Administrative Agent (i) if such Proposed Lender agrees to assume
all of the obligations of such Requesting Lender hereunder, and to purchase all of such Requesting
Lender’s Loans hereunder for consideration equal to the
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aggregate outstanding principal amount of such Requesting Lender’s Loans, together with
interest thereon to the date of such purchase, and satisfactory arrangements are made for payment
to such Requesting Lender of all other amounts payable hereunder to such Requesting Lender on or
prior to the date of such transfer (including any fees accrued hereunder and any amounts that would
be payable under Section 5.05 hereof, as if all of such Requesting Lender’s Loans were being
prepaid in full on such date) and (ii) if such Requesting Lender has requested compensation
pursuant to said Section 5.01, 5.06 or 5.07 hereof, such Proposed Lender’s aggregate requested
compensation, if any, pursuant to said Section 5.01, 5.06 or 5.07 with respect to such Requesting
Lender’s Loans is lower than that of the Requesting Lender. Subject to the provisions of Section
11.06(b) hereof, such Proposed Lender shall be a “Lender” for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrowers hereunder the agreements of the
Borrowers contained in Sections 5.01, 5.06, 5.07 and 11.03 hereof (without duplication of any
payments made to such Requesting Lender by the Borrowers or the Proposed Lender) shall survive for
the benefit of such Requesting Lender under this Section 5.08 with respect to the time prior to
such replacement.
Section 6. Conditions Precedent.
6.01 Initial Extension of Credit. The obligation of any Lender to make its initial extension
of credit hereunder (whether by making a Loan or issuing a Letter of Credit) is subject to the
conditions precedent that (i) such extension
of credit shall occur on or before November 30, 2004 and (ii) the Administrative Agent shall have
received the following documents (with, in the case of clauses (a), (b), (c) and (d) below,
sufficient copies for each Lender), each of which shall be satisfactory to the Administrative Agent
(and to the extent specified below, to each Lender) in form and substance:
(a) Organizational Documents. Certified copies of the Operating Agreements and of the charter
and by-laws (or equivalent documents) of each Obligor and of all limited liability company and
corporate authority for each Obligor (including, without limitation, board of director and
shareholder resolutions, member approvals and evidence of incumbency, including specimen
signatures, of officers of each Obligor) with respect to the execution, delivery and performance of
the Basic Documents to which such Obligor is to be a party and each other document to be delivered
by such Obligor from time to time in connection herewith and the extensions of credit hereunder
(and the Administrative Agent and each Lender may conclusively rely on such certificate until it
receives notice in writing from such Obligor to the contrary).
(b) Officer’s Certificate. A certificate of a Senior Officer, dated the Closing Date, to the
effect set forth in the first sentence of Section 6.02 hereof.
(c) Opinion of Counsel to the Obligors. An opinion, dated the Closing Date, of Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP, counsel to the Obligors, substantially in the form of Exhibit G hereto and
covering such other matters as the Administrative Agent or
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any Lender may reasonably request (and the Borrowers hereby instruct such counsel to deliver
such opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to JPMCB. An opinion, dated the Closing Date, of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB, substantially in the form
of Exhibit H hereto (and JPMCB hereby instructs such counsel to deliver such opinion to the
Lenders).
(e) Notes. Promissory notes for each Lender that shall have requested the execution and
delivery of a promissory note, on or prior to the Closing Date, pursuant to Section 2.08(d) hereof.
(f) Pledge Agreement. The Pledge Agreement, duly executed and delivered by the Borrowers and
the Administrative Agent. In addition, each such Obligor shall have taken such other action as the
Administrative Agent shall have requested in order to perfect the security interests created
pursuant to the Pledge Agreement, including, without limitation, delivering to the Administrative
Agent, for filing, appropriately completed and duly executed copies of Uniform Commercial Code
financing statements.
(g) Guarantee and Pledge Agreement. The Guarantee and Pledge Agreement, duly executed and
delivered by Mediacom LLC, MCC and the Administrative Agent and the certificates (if any)
evidencing the ownership interests in the Borrowers held by Mediacom LLC, accompanied by undated
powers executed in blank. In addition, Mediacom LLC shall have taken such other action as the
Administrative Agent shall have requested in order to perfect the security interests created
pursuant to the Guarantee and Pledge Agreement, including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements.
(h) Management Fee Subordination Agreement. The Management Fee Subordination Agreement, duly
executed and delivered by the Manager, the Borrowers and the Administrative Agent.
(i) Affiliate Subordinated Indebtedness Subordination Agreements. An Affiliate Subordinated
Indebtedness Subordination Agreement, duly executed and delivered by the Borrowers, the
Administrative Agent and by each holder of Affiliate Subordinated Indebtedness.
(j) Termination of Existing Credit Agreements. Evidence that (i) except for any outstanding
“Letters of Credit” under and as defined in the Existing Credit Agreements (as to which the
provisions of Section 2.03(l) hereof shall be applicable), the principal of and interest on, and
all other amounts owing under the Existing Credit Agreements are being paid in full with the
proceeds of the initial Loans hereunder and the
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commitments thereunder terminated and (ii) to the extent the assets of Mediacom LLC, the
Borrowers or any of their Subsidiaries are subject to Liens not permitted hereunder, such Liens
shall have been released (or arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(k) Approvals. Evidence of receipt of all material licenses, permits, approvals and consents,
if any, required (or, in the reasonable discretion of the Administrative Agent, advisable) with
respect to the transactions contemplated hereby and the continuing operation of the Borrowers and
their Subsidiaries, and that each of such licenses, permits, approvals and consents is in full
force and effect, and that all applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated hereby.
(l) Rate Ratio Certificate. A certificate of a Senior Officer, dated the Closing Date, setting
forth, in reasonable detail, the calculation (and the basis for such calculation) of the Rate Ratio
as of such date.
(m) Other Documents. Such other documents as the Administrative Agent or any
Lender or special New York counsel to JPMCB may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder is also subject
to the payment by the Borrowers of such fees as the Borrowers shall have agreed to pay or deliver
to any Lender or the Administrative Agent in connection herewith, including, without limitation,
the reasonable fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel
to JPMCB, in connection with the negotiation, preparation, execution and delivery of this Agreement
and the other Loan Documents and the extensions of credit hereunder (to the extent that statements
for such fees and expenses have been delivered to the Borrowers).
6.02 Initial and Subsequent Extensions of Credit. The obligation of the Lenders to make any
Loan or otherwise extend any credit to the Borrowers upon the occasion of each borrowing or other
extension of credit hereunder (including the initial borrowing) is subject to the further
conditions precedent that, both immediately prior to the making of such Loan or other extension of
credit and also after giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrowers in Section 7 hereof, and by each
Obligor in the other Loan Documents to which it is a party, shall be true and complete on and as of
the date of the making of such Loan or other extension of credit with the same force and effect as
if made on and as of such date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
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Each notice of borrowing or request for the issuance of a Letter of Credit by the Borrowers
hereunder shall constitute a certification by the Borrowers to the effect set forth in the
preceding sentence (both as of the date of such notice or request and, unless the Borrowers
otherwise notify the Administrative Agent prior to the date of such borrowing or issuance, as of
the date of such borrowing or issuance).
Section 7. Representations and Warranties. The Borrowers represent and warrant to the
Administrative Agent and the Lenders that:
7.01 Existence. Each Borrower and its Subsidiaries: (a) is a corporation, partnership, limited
liability company or other entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization; (b) has all requisite corporate or other power, and
has all material governmental licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed to be conducted; and (c) is qualified
to do business and is in good standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
7.02 Financial Condition. The
Borrowers have heretofore furnished to each of the Lenders the following financial statements:
(a) the audited consolidated financial statements of Mediacom LLC, including consolidated
balance sheets, as of December 31, 2002 and 2003, and the related audited consolidated statements
of operation and cash flow for the years ended on said respective dates, certified by
PricewaterhouseCoopers LLP;
(b) the respective audited combined financial statements of the Mediacom Midwest Borrowers and
their Subsidiaries, and the Mediacom USA Borrowers and their Subsidiaries, including in each case
combined balance sheets, as of December 31, 2002 and 2003, and the related audited combined
statements of operation and cash flow for the years ended on said respective dates, in each case
certified by PricewaterhouseCoopers; and
(c) the unaudited combined financial statements of the Borrowers and their Subsidiaries,
including combined balance sheets, as of and for the three-month and six-month periods ended March
31, 2004 and June 30, 2004, respectively, and the related unaudited combined statements of
operation and cash flow for the three-month period and six-month periods ended on said respective
dates.
All such financial statements fairly present in all material respects the individual or
combined financial condition of the respective entities as at said respective dates and the
individual or combined results of their operations for the applicable periods ended on said
respective dates, all
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in accordance with generally accepted accounting principles and practices applied on a consistent
basis (subject to ordinary year end adjustments and footnotes).
As of the date hereof, there are no material contingent liabilities, material liabilities for
taxes, unusual forward or long-term commitments or unrealized or anticipated material losses from
any unfavorable commitments of the Borrowers and their Subsidiaries, except as referred to or
reflected or provided for in the balance sheets as at June 30, 2004 referred to above.
Since December 31, 2003, there has been no material adverse change in the combined financial
condition, operations, business or prospects of the Borrowers and their Subsidiaries taken as a
whole from that set forth in said audited financial statements as at said date referred to in
clause (b) above.
7.03 Litigation. Except as set forth on Schedule VIII hereto, there are no legal or arbitral
proceedings, or any proceedings or investigations by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of any Borrower) threatened against any
Borrower or any of its Subsidiaries that, if adversely determined could (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this Agreement and the other Basic Documents,
the consummation of the transactions herein and therein contemplated or compliance with the terms
and provisions hereof and thereof will conflict with or result in a breach of, or require any
consent under, the Operating Agreements, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which any Borrower or any of its Subsidiaries is a party or by which any
of them or any of their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for the Liens created pursuant to the
Security Documents) result in the creation or imposition of any Lien upon any Borrower or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
7.05 Action. Each Borrower has all necessary corporate or limited liability company power,
authority and legal right to execute, deliver and perform its obligations under each of the Basic
Documents to which it is a party; the execution, delivery and performance by each Borrower of each
of the Basic Documents to which it is a party have been duly authorized by all necessary corporate
or limited liability company action on its part (including, without limitation, any required
stockholder or member approvals); and this Agreement has been duly and validly executed and
delivered by each Borrower and constitutes, and the other Basic Documents to which it is a party
when executed and delivered will constitute, its legal, valid and binding obligation, enforceable
against each Borrower in accordance with its terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the
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application of
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of, and
no filings or registrations with, any governmental or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or performance by any Borrower of
this Agreement or any of the other Basic Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof, except for (i) filings and recordings in respect of
the Liens created pursuant to the Security Documents and (ii) the exercise of remedies under the
Security Documents may require prior approval of the FCC or the issuing municipalities or States
under one or more of the Franchises.
7.07 ERISA. Each Plan, and, to the knowledge of each Borrower, each Multiemployer Plan, is in
compliance in all material respects with, and has been administered in all material respects in
compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law,
and no event or condition has occurred and is continuing as to which such Borrower would be under
an obligation to furnish a report to the Administrative Agent under Section 8.01(e) hereof.
7.08 Taxes. Except as set forth in Schedule II hereto, each Borrower and each of its Subsidiaries
has filed all Federal income tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by such Borrower or any of its Subsidiaries, except
such taxes, if any, as are being contested in good faith and as to which adequate reserves have
been set aside by such Borrower in accordance with GAAP. The charges, accruals and reserves on the
books of the Borrowers and their Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of the Borrowers, adequate. None of the Borrowers has given or been requested
to give a waiver of the statute of limitations relating to the payment of any Federal, state, local
and foreign taxes or other impositions.
7.09 Investment Company Act. None of the Borrowers nor any of its Subsidiaries is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.
7.10 Public Utility Holding Company Act. None of the Borrowers nor any of its Subsidiaries is a
“holding company”, or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding
company”, within the meaning of the Public Utility Holding Company Act of 1935, as amended.
7.11 Material Agreements and Liens.
(a) Indebtedness. Part A of Schedule III hereto sets forth (i) a complete and correct list of each
credit agreement, loan agreement, indenture, purchase agreement, guarantee,
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letter of credit or other arrangement (other than the Loan Documents) providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension
of credit) to, or guarantee by, the Borrowers or any of their Subsidiaries, outstanding on the date
hereof, or that (after giving effect to the transactions contemplated hereunder to occur on or
before the Closing Date) will be outstanding on the Closing Date, the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $1,000,000, and the aggregate principal
or face amount outstanding or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule III, and (ii) a statement of the aggregate amount of
obligations in respect of surety and performance bonds backing pole rental or conduit attachments
and the like, or backing obligations under Franchises, of the Borrowers or any of their
Subsidiaries outstanding on the date hereof.
(b) Liens. Part B of Schedule III 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) $1,000,000
and covering any Property (including real property) of the Borrowers or any of their Subsidiaries,
and the aggregate Indebtedness secured (or that may be secured) by each such Lien and the Property
covered by each such Lien is correctly described in Part B of said Schedule III.
7.12 Environmental Matters. Each of the Borrowers and their Subsidiaries has obtained all
environmental, health and safety permits, licenses and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be conducted, except to
the extent failure to have any such permit, license or authorization would not (either individually
or in the aggregate) have a Material Adverse Effect. Each of such permits, licenses and
authorizations is in full force and effect and each of the Borrowers and its Subsidiaries is in
compliance with the terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except to the extent failure to comply therewith would not (either
individually or in the aggregate) have a Material Adverse Effect. In addition, no notice,
notification, demand, request for information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and, to the Borrowers’ knowledge, no
investigation or review is pending or threatened by any governmental or other entity with respect
to any alleged failure by the Borrowers or any of their Subsidiaries to have any environmental,
health or safety permit, license or other authorization required under any Environmental Law in
connection with the conduct of the business of the Borrowers or any of their Subsidiaries or with
respect to any generation, treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Borrowers or any of their Subsidiaries. All
environmental investigations, studies, audits, tests, reviews or
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other analyses conducted by or that are in the possession of the Borrowers or any of
their Subsidiaries in relation to facts, circumstances or conditions at or affecting any site or
facility now or previously owned, operated or leased by the Borrowers or any of their Subsidiaries
and that could result in a Material Adverse Effect have been made available to the Lenders.
7.13 Capitalization. The Borrowers have heretofore delivered to the Lenders true and complete
copies of the Operating Agreements. The only members of Mediacom California on the date hereof are
Mediacom LLC and Mediacom Management Corporation; the only members of Mediacom Arizona on the date
hereof are Mediacom LLC and Mediacom California; and the only member of Mediacom Delaware, Mediacom
Illinois, Mediacom Indiana, Mediacom Iowa, Mediacom Minnesota, Mediacom Southeast, Mediacom
Wisconsin is Mediacom LLC. Each of Mediacom Delaware, Mediacom Illinois, Mediacom Indiana, Mediacom
Iowa, Mediacom Minnesota, Mediacom Southeast, Mediacom Wisconsin and Xxxxxxx is a Wholly-Owned
Subsidiary of Mediacom LLC. As of the date hereof, except for Sections 6.2 and 7.3 of the Operating
Agreement for Mediacom Southeast relating to Preferred Membership Interests, (x) there are no
outstanding Equity Rights with respect to any of the Borrowers and (y) except for the redemption
permitted pursuant to Section 8.09(d) hereof, there are no outstanding obligations of any of the
Borrowers or any of their Subsidiaries to repurchase, redeem, or otherwise acquire any equity
interests in the Borrowers nor are there any outstanding obligations of any Borrower or any of
their Subsidiaries to make payments to any Person, such as “phantom stock” payments, where the
amount thereof is calculated with reference to the fair market value or equity value of such
Borrowers or any of their Subsidiaries.
7.14 Subsidiaries and Investments, Etc.
(a) Subsidiaries. Set forth on Part A of Schedule IV hereto is a complete and correct list of all
Subsidiaries of the Borrowers.
(b) Investments. Set forth in Part B of Schedule IV hereto is a complete and correct list of all
Investments (other than Investments of the type referred to in paragraphs (b), (c) and (e) of
Section 8.08 hereof) held by the Borrowers or any of their Subsidiaries in any Person on the date
hereof and, for each such Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in Part B of Schedule IV
hereto, each of the Borrowers and their Subsidiaries owns, free and clear of all Liens (other than
the Liens created pursuant to the Security Documents), all such Investments.
7.15 True and Complete Disclosure. The information, reports, financial statements, exhibits and
schedules (including the Information Memorandum) furnished in writing by or on behalf of the
Borrowers to the Administrative Agent or any Lender in connection with the negotiation, preparation
or delivery of this Agreement and the other Loan Documents or included herein or therein or
delivered pursuant hereto or thereto, when taken as a whole do not contain any untrue statement of
material fact or omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which
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they were made, not misleading. All written information furnished after the date hereof
by the Borrowers and their Subsidiaries to the Administrative Agent and the Lenders in connection
with this Agreement and the other Loan
Documents and the transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known to the Borrowers
that could reasonably be expected to have a Material Adverse Effect (other than facts affecting the
cable television industry in general) that has not been disclosed herein, in the other Loan
Documents or in a report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders for use in connection with the transactions contemplated hereby or
thereby.
7.16 Franchises.
(a) Franchises. Set forth in Schedule V hereto is a complete and correct list of all Franchises
(identified by issuing authority, operating company and expiration date) owned or operated by the
Borrowers and their Subsidiaries on the date hereof. Schedule V lists all the Franchises that are
required under applicable law for the Borrowers and their Subsidiaries to operate the CATV Systems
and, to the knowledge of Borrowers, each such Franchise is in full force and effect and no material
default has occurred and is continuing thereunder. Except as set forth on Schedule V hereto, none
of the Borrowers or any of their Subsidiaries have 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 which could reasonably be expected to have a Material Adverse
Effect. Complete and correct copies of all Franchises have heretofore been made available to the
Administrative Agent.
(b) Licenses and Permits. Each of the Borrowers and their Subsidiaries possesses or has the right
to use all copyrights, licenses, permits, patents, trademarks, service marks, trade names or other
rights (collectively, the “Licenses”), including licenses, permits and registrations granted or
issued 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 legal operation and conduct of the CATV Systems of the Borrowers and their Subsidiaries, except
for such of the foregoing the absence of which could not reasonably be expected to have a Material
Adverse Effect on the Borrowers or any of their Subsidiaries, and each of such Licenses is in full
force and effect and, to the knowledge of Borrowers, no material default has occurred and is
continuing thereunder. Except as set forth on Schedule V hereto, none of the Borrowers or any of
their Subsidiaries have 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
Licenses which could reasonably be expected to have a Material Adverse Effect. Complete and correct
copies of all material Licenses have heretofore been made available to the Administrative Agent.
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7.17 The CATV Systems.
(a) Compliance with Law. Except as set forth in Schedule VI hereto, each of the Borrowers and their
Subsidiaries and the CATV Systems owned or operated by them are in compliance in all material
respects with all applicable federal, state and local laws, rules and regulations, including
without limitation, the Communications Act of 1934, as amended (the “Communications Act”), the
Copyright Act of 1976, as amended (the “Copyright Act”), and the rules and regulations of the FCC,
the FAA and the United States Copyright Office (the “Copyright Office”), including, without
limitation, rules and laws governing system registration, use of restricted frequencies, signal
carriage and program exclusivity requirements, leased access channels, emergency alert system
requirements, equal employment opportunity, cumulative leakage index testing and reporting, signal
leakage, tower registration and clearance, subscriber notices, and privacy requirements, except to
the extent that the failure to so comply with any of the foregoing could not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse Effect. Without limiting the
generality of the foregoing, except to the extent that the failure to comply with any of the
following could not (either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect and except as set forth in Schedule VI hereto:
(i) the communities included in the areas covered by the Franchises have been registered with the
FCC;
(ii) all of the current annual performance tests on such CATV Systems required under the rules and
regulations of the FCC have been timely performed and the results of such tests demonstrate
satisfactory compliance with the applicable FCC requirements in all material respects;
(iii) to the knowledge of the Borrowers, as of the most recent annual performance tests, such CATV
Systems currently meet or exceed the technical standards set forth in the rules and regulations of
the FCC;
(iv) such CATV Systems are being operated in compliance with the provisions of 47 C.F.R. Sections
76.610 through 76.619 (mid-band and super-band signal carriage), including 47 C.F.R. Section 76.611
(compliance with the cumulative signal leakage index); and
(v) where required, appropriate authorizations from the FCC have been obtained for the use of all
restricted frequencies in use in such CATV Systems and, to the knowledge of the Borrowers, such
CATV Systems are presently being operated in compliance with such authorizations (and all required
certificates, permits and clearances from governmental agencies, including the FAA, with respect to
all towers, earth stations, business radios and frequencies utilized and carried by such CATV
Systems have been obtained).
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(b) Copyright Filings. Except as set forth in Schedule VI hereto, for all periods covered by any
applicable statute of limitations, all notices, statements of account, supplements and other
documents required under Section 111 of the Copyright Act, and under the rules of the Copyright
Office, with respect to the carriage of broadcast station signals by the CATV Systems
(collectively, the “Copyright Filings”) owned or operated by the Borrowers and their Subsidiaries
have been duly filed, and the proper amount of copyright fees have been paid on a timely basis, and
each such CATV System qualifies for the compulsory license under Section 111 of the Copyright Act ,
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
Borrowers, there is no pending claim, action, demand or litigation by any other Person with respect
to the Copyright Filings or related royalty payments made by the CATV Systems.
(c) Carriage of Broadcast Signals. To the knowledge of the Borrowers and except as set forth in
Schedule VI, the carriage of all Broadcast signals by the CATV Systems owned by the Borrowers and
their Subsidiaries is permitted by valid retransmission 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.
7.18 Rate Regulation. Each of the Borrowers and their Subsidiaries have reviewed and evaluated in
detail the FCC rules currently in effect (the “Rate Regulation Rules”) implementing the cable
television rate regulation provisions of the Communications Act and the applicability of such Rate
Regulation Rules to the CATV Systems. Except to the extent that the failure to comply with such
Rate Regulation Rules could not (either individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect and except as set forth in Schedule VII hereto:
(i) there are no cable service programming rate complaints or appeals of adverse cable
programming service rate decisions pending with the FCC relating to the CATV Systems;
(ii) for communities that are authorized to regulate basic service and equipment rates under the
Rate Regulations Rules, all FCC rate forms required to be submitted by the Borrowers or their
Subsidiaries have been timely submitted to local franchising authorities and have justified the
basic service and equipment rates in effect for all periods in which the local franchising
authority currently has the authority to review and to take adverse action;
(iii) for communities that are not authorized to regulate basic service and equipment rates under
the Rate Regulations Rules, the Borrowers or their Subsidiaries
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have timely
submitted to local franchising authorities and subscribers all required notices for basic service
and equipment rates in effect within one year of the date hereof;
(iv) no reduction of rates or
refunds to subscribers are required by an outstanding order of the FCC or any local franchising
authority as of the date hereof under the Communications Act and the Rate Regulation Rules
applicable to the CATV Systems of the Borrowers and their Subsidiaries; and
(v) each of the CATV
Systems are in compliance with the Communications Act and the Rate Regulation Rules concerning the
uniform pricing requirements and tier buy-through limitations (i.e., 47 U.S.C. Section 543(b)(8),
(d)).
7.19 Use of Credit. None of the Borrowers or any of their Subsidiaries is engaged
principally, or as one of their important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock in violation
of Regulations T, U or X.
Section 8. Covenants of the Borrowers. The Borrowers covenant and agree with the Lenders and the
Administrative Agent that, so long as any Commitment, Loan or Letter of Credit Liability is
outstanding and until payment in full of all amounts payable by the Borrowers hereunder: 8.01
Financial Statements Etc. The Borrowers shall deliver to the Administrative Agent (which shall
promptly provide a copy thereof to the Lenders):
(a) as soon as available and in any event within 60 days after the end of each of the first
three quarterly fiscal periods of each fiscal year of the Borrowers, combined statements of income,
retained earnings and cash flows of the Borrowers and their Subsidiaries for such period and for
the period from the beginning of the respective fiscal year to the end of such period, and the
related combined balance sheet of the Borrowers and their Subsidiaries as at the end of such
period, setting forth in each case in comparative form the corresponding figures for the
corresponding periods in the preceding fiscal year (except that, in the case of balance sheets,
such comparison shall be to the last day of the prior fiscal year), accompanied by a certificate of
a Senior Officer, which certificate shall state that said financial statements fairly present in
all material respects the combined financial condition and results of operations of the Borrowers
and their Subsidiaries in accordance with generally accepted accounting principles consistently
applied as at the end of, and for, such period (subject to normal year-end audit adjustments);
(b)
as soon as available and in any event within 120 days after the end of each fiscal year of
the Borrowers, combined statements of income, retained earnings and cash flows of the Borrowers and
their Subsidiaries for such fiscal year and the related
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combined balance sheet of the Borrowers and their Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the corresponding combined figures for the
preceding fiscal year and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that said combined financial
statements fairly present in all material respects the combined financial condition and results of
operations of the Borrowers and their Subsidiaries as at the end of, and for, such fiscal year in
accordance with generally accepted accounting principles;
(c) promptly upon their becoming available, copies of all registration statements and regular
periodic reports, if any, that the Borrowers shall have filed with the Securities and Exchange
Commission (or any governmental agency substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof by the Borrowers to the shareholders or members of the
Borrowers generally, to holders of Affiliate Subordinated Indebtedness generally, or by Mediacom
LLC to the holders of any outstanding notes or other debt issuances, copies of all financial
statements, reports and proxy statements so mailed;
(e) as soon as possible, and in any event within ten days after any Borrower knows or has
reason to believe that any of the events or conditions specified below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by a Senior Officer setting forth
details respecting such event or condition and the action, if any, that the Borrowers or their
ERISA Affiliates propose to take with respect thereto (and a copy of any report or notice required
to be filed with or given to the PBGC by the Borrowers or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of
such event (provided that a failure to meet the minimum funding standard of Section 412 of the Code
or Section 302 of ERISA, including, without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code or Section 302(e) of ERISA, shall be a
reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice of intent to terminate any Plan
or any action taken by the Borrowers or an ERISA Affiliate to terminate any Plan;
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(iii) the institution by the PBGC of proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the
Borrowers or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer Plan by the Borrowers or any
ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser default) or the receipt by any
Borrower or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the
Borrowers or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the Code
or Section 307 of ERISA, could result in the loss of tax-exempt status of the trust of which such
Plan is a part if the Borrowers or an ERISA Affiliate fails to timely provide security to the Plan
in accordance with the provisions of said Sections;
(f) within 60 days of the end of each quarterly fiscal period of the Borrowers (90 days after
the last quarterly fiscal period in any fiscal year), a Quarterly Officer’s Report as at the end of
such period;
(g) promptly after any Borrower knows or has reason to believe that any Default has occurred,
a notice of such Default describing the same in reasonable detail and, together with such notice or
as soon thereafter as possible, a description of the action that the Borrowers have taken or
propose to take with respect thereto; and
(h) from time to time such other information regarding the financial condition, operations,
business or prospects of the Borrowers or any of their Subsidiaries (including, without limitation,
any Plan or Multiemployer Plan and any reports or other information required to be filed under
ERISA) as any Lender or the Administrative Agent may reasonably request.
The Borrowers will furnish to each Lender, at the time they furnish each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of a Senior Officer (i) to the
effect that no Default has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the action that the Borrowers
have taken
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or proposes to take with respect thereto) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Borrowers are in compliance with Sections 8.07,
8.08, 8.09, 8.10, 8.11, 8.12 and 8.15 hereof (including, without limitation, calculations
demonstrating compliance with the requirements of Section 8.09(d)(ii) hereof after giving effect to
any Capital Expenditure pursuant to Section 8.12(b) hereof) as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 Litigation. The Borrowers will promptly give to each Lender notice of all legal or
arbitral proceedings, and of all proceedings or investigations by or before any governmental or
regulatory authority or agency, and any material development in respect of such legal or other
proceedings, affecting the Borrowers or any of their Subsidiaries or any of their Franchises,
except proceedings that, if adversely determined, could not (either individually or in the
aggregate) have a Material Adverse Effect. Without limiting the generality of the foregoing, the
Borrowers will give to each Lender (i) notice of the assertion of any Environmental Claim by any
Person against, or with respect to the activities of, the Borrowers or any of their Subsidiaries
and notice of any alleged violation of or non-compliance with any Environmental Laws or any
permits, licenses or authorizations, other than any Environmental Claim or alleged violation that,
if adversely determined, could not (either individually or in the aggregate) have a Material
Adverse Effect and (ii) copies of any notices received by the Borrowers or any of their
Subsidiaries under any Franchise of a material default by the Borrowers or any of their
Subsidiaries in the performance of its obligations thereunder.
8.03 Existence, Etc. Each Borrower will, and will cause each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material rights, privileges,
licenses and franchises (provided that nothing in this Section 8.03 shall prohibit any transaction
expressly permitted under Section 8.05 hereof);
(b) comply with the requirements of all applicable laws, rules, regulations and orders of
governmental or regulatory authorities if failure to comply with such requirements could (either
individually or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges or levies imposed on it
or on its income or profits or on any of its Property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate reserves are being
maintained;
(d) maintain, in all material respects, all of its Properties used or useful in its business
in good working order and condition, ordinary wear and tear excepted;
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(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. Each Borrower will, and will cause each of its Subsidiaries to, maintain
insurance with financially sound and reputable insurance companies, or may self-insure, and with
respect to Property and risks of a character usually maintained by Persons engaged in the same or
similar business similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations, provided that each Borrower will in any event
maintain (with respect to itself and each of its Subsidiaries) casualty insurance and insurance
against claims for damages with respect to defamation, libel, slander, privacy or other similar
injury to person or reputation (including misappropriation of personal likeness), in such amounts
as are then customary for Persons engaged in the same or similar business similarly situated.
8.05 Prohibition of Fundamental Changes.
(a) Restrictions on Merger. None of the Borrowers will nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).
(b) Restrictions on Acquisitions. None of the Borrowers will nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or be a party to any
acquisition of, any Person except for purchases of equipment, programming rights and other Property
to be sold or used in the ordinary course of business, Investments permitted under Section 8.08(f)
hereof, and Capital Expenditures permitted under Section 8.12 hereof.
(c) Restrictions on Sales and Other Dispositions. None of the Borrowers will nor will it
permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold interests, but
excluding (i) obsolete or worn-out Property, tools or equipment no longer used or useful in its
business so long as the amount thereof sold in any single fiscal year by the Borrowers and their
Subsidiaries shall not have a fair market value in excess of $10,000,000 and (ii) any equipment,
programming rights or other Property sold or disposed of in the ordinary course of business and on
ordinary business terms).
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(d) Certain Permitted Transactions. Notwithstanding the foregoing provisions of this Section
8.05:
(i) Intercompany Mergers and Consolidations. Any Borrower may be merged or consolidated with
any other Borrower, and any Subsidiary of a Borrower may be merged or consolidated with or into:
(x) such Borrower if such Borrower shall be the continuing or surviving corporation or (y) any
other such Subsidiary; provided that if any such transaction shall be between a Subsidiary and a
Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving
corporation.
(ii) Intercompany Dispositions. Any Borrower may sell, lease, transfer or otherwise
dispose of any or all of its Property to any other Borrower or a Wholly Owned Subsidiary of the
Borrowers, and any Subsidiary of a Borrower may sell, lease, transfer or otherwise dispose of any
or all of its Property (upon voluntary liquidation or otherwise) to any Borrower or a Wholly Owned
Subsidiary of the Borrowers.
(iii) Permitted Dispositions. Any Borrower or any Wholly Owned Subsidiary of the Borrowers may
enter into one or more transactions intended to trade (by means of either an exchange or a sale and
subsequent purchase) one or more of the CATV Systems owned by any Borrower or any such Subsidiary
for one or more CATV Systems owned by any other Person, which transactions may be effected either
by
(I) the Borrowers or such Wholly Owned Subsidiary selling one or more CATV Systems owned by
it, and either depositing the Net Available Proceeds thereof into the Collateral Account, or
prepaying Revolving Credit Loans (and creating a Reserved Commitment Amount), as contemplated by
the second paragraph of Section 2.10(d) hereof, and then within one year 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) (A) at the time of any such transactions and after giving effect thereto, no Default shall
have occurred and be continuing and (B) after giving effect to such transaction the Borrowers shall
be in compliance with Section 8.10 hereof (the determination of such compliance to be calculated on
a pro forma basis, as at the end of and for the fiscal quarter most recently ended prior to the
date of such transaction for which financial statements of the Borrowers and their Subsidiaries are
available, under the assumption that such transaction shall have occurred, and any Indebtedness in
connection therewith shall have been incurred, at the beginning of the applicable period, and under
the assumption that interest
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for such period had been equal to the actual weighted average interest rate in effect for the
Loans hereunder on the date of such transaction), and the Borrowers shall have delivered to the
Administrative Agent a certificate of a Senior Officer showing such calculations in reasonable
detail to demonstrate such compliance,
(y) with respect to any single exchange of CATV Systems
pursuant to clause (II) above, the sum of the System Cash Flow for the period of four fiscal
quarters ending on, or most recently ended prior to, the date of such exchange attributable to the
CATV Systems being exchanged does not exceed more than 15% of System Cash Flow for such period and
(z) the sum of (A) the System Cash Flow for the period referred to in subclause (y) above plus
(B) the System Cash Flow attributable to all other CATV Systems previously exchanged pursuant to
clause (II) above (whether during the period referred to in subclause (y) above, or prior thereto),
does not exceed an amount equal to 35% of Adjusted System Cash Flow for the period referred to in
subclause (y) above.
If, in connection with an exchange permitted under this subparagraph (iii), the Borrowers or
Wholly Owned Subsidiary receives cash in excess of 20% of the fair market value of the acquired
CATV Systems, such exchange shall be permitted as a sale under this subparagraph (iii) and the cash
received by the Borrowers in connection with such transaction shall be applied in accordance with
Section 2.10(d).
(iv) Acquisitions. Any Borrower or a Wholly Owned Subsidiary of such Borrower may acquire any
business or Property from, or capital stock of, or be a party to any acquisition of, any Person, so
long as:
(A) the aggregate Purchase Price of any individual such acquisition shall not exceed
$500,000,000;
(B) such acquisition (if by purchase of assets, merger or consolidation) shall be effected in
such manner so that the acquired business, and the related assets, are owned either by a Borrower
or a Wholly Owned Subsidiary of a Borrower and, if effected by merger or consolidation involving a
Borrower, such Borrower shall be the continuing or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Subsidiary of a Borrower, such Wholly Owned Subsidiary shall
be the continuing or surviving entity;
(C) such acquisition (if by purchase of stock) shall be effected in such manner so that the
acquired entity becomes a Wholly Owned Subsidiary of a Borrower;
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(D) with respect to any acquisition involving an aggregate Purchase Price in excess of
$50,000,000, the Borrowers shall deliver to the Administrative Agent (which shall promptly notify
the Lenders of such acquisition and forward a copy to each Lender which requests one) (1) no later
than five Business Days after the execution and delivery thereof, copies of the respective
agreements or instruments pursuant to which such acquisition is to be consummated (including,
without limitation, any related management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments and all other material ancillary
documents to be executed or delivered in connection therewith and (2) promptly following request
therefor (but in any event within three Business Days following such request), copies of such other
information or documents relating to each such acquisition as the Administrative Agent shall have
requested;
(E) with respect to any acquisition involving an aggregate Purchase Price in excess of
$50,000,000, the Administrative Agent shall have received (and shall promptly forward a copy
thereof to each Lender which requests one) a letter (in the case of each legal opinion delivered to
the Borrowers pursuant to such acquisition) from each Person delivering such opinion (which shall
in any event include an opinion of special FCC counsel) authorizing reliance thereon by the
Administrative Agent and the Lenders;
(F) with respect to any acquisition involving an aggregate Purchase Price in excess of
$50,000,000, the Borrowers shall have delivered to the Administrative Agent and the Lenders
evidence satisfactory to the Administrative Agent and the Majority Lenders of receipt of all
licenses, permits, approvals and consents, if any, required with respect to such acquisition
(including, without limitation, the consents of the respective municipal franchising authorities to
the acquisition of the respective CATV Systems being acquired (if any));
(G) the entire amount of the consideration payable by the Borrowers and their Subsidiaries in
connection with such acquisition (other than customary post-closing adjustments and indemnity
obligations, and other than Indebtedness incurred in connection with such acquisition that is
permitted under paragraphs (c) or (f) of Section 8.07 hereof) shall be payable on the date of such
acquisition;
(H) none of the Borrowers nor any of its Subsidiaries shall, in connection with such
acquisition, assume or remain liable in respect of (x) any Indebtedness of the seller or sellers
(except for Indebtedness permitted under Section 8.07(f) hereof) or (y) other obligations of the
seller or sellers (except for obligations incurred in the ordinary course of business in operating
the CATV
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System so acquired and necessary or desirable to the continued operation of such CATV System);
(I) to the extent the assets purchased in such acquisition shall be subject to any Liens not
permitted hereunder, such Liens shall have been released (or arrangements for such release
satisfactory to the Administrative Agent shall have been made);
(J) to the extent applicable, the Borrowers shall have complied with the provisions of Section
8.17 hereof, including, without limitation, to the extent not theretofore delivered, delivery to
the Administrative Agent of (x) the certificates representing 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 8.17
hereof;
(K) after giving effect to such acquisition the Borrowers shall be in compliance with Section
8.10 hereof (the determination of such compliance to be calculated on a pro forma basis, as at the
end of and for the fiscal quarter most recently ended prior to the date of such acquisition for
which financial statements of the Borrowers and their Subsidiaries are available, under the
assumption that such acquisition shall have occurred, and any Indebtedness in connection therewith
shall have been incurred, at the beginning of the applicable period, and under the assumption that
interest for such period had been equal to the actual weighted average interest rate in effect for
the Loans hereunder on the date of such acquisition), and the Borrowers shall have delivered to the
Administrative Agent a certificate of a Senior Officer showing such calculations in reasonable
detail to demonstrate such compliance;
(L) immediately prior to such acquisition and after giving effect thereto, no Default shall
have occurred and be continuing; and
(M) the Borrowers shall deliver such other documents and shall have taken such other action as
the Majority Lenders or the Administrative Agent may reasonably request.
8.06 Limitation on Liens. None of the Borrowers will, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its Property,
whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
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(b) Liens in existence on the date hereof and listed in Part B of Schedule III hereto (or, to
the extent not meeting the minimum thresholds for required listing on said Schedule III pursuant to
Section 7.11 hereof, in an aggregate amount not exceeding $10,000,000);
(c) Liens imposed by any governmental authority for taxes, assessments or charges not yet due or
that are being contested in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Borrowers or the affected Subsidiaries, as the
case may be, in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising
in the ordinary course of business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in an Event of Default under
Section 9.01(i) hereof;
(e) pledges or deposits under worker’s compensation, unemployment insurance and other social
security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for Indebtedness),
leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary
course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Property or minor
imperfections in title thereto that, in the aggregate, are not material in amount, and that do not
in any case materially detract from the value of the Property subject thereto or interfere with the
ordinary conduct of the business of the Borrowers or any of their Subsidiaries; and
(h) Liens upon real and/or tangible personal Property acquired after the date hereof (by
purchase, construction or otherwise) by the Borrowers or any of their Subsidiaries and securing
Indebtedness permitted under Section 8.07(f) hereof, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in anticipation thereof or (B) was
created solely for the purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of such Property; provided that
(i) no such Lien shall extend to or cover any Property of a Borrower or any such Subsidiary other
than the Property so acquired and improvements thereon and (ii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the fair market value (as determined
in good faith by a Senior Officer) of such Property at the time it was acquired (by purchase,
construction or otherwise).
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8.07 Indebtedness. None of the Borrowers will, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder, including, without limitation, Incremental Facility
Loans in an aggregate principal amount up to but not exceeding $650,000,000;
(b) Indebtedness outstanding on the date hereof and listed in Part A of Schedule III hereto
(or, to the extent not meeting the minimum thresholds for required listing on said Schedule III
pursuant to Section 7.11 hereof, in an aggregate amount not exceeding $10,000,000);
(c) Affiliate Subordinated Indebtedness incurred in accordance with Section 8.13 hereof;
(d) Indebtedness of the Borrowers to any Subsidiary of the Borrowers, and of any Subsidiary of
the Borrowers to the Borrowers or its other Subsidiaries;
(e) Indebtedness (other than Affiliate Subordinated Indebtedness) of the Borrowers and their
Subsidiaries that is subordinated in right of payment to the obligations of the Borrowers and their
Subsidiaries under the Loan Documents (and which contains terms, including in respect of interest,
amortization, defaults, mandatory redemptions and prepayments, and covenants) that are in each case
satisfactory to the Administrative Agent and the Majority Lenders; and
(f) additional Indebtedness of the Borrowers and their Subsidiaries (including, without
limitation, Capital Lease Obligations and other Indebtedness secured by Liens permitted under
Section 8.06(h) hereof) up to but not exceeding an aggregate amount of $100,000,000 at any one time
outstanding.
In addition to the foregoing, the Borrowers will not, nor will they permit their Subsidiaries
to, incur or suffer to exist any obligations in an aggregate amount in excess of $50,000,000 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 Borrowers and their Subsidiaries.
8.08 Investments. The Borrowers will not, nor will they permit any of their Subsidiaries to,
make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Part B of Schedule IV hereto;
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(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrowers and their Subsidiaries in the Borrowers and their
Subsidiaries;
(e) Interest Rate Protection Agreements entered into in the ordinary course of business of the
Borrowers and not for speculative purposes;
(f) Investments by the Borrowers and their Subsidiaries consisting of exchanges or
acquisitions permitted under subparagraphs (iii) or (iv) of Section 8.05(d);
(g) Investments consisting of the issuance of a Letter of Credit for the account of the
Borrowers to support an obligation of an Affiliate of the Borrowers, in such amounts as would be
permitted under Section 8.09(d)(ii) hereof; and
(h) additional Investments (including, without limitation, Investments by the Borrowers or any
of their Subsidiaries in Affiliates of the Borrowers), so long as the aggregate amount of all such
Investments shall not exceed $300,000,000.
8.09 Restricted Payments. The Borrowers will not make any Restricted Payment at any time,
provided that, so long as at the time thereof, and after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing, the Borrowers may make the following Restricted
Payments (subject, in each case, to the applicable conditions set forth below):
(a) the Borrowers may make Restricted Payments in cash to their members in an amount equal to
the Tax Payment Amount with respect to any fiscal period or portion thereof (net of Restricted
Payments previously made under this paragraph (a) in respect of such period), so long as at least
fifteen days prior to making any such Restricted Payment, the Borrowers shall have delivered to
each Lender (i) notification of the amount and proposed payment date of such Restricted Payment and
(ii) a statement of a Senior Officer (and, in the event such period is a full fiscal year, the
Borrower’s independent certified public accountants) setting forth a detailed calculation of the
Tax Payment Amount for such period and showing the amount of such Restricted Payment and all
previous Restricted Payments made pursuant to this Section 8.09(a) in respect of such period;
(b) the Borrowers may make payments in cash in respect of Management Fees to the extent
permitted under Section 8.11 hereof;
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(c) the Borrowers may make payments in cash in respect of the interest on Affiliate
Subordinated Indebtedness constituting Supplemental Capital or Cure Monies; and
(d) the Borrowers may make payments in cash in respect of the principal of Affiliate
Subordinated Indebtedness and distributions in respect of the equity capital of the Borrowers and
may request the issuance of Affiliate Letters of Credit (such payment and issuance being
collectively called “Permitted Transactions”), so long as
(i) in the case of any Permitted Transaction consisting of a payment in respect of the
principal of Affiliate Subordinated Indebtedness, or distribution in respect of equity capital,
constituting Cure Monies, at least one complete fiscal quarter shall have elapsed subsequent to the
last date upon which the Borrowers shall have utilized their cure rights under Section 9.02 hereof,
without the occurrence of any Event of Default (and, for purposes hereof, unless the Borrowers
indicate otherwise at the time of any such payment, such payment or distribution shall be deemed to
be made first from Cure Monies and second from Supplemental Capital);
(ii) after giving effect to any Permitted Transaction during any fiscal quarter (the “current
fiscal quarter”) and to the making of any Capital Expenditures pursuant to Section 8.12(b) hereof
during the current fiscal quarter, the Borrowers would (as at the last day of the most recent
fiscal quarter immediately prior to the current fiscal quarter) have been in compliance on a pro
forma basis with Section 8.10 hereof, the determination of such compliance to be determined as if
(x) for purposes of calculating the Total Leverage Ratio, there were added to Indebtedness the
sum (herein, the “Relevant Sum”) of the amount of such Permitted Transaction plus the amount of all
other Permitted Transactions made during the current fiscal quarter through the date of such
Permitted Transaction, minus the amount of Special Reductions through such date plus the amount of
any such Capital Expenditures, and
(y) for purposes of calculating the Interest Coverage Ratio and Debt Service Coverage Ratio,
the Relevant Sum plus any Cure Monies received during the period for which the Interest Coverage
Ratio or Debt Service Coverage Ratio is calculated represented additional principal of the Loans
outstanding hereunder at all times during the respective fiscal quarter for which such Ratios are
calculated and the amount of interest that would have been payable hereunder during such fiscal
quarter was recalculated to take into account such additional principal;
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(iii) after giving effect to distributions made in respect of the equity capital of any
Borrower, the Equity Contribution Amount shall not be less than zero; and
(iv) the aggregate amount of Permitted Transactions as at any date (minus the aggregate amount
of Special Reductions through such date), shall not exceed the Applicable Permitted Transaction
Amount for such date.
Nothing herein shall be deemed to prohibit the payment of dividends by any Subsidiary of a
Borrower to such Borrower or to any other Subsidiary of such Borrower.
8.10 Certain Financial Covenants.
(a) Total Leverage Ratio. The Borrowers will not permit the Total Leverage Ratio to exceed the
following respective ratios at any time during the following respective periods:
|
|
|
|
|
|
|
Total |
|
Period |
|
Leverage Ratio |
|
From the Closing Date through March 31, 2006 |
|
|
6.00 to 1 |
|
From April 1, 2006 through March 31, 2007 |
|
|
5.75 to 1 |
|
From April 1, 2007 through March 31, 2008 |
|
|
5.50 to 1 |
|
From April 1, 2008 through March 31, 2009 |
|
|
4.75 to 1 |
|
From April 1, 2009 and at all times thereafter |
|
|
4.50 to 1 |
|
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(b) Interest Coverage Ratio. The Borrowers will not permit the Interest Coverage Ratio to be
less than the following respective ratios as at the last day of any fiscal quarter ending during
the following respective periods:
|
|
|
|
|
Period |
|
Ratio |
|
From the Closing Date through March 31, 2006 |
|
|
1.50 to 1 |
|
From April 1, 2006 through March 31, 2007 |
|
|
1.60 to 1 |
|
From April 1, 2007 through March 31, 2008 |
|
|
1.70 to 1 |
|
From April 1, 2008 through March 31, 2009 |
|
|
1.90 to 1 |
|
From April 1, 2009 and at all times thereafter |
|
|
2.00 to 1 |
|
(c) Debt Service Coverage Ratio. The Borrowers will not permit the Debt Service Coverage Ratio
to be less than 1.10 to 1 as at any time.
8.11 Management Fees. The Borrowers will not permit the aggregate amount of Management Fees
accrued in respect of any fiscal year of the Borrowers to exceed 4.50% of the Gross Operating
Revenue of the Borrowers and their Subsidiaries for such fiscal year. In addition, the Borrowers
will not, as at the last day of the first, second and third fiscal quarters in any fiscal year,
permit the amount of Management Fees paid during the portion of such fiscal year ending with such
fiscal quarter to exceed 4.50% of the Gross Operating Revenue of the Borrowers and their
Subsidiaries for such portion of such fiscal year (based upon the financial statements of the
Borrowers provided pursuant to Section 8.01(a) hereof), provided that in any event the Borrowers
will not pay any Management Fees at any time following the occurrence and during the continuance of
any Default. Any Management Fees that are accrued for any fiscal quarter (the “current fiscal
quarter”) but which are not paid during the current fiscal quarter may be paid at any time during
the period of four fiscal quarters following the current fiscal quarter (and for these purposes any
payment of Management Fees during such period shall be deemed to be applied to Management Fees in
the order of the fiscal quarters in respect of which such Management Fees are accrued). Any
Management Fees which may not be paid as a result of the limitations set forth in the forgoing
provisions of this Section 8.11 shall be deferred and shall not be payable until the principal of
and interest on the Loans, and all other amounts owing hereunder, shall have been paid in full.
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For purposes of this Section 8.11 “Gross Operating Revenue” shall mean the aggregate gross
operating revenues derived by the Borrowers and their Subsidiaries from their CATV Systems and from
related communications businesses, including the sale of local advertising on CATV Systems, as
determined in accordance with GAAP excluding, however, revenue or income derived by the Borrowers
from any of the following sources: (i) from the sale of any asset of such CATV Systems not in the
ordinary course of business, (ii) interest income, (iii) proceeds from the financing or refinancing
of any Indebtedness of the Borrowers or any of their Subsidiaries and (iv) extraordinary gains in
accordance with GAAP.
None of the Borrowers nor any of their Subsidiaries shall be obligated to pay Management Fees
to any Person, unless the Borrowers and such Person shall have executed and delivered to the
Administrative Agent a Management Fee Subordination Agreement, and none of the Borrowers nor any of
its Subsidiaries shall pay Management Fees to any Person except to the extent permitted under the
respective Management Fee Subordination Agreement to which such Person is a party.
None of the Borrowers nor any of their Subsidiaries shall employ or retain any executive
management personnel (or pay any Person, other than the Manager, in respect of executive management
personnel or matters, for the Borrowers or any of their Subsidiaries), it being the intention of
the parties hereto that all executive management personnel required in connection with the business
or operations of the Borrowers and their Subsidiaries shall be employees of the Manager (and that
the Executive Compensation for such employees shall be covered by Management Fees payable
hereunder). For purposes hereof, “executive management personnel” shall not include any individual
(such as a system manager or a regional manager) who is employed solely in connection with the
day-to-day operations of a CATV System or a Region.
8.12 Capital Expenditures.
(a) Scheduled Capital Expenditures. The Borrowers will not permit the aggregate amount of
Capital Expenditures to exceed the following respective amounts for the following respective fiscal
years of the Borrowers:
|
|
|
|
|
Fiscal Year Ending |
|
Amount |
December 31, 2004 |
|
$ |
85,000,000 |
|
December 31, 2005 |
|
$ |
106,000,000 |
|
December 31, 2006 |
|
$ |
120,000,000 |
|
December 31, 2007 |
|
$ |
121,000,000 |
|
December 31, 2008 |
|
$ |
114,000,000 |
|
December 31, 2009 |
|
$ |
97,000,000 |
|
December 31, 2010 |
|
$ |
97,000,000 |
|
December 31, 2011 |
|
$ |
97,000,000 |
|
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|
|
|
|
|
Fiscal Year Ending |
|
Amount |
December 31, 2012 |
|
$ |
94,000,000 |
|
December 31, 2013 |
|
$ |
91,000,000 |
|
provided that, the amounts set forth above for any fiscal year of the Borrowers in which the
Borrowers enter into an Acquisition pursuant to Section 8.05(d)(iv) shall be increased by such
amount (which amount shall be based on a proposed budget and operating plan set forth in such
notice) as the Borrowers shall propose in a notice to the Administrative Agent (which shall
promptly provide a copy thereof to the Lenders), or directly to the Lenders, which increase shall
become effective unless the Requisite Lenders object to such amount, by notice to the
Administrative Agent, within 10 Business Days following the Lenders’ receipt of the Borrowers’
notice from the Administrative Agent or from the Borrowers. “Requisite Lenders” shall mean Lenders
having at least 50% of the sum of (a) the aggregate outstanding principal amount of the Term Loans
of each Class or, if the Term Loans of either Class shall not have been made, the aggregate
outstanding principal amount of the Term Loan Commitments of such Class plus (b) the aggregate
outstanding principal amount of the Incremental Facility Term Loans of each Series or, if the
Incremental Facility Term Loans of such Series shall not have been made, the aggregate outstanding
principal amount of the Incremental Facility Commitments of such Series plus (c) the sum of (i) the
aggregate unused amount, if any, of the Incremental Facility Revolving Credit Commitments of each
Series at such time plus (ii) the aggregate amount of Letter of Credit Liabilities in respect of
Incremental Facility Letters of Credit at such time plus (iii) the aggregate outstanding principal
amount of the Incremental Facility Revolving Credit Loans of each Series at such time plus (d) the
sum of (i) the aggregate unused amount, if any, of the Revolving Credit Commitments at such time
plus (ii) the aggregate amount of Letter of Credit Liabilities in respect of Revolving Credit
Letters of Credit at such time plus (iii) 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 Borrowers shall be
less than the amount set forth opposite such fiscal year in the schedule above, then the shortfall
shall be added to the amount of Capital Expenditures permitted for the immediately succeeding (but
not any other) fiscal 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 fiscal
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 Borrowers and their Subsidiaries may make Additional Capital Expenditures
during any fiscal quarter in such amounts as would be permitted under Section 8.09(d)(ii) (in the
case of a payment of principal of Affiliate Subordinated Indebtedness, as if such Capital
Expenditure constituted a payment in respect of Supplemental Capital thereunder).
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8.13 Affiliate and Additional Subordinated Indebtedness.
(a) Affiliate Subordinated Indebtedness. The Borrowers may at any time after the date hereof
incur Affiliate Subordinated Indebtedness to Mediacom LLC or one or more other Affiliates, so long
as the proceeds of any such Affiliate Subordinated Indebtedness constituting Cure Monies are
immediately applied, first, ratably among the Term Loans and Incremental Facility Term Loans of
each Series hereunder and, second, after prepayment in full of all Term Loans and Incremental
Facility Term Loans, to prepayments of the Revolving Credit Loans and Incremental Facility
Revolving Credit Loans of each Series hereunder. Prepayments of Term Loans and Incremental Facility
Term Loans of each Series shall be applied to the respective installments thereof ratably in
accordance with the respective principal amounts thereof.
(b) Repayment of Affiliate Subordinated Indebtedness. The Borrowers will not, nor will they
permit any of their Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of
or interest on, or any other amount owing in respect of, any Affiliate Subordinated Indebtedness,
except to the extent permitted under Section 8.09 hereof.
(c) Repayment of Certain Other Indebtedness. The Borrowers will not, nor will they permit any
of their Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or
other acquisition of, or make any voluntary payment or prepayment of the principal of or interest
on, or any other amount owing in respect of, any Indebtedness at any time issued pursuant to
Section 8.07(e).
8.14 Lines of Business. The Borrowers will at all times ensure that not more than 15% of gross
operating revenue of the Borrowers and their Subsidiaries for any fiscal year shall be derived from
any line or lines of business activity other than the business of owning and operating CATV Systems
and related communications businesses, including the sale of local advertising on CATV systems.
8.15 Transactions with Affiliates. Except as expressly permitted by this Agreement, none of
the Borrowers will, nor will it permit any of its Subsidiaries to, directly or indirectly: (a) make
any Investment in an Affiliate except for Investments permitted under Section 8.08(h), provided
that, the monetary or business consideration arising therefrom would be substantially as
advantageous to a Borrower and its Subsidiaries as the monetary or business consideration that
would obtain in a comparable transaction with a Person not an Affiliate; (b) transfer, sell, lease,
assign or otherwise dispose of any Property to an Affiliate; (c) merge into or consolidate with or
purchase or acquire Property from an Affiliate; (d) make any contribution towards, or reimbursement
for, any Federal income taxes payable by any shareholder or member
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of a Borrower or any of its Subsidiaries in respect of income of a Borrower; or (e) enter into any
other transaction directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate); provided that
(i) any Affiliate who is an individual may serve as a director, officer or employee of a
Borrower or any of its Subsidiaries and receive reasonable compensation for his or her services in
such capacity,
(ii) a Borrower and its Subsidiaries may enter into transactions (other than extensions of
credit by such Borrower or any of its Subsidiaries to an Affiliate) providing for the leasing of
Property, the rendering or receipt of services or the purchase or sale of equipment, programming
rights, advertising time and other Property in the ordinary course of business, or the purchase,
sale, exchange or swapping of CATV Systems or portions thereof, if the monetary or business
consideration arising therefrom would be substantially as advantageous to such Borrower and its
Subsidiaries as the monetary or business consideration that would obtain in a comparable
transaction with a Person not an Affiliate,
(iii) the Borrowers may enter into and perform their respective obligations under, the
Management Agreements, and
(iv) the Borrowers and their Subsidiaries may pay to the Manager the aggregate amount of
intercompany shared expenses payable to Mediacom LLC that are allocated by Mediacom LLC and MCC to
the Borrowers and their Subsidiaries in accordance with Section 5.04 of the Guarantee and Pledge
Agreement.
8.16 Use of Proceeds.
(a) Revolving Credit and Term Loans. The Borrowers will use the proceeds of the Revolving
Credit Loans and Term Loans hereunder solely to (i) refinance, within the applicable availability
period, the loans outstanding under the Existing Credit Agreements, (ii) repay Affiliate
Subordinated Indebtedness and make other Restricted Payments, (iii) pay Management Fees, (iv) make
Investments permitted under Section 8.08 hereof, (v) finance capital expenditures, repay
Indebtedness (including other Loans hereunder) and meet working capital needs of the Borrowers and
their Subsidiaries and acquisitions permitted hereunder and (vi) pay fees and expenses related to
any of the foregoing (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, 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.
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(b) Incremental Facility Loans. The Borrowers will use the proceeds of the Incremental
Facility Loans for any of the purposes described in paragraph (a) above and, in the case of
Refinancing Incremental Facility Loans, to refinance Loans hereunder as contemplated by the
definition of “Refinancing” in Section 1.01 hereof (in each case in compliance with all applicable
legal and regulatory requirements); provided that neither the Administrative Agent nor any Lender
shall have any responsibility as to the use of any of such proceeds.
8.17 Certain Obligations Respecting Subsidiaries; Further Assurances.
(a) Subsidiary Guarantors. In the event that any Borrower or any of its Subsidiaries shall
form or acquire any Subsidiary after the date hereof, such Borrower shall cause, and shall cause
its Subsidiaries to cause, such Subsidiary to:
(i) execute and deliver to the Administrative Agent a Subsidiary Guarantee Agreement in the
form of Exhibit E hereto (and, thereby, to become a “Subsidiary Guarantor”, and an “Obligor”
hereunder and a “Securing Party” under the Pledge Agreement);
(ii) deliver the shares of its stock or other ownership interests accompanied by undated stock
powers or other powers executed in blank to the Administrative Agent, and to take other such
action, as shall be necessary to create and perfect valid and enforceable first priority Liens
(subject to Liens permitted under Section 8.06 hereof) on substantially all of the Property of such
new Subsidiary as collateral security for the obligations of such new Subsidiary under the
Subsidiary Guarantee Agreement, and
(iii) deliver such proof of corporate action, limited liability company action or partnership
action, as the case may be, incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each Obligor pursuant to Section 6.01 hereof on the Closing Date
or as the Administrative Agent shall have reasonably requested.
(b) Ownership of Subsidiaries. Each Borrower will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that each of its Subsidiaries is
a Wholly Owned Subsidiary. In the event that any additional shares of stock or other ownership
interests shall be issued by any Subsidiary of a Borrower, such Borrower agrees forthwith to
deliver to the Administrative Agent pursuant to the Pledge Agreement the certificates evidencing
such shares of stock or other ownership interests, accompanied by undated stock or other powers
executed in blank and to take such other action as the Administrative Agent shall request to
perfect the security interest created therein pursuant to the Pledge Agreement.
(c) Further Assurances. Each Borrower will, and will cause each of its Subsidiaries to, take
such action from time to time (including filing appropriate Uniform
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Commercial Code financing statements and executing and delivering such assignments, security
agreements and other instruments) as shall be requested by the Administrative Agent to create, in
favor of the Administrative Agent for the benefit of the Lenders, perfected security interests and
Liens in shares of stock or other ownership interests of their Subsidiaries. In addition, the
Borrowers will not issue additional equity interests (“Additional Equity Interests”) after the date
hereof to any Person (a “New Equity Owner”) other than Mediacom LLC (as to which the provisions of
the Guarantee and Pledge Agreement shall be applicable) unless such New Equity Owner shall:
(i) pledge such Additional Equity Interests to the Administrative Agent on behalf of the
Lenders pursuant to a pledge agreement in substantially the form (other than negative covenants) of
the Guarantee and Pledge Agreement and otherwise in form and substance satisfactory to the
Administrative Agent;
(ii) deliver to the Administrative Agent any certificates evidencing the Additional Equity
Interests accompanied by undated powers executed in blank;
(iii) deliver to the Administrative Agent such proof of corporate action, limited liability
company, partnership or other action, as applicable, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by Mediacom LLC pursuant to Section 6.01
hereof on the Closing Date or as the Administrative Agent shall have reasonably requested; and,
(iv) take other such additional action, as shall be necessary to create and perfect valid and
enforceable first priority security interests in the Additional Equity Interests in favor of the
Administrative Agent.
(d) Certain Restrictions. The Borrowers will not, and will not permit any of their
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrowers or any Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets securing the obligations of the Borrowers or any Subsidiary under any of the Loan
Documents or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or other ownership interests or to make or repay loans or
advances to the Borrowers or any Subsidiary or to Guarantee Indebtedness of the Borrowers or any
Subsidiary under any of the Loan Documents; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any of the Loan Documents, (ii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement or any other Loan Document if such restrictions or
conditions apply only to the property or assets securing such
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Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary provisions in leases
and other contracts restricting the assignment thereof.
8.18 Modifications of Certain Documents. The Borrowers will not consent to any modification,
supplement or waiver of any of the provisions of any Management Agreement (other than
modifications, supplements or waivers that do not alter any of the material rights or obligations
of the Borrowers thereunder, it being understood that any modification of the management fee
provisions thereof that would have the effect of increasing the management fees payable pursuant
thereto shall be deemed material for purposes hereof) or any agreement, instrument or other
document evidencing or relating to Affiliate Subordinated Indebtedness or Indebtedness permitted
under Section 8.07(e) hereof without the prior consent of the Administrative Agent (with the
approval of the Majority Lenders).
Section 9. Events of Default.
9.01 Events of Default. If one or more of the following events (herein called “Events of
Default”) shall occur and be continuing:
(a) The Borrowers shall default in the payment when due (whether at stated maturity or upon
mandatory or optional prepayment) of any principal of or interest on any Loan or any Reimbursement
Obligation, any fee or any other amount payable by them hereunder or under any other Loan Document;
or
(b) Any Borrower or any Subsidiary of a Borrower shall default in the payment when due of any
principal of or interest on any of its other Indebtedness aggregating $10,000,000 or more; or any
event specified in any note, agreement, indenture or other document evidencing or relating to any
such Indebtedness shall occur if the effect of such event is to cause, or (without the lapse of
time or the taking of any action, other than the giving of notice) to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity; or any Borrower shall default in the payment
when due of any amount aggregating $10,000,000 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 $10,000,000 or more to become
due under such Interest Rate Protection Agreement; or
(c) Any representation, warranty or certification made or deemed made herein or in any other
Loan Document (or in any modification or supplement hereto or thereto) by any Obligor, or any
certificate furnished to any Lender or the Administrative Agent
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pursuant to the provisions hereof or thereof, shall prove to have been false or misleading as
of the time made or furnished in any material respect; or
(d) Any Borrower shall default in the performance of any of its obligations under any of
Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09, 8.10, 8.11, 8.12,
8.13, 8.15, 8.17 or 8.18 hereof; or any Borrower shall default in the performance of any of its
other obligations in this Agreement or any Obligor shall default in the performance of its
obligations under any other Loan Document to which it is a party, and such default shall continue
unremedied for a period of thirty or more days after notice thereof to the Borrowers by the
Administrative Agent or any Lender (through the Administrative Agent); or
(e) Any Obligor shall admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due; or
(f) Any Obligor shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or (vi) take any corporate action for
the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or consent of any
Obligor, in any court of competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a receiver, custodian, trustee, examiner, liquidator or the like of such Obligor or
of all or any substantial part of its Property or (iii) similar relief in respect of such Obligor
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue undismissed, or an order, judgment
or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 or more days; or an order for relief against such Obligor shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) Any Borrower shall be terminated, dissolved or liquidated (as a matter of law or
otherwise), or proceedings shall be commenced by a Borrower seeking the termination, dissolution or
liquidation of a Borrower, or proceedings shall be commenced by any Person (other than the
Borrowers) seeking the termination, dissolution or
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liquidation of a Borrower and such proceeding shall continue undismissed for a period of 60 or
more days; or
(i) A final judgment or judgments for the payment of money of $10,000,000 or more in the
aggregate (exclusive of judgment amounts fully covered by insurance where the insurer has admitted
liability in respect of such judgment) or of $20,000,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative tribunals or other
bodies having jurisdiction against the Borrowers or any of their Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge), or
a stay of execution thereof shall not be procured, within 30 days from the date of entry thereof
and the relevant Borrower or Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal; or
(j) An event or condition specified in Section 8.01(e) hereof shall occur or exist with
respect to any Plan or Multiemployer Plan and, as a result of such event or condition, together
with all other such events or conditions, the Borrowers or any ERISA Affiliate shall incur or in
the opinion of the Majority Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the foregoing) that, in the determination of
the Majority Lenders, would (either individually or in the aggregate) have a Material Adverse
Effect; or
(k) A reasonable basis shall exist for the assertion against any Borrower or any of its
Subsidiaries, or any predecessor in interest of any Borrower or any of its Subsidiaries or
Affiliates, of (or there shall have been asserted against any Borrower or any of its Subsidiaries)
an Environmental Claim that, in the judgment of the Majority Lenders is reasonably likely to be
determined adversely to such Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by such Borrower or any of its Subsidiaries but after deducting any
portion thereof that is reasonably expected to be paid by other creditworthy Persons jointly and
severally liable therefor); or
(l) A Change of Control shall occur and be continuing; or
(m) Except for Franchises that cover fewer than 10% of the Basic Subscribers of the Borrowers
and their Subsidiaries (determined as at the last day of the most recent fiscal quarter for which a
Quarterly Officers’ Report shall have been delivered) one or more Franchises relating to the CATV
Systems of the Borrowers and their Subsidiaries shall be terminated or revoked such that the
respective Borrower or Subsidiary is no longer able to operate such Franchises and retain the
revenue received therefrom or the respective Borrower or Subsidiary or the grantors of such
Franchises shall fail to renew
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such Franchises at the stated expiration thereof such that the respective Borrower or
Subsidiary is no longer able to operate such Franchises and retain the revenue received therefrom;
or
(n) The Liens created by the Security Documents shall at any time not constitute a valid and
perfected Lien on the collateral intended to be covered thereby (to the extent perfection by
control, filing, registration, recordation or possession is required herein or therein) in favor of
the Administrative Agent, free and clear of all other Liens (other than Liens permitted under
Section 8.06 hereof or under the respective Security Documents), or, except for expiration in
accordance with its terms, any of the Security Documents shall for whatever reason be terminated or
cease to be in full force and effect, or the enforceability thereof shall be contested by any
Obligor; or
(o) Any Operating Agreement shall be modified without the prior consent of the Administrative
Agent (with the approval of the Majority Lenders) in any manner that would adversely affect the
obligations of the Borrowers, or the rights of the Lenders or the Administrative Agent, hereunder
or under any of the other Loan Documents;
THEREUPON: (1) in the case of an Event of Default other than one referred to in clause (f) or (g)
of this Section 9.01 with respect to any Borrower, the Administrative Agent shall, if instructed by
the Majority Lenders, by notice to the Borrowers, terminate the Commitments and/or declare the
principal amount then outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by the Borrowers hereunder (including, without
limitation, any amounts payable under Section 5.05 or 5.06 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the Borrowers; and (2)
in the case of the occurrence of an Event of Default referred to in clause (f) or (g) of this
Section 9.01 with respect to any Borrower, the Commitments shall automatically be terminated and
the principal amount then outstanding of, and the accrued interest on, the Loans, Reimbursement
Obligations and all other amounts payable by the Borrowers hereunder (including, without
limitation, any amounts payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrowers.
In addition, upon the occurrence and during the continuance of any Event of Default (if the
Administrative Agent has declared the principal amount then outstanding of, and accrued interest
on, the Revolving Credit Loans and all other amounts payable by the Borrowers hereunder to be due
and payable), the Borrowers agree that they shall, if requested by the Administrative Agent or the
Majority Revolving Credit Lenders through the Administrative Agent (and, in the case of any Event
of Default referred to in clause (f) or (g) of this Section 9.01 with respect to the Borrowers,
forthwith, without any demand or the taking of any other action by the Administrative Agent or such
Lenders) provide cover for the Letter of Credit Liabilities
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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) Total Leverage Ratio. Notwithstanding the provisions of Section 9.01 hereof, but without
limiting the obligations of the Borrowers under Section 8.10(a) hereof, a breach by the Borrowers
as of the last day of any fiscal quarter or any fiscal year of its obligations under said Section
8.10(a) shall not constitute an Event of Default hereunder (except for purposes of Section 6
hereof) until the date (for purposes of this clause (a), the “Cut-Off Date”) which is the earlier
of the date thirty days after (a) the date the financial statements for the Borrowers and their
Subsidiaries with respect to such fiscal quarter or fiscal year, as the case may be, are delivered
pursuant to Section 8.01(a) or 8.01(b) hereof or (b) the latest date on which such financial
statements are required to be delivered pursuant to said Section 8.01(a) or 8.01(b), provided that,
if following the last day of such fiscal quarter or fiscal year and prior to the Cut-Off Date, the
Borrowers shall have received Cure Monies (and shall have applied the proceeds thereof to the
prepayment of the Loans hereunder, which prepayment, in the case of Affiliate Subordinated
Indebtedness, shall be effected in the manner provided in Section 8.13(a) hereof), or shall have
prepaid the Loans hereunder from available cash, in an amount sufficient to bring the Borrowers
into compliance with said Section 8.10(a) assuming that the Total Leverage Ratio, as of the last
day of such fiscal quarter or fiscal year, as the case may be, were recalculated to subtract such
prepayment from the aggregate outstanding amount of Indebtedness, then such breach or breaches
shall be deemed to have been cured; provided, further, that breaches of Section 8.10 hereof
(including pursuant to paragraph (b) below) may not be deemed to be cured pursuant to this Section
9.02 (x) more than three times during the term of this Agreement or (y) during consecutive fiscal
quarters.
(b) Interest Coverage Ratio; Debt Service Coverage Ratio. Notwithstanding the provisions of
Section 9.01 hereof, but without limiting the obligations of the Borrowers under Section 8.10(b) or
8.10(c) hereof, a breach by the Borrowers as of the last day of any fiscal quarter or any fiscal
year of its obligations under said Section 8.10(b) or 8.10(c) shall not constitute an Event of
Default hereunder (except for purposes of Section 6 hereof) until the date (for purposes of this
clause (b), the “Cut-Off Date”) which is the earlier of the date thirty days after (a) the date the
financial statements for the Borrowers and their Subsidiaries with respect to such fiscal quarter
or fiscal year, as the case may be, are delivered pursuant to Section 8.01(a) or 8.01(b) hereof or
(b) the latest date on which such financial statements are required to be delivered pursuant to
said Section 8.01(a) or 8.01(b), provided that, if following the last day of such fiscal quarter or
fiscal year and prior to the Cut-Off Date, the Borrowers shall have received Cure Monies (and shall
have applied the proceeds thereof to the prepayment of the Loans hereunder, which prepayment, in
the case of Affiliate Subordinated Indebtedness, shall be effected in the manner provided in
Section 8.13(a) hereof), or shall have prepaid the Loans
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hereunder from available cash, in an amount sufficient to bring the Borrowers into compliance with
said Section 8.10(b) or 8.10(c) assuming that the Interest Coverage Ratio and the 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 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.
Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Lender hereby appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent by the terms of this Agreement and
under the other Loan Documents, together with such other powers as are reasonably incidental
thereto. The Administrative Agent (which term as used in this sentence and in Section 10.05 and the
first sentence of Section 10.06 hereof shall include reference to its affiliates and its own and
its affiliates’ officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly set forth in this
Agreement and in the other Loan Documents, and shall not by reason of this Agreement or any other
Loan Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or in any other Loan Document, or in any certificate or
other document referred to or provided for in, or received by any of them under, this Agreement or
any other Loan Document, or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by the Borrowers or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the Majority Lenders with respect
to the collateral security under the Security Documents, be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be taken by it hereunder or
under any other Loan Document or under any other document or instrument
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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 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 Lenders of a particular Class or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default unless the Administrative Agent has received notice from a Lender or
the Borrowers specifying such Default and stating that such notice is a “Notice of Default”. In the
event that the Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Section 10.07 hereof) take such action with respect to such Default as shall be
directed by the Majority Lenders or, if provided herein, the Majority Lenders of a particular
Class, 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 of a particular Class or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and the Loans made by it, JPMCB (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. JPMCB
(and any successor acting as Administrative Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make investments in and
generally engage in any kind of banking, trust or other business with the Borrowers (and any of
their Subsidiaries or Affiliates) as if it were not acting
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as the Administrative Agent, and JPMCB (and any such successor) and its affiliates may accept fees
and other consideration from the Borrowers for services in connection with this Agreement or
otherwise without having to account for the same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed under Section 11.03 hereof, but without limiting the obligations of the Borrowers
under said Section 11.03) ratably in accordance with the aggregate principal amount of the Loans
and Letter of Credit Liabilities held by the Lenders (or, if no Loans or Letter of Credit
Liabilities are at the time outstanding, ratably in accordance with their respective Commitments),
for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) arising out of or by reason of any investigation in
or in any way relating to or arising out of this Agreement or any other Loan Document, any other
documents contemplated by or referred to herein or therein or the transactions contemplated hereby
or thereby (including, without limitation, the costs and expenses that the Borrowers are obligated
to pay under Section 11.03 hereof, but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own credit analysis of the
Borrowers and their Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or under any other Loan
Document. The Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Borrowers of this Agreement or any of the other Loan Documents or
any other document referred to or provided for herein or therein or to inspect the Properties or
books of the Borrowers or any of their Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by the Administrative
Agent hereunder or under the Security Documents, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information concerning the
affairs, financial condition or business of the Borrowers or any of their Subsidiaries (or any of
their affiliates) that may come into the possession of the Administrative Agent or any of its
affiliates.
10.07 Failure to Act. Except for action expressly required of the Administrative Agent
hereunder and under the other Loan Documents, the Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder or thereunder unless it shall receive
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further assurances to its satisfaction from the Lenders of their indemnification obligations under
Section 10.05 hereof against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the Administrative Agent may
resign at any time by giving five days prior notice thereof to the Lenders and the Borrowers, and
the Administrative Agent may be removed at any time with or without cause by the Majority Lenders.
Upon any such resignation or removal, the Majority Lenders shall have the right, in consultation
with the Borrowers, to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the
Majority Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, in consultation with the Borrowers, appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New York with a combined
capital and surplus of at least $5,000,000,000. 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 Mediacom LLC from
its guarantee obligations under the Guarantee and Pledge Agreement or release all or substantially
all of the Subsidiary Guarantors from their obligations under the Security Documents, or release
all or substantially all of the collateral or otherwise terminate all or substantially all of the
Liens under the Security Documents (taken as a whole), or agree to additional obligations being
secured by all or substantially all such collateral security (unless such additional obligations
arise under this Agreement, or the Lien for such additional obligations shall be junior to the Lien
in favor of the other obligations secured by such Security Document, in either of which events the
Administrative Agent may consent to such Lien, provided that it obtains the consent of the Majority
Lenders thereto), alter the relative priorities of the obligations entitled to the benefits of all
or substantially all of the Liens under the Security Documents, except that no such consent shall
be required, and the Administrative Agent is hereby authorized, to release any Lien covering
Property (and to release any Subsidiary
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Guarantor) that is the subject of either a disposition of Property permitted hereunder or a
Disposition to which the Majority Lenders have consented.
10.10 Other Agents. Except as expressly provided herein, the Joint Lead Arrangers and Joint
Bookrunners, the Syndication Agent and the Co-Documentation Agents named on the cover page of this
Agreement shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement. Without limiting the generality of the foregoing, no such Person shall have or be deemed
to have any fiduciary relationship with any other Lender in connection herewith. Each Lender
acknowledges that it has not relied, and will not rely, on any such entity in deciding to enter
into this Agreement or in taking or not taking action hereunder.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative Agent or any Lender to exercise and
no delay in exercising, and no course of dealing with respect to, any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
Each Borrower irrevocably waives, to the fullest extent permitted by applicable law, any claim
that any action or proceeding commenced by the Administrative Agent or any Lender relating in any
way to this Agreement should be dismissed or stayed by reason, or pending the resolution, of any
action or proceeding commenced by a Borrower relating in any way to this Agreement whether or not
commenced earlier. To the fullest extent permitted by applicable law, the Borrowers shall take all
measures necessary for any such action or proceeding commenced by the Administrative Agent or any
Lender to proceed to judgment prior to the entry of judgment in any such action or proceeding
commenced by a Borrower.
11.02 Notices. All notices, requests and other communications provided for herein and under
the Security Documents (including, without limitation, any modifications of, or waivers, requests
or consents under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at (i) in the case of the Borrowers
and the Administrative Agent, the “Address for Notices” specified below its name on the signature
pages hereof and (ii) in the case of each of the Lenders, the address (or telecopy number) set
forth in its Administrative Questionnaire; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Notwithstanding the foregoing, notices of
borrowing, prepayment and Conversion of Loans pursuant to Section 4.05 hereof may be made by
telephone, so long as the same are promptly confirmed in writing. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
11.03 Expenses, Etc. The Borrowers jointly and severally agree to pay or reimburse each of the
Lenders and the Administrative Agent for: (a) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB) 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 expenses of the Lenders
and the Administrative Agent (including, without limitation, the reasonable fees and expenses of
legal counsel) in connection with (i) any Default and any enforcement or collection proceedings
resulting therefrom, including, without limitation, all manner of participation in or other
involvement with (x) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or transaction contemplated
thereby is consummated) and (ii) the enforcement of this Section 11.03; and (c) all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or perfection of any
security interest contemplated by any Security Document or any other document referred to therein.
The Borrowers hereby jointly and severally agree to indemnify the Administrative Agent, each
Lender, each of their affiliates and their respective directors, officers, employees, trustees,
investment advisors, attorneys and agents (collectively, the “Indemnified Parties”) from, and hold
each of them harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by the Administrative Agent to any Lender, whether or not the
Administrative Agent or any Lender is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Borrowers or any of their Subsidiaries of the proceeds of any of the extensions
of credit hereunder, including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). No Indemnified Party shall be
liable on any theory of liability for any special, indirect, consequential or punitive damages
(including, without limitation, any loss of profits, business or anticipated savings).
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
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instrument in writing signed by the Borrowers and the Majority Lenders, or by the Borrowers and the
Administrative Agent acting with the consent of the Majority Lenders, and any provision of this
Agreement may be waived by the Majority Lenders or by the Administrative Agent acting with the
consent of the Majority Lenders; provided that:
(a) no modification, supplement or waiver shall:
(i) increase the Commitment of any Lender, without the written consent of such Lender;
(ii) reduce the principal amount of any Loan or Reimbursement Obligation or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the written consent
of each Lender affected thereby;
(iii) postpone the scheduled date of payment of the principal amount of any Loan or
Reimbursement Obligation, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration
or reduction of any Commitment, or postpone the ultimate expiration date of any Letter of
Credit beyond the Revolving Credit Commitment Termination Date or commitment termination
date for the relevant Incremental Facility Revolving Credit Commitments, as applicable,
without the written consent of each Lender affected thereby;
(iv) change Section 4.02 or 4.07 in a manner that would alter the
pro rata sharing of
payments required thereby, without in each case the
written consent of each Lender affected
thereby;
(v) alter the manner in which payments or prepayments of principal,
interest or other
amounts hereunder shall be applied between or among the
Lenders or Classes of Loans without
the written consent of the Majority
Lenders of each Class affected thereby, or alter in any
other manner the
obligation of the Borrowers to prepay Loans hereunder without the consent
of the Majority Lenders of each Class affected thereby;
(vi) change any of the provisions of this Section 11.04 or the
percentage in the
definition of “Majority 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, without the written consent of each Lender; or
(vii) waive any of the conditions precedent set forth in Section 6
applicable to the
initial extension of credit hereunder, without the
written consent of each Lender; and
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(b) any modification or supplement of Section 10 hereof, or of any
of the rights or
duties of the Administrative Agent hereunder, shall
require the consent of the Administrative
Agent.
Anything in this Agreement to the contrary notwithstanding, no waiver or modification of any
provision of this Agreement that has the effect (either immediately or at some later time) of
enabling the Borrowers to satisfy a condition precedent to the making of a Loan of any Class shall
be effective against the Lenders of such Class for the purposes of the Commitments of such Class
unless the Majority Lenders of such Class 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 Lenders of such Class 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) Assignments Generally. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto (including any Affiliate of any Issuing Lender that issues any
Letter of Credit) and their respective successors and assigns permitted hereby, except that (i) no
Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer by a Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section 11.06. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of any Issuing Lender that issues any Letter of Credit), Participants (to the extent provided in
paragraph (e) below) and, to the extent expressly contemplated hereby, the Affiliates and the
respective directors, officers, employees, agents and advisors of each of the Administrative Agent,
the Issuing Lenders, the Lenders and each of their Affiliates) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in clause (ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment or Incremental
Facility Revolving Credit Commitment, and the Loans and Letter of Credit Interest, at the time held
by it) with the prior written consent (such consent not to be unreasonably withheld) of:
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(A) the Borrowers, provided that no consent of the Borrowers shall
be required for an
assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default
under paragraph (a), (f) or (g)
of Section 9.01 hereof shall have occurred and is continuing,
any other
assignee;
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall
be required for (w) an assignment of any Term
Loans or Incremental Term Loans to a Lender, an
Affiliate or a Lender or
an Approved Fund, (x) an assignment of any Revolving Loans or
Revolving
Credit Commitments to an assignee that is a Lender with a Revolving Credit
Commitment immediately prior to giving effect to such assignment, (y) an
assignment of any
Incremental Facility Revolving Credit Commitments to an
assignee that is a Lender with an
Incremental Facility Revolving Credit
Commitment immediately prior to giving effect to such
assignment or (z) an
assignment of any Incremental Facility Term Loan Commitments to an
assignee that is a Lender with an Incremental Facility Term Loan
Commitment immediately prior
to giving effect to such assignment; and
(C) each Issuing Bank, in the case of an assignment of all or a
portion of (x) a
Revolving Credit Commitment or any Revolving Credit
Lender’s obligations in respect of its
Letter of Credit Interest
thereunder or (y) an Incremental Facility Revolving Credit
Commitment
providing for Letters of Credit, or any Incremental Facility Revolving
Credit Lender’s obligations in respect of its Letter of Credit Interest
thereunder.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment, Loans or
Letter of Credit Interest of any Class, the amount of the Commitment, Loans or Letter of
Credit Interest of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 or, in the case of a Term Loan or
Incremental Facility Term Loan, $1,000,000 (provided, that all amounts assigned shall be
aggregated in calculating the $1,000,000 minimum in the event of simultaneous
assignments to or from two or more Affiliated Approved Funds) unless the Borrowers and the
Administrative Agent otherwise consent, provided that no such consent of the Borrowers shall
be required if an Event of Default under paragraph (a), (f) or (g) or Section 9.01 hereof has
occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided that this
clause shall not be construed to prohibit the assignment of a proportionate part of
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all the assigning Lender’s rights and obligations in respect of one Class
of
Commitments, Loans or Letter of Credit Interest;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent
an Assignment and Assumption, together with a
processing and recordation fee of U.S. $3,500
(provided, that only one
such fee shall be payable in the event of simultaneous assignments
to or
from one or more Affiliated Approved Funds); and
(D) the assignee, if it shall not already be a Lender, shall deliver
to the
Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and recording thereof pursuant to
paragraph (c) below, from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
Section 5 hereof and the rights referred to in Section 11.07 hereof ). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this Section
11.06 shall be treated for purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph (e) below.
(c) Maintenance of Register by the Administrative Agent. The Administrative Agent, acting for
this purpose as an agent of the Borrowers, shall maintain at one of its offices in New York City a
copy of each Assignment and Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans and
Reimbursement Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative
Agent, the Issuing Lenders 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
Borrowers, the Issuing Lenders or any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly completed
Assignment and Assumption 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) above and any written consent to such
assignment required by said paragraph (b), the Administrative Agent
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shall accept such Assignment and Assumption 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 (d).
(e) Participations. Any Lender may, without the consent of the Borrowers, the Administrative
Agent or the Issuing Lenders, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Commitments and the Loans and Letter of
Credit Interests held by it); provided that (i) such Lender’s obligations under this Agreement and
the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement and the other Loan Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of
any provision of this Agreement or any other Loan Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to Section 11.04 hereof that
affects such Participant. Subject to paragraph (f) below, the Borrowers agree that each Participant
shall be entitled to the benefits of Section 5.01, 5.05, 5.06 and 5.07 hereof to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) above. To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section
4.07(b) hereof as though it were a Lender, provided such Participant agrees to be subject to
Section 4.07(b) hereof as though it were a Lender hereunder.
(f) Limitations on Rights of Participants. A Participant shall not be entitled to receive any
greater payment under Section 5.01, 5.06 or 5.07 hereof than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrowers’ prior written consent. A
Participant that would be a Lender that is not a U.S. Person if it were a Lender shall not be
entitled to the benefits of Section 5.07 hereof unless the Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 5.07 hereof as though it were a Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such Lender, including any
such pledge or assignment to a Federal Reserve Bank, and this Section 11.06 hereof shall not apply
to any such pledge or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations hereunder or substitute
any such assignee for such Lender as a party hereto.
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(h) Provision of Information to Assignees and Participants. A Lender may furnish any
information concerning the Borrowers or any of their Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(i) No Assignments to the Borrowers or Affiliates. Anything in this Section 11.06 to the
contrary notwithstanding, no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Borrowers or any of their Affiliates or
Subsidiaries without the prior consent of each Lender.
11.07 Survival. The obligations of the Borrowers under Sections 5.01, 5.05, 5.06, 5.07 and
11.03 hereof, and the obligations of the Lenders under Section 10.05 hereof, shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the Commitments and, in
the case of any Lender that may assign any interest in its Commitments, Loans or Letter of Credit
Interest hereunder, shall survive the making of such assignment, notwithstanding that such
assigning Lender may cease to be a “Lender” hereunder. In addition, each representation and
warranty made, or deemed to be made by a notice of any extension of credit (whether by means of a
Loan or a Letter of Credit), herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by reason of making any
extension of credit hereunder (whether by means of a Loan or a Letter of Credit), any Default that
may arise by reason of such representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice or knowledge or
reason to believe that such representation or warranty was false or misleading at the time such
extension of credit was made.
11.08 Captions. The table of contents and captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the parties hereto may
execute this Agreement by signing any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern District of New York
and of the Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York, for the purposes of
all legal proceedings arising out of or relating to this Agreement or the transactions contemplated
hereby. Each Borrower hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection that it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
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11.11 Waiver of Jury Trial. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.12 Treatment of Certain Information; Confidentiality.
(a) Disclosure to Certain Affiliates. The Borrowers acknowledge that from time to time
financial advisory, investment banking and other services may be offered or provided to the
Borrowers or one or more of their Subsidiaries (in connection with this Agreement or otherwise) by
any Lender or by one or more subsidiaries or affiliates of such Lender and the Borrowers hereby
authorize each Lender to share any information delivered to such Lender by the Borrowers and their
Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter
into this Agreement, to any such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound by the provisions of paragraph
(b) below as if it were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and Reimbursement Obligations and the termination of the Commitments.
(b) Confidentiality Generally. 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 (or, if such Lender is not a bank, in accordance with safe and sound lending practices),
any non-public information supplied to it by any Obligor pursuant to this Agreement or any other
Loan Document that is identified by the Borrowers as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, provided that nothing herein shall limit the
disclosure of any such information (i) after such information shall have become public (other than
through a violation of this Section 11.12), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to counsel for any of the Lenders or the Administrative
Agent, (iv) to bank examiners (or any other regulatory authority, or quasi-regulatory body,
including the National Association of Insurance Commissioners (NAIC), 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 X.X. Xxxxxx 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, (viii) to any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrowers and their obligations or (ix) to any assignee or participant (or prospective assignee or
participant) so
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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.
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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.
BORROWERS
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MEDIACOM ILLINOIS LLC
MEDIACOM INDIANA LLC
MEDIACOM IOWA LLC
MEDIACOM MINNESOTA LLC
MEDIACOM WISCONSIN LLC
MEDIACOM ARIZONA LLC
MEDIACOM CALIFORNIA LLC
MEDIACOM DELAWARE LLC
MEDIACOM SOUTHEAST LLC
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By: |
Mediacom LLC, Member
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By: |
Mediacom Communications Corporation, Member
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By: |
/s/ Xxxx X. Xxxxxxx
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
Executive Vice President,
Chief Financial Officer and
Treasurer |
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-118-
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XXXXXXX COMMUNICATIONS CORP.
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By: |
/s/ Xxxx X. Xxxxxxx
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
Executive Vice President,
Chief Financial Officer and
Treasurer |
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c/o Mediacom LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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-119-
ADMINISTRATIVE AGENT
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JPMORGAN CHASE BANK,
as Administrative Agent
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By: |
/s/ Xxxxxx Xxxxxxxxx
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Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Vice President |
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Address for Notices to
JPMorgan Chase Bank as Administrative Agent:
JPMorgan Chase Bank
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Loan and Agency Services Group
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
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JPMORGAN CHASE BANK
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By: |
/s/ Xxxxxx Xxxxxxxxx
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Name: |
Xxxxxx Xxxxxxxxx |
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Title: |
Vice President |
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BANK OF AMERICA, N.A.
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By: |
/s/ Xxxx Xxxxxxx
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Name: |
Xxxx Xxxxxxx |
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Title: |
Managing Director |
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Citibank, N.A.
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By: |
/s/ Xxxx X. Judge
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Name: |
Xxxx X. Judge |
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Title: |
Vice President |
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Credit Suisse First Boston, acting though its Cayman Islands branch
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By: |
/s/ Xxxxxx Xxxx
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Name: |
Xxxxxx Xxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxx Xxxx
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Name: |
Xxxxxx Xxxx |
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Title: |
Associate |
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Wachovia Bank, N.A.
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By: |
/s/ Xxxx X. Xxxxx
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Name: |
Xxxx X. Xxxxx |
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Title: |
Director |
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Xxxxxx Xxxxxxx Financing, Inc.
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By: |
/s/ Xxxxx Xxx
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Name: |
Xxxxx Xxx |
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Title: |
Managing Director |
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XXXXXXX SACHS CREDIT PARTNERS L.P.
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By: |
/s/ Xxxxxxx Xxxxxx
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Authorized Signatory |
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SUNTRUST BANK
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By: |
/s/ Xxxxxxx X. Xxxxxx
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Managing Director |
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Allied Irish Banks Plc. as Lender
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By: |
/s/ Xxxx Xxxxxxxxxx
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Name: |
Xxxx Xxxxxxxxxx |
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Title: |
Senior Vice President |
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By: |
/s/ Xxxxxx X’Xxxxxxx
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Name: |
Xxxxxx X’Xxxxxxx |
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Title: |
Assistant Vice President |
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Credit Industriel et Commercial
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By: |
/s/ Xxxxxx Xxxxxx
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxxx Xxxx
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Name: |
Xxxxxxx Xxxx |
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Title: |
Vice President |
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GENERAL ELECTRIC CAPITAL CORPORATION
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Duly Authorized Signatory |
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KZH CRESCENT-3 LLC
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By: |
/s/ Hi Hua
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Name: |
Hi Hua |
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Title: |
Authorized Agent |
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KZH CypressTree-1 LLC
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By: |
/s/ Hi Hua
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Name: |
Hi Hua |
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Title: |
Authorized Agent |
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KZH PONDVIEW LLC
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By: |
/s/ Xxxxx Xxx
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Name: |
Xxxxx Xxx |
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Title: |
Authorized Agent |
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KZH SOLEIL LLC
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By: |
/s/ Xxxxx Xxx
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Name: |
Xxxxx Xxx |
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Title: |
Authorized Agent |
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KZH SOLEIL-2 LLC
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By: |
/s/ Xxxxx Xxx
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Name: |
Xxxxx Xxx |
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Title: |
Authorized Agent |
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KZH Sterling LLC
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By: |
/s/ Hi Hua
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Name: |
Hi Hua |
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Title: |
Authorized Agent |
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NATEXIS BANQUES POPULAIRES
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By: |
/s/ Xxxx X. Xxxxx
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Name: |
Xxxx X. Xxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
VP Group Manager |
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STANWICH LOAN FUNDING LLC
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By: |
/s/ Xxxxx X. Xxxxx
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Assistant Vice President |
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UBS AG Stamford Branch
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By: |
/s/ Xxxxxx Oh
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Name: |
Xxxxxx Oh |
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Title: |
Associate Director
Banking Producta
Services, US |
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By: |
/s/ Xxxxxxx X. Xxxxxx
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Associate Director
Banking Products
Services, US |
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List of Omitted Exhibits and Schedules
The following exhibits and schedules to the Credit Agreement, dated as of October 21, 2004,
among the operating subsidiaries of Mediacom LLC, the lenders thereto and JPMorgan Chase Bank, as
administrative agent for the lenders, have not been provided herein:
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Schedule I
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—
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Commitments |
Schedule II
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—
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Taxes |
Schedule III
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—
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Material Agreements and Liens |
Schedule IV
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—
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Subsidiaries and Investments |
Schedule V
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Franchises |
Schedule VI
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Certain Matters Related to CATV Systems |
Schedule VII
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Rate Regulation Matters |
Schedule VIII
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—
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Litigation |
Exhibit A
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—
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Form of Assignment and Assumption |
Exhibit B
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—
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Form of Quarterly Officer’s Report |
Exhibit C
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—
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Form of Pledge Agreement |
Exhibit D
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Form of Guarantee and Pledge Agreement |
Exhibit E
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—
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Form of Subsidiary Guarantee Agreement |
Exhibit F
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Form of Management Fee Subordination Agreement |
Exhibit G
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Form of Opinion of Counsel to the Obligors |
Exhibit H
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Form of Opinion of Special New York Counsel to JPMCB |
Exhibit I
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Form of Confidentiality Agreement |
Exhibit J
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Form of Affiliate Subordinated Indebtedness
Subordination Agreement |
The undersigned registrant hereby undertakes to furnish supplementally a copy of any omitted
exhibit or schedule to the Securities and Exchange Commission upon request.