EXHIBIT 10.6
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MEDIACOM ILLINOIS LLC
MEDIACOM INDIANA LLC
MEDIACOM IOWA LLC
MEDIACOM MINNESOTA LLC
MEDIACOM WISCONSIN LLC
XXXXXXX COMMUNICATIONS CORP.
_____________________________
CREDIT AGREEMENT
Dated as of November 5, 1999
______________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters............. 1
1.01 Certain Defined Terms........................... 1
1.02 Accounting Terms and Determinations............. 30
1.03 Classes and Types of Loans...................... 31
1.04 Subsidiaries.................................... 31
1.05 Nature of Obligations of Borrowers.............. 32
Section 2. Commitments, Loans and Prepayments............. 32
2.01 Loans........................................... 32
2.02 Borrowings...................................... 34
2.03 Letters of Credit............................... 34
2.04 Changes of Commitments.......................... 39
2.05 Commitment Fee.................................. 41
2.06 Lending Offices................................. 42
2.07 Several Obligations; Remedies Independent....... 42
2.08 Loan Accounts; Promissory Notes................. 42
2.09 Optional Prepayments and Conversions or
Continuations of Loans......................... 43
2.10 Mandatory Prepayments and Reductions of
Commitments.................................... 44
Section 3. Payments of Principal and Interest............. 48
3.01 Repayment of Loans.............................. 48
3.02 Interest........................................ 49
3.03 Determination of Applicable Margin.............. 50
Section 4. Payments; Pro Rata Treatment; Computations;
Etc........................................... 51
4.01 Payments........................................ 51
4.02 Pro Rata Treatment.............................. 52
4.03 Computations.................................... 53
4.04 Minimum Amounts................................. 53
4.05 Certain Notices................................. 53
4.06 Non-Receipt of Funds by the Administrative
Agent.......................................... 54
4.07 Sharing of Payments, Etc........................ 55
(i)
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Section 5. Yield Protection, Etc.......................... 57
5.01 Additional Costs................................ 57
5.02 Limitation on Types of Loans.................... 59
5.03 Illegality...................................... 59
5.04 Treatment of Affected Loans..................... 59
5.05 Compensation.................................... 60
5.06 Additional Costs in Respect of Letters of
Credit......................................... 61
5.07 U.S. Taxes...................................... 62
5.08 Replacement of Lenders.......................... 63
Section 6. Conditions Precedent........................... 64
6.01 Initial Extension of Credit..................... 64
6.02 Initial and Subsequent Extensions of Credit..... 67
Section 7. Representations and Warranties................. 67
7.01 Existence....................................... 67
7.02 Financial Condition............................. 68
7.03 Litigation...................................... 68
7.04 No Breach....................................... 69
7.05 Action.......................................... 69
7.06 Approvals....................................... 69
7.07 ERISA........................................... 70
7.08 Taxes........................................... 70
7.09 Investment Company Act.......................... 70
7.10 Public Utility Holding Company Act.............. 70
7.11 Material Agreements and Liens................... 70
7.12 Environmental Matters........................... 71
7.13 Capitalization.................................. 72
7.14 Subsidiaries, Etc............................... 72
7.15 True and Complete Disclosure.................... 72
7.16 Franchises...................................... 73
7.17 The CATV Systems................................ 74
7.18 Rate Regulation................................. 75
7.19 Year 2000 Issues. To the knowledge of the
Borrowers, a................................... 76
7.20 Triax Acquisition Agreement..................... 76
7.21 Use of Credit................................... 76
Section 8. Covenants of the Borrowers..................... 77
8.01 Financial Statements Etc........................ 77
8.02 Litigation...................................... 79
8.03 Existence, Etc.................................. 80
(ii)
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8.04 Insurance....................................... 81
8.05 Prohibition of Fundamental Changes.............. 81
8.06 Limitation on Liens............................. 86
8.07 Indebtedness.................................... 87
8.08 Investments..................................... 88
8.09 Restricted Payments............................. 89
8.10 Certain Financial Covenants..................... 91
8.11 Management Fees................................. 92
8.12 Capital Expenditures............................ 93
8.13 Interest Rate Protection Agreements............. 95
8.14 Affiliate and Additional Subordinated
Indebtedness................................... 95
8.15 Lines of Business............................... 96
8.16 Transactions with Affiliates.................... 96
8.17 Use of Proceeds................................. 97
8.18 Certain Obligations Respecting Subsidiaries;
Further Assurances............................. 97
8.19 Modifications of Certain Documents.............. 99
Section 9. Events of Default.............................. 100
9.01 Events of Default............................... 100
9.02 Certain Cure Rights............................. 105
Section 10. The Administrative Agent...................... 106
10.01 Appointment, Powers and Immunities............. 106
10.02 Reliance by Administrative Agent............... 107
10.03 Defaults....................................... 107
10.04 Rights as a Lender............................. 108
10.05 Indemnification................................ 108
10.06 Non-Reliance on Administrative Agent and Other
Lenders........................................ 108
10.07 Failure to Act................................. 109
10.08 Resignation or Removal of Administrative Agent. 109
10.09 Consents under Other Loan Documents............ 110
Section 11. Miscellaneous................................. 110
11.01 Waiver......................................... 110
11.02 Notices........................................ 111
11.03 Expenses, Etc.................................. 111
11.04 Amendments, Etc................................ 112
11.05 Successors and Assigns......................... 113
11.06 Assignments and Participations................. 114
11.07 Survival....................................... 117
11.08 Captions....................................... 118
11.09 Counterparts................................... 118
(iii)
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11.10 Governing Law; Submission to Jurisdiction...... 118
11.11 Waiver of Jury Trial........................... 118
11.12 Treatment of Certain Information;
Confidentiality............................... 118
SCHEDULE I - Commitments
SCHEDULE II - Taxes
SCHEDULE III - Material Agreements and Liens
SCHEDULE IV - Investments
SCHEDULE V - Franchises
SCHEDULE VI - Certain Matters Related to CATV Systems
SCHEDULE VII - Certain Adjustments to System Cash Flow
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Quarterly Officer's Report
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D - Form of Guarantee and Pledge Agreement
EXHIBIT E - Form of Subsidiary Guarantee Agreement
EXHIBIT F - Form of Management Fee Subordination Agreement
EXHIBIT G - Form of Opinion of Counsel to the Obligors
EXHIBIT H - Form of Opinion of Special New York Counsel to Chase
EXHIBIT I - Form of Confidentiality Agreement
EXHIBIT J - Form of Affiliate Subordinated Indebtedness Subordination Agreement
(iv)
CREDIT AGREEMENT dated as of November 5, 1999, 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");
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MEDIACOM INDIANA LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware ("Mediacom
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Indiana"); MEDIACOM IOWA LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware ("Mediacom
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Iowa"); MEDIACOM MINNESOTA LLC, a limited liability company duly organized
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and validly existing under the laws of the State of Delaware ("Mediacom
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Minnesota"); MEDIACOM WISCONSIN LLC, a limited liability company duly
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organized and validly existing under the laws of the State of Delaware
("Mediacom Wisconsin"); and XXXXXXX COMMUNICATIONS CORP., a corporation
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validly existing under the laws of the State of Minnesota ("Xxxxxxx", and,
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together with Mediacom Illinois, Mediacom Indiana, Mediacom Iowa, Mediacom
Minnesota and Mediacom Wisconsin, the "Borrowers");
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each of the lenders that is a signatory hereto identified under the
caption "Lenders" on the signature pages hereto and each lender that
becomes a "Lender" after the date hereof pursuant to Section 11.06(b)
hereof (individually, a "Lender" and, collectively, the "Lenders"); and
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THE CHASE MANHATTAN 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").
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The Borrowers have requested that the Lenders extend credit to them (by making
loans and issuing letters of credit) in an aggregate principal or face amount
not exceeding $550,000,000 (which may, in the circumstances herein provided, be
increased to $750,000,000) at any one time outstanding to enable the Borrowers
to finance the Triax Acquisition (as hereinafter defined) and to provide funds
for additional acquisitions of cable televisions systems and for general
corporate purposes. The Lenders are prepared to extend such credit on the terms
and conditions hereof and, accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms.
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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):
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"Acquisition Agreements" shall mean, collectively, the Triax Acquisition
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Agreement and any Subsequent Acquisition Agreements.
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"Acquisitions" shall mean, collectively, the Triax Acquisition and any
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Subsequent Acquisitions.
"Additional Capital Expenditures" shall mean Capital Expenditures made in
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accordance with the requirements of Section 8.12(b) hereof.
"Adjusted Operating Cash Flow" shall mean, for any period during which the
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Borrowers shall have consummated an Acquisition, the sum, for the Borrowers and
their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) Operating Cash Flow minus (ii) without duplication of the
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Management Fees actually paid during such period, the additional Management Fees
that would have been paid during such period at a rate equal to the then
applicable rate or percentage specified in the Management Agreement of the gross
operating revenue of the Borrowers and their Subsidiaries for such period
(determined, as specified above under the assumption that such Acquisition had
been consummated on the first day of such period).
"Adjusted System Cash Flow" shall mean, for any period during which the
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Borrowers shall have consummated an Acquisition, the sum, for the Borrowers and
their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following, in each case determined under the
assumption that such Acquisition had been consummated on the first day of such
period: (i) System Cash Flow for such period plus (ii) the sum of (x) non-
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recurring expenses incurred by the relevant sellers prior to the actual closing
of such Acquisition (to the extent such items were included as operating
expenses in the determination of System Cash Flow for such period) and (y) in
the case of the Triax Acquisition, the amounts set forth in Schedule VII hereto
for such period, or, in the case of any Subsequent Acquisition, the amounts set
forth in a statement of adjustments to System Cash Flow provided by the
Borrowers in connection with such Subsequent Acquisition and acceptable to the
Administrative Agent and Majority Lenders (in each case representing certain
cost savings and programming cost increases in respect of the CATV Systems being
acquired in such Acquisition).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in a
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form supplied by the Administrative Agent.
"Affiliate" shall mean any Person that directly or indirectly controls, or is
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under common control with, or is controlled by, a Borrower and, if such Person
is an individual, any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members
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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
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meanings, "controlled by" and "under common control with") shall mean
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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
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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
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accordance with the requirements of Section 8.08(g) hereof.
"Affiliate Subordinated Indebtedness" shall mean Indebtedness to an Affiliate
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(i) for which a Borrower is directly and primarily liable, (ii) in respect of
which none of its Subsidiaries is contingently or otherwise obligated, (iii)
that is subordinated to the obligations of the Borrowers to pay principal of and
interest on the Loans, Reimbursement Obligations, fees and other amounts payable
hereunder pursuant to an Affiliate Subordinated Indebtedness Subordination
Agreement, (iv) that does not mature prior to December 31, 2009, and that is
issued pursuant to documentation containing terms (including interest, covenants
and events of default) in form and substance satisfactory to the Majority
Lenders and (v) that states by its terms that principal and interest in respect
thereof shall only be payable to the extent permitted under Section 8.09 hereof.
"Affiliate Subordinated Indebtedness Subordination Agreement" shall mean an
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Affiliate Subordinated Indebtedness Subordination Agreement substantially in the
form of Exhibit J hereto between any Person to whom a Borrower or any of its
Subsidiaries may be obligated to pay Affiliate Subordinated Indebtedness, the
Borrowers and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Apache Acquisition" shall mean the acquisition by Mediacom Arizona LLC, a
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Subsidiary of Mediacom, of the Apache Junction, Arizona cable television system
from Triax as part of the Triax Acquisition.
"Applicable Lending Office" shall mean, for each Lender and for each Type of
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Loan, the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan in the Administrative Questionnaire submitted
by such Lender or such other office of such Lender (or of an affiliate of such
Lender) as such Lender may from time to time specify
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to the Administrative Agent and the Borrowers as the office by which its Loans
of such Type are to be made and maintained.
"Applicable Margin" shall mean, with respect to (a) Term Loans that are Base
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Rate Loans, (i) when the then-current Rate Ratio (determined pursuant to Section
3.03 hereof) is 5.00 to 1 or less, 1.50% per annum and (ii) at all other times,
1.75% per annum, (b) Term Loans that are Eurodollar Loans, (i) when the then-
current Rate Ratio (determined pursuant to Section 3.03 hereof) is 5.00 to 1 or
less, 2.50% per annum and (ii) at all other times, 2.75% per annum and (c)
Revolving Credit Loans of any Type, the respective rates indicated below for
Loans of such Type opposite the then-current Rate Ratio (determined pursuant to
Section 3.03 hereof) indicated below (except that anything in this Agreement to
the contrary notwithstanding, the Applicable Margin with respect to any Loans
shall be 1.75% with respect to Base Rate Loans and 2.75% with respect to
Eurodollar Loans during any period when an Event of Default shall have occurred
and be continuing):
Range Applicable Margin (% p.a.)
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of
Rate Ratio Base Rate Loans Eurodollar Loans
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Greater than 5.75 to 1 1.250% 2.250%
Greater than or equal to
5.50 to 1 but less than
or equal to 5.75 to 1 1.000% 2.000%
Greater than or equal to
5.00 to 1 but less than
5.50 to 1 0.750% 1.750%
Greater than or equal to
4.50 but less than
5.00 to 1 0.500% 1.500%
Greater than or equal to
3.75 to 1 but
less than 4.50 to 1 0.250% 1.250%
Greater than or equal to
3.00 to 1 but
less than 3.75 to 1 0.250% 1.000%
Less than 3.00 to 1 0.000% 0.750%
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"Applicable Permitted Transaction Amount" shall mean, as at any date
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during any fiscal quarter during any Fiscal Period, the sum of (a) the Equity
Contribution Amount and the outstanding principal amount of Affiliate
Subordinated Indebtedness, as at the beginning of such fiscal quarter plus (b)
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the total cash equity capital contributions made, and the aggregate principal
amount of Affiliate Subordinated Indebtedness advanced, to the Borrowers during
the period (the "current period") commencing on the first day of such fiscal
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quarter through and including such date minus (c) the sum of (i) the aggregate
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amount of repayments of Affiliate Subordinated Indebtedness, and distributions
in respect of equity capital, made during the current period plus (ii) the
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aggregate face amount of Affiliate Letters of Credit issued during the current
period or during the period (the "prior period") commencing on the Closing Date
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through and including the last day of the fiscal quarter immediately preceding
such fiscal quarter minus (iii) the aggregate amount of reductions in the
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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" means with respect to any Lender that is a fund that invests
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in commercial loans, any other fund that invests in commercial loans and is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance entered into by
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a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.05 hereof), and accepted by the Administrative Agent, in
the form of Exhibit A or any other form approved by the Administrative Agent.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as amended
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from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the higher of
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(a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate
for such day. Each change in any interest rate provided for herein based upon
the Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based upon the
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Base Rate.
"Basic Documents" shall mean, collectively, this Agreement, the other Loan
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Documents and the Triax Acquisition Agreement.
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"Basic Subscribers" shall mean, as at any date, (a) Subscribers who subscribe
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to a CATV System at the regular basic monthly subscription rate for such CATV
System to a single household Subscriber (exclusive of "secondary outlets", as
such term is commonly understood in the cable television industry), plus (b) the
----
number of Subscribers determined by dividing the aggregate dollar monthly amount
billed for basic service to bulk Subscribers (hotels, motels, apartment
buildings, hospitals and the like) located in each Region by the weighted
average of the regular basic monthly subscription rates for basic service
charged by the CATV Systems in such Region.
"Basle Accord" shall mean the proposals for risk-based capital framework
------------
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are not
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authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by a Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, expenditures made by the
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Borrowers or any of their Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals, improvements and replacements, but
excluding repairs and the Acquisitions) during such period computed in
accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all obligations of
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such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Casualty Event" shall mean, with respect to any Property of any Person, any
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loss of or damage to, or any condemnation or other taking of, such Property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"CATV System" shall mean any cable distribution system that receives broadcast
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signals by antennae, microwave transmission, satellite transmission or any other
form of
Credit Agreement
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transmission and that amplifies such signals and distributes them to Persons who
pay to receive such signals, but shall exclude wireless cable.
"Chase" shall mean The Chase Manhattan Bank.
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"Class" shall have the meaning assigned to such term in Section 1.03 hereof.
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"Closing Date" shall mean the date on which the initial extension of credit
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hereunder is made.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral Account" shall have the meaning assigned to such term in the
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Pledge Agreement.
"Xxxxxxxx Entity" shall mean, collectively, (i) Xxxxx Xxxxxxxx, (ii) any
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entity controlled by Xxxxx Xxxxxxxx and owned by Xxxxx Xxxxxxxx, (iii) members
of the immediate family of Xxxxx Xxxxxxxx or (iv) trusts established for the
benefit of Xxxxx Xxxxxxxx or members of the immediate family of Xxxxx Xxxxxxxx.
Following a Qualified Public Offering, the term "Xxxxxxxx Entity" shall also
include any officer or employee of Holdco and Mediacom who owns shares of the
capital stock of Holdco.
"Commitments" shall mean, collectively, the Revolving Credit Commitments, the
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Term Loan Commitments and the Incremental Facility Commitments (if any).
"Continue", "Continuation" and "Continued" shall refer to the continuation
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pursuant to Section 2.09 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant
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to Section 2.09 hereof of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Cure Monies" shall mean proceeds of Affiliate Subordinated Indebtedness
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and/or equity contributions received by the Borrowers after the date hereof
that, at the time the same are received by the Borrowers are identified by the
Borrowers, in a certificate of a Senior Officer delivered by the Borrowers to
the Administrative Agent within one Business Day of such receipt, as
constituting "Cure Monies" for purposes of Section 9.02 hereof.
Credit Agreement
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"Debt Issuance" shall mean any issuance or sale by a Borrower or any of its
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Subsidiaries after the Closing Date of any debt securities, excluding, however,
any Indebtedness incurred pursuant to Section 8.07(c) or 8.07(f) hereof.
"Debt Service" shall mean, for any period, the sum, for the Borrowers and
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their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following: (a) in the case of Revolving Credit
Loans under this Agreement, the aggregate amount of payments of principal of
such Loans that, giving effect to Commitment reductions or terminations
scheduled to be made during such period pursuant to Section 2.04(a) hereof, were
required to be made pursuant to Section 3.01(a) hereof during such period plus
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(b) in the case of Term Loans and Incremental Facility Loans under this
Agreement and all other Indebtedness (other than Revolving Credit Loans), all
regularly scheduled payments or regularly scheduled prepayments of principal of
such Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) made or payable during such
period (other than the principal component of any payments in respect of
Affiliate Subordinated Indebtedness) plus (c) all Interest Expense for such
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period.
"Default" shall mean an Event of Default or an event that with notice or lapse
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of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other disposition
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of any Property (whether now owned or hereafter acquired) by the Borrowers or
any of their Subsidiaries to any other Person excluding any sale, assignment,
transfer or other disposition of any Property sold or disposed of in the
ordinary course of business and on ordinary business terms.
"Dollars" and "$" shall mean lawful money of the United States of America.
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"Environmental Claim" shall mean, with respect to any Person, any written or
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oral notice, claim, demand or other communication (collectively, a "claim") by
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any other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental 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.
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"Environmental Laws" shall mean any and all present and future Federal, state,
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local and foreign laws, rules or regulations, and any orders or decrees, in each
case as now or hereafter in effect, relating to the regulation or protection of
human health, safety or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"Equity Contribution Amount" shall mean, as at any date of determination, (a)
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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 in the case of the LLC Borrowers and, from and including the date
of acquisition by Mediacom thereof, in the case of Xxxxxxx, through and
including such date of determination minus (b) the aggregate amount of
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distributions made in respect of the equity capital of the Borrowers during such
period.
"Equity Rights" shall mean, with respect to any Person, any subscriptions,
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options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of capital stock of any class or other ownership
interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that is a
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member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which 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
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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
Credit Agreement
----------------
-10-
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.
"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) in the case of the LLC Borrowers, the Tax Payment Amount for
----
such period plus (iv) in the case of Xxxxxxx, the aggregate amount of income
----
taxes for such period (to the extent not deducted in determining Operating Cash
Flow for such period) plus (v) any decreases (or minus any increases) in Working
---- -----
Capital from the first day to the last day of such period.
"Executive Compensation" shall mean, for any period, the aggregate amount of
----------------------
compensation (including, without limitation, salaries, withholding taxes,
unemployment insurance contributions, pension, health and other benefits) of the
Manager's executive management personnel during such period. For purposes
hereof, "executive management personnel" shall not include any individual (such
as a system manager) who is employed solely in connection with the day-to-day
operations of a CATV System.
"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
Credit Agreement
----------------
-11-
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 Chase on such
Business Day on such transactions as determined by the Administrative Agent.
"Fiscal Period" means any fiscal year or the period from the Closing Date to
-------------
and including December 31, 1999.
"Franchise" shall mean a franchise, license, authorization or right by
---------
contract or otherwise to construct, own, operate, promote, extend and/or
otherwise exploit any CATV System operated or to be operated by the Borrowers or
any of their Subsidiaries granted by any state, county, city, town, village or
other local or state government authority or by the FCC. The term "Franchise"
shall include each of the Franchises set forth on Schedule 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.
"Guarantee" shall mean a guarantee, an endorsement, a contingent agreement to
---------
purchase or to furnish funds for the payment or maintenance of, or otherwise to
be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
--------- ----------
correlative meaning.
"Guarantee and Pledge Agreement" shall mean a Guarantee and Pledge Agreement
------------------------------
substantially in the form of Exhibit D hereto between Mediacom, the Manager and
the Administrative Agent, as the same shall be modified and supplemented and in
effect from time to time.
"Hazardous Material" shall mean, collectively, (a) any petroleum or petroleum
------------------
products, flammable materials, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls
Credit Agreement
----------------
-12-
("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.
"Holdco" shall mean a corporation to be formed in connection with a Qualified
------
Public Offering, that will issue capital stock to the holders of equity
interests in Mediacom in exchange for the equity interests held by such holders,
and of which Mediacom will thereby become a Subsidiary.
"Incremental Facility Availability Period" shall mean the period from and
----------------------------------------
including the Closing Date to but excluding December 31, 2001 (or, if such date
is not a Business Day, to but excluding the immediately preceding Business Day).
"Incremental Facility Commitment" shall mean, for each Incremental Facility
-------------------------------
Lender, and for any Series thereof, the obligation of such Incremental Facility
Lender to make Incremental Facility Loans of such Series (as the same may be
reduced from time to time pursuant to Section 2.04 or 2.10 hereof or increased
or reduced from time to time pursuant to assignments permitted under Section
11.06(b) hereof). The amount of each Lender's Incremental Facility Commitment
of any Series shall be determined in accordance with the provisions of Section
2.01(c) hereof. The aggregate amount of the Incremental Facility Commitments of
all Series shall not exceed $200,000,000.
"Incremental Facility Lenders" shall mean, in respect of any Series of
----------------------------
Incremental Facility Loans, the Lenders from time to time holding Incremental
Facility Loans and Incremental Facility Commitments of such Series after giving
effect to any assignments thereof permitted by Section 11.06(b) hereof.
"Incremental Facility Loans" shall mean the loans provided for by Section
--------------------------
2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Indebtedness" shall mean, for any Person: (a) obligations created, issued or
------------
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person), including, without limitation, Affiliate Subordinated
Indebtedness; (b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
within 90 days of the date the
Credit Agreement
----------------
-13-
respective goods are delivered or the respective services are rendered; (c)
Indebtedness of others secured by a Lien on the Property of such Person, whether
or not the respective indebtedness so secured has been assumed by such Person;
(d) obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
account of such Person; (e) Capital Lease Obligations of such Person; and (f)
Indebtedness of others Guaranteed by such Person; provided that Indebtedness
--------
shall exclude (i) obligations in respect of surety and performance bonds backing
pole rental or conduit attachments and the like, or backing obligations under
Franchises, arising in the ordinary course of business of the CATV Systems and
related telecommunications services of the 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, 1999 prepared in connection with the syndication of the credit
facilities provided for in this Agreement.
"Interest Coverage Ratio" shall mean, as at any date, the ratio of (a)
-----------------------
Operating Cash Flow for the fiscal quarter ending on, or most recently ended
prior to, such date to (b) Interest Expense for such fiscal quarter.
Notwithstanding the foregoing, the Interest Coverage Ratio for any fiscal
quarter during which an Acquisition is consummated shall be deemed to be equal
to the ratio of Adjusted Operating Cash Flow for such fiscal quarter to Interest
Expense for such fiscal quarter.
"Interest Expense" shall mean, for any period, the sum, for the Borrowers and
----------------
their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period) and all commitment
fees payable hereunder, but excluding all interest in respect of Affiliate
Subordinated Indebtedness (to the extent not paid in cash during such period),
plus (b) the net amount payable (or minus the net amount receivable) under
---- -----
Interest Rate Protection Agreements during such period (whether or not actually
paid or received during such period) plus (c) the aggregate amount of upfront or
----
one-time fees or expenses payable in respect of Interest Rate Protection
Agreements to the extent such fees or expenses are amortized during such period.
Notwithstanding the foregoing, if during any period for which Interest Expense
is being determined the Borrowers or any of their Subsidiaries shall have
consummated any acquisition of any CATV System or other business, or consummated
any Disposition, then, for all purposes of this Agreement, Interest Expense
shall be determined on a pro forma basis as if such acquisition or Disposition
had been made or consummated (and any related Indebtedness incurred or repaid)
on the first day of such period.
Credit Agreement
----------------
-14-
"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, second, third or sixth calendar month thereafter, as the Borrowers
may select as provided in Section 4.05 hereof, except that each Interest Period
that commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing:
(i) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date, such
Interest Period shall end on the Revolving Credit Commitment Termination
Date;
(ii) no Interest Period for any Revolving Credit Loan may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto, the aggregate principal amount of
Revolving Credit Loans having Interest Periods that end after such
Revolving Credit Commitment Reduction Date shall be equal to or less than
the aggregate principal amount of Revolving Credit Loans scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Revolving Credit Commitment Reduction Date;
(iii) no Interest Period for any Term Loan may commence before
and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or
less than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(iv) no Interest Period for any Incremental Facility Loan of any
Series may commence before and end after any Principal Payment Date unless,
after giving effect thereto, the aggregate principal amount of the
Incremental Facility Loans of such Series having Interest Periods that end
after such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Incremental Facility Loans of such Series
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date;
(v) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business
Credit Agreement
----------------
-15-
Day falls in the next succeeding calendar month, on the next preceding
Business Day); and
(vi) notwithstanding clauses (i), (ii), (iii) and (iv) above, no
Interest Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any Person, an interest
----------------------------------
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more financial institutions providing for the transfer or mitigation
of interest risks either generally or under specific contingencies. For
purposes hereof, the "credit exposure" at any time of any Person under an
---------------
Interest Rate Protection Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Interest Rate Protection Agreement.
"Investment" shall mean, for any Person: (a) the acquisition (whether for
----------
cash, Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or extension
of credit having a term not exceeding 90 days arising in connection with the
sale of programming or advertising time by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; or (d) the entering into of any Interest Rate Protection
Agreement.
"Issuing Lender" shall mean Chase, as the issuer of Letters of Credit under
--------------
Section 2.03 hereof, together with its successors and assigns in such capacity.
"Letter of Credit" shall have the meaning assigned to such term in Section
----------------
2.03 hereof.
"Letter of Credit Documents" shall mean, with respect to any Letter of Credit,
--------------------------
collectively, any application therefor and any other agreements, instruments,
guarantees or other
Credit Agreement
----------------
-16-
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit Lender, such
-------------------------
Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any time and
--------------------------
in respect of any Letter of Credit, the sum of (a) the undrawn face amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
----
Reimbursement Obligations of the Borrowers at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Lender) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Lender shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests under said
Section 2.03.
"Lien" shall mean, with respect to any Property, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"LLC Borrowers" shall mean, collectively, Mediacom Illinois, Mediacom Indiana,
-------------
Mediacom Iowa, Mediacom Minnesota and Mediacom Wisconsin.
"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 Term Loans
-----
and the Incremental Facility Loans.
Credit Agreement
----------------
-17-
"Majority Incremental Facility Lenders" shall mean, with respect to any Series
-------------------------------------
of Incremental Facility Loans, Incremental Facility Lenders holding more than
50% of the aggregate outstanding principal amount of the Incremental Facility
Loans of such Series or, if the Incremental Facility Loans shall not have been
made, more than 50% of the Incremental Facility Commitments of such Series.
"Majority Lenders" shall mean, subject to the last paragraph of Section 11.04
----------------
hereof, Lenders having more than 50% of the sum of (a) the aggregate outstanding
principal amount of the Term Loans or, if the Term Loans shall not have been
made, the aggregate outstanding principal amount of the Term Loan Commitments
plus (b) the aggregate outstanding principal amount of the Incremental Facility
----
Loans or, if the Incremental Facility Loans shall not have been made, the
aggregate outstanding principal amount of the Incremental Facility Commitments
plus (c) the sum of (i) the aggregate unused amount, if any, of the Revolving
----
Credit Commitments at such time plus (ii) the aggregate amount of Letter of
----
Credit Liabilities at such time plus (iii) the aggregate outstanding principal
----
amount of the Revolving Credit Loans at such time.
"Majority Revolving Credit Lenders" shall mean Revolving Credit Lenders having
---------------------------------
more than 50% of the aggregate amount of the Revolving Credit Commitments or, if
the Revolving Credit Commitments shall have terminated, Revolving Credit Lenders
holding more than 50% of the sum of (a) the aggregate unpaid principal amount of
the Revolving Credit Loans plus (b) the aggregate amount of all Letter of Credit
----
Liabilities.
"Majority Term Loan Lenders" shall mean Term Loan Lenders holding more than
--------------------------
50% of the aggregate outstanding principal amount of the Term Loans or, if the
Term Loans shall not have been made, more than 50% of the Term Loan Commitments.
"Management Agreements" shall mean, collectively, (a) the Management Agreement
---------------------
dated as of October 15, 1999 between Mediacom Illinois and Mediacom Management
Corporation, (b) the Management Agreement dated as of October 15, 1999 between
Mediacom Indiana and Mediacom Management Corporation, (c) the Management
Agreement dated as of October 15, 1999 between Mediacom Iowa and Mediacom
Management Corporation, (d) the Management Agreement dated as of October 15,
1999 between Mediacom Minnesota and Mediacom Management Corporation, (e) the
Management Agreement dated as of October 15, 1999 between Mediacom Wisconsin and
Mediacom Management Corporation and (f) the Management Agreement dated as of
October 15, 1999 between Xxxxxxx and Mediacom Management Corporation, in each
case as the same shall, subject to Section 8.19 hereof, be modified and
supplemented and in effect from time to time.
"Management Fee Subordination Agreement" shall mean a Management Fee
--------------------------------------
Subordination Agreement substantially in the form of Exhibit F hereto between
the Manager (or,
Credit Agreement
----------------
-18-
as contemplated by Section 8.11 hereof, any other Person to whom the Borrowers
or any of their Subsidiaries may be obligated to pay Management Fees), the
Borrowers and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Management Fees" shall mean, for any period, the sum of all fees, salaries
---------------
and other compensation (including, without limitation, all Executive
Compensation) paid or incurred by the Borrowers to Affiliates (other than
Affiliates that are employees of the Borrowers and their Subsidiaries) in
respect of services rendered in connection with the management or supervision of
the Borrowers and their Subsidiaries, provided that Management Fees shall
--------
exclude the aggregate amount of intercompany shared expenses payable to Mediacom
that are allocated by Mediacom to the Borrowers and their Subsidiaries in
accordance with Section 5.04 of the Guarantee and Pledge Agreement (other than
the allocated amount of Executive Compensation, which Executive Compensation
shall in any event constitute Management Fees hereunder).
"Manager" shall mean Mediacom Management Corporation, or any successor in such
-------
capacity as manager of the Borrowers.
"Margin Stock" shall mean "margin stock" within the meaning of Regulations T,
------------
U and X.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
-----------------------
Property, business, operations, financial condition, prospects, liabilities or
capitalization of the Borrowers and their Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform its obligations under any of the Loan
Documents to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith.
"Mediacom" shall mean Mediacom LLC, a New York limited liability company.
--------
"Mediacom Illinois Operating Agreement" shall mean the Operating Agreement of
-------------------------------------
Mediacom Illinois dated as of September 15, 1999, as the same shall, subject to
Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Mediacom Indiana Operating Agreement" shall mean the Operating Agreement of
------------------------------------
Mediacom Indiana dated as of September 15, 1999, as the same shall, subject to
Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
Credit Agreement
----------------
-19-
"Mediacom Iowa Operating Agreement " shall mean the Operating Agreement of
----------------------------------
Mediacom Iowa dated as of September 15, 1999, as the same shall, subject to
Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Mediacom Minnesota Operating Agreement" shall mean the Operating Agreement of
--------------------------------------
Mediacom Minnesota dated as of September 15, 1999, as the same shall, subject to
Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Mediacom Wisconsin Operating Agreement" shall mean the Operating Agreement of
--------------------------------------
Mediacom Wisconsin dated as of September 15, 1999, as the same shall, subject to
Section 8.19 hereof, be modified and supplemented and in effect from time to
time.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
------------------
Section 3(37) of ERISA to which contributions have been made by a Borrower or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
----------------------
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition net of (A) in the
case of the LLC Borrowers, the Tax Payment Amount, if any, attributable to
such Disposition, (B) in the case of Xxxxxxx, any income taxes payable by
Xxxxxxx or any of its Subsidiaries in respect of such Disposition and (C)
in the case of any Borrower, any transfer taxes 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) in
the case of the LLC Borrowers, the Tax Payment Amount, if any, attributable
to such Casualty Event, (D) in the case of Xxxxxxx, any income taxes
payable by Xxxxxxx or any of its Subsidiaries in respect of such Casualty
Event and (E) in the case of any Borrower, 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.
Credit Agreement
----------------
-20-
"Net Cash Payments" shall mean, with respect to any Disposition, the aggregate
-----------------
amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Borrowers and their Subsidiaries directly or
indirectly in connection with such Disposition; provided that (a) Net Cash
--------
Payments shall be net of the amount of any legal, accounting, broker, title and
recording tax expenses, commissions, finders' fees and other fees and expenses
paid by the Borrowers and their Subsidiaries in connection with such Disposition
and (b) Net Cash Payments shall be net of any repayments by the Borrowers and
their Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is
secured by a Lien on the Property that is the subject of such Disposition and
(ii) the transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property.
"1998 Senior Notes" shall mean the 8-1/2% senior notes due 2008 in an
-----------------
aggregate principal amount of $200,000,000 issued by Mediacom.
"Obligors" shall mean, collectively, the Borrowers, Mediacom, Mediacom
--------
Management Corporation and, effective upon execution and delivery of any
Subsidiary Guarantee Agreement, each Subsidiary of the Borrowers so executing
and delivering such Subsidiary Guarantee Agreement.
"Operating Agreements" shall mean, collectively, the Mediacom Illinois
--------------------
Operating Agreement, the Mediacom Indiana Operating Agreement, the Mediacom Iowa
Operating Agreement, the Mediacom Minnesota Operating Agreement and the Mediacom
Wisconsin Operating Agreement.
"Operating Cash Flow" shall mean, for any period, the sum, for the Borrowers
-------------------
and their Subsidiaries (determined on a combined basis without duplication in
accordance with GAAP), of the following: (a) System Cash Flow minus (b)
-----
Management Fees paid during such period to the extent not exceeding the then
applicable rate or percentage specified in the Management Agreement of the gross
operating revenue of the Borrowers and their Subsidiaries for such period.
"Pay TV Units" shall mean the aggregate number of premium or pay television
------------
services to which Subscribers subscribe.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean: (a) direct obligations of the United
---------------------
States of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90
Credit Agreement
----------------
-21-
days from the date of acquisition thereof; (b) certificates of deposit issued by
any bank or trust company organized under the laws of the United States of
America or any state thereof and having capital, surplus and undivided profits
of at least $500,000,000, maturing not more than 90 days from the date of
acquisition thereof; and (c) commercial paper rated A-1 or better or P-1 by
Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx Companies, Inc.,
or Xxxxx'x Investors Services, Inc., respectively, maturing not more than 90
days from the date of acquisition thereof; in each case so long as the same (x)
provide for the payment of principal and interest (and not principal alone or
interest alone) and (y) are not subject to any contingency regarding the payment
of principal or interest.
"Person" shall mean any individual, corporation, company, voluntary
------
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or maintained
----
by the 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.
"Prime Rate" shall mean the rate of interest from time to time announced by
----------
Chase at its principal office in New York City as its prime commercial lending
rate.
"Principal Payment Dates" shall mean (a) in the case of the Term Loans, the
-----------------------
last Business Day of March, June, September and December of each year,
commencing with September 30, 2002, through and, subject to the last sentence of
Section 3.01(b), including December 31, 2008 and (b) in the case of Incremental
Facility Loans of any Series, such dates as shall have been agreed upon between
the Borrowers and the respective Incremental Facility
Credit Agreement
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Lenders of such Series pursuant to Section 2.01(c) hereof at the time such
Lenders become obligated to make such Incremental Facility Loans hereunder.
"Pro Forma Debt Service Coverage Ratio" shall mean, as at any date, the ratio
-------------------------------------
of (a) the product of (x) Operating Cash Flow for the fiscal quarter ending on,
or most recently ended prior to, such date times (y) four to (b) Debt Service
-----
(other than payments in respect of Affiliate Subordinated Indebtedness) for the
period of four consecutive fiscal quarters immediately following the last day of
the most recently ended fiscal quarter, determined under the assumptions that
(1) the rate of interest applicable to Indebtedness of the Borrowers and their
Subsidiaries (other than Affiliate Subordinated Indebtedness) during such period
will not change from the weighted average rate of interest in effect on such
last day and (2) all regularly scheduled payments or regularly scheduled
prepayments of principal of such Indebtedness required to be made during such
period will be made when due (including, without limitation, the principal
component of any payments in respect of Capital Lease Obligations).
Notwithstanding the foregoing, the Pro Forma Debt Service Coverage Ratio for
any fiscal quarter during which an Acquisition is consummated shall be deemed to
be equal to the ratio of (a) the product of (x) Adjusted Operating Cash Flow for
such fiscal quarter times (y) four to (b) Debt Service (other than payments in
-----
respect of Affiliate Subordinated Indebtedness) for the period of four
consecutive fiscal quarters immediately following the last day of such fiscal
quarter, determined on the assumptions set forth above.
"Property" shall mean any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Price" shall mean, without duplication, with respect to any
--------------
Subsequent Acquisition, an amount equal to the sum of (i) the aggregate
consideration, whether cash, Property or securities (including, without
limitation, any Indebtedness incurred pursuant to paragraph (f) of Section 8.07
hereof), paid or delivered by the Borrowers and their Subsidiaries in connection
with such acquisition plus (ii) the aggregate amount of liabilities of the
----
acquired business (net of current assets of the acquired business) that would be
reflected on a balance sheet (if such were to be prepared) of the Borrowers and
their Subsidiaries after giving effect to such acquisition.
"Qualified Public Offering" shall mean an offer or offerings of capital stock
-------------------------
of Holdco under one or more effective registration statements under the
Securities Act of 1933, as amended, such that, after giving effect thereto, (a)
at least 15% of the aggregate equity interests (without regard to voting rights)
in Holdco on a fully diluted basis (i.e., giving effect to the exercise of any
warrants, options and conversion and other rights) has been sold pursuant to
such offerings and (b) such offerings result in aggregate cash proceeds being
received by Holdco (and
Credit Agreement
----------------
-23-
contributed by Holdco to Mediacom) of at least $75,000,000 exclusive of
underwriter's discounts and other expenses.
"Quarterly Dates" shall mean the twentieth day of January, April, July and
---------------
October in each year, the first of which shall be the first such day after the
date of this Agreement; provided that if any such day is not a Business Day,
--------
then such Quarterly Date shall be the next succeeding Business Day.
"Quarterly Officer's Report" shall mean a quarterly report of a Senior Officer
--------------------------
with respect to Basic Subscribers, homes passed, revenues per Subscriber and Pay
TV Units, substantially in the form of Exhibit B hereto.
"Quarterly Payment Period" shall mean each successive three-month period from
------------------------
and including a Quarterly Date (or, in the case of the initial Quarterly Payment
Period, from and including the Closing Date) to but not including the next
following Quarterly Date.
"Rate Ratio" shall mean, for any Quarterly Payment Period, the daily average
----------
of the Total Leverage Ratio during the fiscal quarter ending on, or most
recently ended prior to, the first day of such Quarterly Payment Period,
provided that (a) the Rate Ratio on the Closing Date shall be the Total Leverage
--------
Ratio on such date (computed on a pro forma basis after giving effect to the
borrowings to be made to enable the Borrowers to effect the Triax Acquisition on
the Closing Date) and (b) for purposes of determining the Rate Ratio for the
period from and after the Closing Date until such time as one complete fiscal
quarter shall have elapsed subsequent to the Closing Date, the daily average of
the Total Leverage Ratio shall be determined only for the portion of such fiscal
quarter commencing on the Closing Date.
"Rate Ratio Certificate" shall mean, for any Quarterly Payment Period, a
----------------------
certificate of a Senior Officer setting forth, in reasonable detail, the
calculation (and the basis for such calculation) of the Rate Ratio for use in
determining the Applicable Margin hereunder during such Quarterly Payment
Period.
"Region" shall mean each geographic region into which the CATV Systems of the
------
Borrowers and their Subsidiaries are divided for operating and management
purposes.
"Register" shall have the meaning assigned to such term in Section 11.06(g)
--------
hereof.
"Regulations A, D, T, U and X" shall mean, respectively, Regulations A, D, T,
----------------------------
U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
Credit Agreement
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"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.
"Reimbursement Obligations" shall mean, at any time, the obligations of the
-------------------------
Borrowers then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reserve Requirement" shall mean, for any Interest Period for any Eurodollar
-------------------
Loan, the average maximum rate at which reserves (including, without limitation,
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Reserved Commitment Amount" shall have the meaning assigned to such term in
--------------------------
Section 2.01(a) hereof.
"Restricted Payments" shall mean, collectively, (a) all distributions of the
-------------------
Borrowers (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any portion of any ownership interest in the Borrowers or of any
warrants, options or other rights to acquire any such ownership interest (or to
make any payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to fair market or equity value of
the Borrowers or any of their Subsidiaries), (b) any payments made by a Borrower
to any holders of any equity interests in the
Credit Agreement
----------------
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Borrowers that are designed to reimburse such holders for the payment of any
taxes attributable to the operations of the Borrowers and their Subsidiaries,
(c) any payments of principal of or interest on Affiliate Subordinated
Indebtedness, (d) any payments in respect of Management Fees, and (e) any
Affiliate Letters of Credit issued by the Issuing Lender for the account of the
Borrowers.
"Revolving Credit Commitment" shall mean, as to each Revolving Credit Lender,
---------------------------
the obligation of such Lender to make Revolving Credit Loans, and to issue or
participate in Letters of Credit pursuant to Section 2.03 hereof, in an
aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set forth opposite the name of such Lender on Schedule I
hereto (as the same may be reduced from time to time pursuant to Section 2.04 or
2.10 hereof or increased or reduced from time to time pursuant to assignments
permitted under Section 11.06(b) hereof). The original aggregate principal
amount of the Revolving Credit Commitments is $450,000,000.
"Revolving Credit Commitment Percentage" shall mean, with respect to any
--------------------------------------
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Reduction Dates" shall mean the last Business Day
-------------------------------------------
of March, June, September and December in each year, commencing with September
30, 2002, through and including June 30, 2008.
"Revolving Credit Commitment Termination Date" shall mean the Revolving Credit
--------------------------------------------
Commitment Reduction Date falling on or nearest to June 30, 2008, provided that
--------
if Mediacom does not refinance its 1998 Senior Notes prior to March 31, 2007,
with new financing having a maturity no earlier than two years after the payment
of all amounts due under this Agreement and on terms satisfactory to the
Administrative Agent and the Majority Lenders, the Revolving Credit Termination
Date shall mean the Revolving Credit Commitment Reduction Date falling on or
nearest to September 30, 2007.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the Lenders
------------------------
having Revolving Credit Commitments on Schedule I hereto and (b) thereafter, the
Lenders from time to time holding Revolving Credit Loans and Revolving Credit
Commitments after giving effect to any assignments thereof permitted by Section
11.06(b) hereof.
"Revolving Credit Loans" shall mean the loans provided for in Section 2.01(a)
----------------------
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
Credit Agreement
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"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 (a) in the case of the LLC
--------------
Borrowers, is the chairman, chief executive officer or chief financial officer
of the Manager, acting for and on behalf of the LLC Borrowers, and (b) in the
case of Xxxxxxx, is the chairman, chief executive officer or chief financial
officer of Xxxxxxx. To the extent that, at any time, no single individual
qualifies under both of the foregoing clauses (a) and (b) then, whenever in this
Agreement reference is made to a statement, certificate, report or determination
of a "Senior Officer", such statement, certificate or report shall be jointly
signed, and such determination jointly made, by an individual meeting the
criteria in said clause (a) and by an individual meeting the criteria in said
clause (b).
"Series" has the meaning set forth in Section 2.01(c).
------
"Special Reductions" shall mean, as at any date during any fiscal quarter, the
------------------
aggregate amount of reductions during such fiscal quarter through such date in
the undrawn face amount of Affiliate Letters of Credit issued during such fiscal
quarter (i.e. excluding reductions in such face amount that occur upon a drawing
under such Affiliate Letters of Credit), together with the aggregate amount of
Affiliate Letters of Credit issued during such fiscal quarter that expire or are
terminated during such fiscal quarter through such date without being drawn.
"Subscriber" shall mean a Person who subscribes to one or more of the cable
----------
television services of the Borrowers and their Subsidiaries and includes both
Basic Subscribers and Persons who subscribe to Pay TV Units, but excluding each
such Person who is pending disconnection for any reason or is delinquent in
payment for such services for more than 60 days or who has not paid in full
without discount at least one monthly xxxx generated in the ordinary course of
business.
"Subsequent Acquisition Agreements" shall mean each agreement pursuant to
---------------------------------
which a Subsequent Acquisition shall be consummated, as the same shall, be
modified and supplemented and in effect from time to time.
"Subsequent Acquisitions" shall mean any acquisition permitted under
-----------------------
8.05(d)(v) hereof.
Credit Agreement
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"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership,
limited liability company or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership, limited liability company or other entity shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Guarantee Agreement" shall mean a Subsidiary Guarantee Agreement
------------------------------
substantially in the form of Exhibit E hereto by a Subsidiary of 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 for such
period minus (b) all operating expenses for such period, including, without
-----
limitation, technical, programming and selling, general and administrative
expenses, but excluding (to the extent included in operating expenses) income
taxes, Management Fees, depreciation, amortization and interest expense
(including, without limitation, all items included in Interest Expense), plus
----
(c) any compensation received for management services provided by the Borrowers
during such period in respect of any Franchises retained by (i) Triax pursuant
to the Triax Acquisition Agreement and (ii) any Franchises retained by the
seller pursuant to any Subsequent Acquisition Agreement during any such period
plus (d) all Capital Expenditures made by Triax (or any such seller) in respect
of Franchises retained during such period, provided that gross operating
--------
revenues and operating expenses for any period shall exclude all extraordinary
and unusual items and all non-cash items. For the purposes of determining
System Cash Flow, gross operating revenues will include revenues received in
cash in respect of investments, so long as such investments are recurring (i.e.
reasonably expected to continue for four or more fiscal quarters) and do not for
any period
Credit Agreement
----------------
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exceed 20% of gross operating revenues for such period (not including (i)
extraordinary items and (ii) such investment revenues).
Notwithstanding the foregoing, if during any period for which System Cash Flow
is being determined the Borrowers or any of their Subsidiaries shall have
consummated any acquisition of any CATV System or other business, or consummated
any Disposition, then, for all purposes of this Agreement (other than for
purposes of the definition of Excess Cash Flow), System Cash Flow shall be
determined on a pro forma basis as if such acquisition or Disposition had been
made or consummated on the first day of such period.
"Tax Payment Amount" shall mean, for any period, an amount not exceeding in
------------------
the aggregate the amount of Federal, state and local income taxes the LLC
Borrowers would otherwise have paid in the event they were corporations (other
than "S corporations" within the meaning of Section 1361 of the Code) for such
period and all prior periods.
"Term Loan Commitment" shall mean, as to each Term Loan Lender, the obligation
--------------------
of such Lender to make one or more Term Loans in an aggregate principal amount
equal to the amount set opposite the name of such Lender on Schedule I hereto.
The original aggregate principal amount of the Term Loan Commitments is
$100,000,000.
"Term Loan Lenders" shall mean (a) on the date hereof, the Lenders having Term
-----------------
Loan Commitments on Schedule I hereto and (b) thereafter, the Lenders from time
to time holding Term Loans and Term Commitments after giving effect to any
assignments thereof permitted by Section 11.06(b) hereof.
"Term Loans" shall mean the loans provided for by Section 2.01(b) hereof,
----------
which may be Base Rate Loans and/or Eurodollar Loans.
"Total Leverage Ratio" shall mean, as at any date, the ratio of (a) the
--------------------
aggregate amount of all Indebtedness of the Borrowers and their Subsidiaries
(including, without limitation, Capital Lease Obligations, but excluding
Affiliate Subordinated Indebtedness) as at such date to (b) the product of (x)
System Cash Flow for the fiscal quarter ending on, or most recently ended prior
to, such date times (y) four.
-----
Notwithstanding the foregoing, the Total Leverage Ratio for any fiscal quarter
during which an Acquisition is consummated shall be deemed to be equal to the
ratio of (a) the aggregate amount of all Indebtedness of the Borrowers and their
Subsidiaries (including, without limitation, Capital Lease Obligations, but
excluding Affiliate Subordinated Indebtedness) as at the relevant date to (b)
the product of Adjusted System Cash Flow for such fiscal quarter times four.
-----
Credit Agreement
----------------
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"Triax" shall mean Triax Midwest Associates, L.P., a limited partnership
-----
organized and existing under the laws of the State of Missouri.
"Triax Acquisition" shall mean the acquisition by the LLC Borrowers of the
-----------------
cable systems (other than the Apache Junction, Arizona cable system, which shall
be acquired by Mediacom Arizona LLC) and related assets of Triax.
"Triax Acquisition Agreement " shall mean the Asset Purchase Agreement between
----------------------------
Triax, as Seller, and Mediacom, as Buyer, dated April 29, 1999, as the same
shall, subject to Section 8.19 hereof, be modified and supplemented and in
effect from time to time.
"Triax Credit Agreement" shall mean the Amended and Restated Credit Agreement
----------------------
dated as of June 24, 1998 among Triax, the lenders party thereto, Bank of
Montreal, Chicago Branch as Documentation Agent and Arranging Agent, Canadian
Imperial Bank of Commerce as Syndication Agent and Arranging Agent, Chase
Securities, Inc., as Arranging Agent, The Chase Manhattan Bank as Administrative
Agent and General Electric Capital Corporation as Arranging Agent, as modified
and supplemented and in effect on the date hereof.
"Type" shall have the meaning assigned to such term in Section 1.03 hereof.
----
"U.S. Person" shall mean a citizen or resident of the United States of
-----------
America, a corporation, partnership, limited liability company or other entity
created or organized in or under any laws of the United States of America or any
State thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" shall mean any present or future tax, assessment or other charge
----------
or levy imposed by or on behalf of the United States of America or any taxing
authority thereof.
"Wholly Owned Subsidiary" shall mean, with respect to any Person, any
-----------------------
corporation, partnership, limited liability company or other entity of which all
of the equity securities or other ownership interests (other than, in the case
of a corporation, directors' qualifying shares) are directly or indirectly owned
or controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Working Capital" shall mean, as at such date, for the Borrowers and their
---------------
Subsidiaries (determined on a combined basis without duplication in accordance
with GAAP) (a) current assets (excluding cash and cash equivalents) minus (b)
-----
current liabilities (excluding the current portion of long term debt and of any
installments of principal payable hereunder).
Credit Agreement
----------------
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1.02 Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall (unless otherwise disclosed to the Lenders in writing at the
time of delivery thereof in the manner described in paragraph (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder (which, prior to the delivery of
the first financial statements under Section 8.01 hereof, shall mean the
unaudited pro forma financial statements as at September 30, 1999, referred to
in Section 7.02 hereof). All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise expressly provided
herein) be made by application of generally accepted accounting principles
applied on a basis consistent with those used in the preparation of the latest
annual or quarterly financial statements furnished to the Lenders pursuant to
Section 8.01 hereof (or, prior to the delivery of the first financial statements
under Section 8.01 hereof, used in the preparation of the unaudited pro forma
financial statements as at September 30, 1999 referred to in Section 7.02
hereof) unless
(i) the Borrowers shall have objected to determining such
compliance on such basis at the time of delivery of such financial
statements, or
(ii) the Majority Lenders shall so object in writing within 30
days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
shall mean the unaudited financial statements referred to in Section 7.02
hereof).
(b) The Borrowers shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with the
covenants set forth in Section 8 hereof, none of the Borrowers will change the
last day of its
Credit Agreement
----------------
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fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30 of
each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by
--------------------------
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan, a Term Loan or an
Incremental Facility Loan, each of which constitutes a Class. The "Type" of a
Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each
of which constitutes a Type. Loans may be identified by both Class and Type.
Incremental Facility Loans and Incremental Facility Commitments shall be
classified by Series, each of which shall be considered a separate Class.
1.04 Subsidiaries. None of the Borrowers has any Subsidiaries on the date
------------
hereof; reference in this Agreement to Subsidiaries of the Borrowers shall be
deemed inapplicable until such time as the Majority Lenders shall consent to the
creation of such Subsidiaries or such Subsidiaries shall in fact come into
existence in accordance with the terms hereof.
1.05 Nature of Obligations of Borrowers. It is the intent of the parties
----------------------------------
hereto that the Borrowers shall be jointly and severally obligated hereunder and
under the notes executed and delivered by the Borrowers pursuant to Section
2.08(d) hereof, as co-borrowers under this Agreement and as co-makers on such
notes, in respect of the principal of and interest on, and all other amounts
owing in respect of, the Loans and such notes.
Section 2. Commitments, Loans and Prepayments.
----------------------------------
2.01 Loans.
-----
(a) Revolving Credit Loans. Each Revolving Credit Lender severally agrees,
----------------------
on the terms and conditions of this Agreement, to make loans to the Borrowers in
Dollars during the period from and including the Closing Date to but not
including the Revolving Credit Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Revolving Credit Commitment of such Lender as in effect from time to
time, provided that in no event shall the aggregate principal amount of all
--------
Revolving Credit Loans, together with the aggregate amount of all Letter of
Credit Liabilities, exceed the aggregate amount of the Revolving Credit
Commitments as in effect from time to time. Subject to the terms and conditions
of this Agreement, during such period the Borrowers may borrow, repay and
reborrow the amount of the Revolving Credit Commitments by means of Base Rate
Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one Type
into Revolving Credit Loans of another Type (as provided in Section 2.09 hereof)
or Continue Revolving Credit Loans of one Type as Revolving Credit Loans of the
same Type (as provided
Credit Agreement
----------------
-32-
in Section 2.09 hereof). Anything herein to the contrary notwithstanding,
Revolving Credit Loans shall not be available hereunder unless the Term Loans
are fully drawn.
Proceeds of Revolving Credit Loans shall be available for any use permitted
under Section 8.17(a) hereof, provided that, in the event that as contemplated
--------
by Section 2.10(d) hereof, the Borrowers shall prepay Revolving Credit Loans
from the proceeds of a Disposition hereunder, then an amount of Revolving Credit
Commitments equal to the amount of such prepayment (herein the "Reserved
--------
Commitment Amount") shall be reserved and shall not be available for borrowings
-----------------
hereunder except and to the extent that the proceeds of such borrowings are to
be applied to make Subsequent Acquisitions permitted under Section 8.05 hereof
or to make prepayments of Loans under Section 2.10(d) hereof. The Borrowers
agree, upon the occasion of any borrowing of Revolving Credit Loans hereunder
that is to constitute a utilization of any Reserved Commitment Amount, to advise
the Administrative Agent in writing of such fact at the time of such borrowing,
identifying the amount of such borrowing that is to constitute such utilization,
the Subsequent Acquisition in respect of which the proceeds of such borrowing
are to be applied and the reduced Reserved Commitment Amount to be in effect
after giving effect to such borrowing.
(b) Term Loans. Each Term Lender severally agrees, on the terms and
----------
conditions of this Agreement, to make term loans to the Borrowers in Dollars on
the Closing Date in an aggregate principal amount equal to the amount of the
Term Loan Commitment of such Lender. Subject to the terms and conditions of
this Agreement, on the Closing Date the Borrowers may borrow the Term Loan
Commitments by means of Base Rate Loans and Eurodollar Loans, and thereafter the
Borrowers may Convert Term Loans of one Type into Term Loans of another Type (as
provided in Section 2.09 hereof) or Continue Term Loans of one Type as Term
Loans of the same Type (as provided in Section 2.09 hereof).
Proceeds of Term Loans hereunder shall be available for any use permitted
under the first sentence of Section 8.17(b) hereof.
(c) Incremental Facility Loans. In addition to borrowings of Term Loans and
--------------------------
Revolving Credit Loans provided above, at any time during the Incremental
Facility Availability Period the Borrowers may from time to time request that
the Lenders offer to enter into commitments to make additional term loans to the
Borrowers hereunder, which commitment of any Lender shall not be less than
$10,000,000 and not greater than $100,000,000. In the event that one or more of
the Lenders offer, in their sole discretion, to enter into such commitments, and
such Lenders and the Borrowers agree pursuant to an instrument in writing (the
form and substance of which shall be satisfactory, and a copy of which shall be
delivered, to the Administrative Agent and the Lenders making such Loans) as to
the amount of such 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
Credit Agreement
----------------
-33-
rate to be applicable thereto, such Lenders shall become obligated to make
Incremental Facility Loans under this Agreement in an amount equal to the amount
of their respective Incremental Facility Commitments. The Incremental Facility
Loans to be made pursuant to any such agreement between the Borrowers and one or
more Lenders in response to any such request by the Borrowers shall be deemed to
be a separate "Series" of Incremental Facility Loans for all purposes of this
------
Agreement. Anything herein to the contrary notwithstanding, (i) the minimum
aggregate principal amount of Incremental Facility Commitments entered into
pursuant to any such request (and, accordingly, the minimum aggregate principal
amount of any Series of Incremental Facility Loans) shall be $25,000,000, (ii)
the aggregate principal amount of all unused Incremental Facility Commitments
and Incremental Facility Loans shall not exceed $200,000,000 and (iii) in no
event shall the final maturity date for the Incremental Facility Loans of any
Series be earlier than the final Principal Payment Date for the Term Loans, nor
shall the amortization for any Incremental Facility Loans of any Series be at a
rate faster (i.e. earlier) than the rate of amortization of the Term Loans (the
determination of whether or not such amortization is faster to be made by the
Administrative Agent).
Proceeds of Incremental Facility Loans hereunder shall be available for any
use permitted under the last sentence of Section 8.17(b) hereof.
(d) Limit on Eurodollar Loans. No more than seven separate Interest Periods
-------------------------
in respect of Eurodollar Loans of a Class from each Lender may be outstanding at
any one time.
2.02 Borrowings. The Borrowers shall give the Administrative Agent notice of
----------
each borrowing hereunder as provided in Section 4.05 hereof. Not later than 1:00
p.m. New York time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Administrative Agent, at an account designated by the
Administrative Agent to the Lenders, in immediately available funds, for account
of the Borrowers. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Borrowers by depositing the same, in immediately available funds, in an account
of the Borrowers designated by the Borrowers and maintained with Chase at its
principal office.
2.03 Letters of Credit. Subject to the terms and conditions of this
-----------------
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Borrowers, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Lender of letters of credit
(collectively, "Letters of Credit") for account of the Borrowers or any of their
-----------------
Subsidiaries (as specified by the relevant Borrower), provided that in no event
--------
shall (i) the aggregate amount of all Letter of Credit Liabilities, together
with the aggregate principal amount of the Revolving Credit Loans, exceed the
aggregate amount of the Revolving Credit Commitments as in effect from time to
time, (ii) the outstanding aggregate amount of all Letter of Credit Liabilities
exceed $100,000,000 and (iii) the expiration date of any Letter of
Credit Agreement
----------------
-34-
Credit extend beyond the earlier of the date five Business Days prior to the
Revolving Credit Commitment Termination Date and the date twelve months
following the issuance of such Letter of Credit (or, in the case of any renewal
or extension thereof, twelve months after the then-current expiration date of
such Letter of Credit, so long as such renewal or extension occurs within three
months of such then-current expiration date). The Borrowers may request the
Issuing Lender to issue Letters of Credit for the account of the Borrowers to
support an obligation of an Affiliate of the Borrowers so long as the face
amount of such Letter of Credit does not exceed the amount of Restricted
Payments the Borrowers may then make pursuant to Section 8.09(d). The following
additional provisions shall apply to Letters of Credit:
(a) The Borrowers shall give the Administrative Agent at least three Business
Days' irrevocable prior notice (effective upon receipt) specifying the
Business Day (which shall be no later than 30 days preceding the Revolving
Credit Commitment Termination Date) each Letter of Credit is to be issued
and the account party or parties therefor and describing in reasonable
detail the proposed terms of such Letter of Credit (including the
beneficiary thereof) and the nature of the transactions or obligations
proposed to be supported thereby (including whether such Letter of Credit
is to be a commercial letter of credit or a standby letter of credit).
Upon receipt of any such notice, the Administrative Agent shall advise the
Issuing Lender of the contents thereof.
(b) On each day during the period commencing with the issuance by the Issuing
Lender of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Revolving Credit Commitment of each
Revolving Credit Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the then undrawn face amount of such Letter of
Credit. Each Revolving Credit Lender (other than the Issuing Lender)
agrees that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Lender's liability
under such Letter of Credit in an amount equal to such Lender's Revolving
Credit Commitment Percentage of such liability, and each Revolving Credit
Lender (other than the Issuing Lender) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to the Issuing Lender to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Lender's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any demand for
payment under such Letter of Credit, the Issuing Lender shall promptly
notify the Borrowers (through the Administrative Agent) of the amount to be
paid by the Issuing Lender as a result of such demand and the date on which
payment is to be made by the 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
Credit Agreement
----------------
-35-
severally unconditionally agree to pay and reimburse the Administrative
Agent for account of the Issuing Lender for the amount of each demand for
payment under such Letter of Credit that is in substantial compliance with
the provisions of such Letter of Credit at or prior to the date on which
payment is to be made by the Issuing Lender to the beneficiary thereunder,
without presentment, demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph (c) of this
Section 2.03, the Borrowers shall advise the Administrative Agent whether
or not the Borrowers intend to borrow hereunder to finance their obligation
to reimburse the Issuing Lender for the amount of the related demand for
payment and, if they do, submit a notice of such borrowing as provided in
Section 4.05 hereof.
(e) Each Revolving Credit Lender (other than the Issuing Lender) shall pay to
the Administrative Agent for account of the Issuing Lender at its principal
office in Dollars and in immediately available funds, the amount of such
Lender's Revolving Credit Commitment Percentage of any payment under a
Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Lender under this paragraph (e), and the Issuing Lender's right
to receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
failure of any other Revolving Credit Lender to make its payment under this
paragraph (e), the financial condition of the Borrowers (or any other
account party), the existence of any Default or the termination of the
Commitments. Each such payment to the Issuing Lender shall be made without
any offset, abatement, withholding or reduction whatsoever. If any
Revolving Credit Lender shall default in its obligation to make any such
payment to the Administrative Agent for account of the Issuing Lender, for
so long as such default shall continue the Administrative Agent may at the
request of the Issuing Lender withhold from any payments received by the
Administrative Agent under this Agreement for account of such Revolving
Credit Lender the amount so in default and, to the extent so withheld, pay
the same to the Issuing Lender in satisfaction of such defaulted
obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to the Issuing
Lender pursuant to paragraph (e) above in respect of any Letter of Credit,
such Lender shall, automatically and without any further action on the part
of the Administrative Agent, the Issuing Lender or such Lender, acquire (i)
a participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Issuing 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
Credit Agreement
----------------
-36-
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Borrowers hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Issuing Lender
pursuant to paragraph (g) of this Section 2.03). Upon receipt by the
Issuing Lender from or for 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) the Issuing Lender shall promptly pay to the
Administrative Agent for the account of each Revolving Credit Lender
entitled thereto, such Revolving Credit Lender's Revolving Credit
Commitment Percentage of such payment, each such payment by the Issuing
Lender to be made in the same money and funds in which received by the
Issuing Lender. In the event any payment received by the Issuing Lender and
so paid to the Revolving Credit Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Lender, each Revolving Credit Lender
shall, upon the request of the Issuing Lender (through the Administrative
Agent), repay to the Issuing Lender (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at the rate
specified in paragraph (j) of this Section 2.03.
(g) The Borrowers shall pay to the Administrative Agent for account of each
Revolving Credit Lender (ratably in accordance with their respective
Commitment Percentages) a letter of credit fee in respect of each Letter of
Credit in an amount equal to the Applicable Margin, in effect from time to
time, for Revolving Credit Loans that are Eurodollar Loans on the daily
average undrawn face amount of such Letter of Credit for the period from
and including the date of issuance of such Letter of Credit (i) in the case
of a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee to be non-
refundable, to be paid in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of Credit on
such day).
In addition, the Borrowers shall pay to the Administrative Agent for
account of the Issuing Lender a fronting fee in respect of each Letter of
Credit in an amount equal to 1/4 of 1% per annum of the daily average
undrawn face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (i) in the case of
a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the date such
Letter of Credit is drawn in full or is terminated (such fee to be non-
refundable, to be paid in arrears on each Quarterly Date and on the
Revolving
Credit Agreement
----------------
-37-
Credit Commitment Termination Date and to be calculated for any day after
giving effect to any payments made under such Letter of Credit on such day)
plus all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing Lender shall
deliver (through the Administrative Agent) to each Revolving Credit Lender
and the Borrowers a notice describing the aggregate amount of all Letters
of Credit outstanding at the end of such month. Upon the request of any
Revolving Credit Lender from time to time, the Issuing Lender shall deliver
any other information reasonably requested by such Lender with respect to
each Letter of Credit then outstanding.
(i) The issuance by the Issuing Lender of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 6 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
satisfactory to the Issuing Lender consistent with its then current
practices and procedures with respect to letters of credit of the same type
and (ii) the Borrowers shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of Credit as the
Issuing Lender shall have reasonably requested consistent with its then
current practices and procedures with respect to letters of credit of the
same type, provided that in the event of any conflict between any such
--------
application, agreement or other instrument and the provisions of this
Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount required to be
paid pursuant to paragraph (e) or (f) of this Section 2.03 on the due date
therefor, such Lender shall pay interest to the Issuing Lender (through the
Administrative Agent) on such amount from and including such due date to
but excluding the date such payment is made at a rate per annum equal to
the Federal Funds Rate, provided that if such Lender shall fail to make
--------
such payment to the Issuing Lender within three Business Days of such due
date, then, retroactively to the due date, such Lender shall be obligated
to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Lender of any modification or supplement to any
Letter of Credit hereunder shall be subject to the same conditions
applicable under this Section 2.03 to the issuance of new Letters of
Credit, and no such modification or supplement shall be issued hereunder
unless either (i) the respective Letter of Credit affected thereby would
have complied with such conditions had it originally been issued
Credit Agreement
----------------
-38-
hereunder in such modified or supplemented form or (ii) each Revolving
Credit Lender shall have consented thereto.
(l) Pursuant to the Triax Credit Agreement, Chase has issued various "Letters
of Credit" for the account of Triax in an aggregate face amount outstanding
on the date hereof approximately equal to $405,750. As provided in Section
6.01(m) hereof, all Liens in favor of the lenders (or an agent for such
lenders) under the Triax Credit Agreement on assets purchased in the Triax
Acquisition are to be released (or arrangements for such release are to be
made) on the Closing Date. In that connection, the Borrowers hereby agree,
effective on the Closing Date, to assume all of the obligations of Triax
under the Triax Credit Agreement in respect of such "Letters of Credit",
and each of the Lenders hereunder (including the Issuing Lender hereunder)
hereby agrees that, on the Closing Date, all such "Letters of Credit" under
the Triax Credit Agreement shall automatically become Letters of Credit
hereunder. To the extent that, in order to permit drawings under such
Letters of Credit by the respective beneficiaries, it shall be necessary to
change references in such Letters of Credit to become references to one or
more of the Borrowers, the Issuing Lender is hereby authorized to execute
and deliver appropriate amendments to such Letters of Credit.
The Borrowers hereby indemnify and hold harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Lender under any Letter of Credit; provided that the Borrowers shall
--------
not be required to indemnify any Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Lender in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Lender, such Lender's failure to pay under any Letter of Credit
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended
to limit the other obligations of the Borrowers, any Lender or the
Administrative Agent under this Agreement.
2.04 Changes of Commitments.
----------------------
(a) Subject to the last sentence of this Section 2.04(a), the aggregate
amount of the Revolving Credit Commitments shall be automatically reduced to
zero on the Revolving Credit Commitment Termination Date. In addition, the
aggregate amount of the Revolving Credit Commitments shall be automatically
reduced on each Revolving Credit Commitment Reduction Date set forth in column
(A) below, (x) by an amount (subject to reduction pursuant to
Credit Agreement
----------------
-39-
paragraph (c) below) equal to the amount set forth in column (B) below opposite
such Revolving Credit Commitment Reduction Date, (y) to an amount (subject to
reduction pursuant to paragraph (c) below) equal to the amount set forth in
column (C) below opposite such Revolving Credit Commitment Reduction Date:
(A) (B) (C)
Revolving Credit Revolving Credit Revolving Credit
Commitment Reduction Commitments Reduced Commitments Reduced
Date Falling on or by the Following to the Following
Nearest to: Amounts: Amounts:
----------- -------- --------
September 30, 2002 5,625,000 444,375,000
December 31, 2002 5,625,000 438,750,000
March 31, 2003 5,625,000 433,125,000
June 30, 2003 5,625,000 427,500,000
September 30, 2003 5,625,000 421,875,000
December 31, 2003 5,625,000 416,250,000
March 31, 2004 16,875,000 399,375,000
June 30, 2004 16,875,000 382,500,000
September 30, 2004 16,875,000 365,625,000
December 31, 2004 16,875,000 348,750,000
March 31, 2005 22,500,000 326,250,000
June 30, 2005 22,500,000 303,750,000
September 30, 2005 22,500,000 281,250,000
December 31, 2005 22,500,000 258,750,000
March 31, 2006 22,500,000 236,250,000
June 30, 2006 22,500,000 213,750,000
September 30, 2006 22,500,000 191,250,000
December 31, 2006 22,500,000 168,750,000
March 31, 2007 22,500,000 146,250,000
June 30, 2007 22,500,000 123,750,000
September 30, 2007 22,500,000 101,250,000
December 31, 2007 22,500,000 78,750,000
March 31, 2008 39,375,000 39,375,000
June 30, 2008 39,375,000 0
Credit Agreement
----------------
-40-
As provided for in the definition of "Revolving Credit Commitment Termination
Date" in Section 1.01, if Mediacom does not refinance its 1998 Senior Notes
prior to March 31, 2007, with new Indebtedness having a maturity no earlier than
two years after the payment of all amounts due under this Agreement and on terms
satisfactory to the Administrative Agent and the Majority Lenders, the Revolving
Credit Commitments shall be terminated, and the entire principal amount of the
Revolving Credit Loans then outstanding shall, as provided for in Section
2.10(g) hereof, be paid in full, on the Revolving Credit Commitment Reduction
Date falling on or nearest to September 30, 2007.
(b) The Borrowers shall have the right at any time or from time to time (i)
so long as no Revolving Credit Loans or Letter of Credit Liabilities are
outstanding, to terminate the Revolving Credit Commitments, (ii) so long as no
Term Loans are outstanding, to terminate the Term Loan Commitments, (iii) so
long as no Incremental Facility Loans of a Series are outstanding, to terminate
the Incremental Facility Commitments of such Series and (iv) to reduce the
aggregate unused amount of the Revolving Credit Commitments or Incremental
Facility Commitments of any Series (for which purpose use of the Revolving
Credit Commitments shall be deemed to include the aggregate amount of Letter of
Credit Liabilities); provided that (x) the Borrowers shall give notice of each
--------
such termination or reduction as provided in Section 4.05 hereof, (y) each
partial reduction shall be in an aggregate amount at least equal to $1,000,000
(or a larger multiple of $500,000) and (z) prior to the making of the initial
Loans hereunder, each such reduction of Commitments shall be applied ratably to
the Commitments of each Class.
(c) Each reduction in the aggregate amount of the Revolving Credit
Commitments pursuant to paragraph (b) above, or pursuant to Section 2.10 hereof,
on any date shall be applied to the reductions set forth in the schedule in
paragraph (a) above ratably as follows: each such reduction shall result in an
automatic and simultaneous reduction (but not below zero) of the respective
amounts set forth in column (B) at the end of paragraph (a) above (ratably in
accordance with the respective remaining amounts thereof, after giving effect to
any prior reductions pursuant to this paragraph (c)), with appropriate
reductions (but not below zero) being made to the respective amounts set forth
in column (C) of said paragraph (a) after giving effect to such reduction of the
amounts in said column (B).
(d) The aggregate amount of the Term Loan Commitments shall be automatically
reduced to zero on the close of business on the Closing Date. The aggregate
amount of the Incremental Facility Commitments shall be automatically reduced to
zero on the close of business on the last day of the Incremental Facility
Availability Period.
(e) The Commitments once terminated or reduced may not be reinstated.
Credit Agreement
----------------
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2.05 Commitment Fee. The Borrowers shall pay to the Administrative Agent for
--------------
account of each Revolving Credit Lender a commitment fee on the daily average
unused amount of such Lender's Revolving Credit Commitment (for which purpose
(i) the aggregate amount of any Letter of Credit Liabilities shall be deemed to
be a pro rata (based on the Revolving Credit Commitments) use of each Lender's
Revolving Credit Commitment and (ii) any Reserved Commitment Amount shall be
deemed to be unused), for the period from and including the date hereof to but
not including the earlier of the date such Revolving Credit Commitment is
terminated and the Revolving Credit Commitment Termination Date, at a rate per
annum equal to (x) 3/8 of 1% at any time the then-current Rate Ratio (determined
pursuant to Section 3.03 hereof) is greater than 5.00 to 1 and (y) 1/4 of 1% at
any time the then-current Rate Ratio (so determined) is equal to or less than
5.00 to 1, provided that for the period from and including the date hereof to
but excluding the Closing Date, such commitment fee shall be determined based on
the assumption that the Rate Ratio is less than 5.00 to 1. The Borrowers shall
pay to the Administrative Agent for account of each Incremental Facility Lender
of any Series a commitment fee in such amounts, and on such dates, as shall have
been agreed to by the Borrowers and such Incremental Facility Lender upon the
allocation of the Incremental Facility Commitment of such Series to such Lender
pursuant to Section 2.01(c) hereof. Accrued commitment fee shall be payable on
each Quarterly Date and on the earlier of the date the relevant Commitments are
terminated and the Revolving Credit Commitment Termination Date or the
Incremental Facility Commitment Termination Date, as the case may be.
2.06 Lending Offices. The Loans of each Type made by each Lender shall be
---------------
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
2.07 Several Obligations; Remedies Independent. The failure of any Lender to
-----------------------------------------
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its Loan on such date, but neither
any Lender nor the Administrative Agent shall be responsible for the failure of
any other Lender to make a Loan to be made by such other Lender, and (except as
otherwise provided in Section 4.06 hereof) no Lender shall have any obligation
to the Administrative Agent or any other Lender for the failure by such Lender
to make any Loan required to be made by such Lender. Anything in this Agreement
to the contrary notwithstanding, each Lender hereby agrees with each other
Lender that no Lender shall take any action to protect or enforce its rights
arising out of this Agreement (including, without limitation, exercising any
rights of off-set) without first obtaining the prior written consent of the
Administrative Agent or the Majority Lenders, it being the intent of the Lenders
that any such action to protect or enforce rights under this Agreement shall be
taken in concert and at the direction or with the consent of the Administrative
Agent or the Majority Lenders and not individually by a single Lender.
Credit Agreement
----------------
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2.08 Loan Accounts; Promissory Notes.
-------------------------------
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender to the Borrowers, including the
amounts of principal and interest payable and paid to such Lender by the
Borrowers from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder to the Borrowers, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrowers for the account of the
Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph (a) or
(b) of this Section shall be prima facie evidence of the existence and amounts
----- -----
of the obligations recorded therein; provided that the failure of any Lender or
--------
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans of any Class made by it to the
Borrowers be evidenced by a promissory note. In such event, the Borrowers shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans of the Borrowers evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 11.06 hereof) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
2.09 Optional Prepayments and Conversions or Continuations of Loans. Subject
--------------------------------------------------------------
to Section 4.04 hereof, the Borrowers shall have the right to prepay Loans, or
to Convert Loans of one Type into Loans of another Type or Continue Loans of one
Type as Loans of the same Type, at any time or from time to time, provided that:
--------
(a) the Borrowers shall give the Administrative Agent notice of each such
prepayment, Conversion or Continuation as provided in Section 4.05 hereof
(and, upon the date specified in any such notice of prepayment, the amount
to be prepaid shall become due and payable hereunder);
Credit Agreement
----------------
-43-
(b) Eurodollar Loans may be prepaid or Converted at any time from time to time,
provided that the Borrowers shall pay any amounts owing under Section 5.05
--------
hereof in the event of any such prepayment or Conversion on any date other
than the last day of an Interest Period for such Loans;
(c) prepayments of any Term Loan shall be effected in such manner so that the
Term Loans (and, to the extent that Incremental Loans are outstanding, the
Incremental Loans of all Series) are concurrently prepaid ratably in
accordance with the respective outstanding principal amounts thereof and
the aggregate principal amount of all such concurrent prepayments is at
least equal to $1,000,000 or a greater multiple of $500,000;
(d) prepayments of the Term Loans and Incremental Facility Loans shall be
applied to the remaining installments of such Loans ratably in accordance
with the respective principal amounts thereof; and
(e) any Conversion or Continuation of Eurodollar Loans shall be subject to the
provisions of Section 2.01(d) hereof.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 9 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Borrowers to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Casualty Events. Upon the date 270 days following the receipt by any
---------------
Borrower or any of its Subsidiaries of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting any
Property of any of the Borrowers or any of their Subsidiaries (or upon such
earlier date as the Borrowers or any such Subsidiary, as the case may be, shall
have determined not to repair or replace the Property affected by such Casualty
Event), the Borrowers shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities as specified in paragraph (f) below), and the Commitments
shall be subject to automatic reduction, in an aggregate amount, if any, equal
to 100% of the Net Available Proceeds of such Casualty Event not theretofore
applied (or committed to be applied pursuant to executed construction contracts
or equipment orders) to the repair or replacement of such Property, such
prepayment to be effected in each case in the manner and to the extent specified
in paragraph (e) of this Section 2.10. Notwithstanding the foregoing, the
Borrowers shall not be required to make any prepayment (and/or provide cover for
Letter of Credit Liabilities) under this paragraph (a), and the Commitments
shall not be subject to automatic reduction, until the
Credit Agreement
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aggregate amount of the Net Available Proceeds that must be prepaid under this
paragraph (a) (reduced by the amount of such Net Available Proceeds that has
previously been applied to the prepayment of Loans or reduction of Commitments
hereunder as a result of previous Casualty Events) exceeds $10,000,000.
(b) Excess Cash Flow. Not later than the date 150 days after the end of each
----------------
fiscal year of the Borrowers (or, if earlier, 30 days after the delivery of the
audited financial statements for such fiscal year pursuant to Section 8.01(b)
hereof), commencing with the fiscal year ending on December 31, 2002, the
Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (f) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to the excess of
(A) 50% of Excess Cash Flow for such fiscal year over (B) the aggregate amount
of voluntary prepayments of Term Loans and Incremental Facility Loans made
during such fiscal year pursuant to Section 2.09 hereof (other than that
portion, if any, of such prepayments applied to installments of the Term Loans
and Incremental Facility Loans falling due in such fiscal year), such prepayment
and reduction to be effected in each case in the manner and to the extent
specified in paragraph (e) of this Section 2.10.
(c) Debt Issuances. Upon any Debt Issuance, the Borrowers shall prepay the
--------------
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (f) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (e) of this Section 2.10.
(d) Sale of Assets. Without limiting the obligation of the Borrowers to
--------------
obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to
any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
-------------------
of all prior Dispositions after the date hereof as to which a prepayment has not
yet been made under this Section 2.10(d), shall exceed $10,000,000 then, no
later than five Business Days prior to the occurrence of the Current
Disposition, the Borrowers will deliver to the Lenders a statement, certified by
a Senior Officer, in form and detail satisfactory to the Administrative Agent,
of the amount of the Net Available Proceeds of the Current Disposition and of
all such prior Dispositions and will prepay the Loans (and/or provide cover for
Letter of Credit Liabilities as specified in paragraph (f) below), and the
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 100% of the Net Available Proceeds of the Current Disposition and such
prior Dispositions, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in paragraph (e) of this Section 2.10.
Notwithstanding the foregoing, the Borrowers shall not be required to make a
prepayment pursuant to this paragraph (d) with respect to Net Available Proceeds
from any
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Disposition in the event that the Borrowers advise the Administrative Agent at
the time the Net Available Proceeds from such Disposition are received that they
intend to reinvest such Net Available Proceeds in replacement assets pursuant to
an acquisition permitted under Section 8.05(d)(v) hereof so long as
(x) such Net Available Proceeds are either (i) held by (A) the Administrative
Agent or (B) as permitted under the 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)(v) hereof),
(y) the Net Available Proceeds from any Disposition are in fact so reinvested
within 270 days of such Disposition (it being understood that, in the event
Net Available Proceeds from more than one Disposition are paid into the
Collateral Account or applied to the prepayment of Revolving Credit Loans
as provided in clause (x) above, such Net Available Proceeds shall be
deemed to be released (or, as the case may be, Revolving Credit Loans
utilizing the Reserved Commitment Amount shall be deemed to be made) in the
same order in which such Dispositions occurred and, accordingly, (A) any
such Net Available Proceeds so held for more than 270 days shall be
forthwith applied to the prepayment of Loans and reductions of Commitments
as provided above and (B) any Reserved Commitment Amount that remains so
unutilized for more than 270 days shall, subject to the satisfaction of the
conditions precedent to such borrowing in Section 6.02 hereof, be utilized
through the borrowing by the Borrowers of Revolving Credit Loans the
proceeds of which shall be applied to the prepayment of Loans and
reductions of Commitments as provided in paragraph (e) of this Section
2.10) and
(z) the aggregate amount of Net Available Proceeds (together with investment
earnings thereon) so held at any time by the Administrative Agent (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 $40,000,000 or such greater amount as
the Majority Lenders may otherwise agree.
Credit Agreement
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As contemplated by Section 4.01 of the Pledge Agreement, nothing in this
paragraph (d) shall be deemed to obligate the Administrative Agent to release
any of such proceeds from the Collateral Account to the Borrowers for purposes
of reinvestment as aforesaid upon the occurrence and during the continuance of
any Event of Default.
(e) Application. Prepayments and reductions of Commitments described above
-----------
in this Section 2.10 shall be applied to the Term Loans and Incremental Facility
Loans of each Series then outstanding, and to the reduction of the Revolving
Credit Commitments, ratably in accordance with the respective amounts of such
Loans and Commitments and shall be applied:
(x) to the prepayment of the respective installments of the Term Loans and
Incremental Facility Loans ratably in accordance with the respective
principal amounts thereof and
(y) to the extent that, after giving effect to any such reduction of Revolving
Credit Commitments, the sum of the aggregate outstanding principal amount
of the Revolving Credit Loans and Letter of Credit Liabilities shall exceed
the aggregate amount of the Revolving Credit Commitments, to the prepayment
of Revolving Credit Loans (and to provide cover for Letter of Credit
Liabilities as specified in paragraph (f) below), so that, after giving
effect thereto, such sum does not exceed the aggregate amount of the
Revolving Credit Commitments.
(f) Cover for Letter of Credit Liabilities. In the event that the Borrowers
--------------------------------------
shall be required pursuant to this Section 2.10, to provide cover for Letter of
Credit Liabilities, the Borrowers shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as collateral security in the first instance for the
Letter of Credit Liabilities) until such time as the Letters of Credit shall
have been terminated and all of the Letter of Credit Liabilities paid in full.
(g) Change in Commitments. If at any time the aggregate outstanding amount
---------------------
of Revolving Credit Loans and Letter of Credit Liabilities exceeds the aggregate
amount of the Revolving Credit Commitments then in effect, the Borrowers shall
prepay the Revolving Credit Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (f) above) in such amounts as shall be
necessary so that after giving effect to such prepayment (and cover), the
aggregate outstanding amount of the Revolving Credit Loans and Letter of Credit
Liabilities does not exceed the aggregate amount of the Revolving Credit
Commitments, provided that any such prepayment shall be accompanied by any
--------
amounts payable under Section 5.05 hereof.
Credit Agreement
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Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans.
------------------
(a) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of each Lender the entire outstanding principal
amount of such Lender's Revolving Credit Loans, and each Revolving Credit Loan
shall mature, on the Revolving Credit Commitment Termination Date. In addition,
if following any Revolving Credit Commitment Reduction Date the aggregate
principal amount of the Revolving Credit Loans shall exceed the Revolving Credit
Commitments, the Borrowers shall pay Revolving Credit Loans, and provide cover
for Letter of Credit Liabilities as specified in Section 2.10(f), in an
aggregate amount equal to such excess.
(b) Subject to the last sentence of this Section 3.01(b), the Borrowers
hereby jointly and severally promise to pay to the Administrative Agent for
account of the Term Loan Lenders the principal of the Term Loans in twenty-six
consecutive quarterly installments payable on the Principal Payment Dates as
follows:
Principal Payment Date Amount of Installment ($)
---------------------- -------------------------
September 30, 2002 125,000
December 31, 2002 125,000
March 31, 2003 250,000
June 30, 2003 250,000
September 30, 2003 250,000
December 31, 2003 250,000
March 31, 2004 250,000
June 30, 2004 250,000
September 30, 2004 250,000
December 31, 2004 250,000
March 31, 2005 250,000
June 30, 2005 250,000
September 30, 2005 250,000
December 31, 2005 250,000
Credit Agreement
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March 31, 2006 250,000
June 30, 2006 250,000
September 30, 2006 250,000
December 31, 2006 250,000
March 31, 2007 250,000
June 30, 2007 250,000
September 30, 2007 250,000
December 31, 2007 250,000
March 31, 2008 250,000
June 30, 2008 250,000
September 30, 2008 250,000
December 31, 2008 94,000,000
If Mediacom does not refinance its 1998 Senior Notes prior to March 31,
2007, with new Indebtedness having a maturity no earlier than two years after
the payment of all amounts due under this Agreement and on terms satisfactory to
the Administrative Agent and the Majority Lenders, the entire outstanding
principal amount of the Term Loans shall be payable on December 31, 2007.
(c) The Borrowers hereby jointly and severally promise to pay to the
Administrative Agent for account of the Incremental Facility Lenders of any
Series the principal of the Incremental Facility Loans of such Series on the
respective Principal Payment Dates agreed upon between the Borrowers and such
Incremental Facility Lenders pursuant to Section 2.01(c) hereof at the time such
Lenders become obligated to make such Incremental Facility Loans hereunder.
3.02 Interest. The Borrowers hereby jointly and severally promise to pay to
--------
the Administrative Agent for account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time) plus the Applicable Margin and
----
(b) during such periods as such Loan is a Eurodollar Loan, for each Interest
Period relating thereto, the Eurodollar Rate for such Loan for such
Interest Period plus the Applicable Margin.
----
Credit Agreement
----------------
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Notwithstanding the foregoing, the Borrowers jointly and severally promise to
pay to the Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such Lender,
on any Reimbursement Obligation held by such Lender and on any other amount
payable by the Borrowers hereunder to or for account of such Lender, that shall
not be paid in full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the period from and including the due
date thereof to but excluding the date the same is paid in full. Accrued
interest on each Loan shall be payable (i) in the case of a Base Rate Loan,
quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the
last day of each Interest Period therefor and, if such Interest Period is longer
than three months, at three-month intervals following the first day of such
Interest Period, (iii) in the case of any Eurodollar Loan, upon the payment,
prepayment or Conversion thereof (but only on the principal amount so paid,
prepaid or Converted) and (iv) in the case of all Loans, upon the payment or
prepayment in full of the principal of the Loans, and the termination of the
Commitments, hereunder, except that interest payable at the Post-Default Rate
shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrowers.
3.03 Determination of Applicable Margin.
----------------------------------
(a) The Applicable Margin for the period from the Closing Date to the day
prior to the first Quarterly Date shall be determined based upon the certificate
delivered pursuant to Section 6.01(o) hereof. Thereafter, the Applicable Margin
for each Quarterly Payment Period shall be determined based upon a Rate Ratio
Certificate for such Quarterly Payment Period delivered by the Borrowers to the
Lenders and the Administrative Agent under this Section 3.03. If the Rate Ratio
Certificate for any Quarterly Payment Period is delivered to the Administrative
Agent three or more days prior to the first day of such Quarterly Payment
Period, any adjustment in the Applicable Margin required to be made, as shown in
such Rate Ratio Certificate, shall be effective on the first day of such
Quarterly Payment Period.
(b) If the Rate Ratio Certificate for any Quarterly Payment Period is
delivered by the Borrowers to the Administrative Agent later than three days
prior to the commencement of such Quarterly Payment Period, then (i) any
decrease in the Applicable Margin for such Quarterly Payment Period shall not
become effective on the first day of such Quarterly Payment Period but shall
instead become effective on the third day following receipt by the
Administrative Agent of such Rate Ratio Certificate and (ii) any increase in the
Applicable Margin for such Quarterly Payment Period shall become effective
retroactively from the first day of such Quarterly Payment Period.
(c) If it shall be determined at any time, on the basis of a certificate of a
Senior Officer delivered pursuant to the last sentence of Section 8.01 hereof,
that the Applicable Margin
Credit Agreement
----------------
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then in effect for the current Quarterly Payment Period, or any previous
Quarterly Payment Period, is or was incorrect, and that a correction would have
the effect of increasing the Applicable Margin, then the Applicable Margin shall
be so increased effective retroactively from the first day of such Quarterly
Payment Period, provided that in the event such certificate for any fiscal
--------
quarter is not delivered to the Lenders pursuant to said Section 8.01 within 60
days of the end of such fiscal quarter, then, unless the Borrowers shall deliver
such certificate within 10 days after notice of such non-delivery shall be given
by any Lender or the Administrative Agent to the Borrowers, the Applicable
Margin for such Quarterly Payment Period shall be deemed to be the highest
Applicable Margin provided for in the definition of such term in Section 1.01
hereof.
(d) In the event of any retroactive increase in the Applicable Margin for any
Quarterly Payment Period pursuant to paragraph (a), (b) or (c) above, the amount
of interest in respect of any Loan outstanding during all or any portion of such
Quarterly Payment Period shall be recalculated using the Applicable Margin as so
increased. On the Business Day immediately following receipt by the Borrowers
of notice from the Administrative Agent of such increase, the Borrowers shall
pay to the Administrative Agent, for account of the Lenders, an amount equal to
the difference between (i) the amount of interest previously paid or payable by
the Borrowers in respect of such Loan for such Quarterly Payment Period and (ii)
the amount of interest in respect of such Loan as so recalculated for such
Quarterly Payment Period.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
------------------------------------------------
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrowers under this Agreement, and except to the extent otherwise provided
therein, all payments to be made by the Borrowers under any other Loan Document
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at an account designated by
the Administrative Agent to the Borrowers, not later than 1:00 p.m. New York
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may (but
shall not be obligated to) debit the amount of any such payment that is not made
by such time to any ordinary deposit account of the Borrowers with such Lender
(with notice to the Borrowers and the Administrative Agent), provided that such
--------
Lender's failure to give such notice shall not affect the validity thereof.
Credit Agreement
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(c) The Borrowers shall, at the time of making each payment under this
Agreement for account of any Lender, specify to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans, Reimbursement
Obligations or other amounts payable by the Borrowers hereunder to which such
payment is to be applied (and in the event that the Borrowers fail to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02 hereof,
may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of Section
2.03(e) hereof, each payment received by the Administrative Agent under this
Agreement for account of any Lender shall be paid by the Administrative Agent
promptly to such Lender, in immediately available funds, for account of such
Lender's Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made.
(e) If the due date of any payment under this Agreement would otherwise fall
on a day that is not a Business Day, such date shall be extended to the next
succeeding Business Day, and interest shall be payable for any principal so
extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
(a) each borrowing of Loans of a particular Class (including of a particular
Series of Incremental Facility Loans) from the Lenders under Section 2.01
hereof shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 hereof in respect of Commitments of a particular
Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular
Class under Section 2.04 hereof shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to
the amounts of their respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof, Eurodollar Loans of
any Class (including of a particular Series of Incremental Facility Loans)
having the same Interest Period shall be allocated pro rata among the
relevant Lenders according to the amounts of their respective Revolving
Credit, Term Loan and Incremental Facility Loan Commitments of the relevant
Series (in the case of the making of Loans) or their respective Revolving
Credit, Term and Incremental Facility Loans of the relevant Series (in the
case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Revolving Credit, Term and
Incremental Facility Loans by the Borrowers shall be made for account of
the relevant Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and
Credit Agreement
----------------
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(d) each payment of interest on Revolving Credit, Term and Incremental Facility
Loans by the Borrowers shall be made for account of the relevant Lenders
pro rata in accordance with the amounts of interest on such Loans then due
and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans shall be computed on the
------------
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable and interest
on Base Rate Loans and Reimbursement Obligations, commitment fee and letter of
credit fees shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but, except as
otherwise provided in Section 2.03(g) hereof, excluding the last day) occurring
in the period for which payable. Notwithstanding the foregoing, for each day
that the Base Rate is calculated by reference to the Federal Funds Rate,
interest on Base Rate Loans shall be computed on the basis of a year of 360 days
and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant to
---------------
Section 2.10 hereof and Conversions or prepayments made pursuant to Section 5.04
hereof, each borrowing, Conversion and partial prepayment of principal of Base
Rate Loans (other than prepayments of Term Loans, as to which the provisions of
Section 2.09(c) hereof shall apply) shall be in an aggregate amount at least
equal to $100,000 or a larger multiple of $100,000 and each borrowing,
Conversion and partial prepayment of Eurodollar Loans (other than prepayments of
Term Loans, as to which the provisions of Section 2.09(c) hereof shall apply)
shall be in an aggregate amount at least equal to $3,000,000 or a larger
multiple of $500,000 (borrowings, Conversions or prepayments of or into Loans of
different Types or, in the case of Eurodollar Loans, having different Interest
Periods at the same time hereunder to be deemed separate borrowings, Conversions
and prepayments for purposes of the foregoing, one for each Type or Interest
Period). If any Eurodollar Loans would otherwise be in a lesser principal amount
for any period, such Loans shall be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Borrowers to the Administrative Agent
---------------
of terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
1:00 p.m. New York time on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Credit Agreement
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Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans (including, if applicable, the particular Series of Incremental
Facility Loans) to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate.
The Administrative Agent shall promptly notify the Lenders of the contents of
each such notice. In the event that the Borrowers fail to select the Type of
Loan, or the duration of any Interest Period for any Eurodollar Loan, within the
time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for such Loan or
(if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
------------------------------------------------
Administrative Agent shall have been notified by a Lender or the Borrowers (the
"Payor") prior to the date on which the Payor is to make payment to the
------
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrowers) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
----------------
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has
Credit Agreement
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been made and may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient(s) on such
date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
------------
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, provided that if neither the recipient(s) nor the Payor shall return
--------
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be made
by the Borrowers to the Lenders, the Borrowers and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the Post-Default Rate (without
duplication of the obligation of the Borrowers under Section 3.02 hereof to
pay interest on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required Payment to
the Administrative Agent shall not limit such obligation of the Borrowers
under said Section 3.02 to pay interest at the Post-Default Rate in respect
of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to the Borrowers, the Payor and the Borrowers
shall each be obligated retroactively to the Advance Date to pay interest
in respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type of such Loan, it
being understood that the return by the Borrowers of the Required Payment
to the Administrative Agent shall not limit any claim the Borrowers may
have against the Payor in respect of such Required Payment.
4.07 Sharing of Payments, Etc.
-------------------------
(a) Each Borrower agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option (to the fullest extent permitted by
law), to set off and apply any deposit (general or special, time or demand,
provisional or final), or other indebtedness, held by it for the credit or
account of such Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of
Credit Agreement
----------------
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whether such deposit or other indebtedness are then due to such Borrower), in
which case it shall promptly notify such Borrower and the Administrative Agent
thereof, provided that such Lender's failure to give such notice shall not
--------
affect the validity thereof.
(b) If any Lender shall obtain from any Borrower payment of any principal of
or interest on any Loan of any Class or Letter of Credit Liability owing to it
or payment of any other amount under this Agreement or any other Loan Document
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise (other than from the Administrative Agent as provided
herein), and, as a result of such payment, such Lender shall have received a
greater percentage of the principal of or interest on the Loans of such Class or
Letter of Credit Liabilities or such other amounts then due hereunder or
thereunder by such Borrower to such Lender than the percentage received by any
other Lender, it shall promptly purchase from such other Lenders participations
in (or, if and to the extent specified by such Lender, direct interests in) the
Loans of such Class or Letter of Credit Liabilities or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class or Letter of
Credit Liabilities or such other amounts, respectively, owing to each of the
Lenders. To such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored.
(c) Each Borrower agrees that any Lender so purchasing such a participation
(or direct interest) may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans or other amounts (as the case may be)
owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such
right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrowers. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Credit Agreement
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Section 5. Yield Protection, Etc.
----------------------
5.01 Additional Costs.
----------------
(a) The Borrowers shall pay directly to each Lender from time to time such
amounts as such Lender may determine to be necessary to compensate such Lender
for any costs that such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
----------
Costs"), resulting from any Regulatory Change that:
-----
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of such
Loans or changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (excluding
changes in the rate of tax on the overall net income of such Lender or of
such Applicable Lending Office by the jurisdiction in which such Lender has
its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement (or
any of such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Borrowers under this Section
5.01(a), the Borrowers may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender thereafter to make
or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable), provided that such suspension shall not affect the right of such
--------
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section
5.01 (but without duplication), the Borrowers shall pay directly to each Lender
from time to time on
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request such amounts as such Lender may determine to be necessary to compensate
such Lender (or, without duplication, the bank holding company of which such
Lender is a subsidiary) for any costs that it determines are attributable to the
maintenance by such Lender (or any Applicable Lending Office or such bank
holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord, of capital in
respect of its Commitments or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such bank holding
company) to a level below that which such Lender (or any Applicable Lending
Office or such bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrowers of any event occurring after the
date hereof entitling such Lender to compensation under paragraph (a) or (b) of
this Section 5.01 as promptly as practicable, but in any event within 45 days,
after such Lender obtains actual knowledge thereof; provided that (i) if any
--------
Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Borrowers a certificate setting forth the basis and amount
of each request by such Lender for compensation under paragraph (a) or (b) of
this Section 5.01. Determinations and allocations by any Lender for purposes of
this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph
(a) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (b) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Lender
under this Section 5.01, shall be conclusive, provided that such determinations
--------
and allocations are made on a reasonable basis.
Credit Agreement
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5.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority Revolving
Credit Lenders, if the related Loans are Term Loans, the Majority Term Loan
Lenders, or if the related Loans are Incremental Facility Loans of any
Series, the Majority Incremental Facility Lenders of such Series determine,
which determination shall be conclusive, and notify the Administrative
Agent that the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrowers and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Borrowers shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision of this Agreement, in
----------
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans hereunder
(and, in the sole opinion of such Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender), then such Lender shall promptly notify the
Borrowers thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to make
---------------------------
Eurodollar Loans of any Class or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans of any Class shall be suspended pursuant to Section 5.01
or 5.03 hereof, such Lender's Eurodollar Loans of such Class shall be
automatically Converted into Base Rate Loans of such
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Class on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from a circumstance described
in Section 5.03 hereof, on such earlier date as such Lender may specify to the
Borrowers with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans of such Class have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans of such Class shall
be applied instead to its Base Rate Loans of such Class; and
(b) all Loans of such Class that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Class of such Lender that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans of the same
Class made by other Lenders are outstanding, such Lender's Base Rate Loans of
such Class shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans of such Class are allocated among the Lenders ratably (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments of such Class.
5.05 Compensation. The Borrowers shall pay to the Administrative Agent for
------------
account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a Eurodollar
Loan made by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9 hereof) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrowers for any reason (including, without limitation,
the failure of any of the conditions precedent specified in Section 6
hereof to be satisfied) to borrow a Eurodollar Loan from such Lender on the
date for such borrowing specified in the relevant notice of borrowing given
pursuant to Section 2.02 hereof.
Credit Agreement
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without limiting the
------------------------------------------------
obligations of the Borrowers under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrowers shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrowers shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
----------
(a) The Borrowers jointly and severally agree to pay to each Lender that is
not a U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then
Credit Agreement
----------------
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due and payable, provided that the foregoing obligation to pay such additional
--------
amounts shall not apply:
(i) if such Lender is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, to any payment to any Lender hereunder unless
such Lender is, on the date hereof (or on the date it becomes a Lender
hereunder as provided in Section 11.06(b) hereof) and on the date of any
change in the Applicable Lending Office of such Lender, either entitled to
submit a Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it hereunder
in respect of the Loans) or a Form 4224 (relating to all interest to be
received by such Lender hereunder in respect of the Loans), or (B) if such
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and is entitled to claim exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Non-U.S. Lender delivers a Form W-8, a
certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 864(d)(4) of the Code)), properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption from,
or a reduced rate of, U.S. Federal withholding tax on payments of interest
by the Borrower under this Agreement and the other Loan Documents, or
(ii) to any U.S. Taxes imposed solely by reason of the failure
by such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections
with the United States of America of such non-U.S. Person (or beneficial
owner, as the case may be) if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "Form 1001" shall mean Form 1001
---------
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America and (B) "Form 4224" shall mean Form
---------
4224 (Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms (including Form W-8EC1 or Form W-8BEN) as may
from time to time be adopted by the relevant taxing authorities of the United
States of America to document a claim to which such Form relates).
Credit Agreement
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(b) Within 30 days after paying any amount to the Administrative Agent or any
Lender from which it is required by law to make any deduction or withholding,
and within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Borrowers shall
deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
5.08 Replacement of Lenders. If any Lender requests compensation pursuant to
----------------------
Section 5.01, 5.06 or 5.07 hereof, or any Lender's obligation to make or
Continue, or to Convert Loans of any Type into, the other Type of Loan shall be
suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender requesting
such compensation being herein called a "Requesting Lender"), the Borrowers,
-----------------
upon three Business Days notice, may require that such Requesting Lender
transfer all of its right, title and interest under this Agreement to any bank
or other financial institution (a "Proposed Lender") identified by the Borrowers
---------------
that is reasonably satisfactory to the Administrative Agent (i) if such Proposed
Lender agrees to assume all of the obligations of such Requesting Lender
hereunder, and to purchase all of such Requesting Lender's Loans hereunder for
consideration equal to the aggregate outstanding principal amount of such
Requesting Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Requesting
Lender of all other amounts payable hereunder to such Requesting Lender on or
prior to the date of such transfer (including any fees accrued hereunder and any
amounts that would be payable under Section 5.05 hereof, as if all of such
Requesting Lender's Loans were being prepaid in full on such date) and (ii) if
such Requesting Lender has requested compensation pursuant to said Section 5.01,
5.06 or 5.07 hereof, such Proposed Lender's aggregate requested compensation, if
any, pursuant to said Section 5.01, 5.06 or 5.07 with respect to such Requesting
Lender's Loans is lower than that of the Requesting Lender. Subject to the
provisions of Section 11.06(b) hereof, such Proposed Lender shall be a "Lender"
for all purposes hereunder. Without prejudice to the survival of any other
agreement of the Borrowers hereunder the agreements of the Borrowers contained
in Sections 5.01, 5.06, 5.07 and 11.03 hereof (without duplication of any
payments made to such Requesting Lender by the Borrowers or the Proposed Lender)
shall survive for the benefit of such Requesting Lender under this Section 5.08
with respect to the time prior to such replacement.
Section 6. Conditions Precedent.
--------------------
6.01 Initial Extension of Credit. The obligation of any Lender to make its
---------------------------
initial extension of credit hereunder (whether by making a Loan or issuing a
Letter of Credit) is subject to the conditions precedent that (i) such extension
of credit shall occur on or before December 31, 1999 and (ii) the Administrative
Agent shall have received the following documents (with, in the case of clauses
(a), (b), (c) and (d) below, sufficient copies for each Lender), each of which
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shall be satisfactory to the Administrative Agent (and to the extent specified
below, to each Lender) in form and substance:
(a) Organizational Documents. Certified copies of the Operating Agreements and
------------------------
of the charter and by-laws (or equivalent documents) of each Obligor and of
all limited liability company and corporate authority for each Obligor
(including, without limitation, board of director 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
----------------------------------
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C., counsel to the Obligors,
substantially in the form of Exhibit G hereto and covering such other
matters as the Administrative Agent or any Lender may reasonably request
(and the Borrowers hereby instruct such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion, dated the
--------------------------------------------
Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York
counsel to Chase, substantially in the form of Exhibit H hereto (and Chase
hereby instructs such counsel to deliver such opinion to the Lenders).
(e) Notes. Promissory notes for each Lender that shall have requested the
-----
execution and delivery of a promissory note, on or prior to the Closing
Date, pursuant to Section 2.08(d) hereof.
(f) Pledge Agreement. The Pledge Agreement, duly executed and delivered by the
----------------
Borrowers and the Administrative Agent. In addition, each such Obligor
shall have taken such other action as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant to
the Pledge Agreement, including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements.
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(g) Guarantee and Pledge Agreement. The Guarantee and Pledge Agreement, duly
------------------------------
executed and delivered by Mediacom, the Manager and the Administrative
Agent and the certificates (if any) evidencing the ownership interests in
the Borrowers held by Mediacom and the Manager, accompanied by undated
powers executed in blank. In addition, Mediacom and the Manager shall have
taken such other action as the Administrative Agent shall have requested in
order to perfect the security interests created pursuant to the Guarantee
and Pledge Agreement, including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements.
(h) Management Fee Subordination Agreement. The Management Fee
--------------------------------------
Subordination Agreement, duly executed and delivered by the Manager, the
Borrowers and the Administrative Agent.
(i) Affiliate Subordinated Indebtedness Subordination Agreements.
------------------------------------------------------------
The Affiliate Subordinated Indebtedness Subordination Agreement, duly
executed and delivered by the Borrowers, the Administrative Agent and by
Mediacom.
(j) Investment by Mediacom. The Lenders shall have received evidence that the
----------------------
Borrowers shall have received cash proceeds from Mediacom (i) in an amount
of not less than $228,500,000 in respect of the equity capital of the
Borrowers and (ii) in an amount of not less than $105,000,000 in respect of
Affiliate Subordinated Indebtedness advanced by Mediacom to the Borrowers,
in each case upon terms satisfactory to the Lenders.
(k) Triax Acquisition. Evidence that (x) Mediacom shall have assigned all of
-----------------
its rights to acquire the CATV Systems to be sold by Triax under the Triax
Acquisition Agreement to the LLC Borrowers (except that the rights to
acquire the CATV System in Apache Junction, Arizona, shall be assigned to
Mediacom Arizona LLC), (y) concurrently with the initial extension of
credit, the Triax Acquisition will be duly consummated by the LLC Borrowers
for an aggregate purchase price not exceeding $740,000,000 (subject to
purchase price adjustments as set forth in the Triax Acquisition Agreement)
in all material respects in accordance with the terms of the Triax
Acquisition Agreement, including the schedules and exhibits thereto (and no
material provision thereof shall have been waived, amended, supplemented or
otherwise modified in any material respect without the consent of the
Majority Lenders) and (z) the number of Equivalent Basic Subscribers (as
defined in the Triax Acquisition Agreement) served by Retained Franchises
(as so defined) shall not exceed 3% of the Subscriber Threshold (as so
defined); and the Administrative Agent shall have received a certificate of
a Senior Officer to such effect, together with (in the case of each legal
opinion being delivered to the LLC Borrowers pursuant thereto) a letter
from each Person delivering such opinion
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(which shall in any event include an opinion of special FCC counsel)
authorizing reliance thereon by the Administrative Agent and the Lenders.
(l) Apache Acquisition. Evidence that Mediacom Arizona LLC, concurrently with
------------------
the initial extension of credit, shall purchase the Apache Junction,
Arizona cable television system from Triax pursuant to the Triax
Acquisition Agreement for $20,000,000 in cash.
(m) Triax Credit Agreement. Evidence that, to the extent the assets purchased
----------------------
in the Triax Acquisition shall be subject to any Liens in favor of the
lenders (or an agent for such lenders) under the Triax Credit Agreement,
such Liens shall have been released (or arrangements for such release
satisfactory to the Administrative Agent shall have been made).
(n) 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 Triax
Acquisition (including, without limitation, the consents of the respective
municipal franchising authorities to the acquisition of the CATV Systems
being acquired by the LLC Borrowers pursuant to the Triax Acquisition,
exclusive of those pertaining to Retained Franchises).
(o) Rate Ratio Certificate. A certificate of a Senior Officer, dated the
----------------------
Closing Date, setting forth, in reasonable detail, the calculation (and the
basis for such calculation) of Rate Ratio as of such date.
(p) Other Documents. Such other documents as the Administrative Agent or any
---------------
Lender or special New York counsel to Chase may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Borrowers of such fees as the Borrowers
shall have agreed to pay or deliver to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to
Chase, in connection with the negotiation, preparation, execution and delivery
of this Agreement and the other Loan Documents and the extensions of credit
hereunder (to the extent that statements for such fees and expenses have been
delivered to the Borrowers).
6.02 Initial and Subsequent Extensions of Credit. The obligation of the
-------------------------------------------
Lenders to make any Loan or otherwise extend any credit to the Borrowers upon
the occasion of each borrowing or other extension of credit hereunder (including
the initial borrowing) is subject to the further conditions precedent that, both
immediately prior to the making of such Loan or other extension of credit and
also after giving effect thereto and to the intended use thereof:
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(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrowers in Section 7
hereof, and by each Obligor in the other Loan Documents to which it is a
party, shall be true and complete on and as of the date of the making of
such Loan or other extension of credit with the same force and effect as if
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Borrowers hereunder shall constitute a certification by the Borrowers to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Borrowers otherwise notify the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 7. Representations and Warranties. The Borrowers represent and
------------------------------
warrant to the Administrative Agent and the Lenders that:
7.01 Existence. Each Borrower and its Subsidiaries: (a) is a corporation,
---------
partnership, limited liability company or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
7.02 Financial Condition. The Borrowers have heretofore furnished to each of
-------------------
the Lenders the following financial statements:
(i) the audited financial statements of Triax, including balance
sheets, as of December 31, 1997 and 1998, and the related audited
statements of operation and cash flow for the years ended on said
respective dates, in each case certified by Xxxxxx Xxxxxxxx, LLP;
(ii) the unaudited financial statements of Triax, including balance
sheets, as of June 30, 1999, and the related unaudited statements of
operation and cash flow for the and six-month period ended on said date;
and
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(iii) an unaudited pro forma combined balance sheet and calculation
of Adjusted System Cash Flow of the Borrowers and their Subsidiaries as at
and for the fiscal quarter ended September 30, 1999 prepared under the
assumption that the Triax Acquisition had occurred on July 1, 1999.
All such financial statements fairly present in all material respects the actual
or pro forma (as the case may be) individual or combined financial condition of
the respective entities as at said respective dates and the actual or pro forma
(as the case may be) individual or combined results of their operations for the
applicable periods ended on said respective dates, all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis. 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
Triax, or any of the CATV Systems to be acquired pursuant to the Triax
Acquisition Agreement, except as referred to or reflected or provided for in
said unaudited financial statements as at June 30, 1999.
Since June 30, 1999, there has been no material adverse change in the combined
financial condition, operations, business or prospects of the Borrowers and
their Subsidiaries taken as a whole from that set forth in said pro forma
financial statements as at said date referred to in clause (iii) above.
7.03 Litigation. There are no legal or arbitral proceedings, or any
----------
proceedings or investigations by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of any Borrower)
threatened against any Borrower or any of its Subsidiaries, or against Triax
(and in respect of which the Borrowers would be obligated after giving effect to
the Triax Acquisition) 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 (except for the authorizations, approvals, consents,
filings and registrations contemplated by the Triax Acquisition Agreement (each
of which shall have been made or obtained on or before the Triax Acquisition is
consummated, to the extent required by the Triax Acquisition Agreement to be
obtained before such date, except (a) for Retained Franchises and (b) that
orders of the FCC may not have become final under the rules and regulations of
the FCC) 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
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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 shareholder 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 application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
7.06 Approvals. No authorizations, approvals or consents of, and no filings
---------
or registrations with, any governmental or regulatory authority or agency, or
any securities exchange, are necessary for the execution, delivery or
performance by any Borrower of this Agreement or any of the other Basic
Documents to which it is a party or for the legality, validity or enforceability
hereof or thereof, except for (i) filings and recordings in respect of the Liens
created pursuant to the Security Documents, (ii) the authorizations, approvals,
consents, filings and registrations contemplated by the Triax Acquisition
Agreement (each of which shall have been made or obtained on or before the Triax
Acquisition is consummated, to the extent required by the Triax Acquisition
Agreement to be obtained before such date, except (a) for Retained Franchises
and (b) that orders of the FCC may not have become final under the rules and
regulations of the FCC) and (iii) the exercise of remedies under the Security
Documents may require prior approval of the FCC or the issuing municipalities or
States under one or more of the Franchises.
7.07 ERISA. Each Plan, and, to the knowledge of each Borrower, each
-----
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which such Borrower would be
under an obligation to furnish a report to the Lenders under Section 8.01(e)
hereof.
7.08 Taxes. 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
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----------------
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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) Part A of Schedule III hereto sets forth (i) a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement,
guarantee, letter of credit or other arrangement (other than the Loan
Documents) providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Borrowers or any of their Subsidiaries, outstanding on
the date hereof, or that (after giving effect to the transactions
contemplated hereunder to occur on or before the Closing Date) will be
outstanding on the Closing Date, the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $1,000,000, and the
aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of
said Schedule 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) 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 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 of the Borrowers or any of their Subsidiaries, and the aggregate
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----------------
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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 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 member of the LLC
Borrowers on the date hereof is Mediacom. Xxxxxxx is a Wholly-Owned Subsidiary
of Mediacom. As of the date hereof, there are no outstanding Equity Rights with
respect to any of the Borrowers and 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.
Credit Agreement
----------------
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7.14 Subsidiaries, Etc.
------------------
(a) As of the date hereof, none of the Borrowers has any Subsidiaries.
(b) Set forth in Schedule 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 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.
(c) None of the Subsidiaries of the Borrowers is, on the date hereof, subject
to any indenture, agreement, instrument or other arrangement of the type
described in Section 8.18(d) hereof.
7.15 True and Complete Disclosure. The information, reports, financial
----------------------------
statements, exhibits and schedules (including the Information Memorandum)
furnished in writing by or on behalf of the Borrowers to the Administrative
Agent or any Lender in connection with the negotiation, preparation or delivery
of this Agreement and the other Loan Documents or included herein or therein or
delivered pursuant hereto or thereto, when taken as a whole do not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading. All written information furnished after
the date hereof by the Borrowers and their Subsidiaries to the Administrative
Agent and the Lenders in connection with this Agreement and the other Loan
Documents and the transactions contemplated hereby and thereby will be true,
complete and accurate in every material respect, or (in the case of projections)
based on reasonable estimates, on the date as of which such information is
stated or certified. There is no fact known to the Borrowers that could
reasonably be expected to have a Material Adverse Effect (other than facts
affecting the cable television industry in general) that has not been disclosed
herein, in the other Loan Documents or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished to the Lenders
for use in connection with the transactions contemplated hereby or thereby.
7.16 Franchises.
----------
(a) Set forth in Schedule V hereto is a complete and correct list of all
Franchises (identified by issuing authority, franchisee and expiration date) (i)
owned by the Borrowers and their Subsidiaries on the date hereof or (ii) that,
with the exception of any Retained Franchises (as defined in the Triax
Acquisition Agreement), will be owned by the Borrowers and their Subsidiaries on
the Closing Date (after giving effect to the Triax Acquisition).
Credit Agreement
----------------
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(b) Each of the Borrowers and their Subsidiaries possesses or has the right
to use, or will possess or will have the right to use on the Closing Date (after
giving effect to the Triax Acquisition) all such Franchises, and all copyrights,
licenses, trademarks, service marks, trade names or other rights, including
licenses and permits granted by the FCC, agreements with public utilities and
microwave transmission companies, pole or conduit attachment, use, access or
rental agreements and utility easements that are necessary for the conduct of
the CATV Systems of the Borrowers and their Subsidiaries, except for such of the
foregoing the absence of which could not reasonably be expected to have a
Material Adverse Effect on the Borrowers or any of their Subsidiaries, and each
of such Franchises, copyrights, licenses, patents, trademarks, service marks,
trade names and rights is (or on the Closing Date will be) in full force and
effect and no material default has occurred and is continuing thereunder. None
of the Borrowers, any of its Subsidiaries or (to the knowledge of the Borrowers)
Triax has received any notice from the granting body or any other governmental
authority with respect to any breach of any covenant under, or any default with
respect to, any Franchise 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.
7.17 The CATV Systems.
----------------
(a) Each of the Borrowers and their Subsidiaries, and, (after giving effect
to the transactions contemplated hereunder to occur on the Closing Date) the
CATV Systems to be owned by it, are in compliance in all material respects with
all applicable federal, state and local laws, rules and regulations, including
without limitation, the Communications Act, the Copyright Revision Act of 1976,
and the rules and regulations of the FCC and the United States Copyright Office,
including, without limitation, rules and laws governing system registration, use
of aeronautical frequencies and signal carriage, equal employment opportunity,
cumulative leakage index testing and reporting, signal leakage, and subscriber
privacy, except to the extent that the failure to so comply with any of the
foregoing could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing except to the extent that the failure to comply with any of the
following could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect and except as set forth in Schedule
VI hereto:
(i) the communities included in the areas covered by the
Franchises have been registered with the FCC;
(ii) all of the annual performance tests on such CATV Systems
required under the rules and regulations of the FCC have been performed and
the results of such tests demonstrate satisfactory compliance with the
applicable requirements being tested in all material respects;
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----------------
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(iii) to the knowledge of the Borrowers, such CATV Systems
currently meet or exceed the technical standards set forth in the rules and
regulations of the FCC, including, without limitation, the leakage limits
contained in 47 C.F.R. Section 76.605(a)(11);
(iv) to the knowledge of the Borrowers, such CATV Systems are
being operated in compliance with the provisions of 47 C.F.R. Sections
76.610 through 76.619 (mid-band and super-band signal carriage), including
47 C.F.R. Section 76.611 (compliance with the cumulative signal leakage
index); and
(v) to the knowledge of the Borrowers, where required,
appropriate authorizations from the FCC have been obtained for the use of
all aeronautical frequencies in use in such CATV Systems and such CATV
Systems are presently being operated in compliance with such authorizations
(and all required certificates, permits and clearances from governmental
agencies, including the Federal Aviation Administration, with respect to
all towers, earth stations, business radios and frequencies utilized and
carried by such CATV Systems have been obtained).
(b) To the knowledge of the Borrowers, all notices, statements of account,
supplements and other documents required under Section 111 of the Copyright Act
of 1976 and under the rules of the Copyright Office with respect to the carriage
of broadcast station signals by the CATV Systems (the "Copyright Filings") owned
-----------------
or to be owned by the Borrowers and their Subsidiaries (after giving effect to
the transactions contemplated hereunder to occur on the Closing Date) have been
duly filed, and the proper amount of copyright fees have been paid on a timely
basis, and each such CATV System qualifies for the compulsory license under
Section 111 of the Copyright Act of 1976, except to the extent that the failure
to so file or pay could not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect. To the knowledge of the
Borrowers, there is no pending claim, action, demand or litigation by any other
person with respect to the Copyright Filings or related royalty payments made by
the CATV Systems.
(c) The carriage of all off-air signals by the CATV Systems owned or to be
owned by the Borrowers and their Subsidiaries (after giving effect to the
transactions contemplated hereunder to occur on the Closing Date) is permitted
by valid transmission consent agreements or by must-carry elections by
broadcasters, or is otherwise permitted under applicable law, except to the
extent the failure to obtain any of the foregoing could not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse Effect.
(d) The assets of the CATV Systems owned or to be owned by the Borrowers and
their Subsidiaries (after giving effect to the transactions contemplated
hereunder to occur on the
Credit Agreement
----------------
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Closing Date) are adequate and sufficient in all material respects for all of
the current operations of such CATV Systems.
7.18 Rate Regulation. Each of the Borrowers and their Subsidiaries have each
reviewed and evaluated in detail the FCC rules currently in effect (the "Rate
----
Regulation Rules") implementing the rate regulation provisions of the Cable
----------------
Television Consumer Protection and Competition Act of 1992 (the "Rate Regulation
---------------
Act"). Based upon such review by the Borrowers and their Subsidiaries with
---
respect to the CATV Systems owned and to be owned (after giving effect to the
transactions contemplated hereunder to occur on or before the Closing Date):
(i) except as set forth in Schedule VI hereto, to the knowledge
of the Borrowers, none of such CATV Systems is subject to effective
competition as of the date hereof;
(ii) except as set forth in Schedule VI hereto, no franchising
authority has notified the Borrowers or any of their Subsidiaries of its
application to be certified to regulate rates as provided in Section 76.910
of the Rate Regulation Rules;
(iii) except as set forth in Schedule VI hereto, no franchising
authority has notified the Borrowers or any of their Subsidiaries that it
has been certified and has adopted regulations required to commence
regulation as provided in Section 76.910(c)(2) of the Rate Regulation
Rules;
(iv) to the knowledge of the Borrowers and except as set forth
in Schedule VI hereto, there are no pending cable service programming rate
complaints filed with the FCC; and
(v) no reduction of rates or refunds to subscribers is required
by an outstanding order of the FCC or any local franchising authority as of
the date hereof under the Rate Regulation Act and the Rate Regulation Rules
applicable to the CATV Systems of the Borrowers and their Subsidiaries.
7.19 Year 2000 Issues. To the knowledge of the Borrowers, any reprogramming
----------------
required to permit the proper functioning, in and following the year 2000, of
(i) the Borrowers' material operating computer systems and (ii) material
operating equipment containing embedded microchips (including systems and
equipment supplied by others or, to the knowledge of the Borrowers, with which
the Borrowers' material operating systems interface) and the testing of all such
systems and equipment, as so reprogrammed, is expected to be completed by
November 30, 1999. To the knowledge of the Borrowers, the cost to the Borrowers
of such reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to the Borrowers (including reprogramming errors and the failure of
others' systems or equipment) will not result in a
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Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrowers and their Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit the Borrowers to conduct their
business without a Material Adverse Effect.
7.20 Triax Acquisition Agreement. The Borrowers have heretofore delivered to
---------------------------
the Administrative Agent a complete and correct copy of the Triax Acquisition
Agreement, as in effect on the date hereof, including all schedules, exhibits
and annexes thereto. The Triax Acquisition Agreement has been duly executed and
delivered by each party thereto and is in full force and effect and, to the
knowledge of the Borrowers, no party is in default in any material respect of
any of its obligations thereunder.
7.21 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 each of the
-------------------------
Lenders:
(a) as soon as available and in any event within 60 days after the end of each
quarterly fiscal period of each fiscal year of the Borrowers, combined
statements of income, retained earnings and cash flows of the Borrowers and
their Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
combined balance sheet of the Borrowers and their Subsidiaries as at the
end of such period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods in the preceding fiscal
year (except that, in the case of balance sheets, such comparison shall be
to the last day of the prior fiscal year), accompanied by a certificate of
a Senior Officer, which certificate shall state that said financial
statements fairly present in all material respects the combined financial
condition and results of operations of the Borrowers and their Subsidiaries
in accordance with generally accepted accounting principles consistently
applied as at the end of, and for, such period (subject to normal year-end
audit adjustments);
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(b) as soon as available and in any event within 120 days after the end of each
fiscal year of the Borrowers, combined statements of income, retained
earnings and cash flows of the Borrowers and their Subsidiaries for such
fiscal year and the related combined balance sheet of the Borrowers and
their Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding combined figures for the
preceding fiscal year and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall state that said combined financial statements fairly present in all
material respects the combined financial condition and results of
operations of the Borrowers and their Subsidiaries as at the end of, and
for, such fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect that, in
making the examination necessary for their opinion, nothing came to their
attention that caused them to believe that the Borrowers were not in
compliance with Sections 8.07, 8.08, 8.09, 8.10, 8.11, 8.12 or 8.15 hereof,
insofar as such Sections relate to accounting matters;
(c) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, that the Borrowers shall
have filed with the Securities 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 to the holders of its senior notes
(if any), copies of all financial statements, reports and proxy statements
so mailed;
(e) as soon as possible, and in any event within ten days after any Borrower
knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan has occurred
or exists, a statement signed by a Senior Officer setting forth details
respecting such event or condition and the action, if any, that the
Borrowers or their ERISA Affiliates propose to take with respect thereto
(and a copy of any report or notice required to be filed with or given to
the PBGC by the Borrowers or an ERISA Affiliate with respect to such event
or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the minimum
--------
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or
Section 302(e) of
Credit Agreement
----------------
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ERISA, shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code); and any
request for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by the
Borrowers or an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Borrowers or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrowers or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA (including
the obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt by any Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under Section 4041A
of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrowers or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA,
would result in the loss of tax-exempt status of the trust of which
such Plan is a part if the Borrowers or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with the provisions
of said Sections;
(f) within 60 days of the end of each quarterly fiscal period of the Borrowers,
a Quarterly Officer's Report as at the end of such period;
(g) promptly after any Borrower knows or has reason to believe that any Default
has occurred, a notice of such Default describing the same in reasonable
detail and, together with such notice or as soon thereafter as possible, a
description of the action that the Borrowers have taken or propose to take
with respect thereto; and
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(h) from time to time such other information regarding the financial condition,
operations, business or prospects of the Borrowers or any of their
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender or the Administrative Agent may reasonably request.
The Borrowers will furnish to each Lender, at the time they furnish each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
Senior Officer (i) to the effect that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing, describing the same in
reasonable detail and describing the action that the Borrowers have taken or
proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrowers are in
compliance with Sections 8.07, 8.08, 8.09, 8.10, 8.11, 8.12 and 8.15 hereof
(including, without limitation, calculations demonstrating compliance with the
requirements of Section 8.09(d)(ii) hereof after giving effect to any Capital
Expenditure pursuant to Section 8.12(b) hereof) as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 Litigation. The Borrowers will promptly give to each Lender notice of
----------
all legal or arbitral proceedings, and of all proceedings or investigations by
or before any governmental or regulatory authority or agency, and any material
development in respect of such legal or other proceedings, affecting the
Borrowers or any of their Subsidiaries or any of their Franchises, except
proceedings that, if adversely determined, would not (either individually or in
the aggregate) have a Material Adverse Effect. Without limiting the generality
of the foregoing, the Borrowers will give to each Lender (i) notice of the
assertion of any Environmental Claim by any Person against, or with respect to
the activities of, the Borrowers or any of their Subsidiaries and notice of any
alleged violation of or non-compliance with any Environmental Laws or any
permits, licenses or authorizations, other than any Environmental Claim or
alleged violation that, if adversely determined, would not (either individually
or in the aggregate) have a Material Adverse Effect and (ii) copies of any
notices received by the Borrowers or any of their Subsidiaries under any
Franchise of a material default by the Borrowers or any of their Subsidiaries in
the performance of its obligations thereunder.
8.03 Existence, Etc. Each Borrower will, and will cause each of its
---------------
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material rights,
privileges, licenses and franchises (provided that nothing in this Section
--------
8.03 shall prohibit any transaction expressly permitted under Section 8.05
hereof);
(b) comply with the requirements of all applicable laws, rules, regulations and
orders of governmental or regulatory authorities if failure to comply with
such
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requirements could (either individually or in the aggregate) have a
Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property prior
to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good
faith and by proper proceedings and against which adequate reserves are
being maintained;
(d) maintain, in all material respects, all of its Properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which complete entries will
be made in accordance with generally accepted accounting principles
consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent, during
normal business hours, to examine, copy and make extracts from its books
and records, to inspect any of its Properties, and to discuss its business
and affairs with its officers, all to the extent reasonably requested by
such Lender or the Administrative Agent (as the case may be).
8.04 Insurance. Each Borrower will, and will cause each of its Subsidiaries
---------
to, maintain insurance with financially sound and reputable insurance companies,
and with respect to Property and risks of a character usually maintained by
Persons engaged in the same or similar business similarly situated, against
loss, damage and liability of the kinds and in the amounts customarily
maintained by such corporations, provided that each Borrower will in any event
--------
maintain (with respect to itself and each of its Subsidiaries) casualty
insurance and insurance against claims for damages with respect to defamation,
libel, slander, privacy or other similar injury to person or reputation
(including misappropriation of personal likeness), in such amounts as are then
customary for Persons engaged in the same or similar business similarly
situated.
8.05 Prohibition of Fundamental Changes.
----------------------------------
(a) Restrictions on Merger. None of the Borrowers will nor will it permit
----------------------
any of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
(b) Restrictions on Acquisitions. None of the Borrowers will nor will it
----------------------------
permit any of its Subsidiaries to, acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person except for
purchases of equipment, programming rights and
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other Property to be sold or used in the ordinary course of business,
Investments permitted under Section 8.08(f) hereof, and Capital Expenditures
permitted under Section 8.12 hereof.
(c) Restrictions on Sales and Other Dispositions. None of the Borrowers will
--------------------------------------------
nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, any part
of its business or Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests, but excluding (i)
obsolete or worn-out Property, tools or equipment no longer used or useful in
its business so long as the amount thereof sold in any single fiscal year by the
Borrowers and their Subsidiaries shall not have a fair market value in excess of
$5,000,000 and (ii) any equipment, programming rights or other Property sold or
disposed of in the ordinary course of business and on ordinary business terms).
(d) Certain Permitted Transactions. Notwithstanding the foregoing provisions
------------------------------
of this Section 8.05:
(i) Intercompany Mergers and Consolidations. Any Borrower may
---------------------------------------
be merged or consolidated with any other Borrower, and any Subsidiary of a
Borrower may be merged or consolidated with or into: (x) such Borrower if
such Borrower shall be the continuing or surviving corporation or (y) any
other such Subsidiary; provided that if any such transaction shall be
--------
between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned
Subsidiary shall be the continuing or surviving corporation.
(ii) Intercompany Dispositions. Any Borrower may sell, lease,
-------------------------
transfer or otherwise dispose of any or all of its Property to any other
Borrower, and any Subsidiary of a Borrower may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Borrowers or a Wholly Owned Subsidiary of the
Borrowers.
(iii) Triax Acquisition. The LLC Borrowers may consummate the
-----------------
Triax Acquisition, so long as the same is consummated in all material
respects in accordance with the Triax Acquisition Agreement.
(iv) Permitted Dispositions. The Borrowers or any Wholly Owned
----------------------
Subsidiary of the Borrowers may enter into one or more transactions
intended to trade (by means of either an exchange or a sale and subsequent
purchase) one or more of the CATV Systems owned by the Borrowers and their
Subsidiaries for one or more CATV Systems owned by any other Person, which
transactions may be effected either by
(I) the Borrowers or such Wholly Owned Subsidiary selling one or
more CATV Systems owned by it, and either depositing the Net Available
Proceeds
Credit Agreement
----------------
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thereof into the Collateral Account, or prepaying Revolving Credit
Loans (and creating a Reserved Commitment Amount), as contemplated by
the second paragraph of Section 2.10(d) hereof, and then within 270
days acquiring one or more other CATV Systems or
(II) exchanging one or more CATV Systems, together with cash not
exceeding 20% of the fair market value of such acquired CATV Systems,
so long as
(x) (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 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 (iv),
the Borrowers or Wholly Owned Subsidiary receives cash in excess of 20% the
fair market value of the acquired CATV Systems, such exchange shall be
permitted as a sale under this
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----------------
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subparagraph (iii) and the cash received by the Borrowers in connection
with such transaction shall be applied in accordance with Section 2.10(d).
(v) Subsequent Acquisitions. Any Borrower or a Wholly Owned
-----------------------
Subsidiary of such Borrower may acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person, so long
as:
(A) the aggregate Purchase Price of any individual such acquisition shall
not exceed $200,000,000;
(B) such acquisition (if by purchase of assets, merger or consolidation)
shall be effected in such manner so that the acquired business, and
the related assets, are owned either by a Borrower or a Wholly Owned
Subsidiary of a Borrower and, if effected by merger or consolidation
involving a Borrower, such Borrower shall be the continuing or
surviving entity and, if effected by merger or consolidation involving
a Wholly Owned Subsidiary of a Borrower, such Wholly Owned Subsidiary
shall be the continuing or surviving entity;
(C) such acquisition (if by purchase of stock) shall be effected in such
manner so that the acquired entity becomes a Wholly Owned Subsidiary
of a Borrower;
(D) with respect to any acquisition involving an aggregate Purchase Price
in excess of $25,000,000, the Borrowers shall deliver to the
Administrative Agent (which shall promptly forward a copy to each
Lender which requests one) (1) no later than five Business Days prior
to the consummation of each such acquisition (or such earlier date as
shall be five Business Days after the execution and delivery thereof),
copies of the respective agreements or instruments pursuant to which
such acquisition is to be consummated (including, without limitation,
any related management, non-compete, employment, option or other
material agreements), any schedules to such agreements or instruments
and all other material ancillary documents to be executed or delivered
in connection therewith and (2) promptly following request therefor
(but in any event within three Business Days following such request),
copies of such other information or documents relating to each such
acquisition as the Administrative Agent shall have requested;
(E) with respect to any acquisition involving an aggregate Purchase Price
in excess of $25,000,000, the Administrative Agent shall have received
(and shall promptly forward a copy thereof to each Lender which
requests one) a letter (in the case of each legal opinion delivered to
the Borrowers pursuant to such
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----------------
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acquisition) from each Person delivering such opinion (which shall in
any event include an opinion of special FCC counsel) authorizing
reliance thereon by the Administrative Agent and the Lenders;
(F) with respect to any acquisition involving an aggregate Purchase Price
in excess of $25,000,000, the Borrowers shall have delivered to the
Administrative Agent and the Lenders evidence satisfactory to the
Administrative Agent and the Majority Lenders of receipt of all
licenses, permits, approvals and consents, if any, required with
respect to such acquisition (including, without limitation, the
consents of the respective municipal franchising authorities to the
acquisition of the respective CATV Systems being acquired (if any));
(G) the entire amount of the consideration payable by the Borrowers and
their Subsidiaries in connection with such acquisition (other than
customary post-closing adjustments and indemnity obligations, and
other than Indebtedness incurred in connection with such acquisition
that is permitted under paragraphs (c) or (f) of Section 8.07 hereof)
shall be payable on the date of such acquisition;
(H) none of the Borrowers nor any of its Subsidiaries shall, in connection
with such acquisition, assume or remain liable in respect of (x) any
Indebtedness of the seller or sellers (except for Indebtedness
permitted under Section 8.07(f) hereof) or (y) other obligations of
the seller or sellers (except for obligations incurred in the ordinary
course of business in operating the CATV System so acquired and
necessary or desirable to the continued operation of such CATV
System);
(I) to the extent the assets purchased in such acquisition shall be
subject to any Liens not permitted hereunder, such Liens shall have
been released (or arrangements for such release satisfactory to the
Administrative Agent shall have been made);
(J) to the extent applicable, the Borrowers shall have complied with the
provisions of Section 8.18 hereof, including, without limitation, to
the extent not theretofore delivered, delivery to the Administrative
Agent of (x) the shares of stock or other ownership interests,
accompanied by undated stock powers or other powers executed in blank,
and (y) the agreements, instruments, opinions of counsel and other
documents required under Section 8.18 hereof;
(K) after giving effect to such acquisition the Borrowers shall be in
compliance with Section 8.10 hereof (the determination of such
compliance to be calculated on a pro forma basis, as at the end of and
for the fiscal quarter most
Credit Agreement
----------------
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recently ended prior to the date of such acquisition for which
financial statements of the Borrowers and their Subsidiaries are
available, under the assumption that such acquisition shall have
occurred, and any Indebtedness in connection therewith shall have been
incurred, at the beginning of the applicable period, and under the
assumption that interest for such period had been equal to the actual
weighted average interest rate in effect for the Loans hereunder on
the date of such acquisition), and the Borrowers shall have delivered
to the Administrative Agent a certificate of a Senior Officer showing
such calculations in reasonable detail to demonstrate such compliance;
(L) immediately prior to such acquisition and after giving effect thereto,
no Default shall have occurred and be continuing; and
(M) the Borrowers shall deliver such other documents and shall have taken
such other action as the Majority Lenders or the Administrative Agent
may request (which may include evidence that the Borrowers shall have
received an equity contribution from Mediacom or the proceeds of the
issuance of Affiliate Subordinated Indebtedness pursuant to
documentation and in amounts in form and substance satisfactory to the
Majority Lenders and the Administrative Agent).
8.06 Limitation on Liens. None of the Borrowers will, nor will it permit any
-------------------
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of Schedule 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;
Credit Agreement
----------------
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(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).
8.07 Indebtedness. None of the Borrowers will, nor will it permit any of its
------------
Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder, including, without limitation,
Incremental Facility Loans in an aggregate principal amount up to but not
exceeding $200,000,000;
(b) Indebtedness outstanding on the date hereof and listed in Part A of
Schedule 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);
Credit Agreement
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(c) Affiliate Subordinated Indebtedness incurred in accordance with Section
8.14 hereof;
(d) Indebtedness of the Borrowers to any Subsidiary of the Borrowers, and of
any Subsidiary of the Borrowers to the Borrowers or its other Subsidiaries;
(e) Indebtedness of the Borrowers and their Subsidiaries that is subordinated
in right of payment to the obligations of the Borrowers and their
Subsidiaries under the Loan Documents (and which contains terms, including
in respect of interest, amortization, defaults, mandatory redemptions and
prepayments, and covenants) that are in each case satisfactory to the
Administrative Agent and the Majority Lenders; and
(f) additional Indebtedness of the Borrowers and their Subsidiaries (including,
without limitation, Capital Lease Obligations and other Indebtedness
secured by Liens permitted under Section 8.06(h) hereof) up to but not
exceeding an aggregate amount of $25,000,000 at any one time outstanding.
In addition to the foregoing, the Borrowers will not, nor will they permit
their Subsidiaries to, incur or suffer to exist any obligations in an aggregate
amount in excess of $10,000,000 at any one time outstanding in respect of surety
and performance bonds backing pole rental or conduit attachments and the like,
or backing obligations under Franchises, arising in the ordinary course of
business of the CATV Systems of the Borrowers and their Subsidiaries.
8.08 Investments. The Borrowers will not, nor will they permit any of their
-----------
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Schedule IV
hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) subject to the last sentence of this Section 8.08, Investments by the
Borrowers and their Subsidiaries in the Borrowers and their Subsidiaries;
(e) Interest Rate Protection Agreements entered into in the ordinary course of
business of the Borrowers and not for speculative purposes;
(f) Investments by the Borrowers and their Subsidiaries consisting of
acquisitions permitted under subparagraphs (iv) or (v) of Section 8.05(d);
Credit Agreement
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(g) Investments consisting of the issuance of a Letter of Credit for the
account of the Borrowers to support an obligation of an Affiliate of the
Borrowers, in such amounts as would be permitted under Section 8.09(d)(ii)
hereof; and
(h) additional Investments (including, without limitation, Investments by the
Borrowers or any of their Subsidiaries in Affiliates of the Borrowers), so
long as (i) the aggregate amount of all such Investments shall not exceed
$100,000,000 and (ii) at the time of making such additional investments as
contemplated by this Section 8.08(h) and after giving effect thereto, the
Total Leverage Ratio shall be less than 5.75 to 1 or if lower, the
applicable requirement at the time under Section 8.10(a) hereof.).
Without limiting the generality of the forgoing, the Borrowers will not create,
or make any Investment in, any Subsidiary after the date hereof without the
prior written consent of the Majority Lenders.
8.09 Restricted Payments. The Borrowers will not make any Restricted Payment
-------------------
at any time, provided that, so long as at the time thereof, and after giving
--------
effect thereto, no Default or Event of Default shall have occurred and be
continuing, the Borrowers may make the following Restricted Payments (subject,
in each case, to the applicable conditions set forth below):
(a) the LLC Borrowers may make Restricted Payments in cash to their members on
or after April 12 of each fiscal year (the "current year") in an amount
------------
equal to the Tax Payment Amount for the immediately preceding fiscal year
(the "prior year"), so long as at least fifteen days prior to making any
----------
such Restricted Payment, the Borrowers shall have delivered to each Lender
(i) notification of the amount and proposed payment date of such Restricted
Payment and (ii) a statement from the Borrowers' independent certified
public accountants setting forth a detailed calculation of the Tax Payment
Amount for the prior year and showing the amount of such Restricted Payment
and all prior Restricted Payments;
(b) the Borrowers may make payments in cash in respect of Management Fees to
the extent permitted under Section 8.11 hereof;
(c) the Borrowers may make payments in cash in respect of the interest on
Affiliate Subordinated Indebtedness constituting Supplemental Capital or
Cure Monies; 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
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----------------
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the Borrowers and may request the issuance of Affiliate Letters of Credit
(such payment and issuance being collectively called "Permitted
---------
Transactions"), so long as
------------
(i) in the case of any Permitted Transaction consisting of
a payment in respect of the principal of Affiliate Subordinated
Indebtedness, or distribution in respect of equity capital,
constituting Cure Monies, at least one complete fiscal quarter shall
have elapsed subsequent to the last date upon which the Borrowers
shall have utilized their cure rights under Section 9.02 hereof,
without the occurrence of any Event of Default (and, for purposes
hereof, unless the Borrowers indicate otherwise at the time of any
such payment, such payment or distribution shall be deemed to be made
first from Cure Monies and second from Supplemental Capital);
(ii) after giving effect to any Permitted Transaction
during any fiscal quarter (the "current fiscal quarter") and to the
----------------------
making of any Capital Expenditures pursuant to Section 8.12(b) hereof
during the current fiscal quarter, the Borrowers would (as at the last
day of the most recent fiscal quarter immediately prior to the current
fiscal quarter) have been in compliance on a pro forma basis with
Section 8.10 hereof and the Total Leverage Ratio calculated on a pro
forma basis is at the time less than 5.75 to 1 (or, if lower, the
applicable requirement at the time under Section 8.10(a) hereof), the
determination of such compliance and such Total Leverage Ratio to be
determined as if
(x) for purposes of calculating the Total Leverage Ratio, there
were added to Indebtedness the sum (herein, the "Relevant Sum")
------------
of the amount of such Permitted Transaction plus the amount of
----
all other Permitted Transactions made during the current fiscal
quarter through the date of such Permitted Transaction, minus the
-----
amount of Special Reductions through such date plus the amount of
----
any such Capital Expenditures, and
(y) for purposes of calculating the Interest Coverage Ratio and
Pro Forma Debt Service Coverage Ratio, the Relevant Sum plus any
----
Cure Monies received during the period for which the Interest
Coverage Ratio or Pro Forma Debt Service Coverage Ratio is
calculated represented additional principal of the Loans
outstanding hereunder at all times during the respective fiscal
quarter for which such Ratios are calculated and the amount of
interest that would have been payable hereunder during such
fiscal quarter was recalculated to take into account such
additional principal;
Credit Agreement
----------------
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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 December 31, 2000 6.00 to 1
From January 1, 2001
through December 31, 2001 5.75 to 1
From January 1, 2002
through December 31, 2002 5.50 to 1
From January 1, 2003
through December 31, 2003 4.75 to 1
From January 1, 2004
and at all times thereafter 4.50 to 1
(b) Interest Coverage Ratio. The Borrowers will not permit the Interest
-----------------------
Coverage Ratio to be less than the following respective ratios as at the last
day of any fiscal quarter ending during the following respective periods:
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----------------
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Period Ratio
------ -----
From the Closing Date
through December 31, 2000 1.40 to 1
From January 1, 2001
through December 31, 2001 1.50 to 1
From January 1, 2002
through December 31, 2002 1.60 to 1
From January 1, 2003
through December 31, 2003 1.80 to 1
From January 1, 2004
and at all times thereafter 2.00 to 1
(c) Pro Forma Debt Service Coverage Ratio. The Borrowers will not permit the
-------------------------------------
Pro Forma Debt Service Coverage Ratio to be less than 1.15 to 1 at any time.
8.11 Management Fees. The Borrowers will not permit the aggregate amount of
---------------
Management Fees accrued in respect of any fiscal year of the Borrowers to exceed
4.5% of the Gross Operating Revenue of the Borrowers and their Subsidiaries for
such fiscal year. In addition, the Borrowers will not, as at the last day of the
first, second and third fiscal quarters in any fiscal year, permit the amount of
Management Fees paid during the portion of such fiscal year ending with such
fiscal quarter to exceed 4.5% of the Gross Operating Revenue of the Borrowers
and their Subsidiaries for such portion of such fiscal year (based upon the
financial statements of the Borrowers provided pursuant to Section 8.01(a)
hereof), provided that in any event the Borrowers will not pay any Management
--------
Fees at any time following the occurrence and during the continuance of any
Default. Any Management Fees that are accrued for any fiscal quarter (the
"current fiscal quarter") but which are not paid during the current fiscal
----------------------
quarter may be paid at any time during the period of four fiscal quarters
following the current fiscal quarter (and for these purposes any payment of
Management Fees during such period shall be deemed to be applied to Management
Fees in the order of the fiscal quarters in respect of which such Management
Fees are accrued). Any Management Fees which may not be paid as a result of the
limitations set forth in the forgoing provisions of this Section 8.11 shall be
deferred and shall not be payable until the principal of and interest on the
Loans, and all other amounts owing hereunder, shall have been paid in full. For
purposes of this Section 8.11 "Gross Operating Revenue" shall mean the aggregate
-----------------------
gross operating revenues derived by the Borrowers from their CATV Systems and
from other telecommunications services as determined in accordance
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with GAAP excluding, however, revenue or income derived by the Borrowers from
any of the following sources: (i) from the sale of any asset of such CATV
Systems not in the ordinary course of business, (ii) interest income, (iii)
proceeds from the financing or refinancing of any Indebtedness of the Borrowers
or any of their Subsidiaries and (iv) extraordinary gains in accordance with
GAAP.
None of the Borrowers nor any of its Subsidiaries shall be obligated to pay
Management Fees to any Person, unless the Borrowers and such Person shall have
executed and delivered to the Administrative Agent a Management Fee
Subordination Agreement, and none of the Borrowers nor any of its Subsidiaries
shall pay Management Fees to any Person except to the extent permitted under the
respective Management Fee Subordination Agreement to which such Person is a
party.
None of the Borrowers nor any of its Subsidiaries shall employ or retain any
executive management personnel (or pay any Person, other than the Manager, in
respect of executive management personnel or matters, for the Borrowers or any
of their Subsidiaries), it being the intention of the parties hereto that all
executive management personnel required in connection with the business or
operations of the Borrowers and their Subsidiaries shall be employees of the
Manager (and that the Executive Compensation for such employees shall be covered
by Management Fees payable hereunder). For purposes hereof, "executive
management personnel" shall not include any individual (such as a system manager
or a regional manager) who is employed solely in connection with the day-to-day
operations of a CATV System or a Region.
8.12 Capital Expenditures.
--------------------
(a) Scheduled Capital Expenditures. The Borrowers will not permit the
------------------------------
aggregate amount of Capital Expenditures to exceed the following respective
amounts for the following respective Fiscal Periods of the Borrowers:
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Fiscal Period Ending Amount
-------------------- ------
December 31, 1999 $10,000,000
December 31, 2000 $67,000,000
December 31, 2001 $82,000,000
December 31, 2002 $81,000,000
December 31, 2003 $47,000,000
December 31, 2004 $23,000,000
December 31, 2005 $21,000,000
December 31, 2006 $20,000,000
December 31, 2007 $19,000,000
provided that, the amounts set forth above for any Fiscal Period of the
--------
Borrowers in which the Borrowers enter into a Subsequent Acquisition pursuant to
Section 8.05(d)(v) shall be increased by such amount as the Borrowers shall
propose in a notice to the Administrative Agent and the Lenders (which amount
shall be based on a proposed budget and operating plan set forth in such notice)
which increase shall become effective unless Requisite Lenders object to such
amount, by notice to the Administrative Agent, within 10 Business Days following
receipt of the Borrowers' notice. For purposes of this Section 8.12(a),
"Requisite Lenders" shall mean Lenders having at least 50% of the sum of (a) the
------------------
aggregate outstanding principal amount of the Term Loans or, if the Term Loans
shall not have been made, the aggregate outstanding principal amount of the Term
Loan Commitments plus (b) the aggregate outstanding principal amount of the
----
Incremental Facility Loans or, if the Incremental Facility Loans shall not have
been made, the aggregate outstanding principal amount of the Incremental
Facility Commitments plus (c) the sum of (i) the aggregate unused amount, if
----
any, of the Revolving Credit Commitments at such time plus (ii) the aggregate
----
amount of Letter of Credit Liabilities 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 Period of the
Borrowers shall be less than the amount set forth opposite such Fiscal Period in
the schedule above, then the shortfall shall be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not any other) Fiscal
Period and, for purposes hereof, the amount of Capital Expenditures made during
any Fiscal Period shall be deemed to have been made first from the carryover
from any previous Fiscal Period and last from the permitted amount for such
Fiscal Period.
(b) Additional Capital Expenditures. In addition to the Capital Expenditures
-------------------------------
permitted under paragraph (a) above, the Borrowers and their Subsidiaries may
make Additional Capital Expenditures during any fiscal quarter in such amounts
as would be permitted under Section 8.09(d)(ii) (in the case of a payment of
principal of Affiliate Subordinated Indebtedness,
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as if such Capital Expenditure constituted a payment in respect of Supplemental
Capital thereunder).
8.13 Interest Rate Protection Agreements. The Borrowers will within 90 days
-----------------------------------
of the Closing Date, enter into, and thereafter maintain in full force and
effect, one or more Interest Rate Protection Agreements with one or more of the
Lenders or their affiliates (and/or with a bank or other financial institution
having capital, surplus and undivided profits of at least $500,000,000), that
effectively enables the Borrowers (in a manner satisfactory to the Majority
Lenders) to protect themselves, in a manner and on terms reasonably satisfactory
to the Majority Lenders, against adverse fluctuations in the three-month London
interbank offered rates as to a notional principal amount which, together with
that portion of the aggregate outstanding principal amount of Indebtedness of
the Borrowers bearing a fixed rate of interest, shall in the aggregate be at
least equal to 50% of the aggregate outstanding principal amount of the
Indebtedness (including Affiliate Subordinated Indebtedness) of the Borrowers.
8.14 Affiliate and Additional Subordinated Indebtedness.
--------------------------------------------------
(a) The Borrowers may at any time after the date hereof incur Affiliate
Subordinated Indebtedness to Mediacom or one or more other Affiliates, so long
as the proceeds of any such Affiliate Subordinated Indebtedness constituting
Cure Monies are immediately applied to the reduction of the Revolving Credit
Commitments and the prepayment of principal of the Term Loans and Incremental
Facility Loans of each Series hereunder, applied ratably to the Revolving Credit
Commitments, the Term Loans and the Incremental Facility Loans of each Series in
accordance with the respective then-outstanding aggregate amounts of such
Commitments and Loans (and to the simultaneous prepayment of the Revolving
Credit Loans in an amount equal to such required reduction of Revolving Credit
Commitments), provided that to the extent any such required prepayment of
--------
Revolving Credit Loans shall exceed the then-outstanding aggregate principal
amount of Revolving Credit Loans, such excess shall be applied to the ratable
prepayment of Term Loans and Incremental Facility Loans of each Series.
(b) The Borrowers will not, nor will they permit any of their Subsidiaries
to, purchase, redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for the purchase,
redemption, retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount owing in
respect of, any Affiliate Subordinated Indebtedness, except to the extent
permitted under Section 8.09 hereof.
(c) The Borrowers will not, nor will they permit any of their Subsidiaries
to, purchase, redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for the purchase,
redemption, retirement or other acquisition
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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).
8.15 Lines of Business. The Borrowers will at all times ensure that not more
-----------------
than 15% of gross operating revenue of the Borrowers and their Subsidiaries for
any fiscal year shall be derived from any line or lines of business activity
other than the business of owning and operating CATV Systems and related
communications businesses.
8.16 Transactions with Affiliates. Except as expressly permitted by this
----------------------------
Agreement, none of the Borrowers will, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an Affiliate
except for Investments permitted under Section 8.08(h), provided that, the
--------
monetary or business consideration arising therefrom would be substantially as
advantageous to a Borrower and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; (d) make any contribution towards, or
reimbursement for, any Federal income taxes payable by any shareholder or member
of a Borrower or any of its Subsidiaries in respect of income of a Borrower; or
(e) enter into any other transaction directly or indirectly with or for the
benefit of an Affiliate (including, without limitation, Guarantees and
assumptions of obligations of an Affiliate); provided that
--------
(i) any Affiliate who is an individual may serve as a director,
officer or employee of a Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity,
(ii) a Borrower and its Subsidiaries may enter into transactions
(other than extensions of credit by such Borrower or any of its
Subsidiaries to an Affiliate) providing for the leasing of Property, the
rendering or receipt of services or the purchase or sale of equipment,
programming rights, advertising time and other Property in the ordinary
course of business if the monetary or business consideration arising
therefrom would be substantially as advantageous to such Borrower and its
Subsidiaries as the monetary or business consideration that would obtain in
a comparable transaction with a Person not an Affiliate,
(iii) the Borrowers may enter into and perform their respective
obligations under, the Management Agreements, and
(iv) the Borrowers and their Subsidiaries may pay to the Manager
the aggregate amount of intercompany shared expenses payable to Mediacom
that are allocated by Mediacom to the Borrowers and their Subsidiaries in
accordance with Section 5.04 of the Guarantee and Pledge Agreement.
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8.17 Use of Proceeds.
---------------
(a) Revolving Credit Loans. The Borrowers will use the proceeds of the
----------------------
Revolving Credit Loans hereunder solely to (i) provide financing for the Triax
Acquisition and Subsequent Acquisitions and to pay the fees and expenses related
thereto, (ii) make Restricted Payments, (iii) pay Management Fees, (iv) make
Investments permitted under Section 8.08 hereof and (v) finance capital
expenditures and working capital needs of the Borrowers and their Subsidiaries
and acquisitions permitted hereunder (in each case in compliance with all
applicable legal and regulatory requirements); provided that (x) any borrowing
--------
of Revolving Credit Loans hereunder that would constitute a utilization of any
Reserved Commitment Amount shall be applied solely to make acquisitions
permitted under Section 8.05(d)(v) hereof, or to make prepayments of Loans under
Section 2.10(d) hereof and (y) neither the Administrative Agent nor any Lender
shall have any responsibility as to the use of any of such proceeds.
(b) Term Loans and Incremental Facility Loans. The Borrowers will use the
-----------------------------------------
proceeds of the Term Loans to finance the Triax Acquisition and to pay fees and
expenses related thereto. The Borrowers will use the proceeds of the
Incremental Facility Loans for general business purposes and to make Subsequent
Acquisitions.
8.18 Certain Obligations Respecting Subsidiaries; Further Assurances.
---------------------------------------------------------------
(a) Subsidiary Guarantors. In the event that any Borrower or any of its
---------------------
Subsidiaries shall form or acquire any Subsidiary after the date hereof (after
obtaining any necessary consent of the Lenders), such Borrower shall cause, and
shall cause its Subsidiaries to cause, such Subsidiary to:
(i) execute and deliver to the Administrative Agent a Subsidiary
Guarantee Agreement in the form of Exhibit E hereto (and, thereby, to
become a "Subsidiary Guarantor", and an "Obligor" hereunder and a "Securing
Party" under the Pledge Agreement);
(ii) deliver the shares of its stock or other ownership
interests accompanied by undated stock powers or other powers executed in
blank to the Administrative Agent, and to take other such action, as shall
be necessary to create and perfect valid and enforceable first priority
Liens (subject to Liens permitted under Section 8.06 hereof) on
substantially all of the Property of such new Subsidiary as collateral
security for the obligations of such new Subsidiary under the Subsidiary
Guarantee Agreement, and
(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
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other documents as is consistent with those delivered by each Obligor
pursuant to Section 6.01 hereof on the Closing Date or as the
Administrative Agent shall have reasonably requested.
(b) Ownership of Subsidiaries. Each Borrower will, and will cause each of
-------------------------
its Subsidiaries to, take such action from time to time as shall be necessary to
ensure that each of its Subsidiaries is a Wholly Owned Subsidiary. In the event
that any additional shares of stock or other ownership interests shall be issued
by Subsidiary of a Borrower, such Borrower agrees forthwith to deliver to the
Administrative Agent pursuant to the Pledge Agreement the certificates
evidencing such shares of stock or other ownership interests, accompanied by
undated stock or other powers executed in blank and to take such other action as
the Administrative Agent shall request to perfect the security interest created
therein pursuant to the Pledge Agreement.
(c) Further Assurances. Each Borrower will, and will cause each of its
------------------
Subsidiaries to, take such action from time to time (including filing
appropriate Uniform Commercial Code financing statements and executing and
delivering such assignments, security agreements and other instruments) as shall
be requested by the Administrative Agent to create, in favor of the
Administrative Agent for the benefit of the Lenders, perfected security
interests and Liens in shares of stock or other ownership interests of their
Subsidiaries. In addition, the Borrowers will not issue additional equity
interests ("Additional Equity Interests") after the date hereof to any Person (a
---------------------------
"New Equity Owner") other than Mediacom unless such New Equity Owner shall:
----------------
(i) pledge such Additional Equity Interests to the Administrative Agent on
behalf of the Lenders pursuant to a pledge agreement in substantially the
form (other than negative covenants) of the Guarantee and Pledge
Agreement and otherwise in form and substance satisfactory to the
Administrative Agent;
(ii) deliver to the Administrative Agent any certificates evidencing the
Additional Equity Interests accompanied by undated powers executed in
blank;
(iii) deliver to the Administrative Agent such proof of corporate action,
limited liability company, partnership or other action, as applicable,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by Mediacom and the Manager pursuant to
Section 6.01 hereof on the Closing Date or as the Administrative Agent
shall have reasonably requested; and,
(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.
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(d) Certain Restrictions. The Borrowers will not, and will not permit any of
--------------------
their Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrowers or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets securing
the obligations of the Borrowers or any Subsidiary under any of the Loan
Documents, or in respect of any Interest Rate Protection Agreement, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or other ownership interests or to make or
repay loans or advances to the Borrowers or any Subsidiary or to Guarantee
Indebtedness of the Borrowers or any Subsidiary under any of the Loan Documents;
provided that (i) the foregoing shall not apply to restrictions and conditions
--------
imposed by law or by any of the Loan Documents, (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
--------
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement or any other Loan Document if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.
8.19 Modifications of Certain Documents. The Borrowers will not consent to
----------------------------------
any modification, supplement or waiver of any of the provisions of any
Management Agreement (other than modifications, supplements or waivers that do
not alter any of the material rights or obligations of the Borrowers thereunder,
it being understood that any modification of the management fee provisions
thereof that would have the effect of increasing the management fees payable
pursuant thereto shall be deemed material for purposes hereof), the Triax
Acquisition Agreement (other than modifications, supplements or waivers that do
not alter in any material respect the rights of the Borrowers thereunder) or any
agreement, instrument or other document evidencing or relating to Affiliate
Subordinated Indebtedness or Indebtedness permitted under Section 8.07(e) hereof
without the prior consent of the Administrative Agent (with the approval of the
Majority Lenders).
Section 9. Events of Default.
-----------------
9.01 Events of Default. If one or more of the following events (herein
-----------------
called "Events of Default") shall occur and be continuing:
-----------------
(a) The Borrowers shall default in the payment when due (whether at stated
maturity or upon mandatory or optional prepayment) of any principal of or
interest on
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any Loan or any Reimbursement Obligation, any fee or any other amount
payable by them hereunder or under any other Loan Document; or
(b) Any Borrower or any Subsidiary of a Borrower shall default in the payment
when due of any principal of or interest on any of its other Indebtedness
aggregating $5,000,000 or more; or any event specified in any note,
agreement, indenture or other document evidencing or relating to any such
Indebtedness shall occur if the effect of such event is to cause, or
(without the lapse of time or the taking of any action, other than the
giving of notice) to permit the holder or holders of such Indebtedness (or
a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; or any Borrower shall default in the payment when due of any
amount aggregating $5,000,000 or more under any Interest Rate Protection
Agreement; or any event specified in any Interest Rate Protection Agreement
shall occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, termination or
liquidation payment or payments aggregating $1,000,000 or more to become
due; or
(c) Any representation, warranty or certification made or deemed made herein or
in any other Loan Document (or in any modification or supplement hereto or
thereto) by any Obligor, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or thereof, shall
prove to have been false or misleading as of the time made or furnished in
any material respect; or
(d) Any Borrower shall default in the performance of any of its obligations
under any of Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09, 8.10, 8.11,
8.12, 8.14, 8.16, 8.18 or 8.19 hereof; or any Borrower shall default in the
performance of any of its other obligations in this Agreement or any
Obligor shall default in the performance of its obligations under any other
Loan Document to which it is a party, and such default shall continue
unremedied for a period of thirty or more days after notice thereof to the
Borrowers by the Administrative Agent or any Lender (through the
Administrative Agent); or
(e) Any Obligor shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(f) Any Obligor shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
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----------------
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reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or (vi) take
any corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or consent
of any Obligor, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of such
Obligor or of all or any substantial part of its Property or (iii) similar
relief in respect of such Obligor under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against such Obligor shall be entered in an
involuntary case under the Bankruptcy Code; or
(h) Any Borrower shall be terminated, dissolved or liquidated (as a matter of
law or otherwise), or proceedings shall be commenced by a Borrower seeking
the termination, dissolution or liquidation of a Borrower, or proceedings
shall be commenced by any Person (other than the Borrowers) seeking the
termination, dissolution or liquidation of a Borrower and such proceeding
shall continue undismissed for a period of 60 or more days; or
(i) A final judgment or judgments for the payment of money of $5,000,000 or
more in the aggregate (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) or of $10,000,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against the Borrowers or any
of their Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof shall
not be procured, within 30 days from the date of entry thereof and the
relevant Borrower or Subsidiary shall not, within said period of 30 days,
or such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(j) An event or condition specified in Section 8.01(e) hereof shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result of
such event or condition, together with all other such events or conditions,
the Borrowers or any ERISA Affiliate shall incur or in the opinion of the
Majority Lenders shall be reasonably likely to
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incur a liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the Majority
Lenders, would (either individually or in the aggregate) have a Material
Adverse Effect; or
(k) A reasonable basis shall exist for the assertion against any Borrower or
any of its Subsidiaries, or any predecessor in interest of any Borrower or
any of its Subsidiaries or Affiliates, of (or there shall have been
asserted against any Borrower or any of its Subsidiaries) an Environmental
Claim that, in the judgment of the Majority Lenders is reasonably likely to
be determined adversely to such Borrower or any of its Subsidiaries, and
the amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is payable
by such Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(l) Any one or more of the following events shall occur and be continuing:
(i) Xxxxx Xxxxxxxx shall, by reason other than death or
permanent disability, cease to be Chairman and Chief Executive Officer
of the Manager and Xxxxxxx (or, following a Qualified Public Offering,
of Holdco), or if Xxxxx Xxxxxxxx shall cease to be the Chairman and
Chief Executive Officer of the Manager and Xxxxxxx (or, as applicable,
Holdco) by reason of death or permanent disability, a period of 120
days shall have elapsed without the appointment of a successor
Chairman and Chief Executive Officer with a Person with knowledge and
experience in the cable television industry reasonably acceptable to
the Majority Lenders;
(ii) Mediacom Management Corporation or Mediacom shall cease to
act as Manager of the LLC Borrowers;
(iii) Mediacom and Mediacom Management Corporation shall cease
to own, collectively, 50.1% of the aggregate voting power of the
ownership interests in each Borrower, provided that nothing in this
paragraph shall affect the obligation of the Borrowers pursuant to
Section 8.18(c) hereof, or of Mediacom pursuant to Section 6.04 of the
Guarantee and Pledge Agreement, to ensure that Administrative Agent
shall maintain on behalf of the Lenders at all times a pledge of 100%
of the equity interests in the Borrowers;
(iv) any person or group (within the meaning of Rule 13d-5
under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act") and Section 13(d) and 14(d) of the Exchange Act) other than a
---
Xxxxxxxx Entity or any entity controlled by or under common control
with Chase Manhattan Capital
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Corporation or Xxxxxx Communications Corporation becomes, directly or
indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation or other business
combination or otherwise, the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 25% of the aggregate voting
power of the capital stock of Mediacom or after a Qualified Public
Offering, Holdco on a fully-diluted basis (in other words, giving
effect to the exercise of any warrants, options and conversion and
other rights);
(v) at any time prior to a Qualified Public Offering, the
Xxxxxxxx Entities shall sell, transfer or otherwise dispose of more
than 20% of the aggregate equity interests in Mediacom held by them on
the date hereof (excluding in any event any additional equity
interests issued after the date hereof, including upon a revaluation
after the date hereof as provided in the operating agreement for
Mediacom, and excluding also any such transfer following the death or
permanent disability of Xxxxx Xxxxxxxx and any such transfer that
consists of an exchange by the holders of the equity generally of
Mediacom of their equity interests in Mediacom for equity interests in
Holdco); or
(vi) at any time after a Qualified Public Offering, the Xxxxxxxx
Entities shall cease to own at least 50.1% of the aggregate voting
power of the capital stock of Holdco on a fully-diluted basis (in
other words, giving effect to the exercise of any warrants, options
and conversion and other rights); or
(m) Except for Franchises that cover fewer than 10% of the Subscribers of the
Borrowers and their Subsidiaries (determined as at the last day of the most
recent fiscal quarter for which a Quarterly Officers' Report shall have
been delivered) one or more Franchises relating to the CATV Systems of the
Borrowers and their Subsidiaries shall be terminated or revoked such that
the respective Borrower or Subsidiary is no longer able to operate such
Franchises and retain the revenue received therefrom or the respective
Borrower or Subsidiary or the grantors of such Franchises shall fail to
renew such Franchises at the stated expiration thereof such that the
respective Borrower or Subsidiary is no longer able to operate such
Franchises and retain the revenue received therefrom; or
(n) The Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than Liens
permitted under Section 8.06 hereof or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of
the Security Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by any Borrower; or
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----------------
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(o) Any Operating Agreement shall be modified in any manner that would
adversely affect the obligations of the Borrowers, or the rights of the
Lenders or the Administrative Agent, hereunder or under any of the other
Loan Documents;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9.01 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 by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to withdrawal
only as therein provided.
9.02 Certain Cure Rights.
-------------------
(a) Notwithstanding the provisions of Section 9.01 hereof, but without
limiting the obligations of the Borrowers under Section 8.10(a) hereof, a breach
by the Borrowers as of the last day of any fiscal quarter or any fiscal year of
its obligations under said Section 8.10(a) shall not constitute an Event of
Default hereunder (except for purposes of Section 6 hereof) until
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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 8.14(a) hereof), or shall have
prepaid the Loans hereunder from available cash, in an amount sufficient to
bring the Borrowers into compliance with said Section 8.10(a) assuming that the
Total Leverage Ratio, as of the last day of such fiscal quarter or fiscal year,
as the case may be, were recalculated to subtract such prepayment from the
aggregate outstanding amount of Indebtedness, then such breach or breaches shall
be deemed to have been cured; provided, further, that breaches of Section 8.10
-------- -------
hereof (including pursuant to paragraph (b) below) may not be deemed to be cured
pursuant to this Section 9.02 (x) more than three times during the term of this
Agreement or (y) during consecutive fiscal quarters.
(b) Notwithstanding the provisions of Section 9.01 hereof, but without
limiting the obligations of the Borrowers under Section 8.10(b) or 8.10(c)
hereof, a breach by the Borrowers as of the last day of any fiscal quarter or
any fiscal year of its obligations under said Section 8.10(b) or 8.10(c) shall
not constitute an Event of Default hereunder (except for purposes of Section 6
hereof) until the date (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 8.14(a)
hereof), or shall have prepaid the Loans hereunder from available cash, in an
amount sufficient to bring the Borrowers into compliance with said Section
8.10(b) or 8.10(c) assuming that the Interest Coverage Ratio and the Pro Forma
Debt Service Coverage Ratio (as the case may be), as of the last day of such
fiscal quarter or fiscal year, as the case may be, were recalculated to deduct
from Interest Expense the aggregate amount of interest that would not have been
required to be paid hereunder if such prepayment had been made on the first day
of the period for which the Interest Coverage Ratio and the Pro Form Debt
Service Coverage Ratio is determined under said Section 8.10(b) or 8.10(c), then
such breach or breaches shall be deemed to have been cured; provided, further,
-------- -------
that breaches of Section 8.10 hereof (including pursuant to paragraph (a) above)
may not be deemed to be cured pursuant to this Section 9.02 (x) more than three
times during the term of this Agreement or (y) during consecutive fiscal
quarters.
Credit Agreement
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Section 10. The Administrative Agent.
------------------------
10.01 Appointment, Powers and Immunities. Each Lender hereby appoints and
----------------------------------
authorizes the Administrative Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and under the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
10.05 and the first sentence of Section 10.06 hereof shall include reference to
its affiliates and its own and its affiliates' officers, directors, employees
and agents):
(a) shall have no duties or responsibilities except those expressly set forth
in this Agreement and in the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or in any other
Loan Document, or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any
other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or any other document referred to or provided for herein or
therein or for any failure by the Borrowers or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the Majority
Lenders with respect to the collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Loan Document or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or attorneys-
in-fact selected by it in good faith.
10.02 Reliance by Administrative Agent. The Administrative Agent shall be
--------------------------------
entitled to rely upon any certification, notice or other communication
(including, without
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limitation, any thereof by telephone, telecopy, telegram or cable) reasonably
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Majority Lenders or, if
provided herein, in accordance with the instructions given by the Majority
Revolving Credit Lenders, the Majority Term Loan Lenders, the Majority
Incremental Facility Lenders of a Series or all of the Lenders as is required in
such circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrowers specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 10.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders , the Majority Term Loan
Lenders or the Majority Incremental Facility Lenders of a Series, provided that,
--------
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interest of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or not be taken,
only with the consent or upon the authorization of the Majority Lenders, the
Majority Revolving Credit Lenders, the Majority Term Loan Lenders or the
Majority Incremental Facility Lenders of a Series or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and the Loans made
------------------
by it, Chase (and any successor acting as Administrative Agent) in its capacity
as a Lender hereunder shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. Chase (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Borrowers (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase (and any such successor) and its affiliates may accept fees and
other consideration from the Borrowers for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
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10.05 Indemnification. The Lenders agree to indemnify the Administrative
---------------
Agent (to the extent not reimbursed under Section 11.03 hereof, but without
limiting the obligations of the Borrowers under said Section 11.03) ratably in
accordance with the aggregate principal amount of the Loans and 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 further
assurances to its satisfaction from the Lenders of their indemnification
obligations under
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Section 10.05 hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent. Subject to the
----------------------------------------------
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving five days prior
notice thereof to the Lenders and the Borrowers, and the Administrative Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, in consultation with the
Borrowers, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
10.09 Consents under Other Loan Documents. Except as otherwise provided in
-----------------------------------
Section 11.04 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the Loan Documents,
provided that, without the prior consent of each Lender, the Administrative
Agent shall not (except as provided herein or in the Security Documents) release
all or substantially all of the Subsidiary Guarantors from their obligations
under the Security Documents, or release all or substantially all of the
collateral or otherwise terminate all or substantially all of the Liens under
the Security Documents (taken as a whole), or agree to additional obligations
being secured by all or substantially all such collateral security (unless the
Lien for such additional obligations shall be junior to the Lien in favor of the
other obligations secured by such Security Document, in which event the
Administrative Agent may consent to such junior Lien provided that it obtains
the consent of the Majority Lenders thereto), alter the relative priorities of
the obligations entitled to the benefits of all or substantially all of the
Liens under the Security Documents, except that no such consent shall be
required, and the Administrative Agent is hereby authorized, to release any Lien
covering Property (and to release any Subsidiary Guarantor) that is the subject
of either a disposition of Property permitted hereunder or a Disposition to
which the Majority Lenders have consented.
Credit Agreement
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Section 11. Miscellaneous.
-------------
11.01 Waiver. No failure on the part of the Administrative Agent or any
------
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
Each Borrower irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the
Administrative Agent or any Lender relating in any way to this Agreement should
be dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by a Borrower relating in any way to this Agreement whether
or not commenced earlier. To the fullest extent permitted by applicable law,
the Borrowers shall take all measures necessary for any such action or
proceeding commenced by the Administrative Agent or any Lender to proceed to
judgment prior to the entry of judgment in any such action or proceeding
commenced by a Borrower.
11.02 Notices. All notices, requests and other communications provided for
-------
herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at (i) in the case of the Borrowers and the
Administrative Agent, at the "Address for Notices" specified below its name on
the signature pages hereof and (ii) in the case of each of the Lenders, the
address (or telecopy number) set forth in its Administrative Questionnaire; or,
as to any party, at such other address as shall be designated by such party in a
notice to each other party. Notwithstanding the foregoing, notices of borrowing,
prepayment and Conversion of Loans pursuant to Section 4.05 hereof may be made
by telephone, so long as the same are promptly confirmed in writing. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 Expenses, Etc. The Borrowers jointly and severally agree to pay or
--------------
reimburse each of the Lenders and the Administrative Agent for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to Chase) in connection
with (i) the negotiation, preparation, execution and delivery of this Agreement
and the other Loan Documents and the extension of credit hereunder and (ii) the
negotiation or preparation of any modification, supplement or waiver of any of
the terms of this
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Agreement or any of the other Loan Documents (whether or not consummated); (b)
all reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 11.03; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the other Loan
Documents or any other document referred to herein or therein and all costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
The Borrowers hereby jointly and severally agree to indemnify the
Administrative Agent, each Lender, each of their affiliates and their respective
directors, officers, employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the Administrative Agent to
any Lender, whether or not the Administrative Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Borrowers or any of their Subsidiaries of the proceeds of
any of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
11.04 Amendments, Etc. Except as otherwise expressly provided in this
----------------
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Borrowers and the Majority Lenders, or
by the Borrowers and the Administrative Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by the
Majority Lenders or by the Administrative Agent acting with the consent of the
Majority Lenders; provided that:
--------
(a) no modification, supplement or waiver shall, unless by an instrument signed
by all of the Lenders or by the Administrative Agent acting with the
consent of all of the Lenders:
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(i) increase, or extend the term of any of the Commitments, or extend the
time or waive any requirement for the reduction or termination of any of
the Commitments,
(ii) extend the date fixed for the payment of principal of or interest on any
Loan, the Reimbursement Obligations or any fee hereunder,
(iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon or any fee is
payable hereunder,
(v) alter the manner in which payments or prepayments of principal, interest
or other amounts hereunder shall be applied, or provide that any Class of
Loans or Lenders are subordinate in right of payment or have junior
priority as to Collateral, as between the Lenders or Classes of Loans,
(vi) alter the terms of this Section 11.04,
(vii) modify the percentages set forth in the definition of the term "Majority
Lenders", "Majority Revolving Credit Lenders", "Majority Term Loan
Lenders" or "Majority Incremental Facility Lenders",
(viii) waive or amend any provision requiring the consent or approval of all
Lenders, or
(ix) waive any of the conditions precedent set forth in Section 6.01 hereof;
and
(b) any modification or supplement of Section 10 hereof, or of any of the
rights or duties of the Administrative Agent hereunder, shall require the
consent of the Administrative Agent.
Anything in this Agreement to the contrary notwithstanding, no waiver or
modification of any provision of this Agreement that has the effect (either
immediately or at some later time) of enabling the Borrowers to satisfy a
condition precedent to the making of a Revolving Credit Loan or Incremental
Facility Loan of any Series shall be effective against the Revolving Credit
Lenders for the purposes of the Revolving Credit Commitments and Incremental
Facility Commitments of such Series unless the Majority Revolving Credit Lenders
or Majority Incremental Facility Lenders of such Series, as applicable, shall
have concurred with such waiver or modification, and no waiver or modification
of any provision of this Agreement
Credit Agreement
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or any other Loan Document that could reasonably be expected to adversely affect
the Lenders of any Class shall be effective against the Lenders of such Class
unless the Majority Revolving Credit Lenders, Majority Term Loan Lenders or
Majority Incremental Facility Lenders or the applicable Series, as the case may
be, shall have concurred with such waiver or modification.
11.05 Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.06 Assignments and Participations.
------------------------------
(a) None of the Borrowers may assign any of its rights or obligations
hereunder without the prior consent of all of the Lenders and the Administrative
Agent.
(b) Each Lender may assign any of its Loans, its Commitments and, if such
Lender is a Revolving Credit Lender, its Letter of Credit Interest (but only
with the consent of, in the case of its outstanding Commitments, the Borrowers
and the Administrative Agent and, in the case of the Revolving Credit Commitment
or a Letter of Credit Interest, the Issuing Lender, which consents shall not be
unreasonably withheld or delayed); provided that
--------
(i) no such consent by the Borrowers or the Administrative Agent
shall be required in the case of any assignment to another Lender, an
affiliate of a Lender or an Approved Fund of a Lender;
(ii) except to the extent the Borrowers and the Administrative
Agent shall otherwise consent, any such partial assignment (other than to
another Lender or an affiliate or an Approved Fund of a Lender) shall be in
an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit
Loans or Revolving Credit Commitment or Letter of Credit Interest shall be
made in such manner so that the same portion of its Revolving Credit Loans,
Revolving Credit Commitment and Letter of Credit Interest is assigned to
the respective assignee;
(iv) each such assignment by a Lender of its Term Loans or Term
Loan Commitment shall be made in such manner so that the same portion of
its Term Loans and Term Loan Commitment is assigned to the respective
assignee;
(v) each such assignment by a Lender of its Incremental Facility
Loans of any Series shall be made in such manner so that the same portion
of its Incremental Facility Loans and Incremental Facility Commitment of
such Series is assigned to the respective assignee; and
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----------------
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(vi) upon each such assignment, the assignor and assignee shall
deliver to the Borrowers, the Administrative Agent and the Issuing Lender
an Assignment and Acceptance in the form of Exhibit A hereto and the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
Upon execution and delivery by the assignor and the assignee to the Borrowers,
the Administrative Agent and the Issuing Lender of such Assignment and
Acceptance, and upon consent thereto by the Borrowers, the Administrative Agent
and the Issuing Lender to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Borrowers,
the Administrative Agent and the Issuing Lender), the obligations, rights and
benefits of a Lender hereunder holding the Commitment(s), Loans and, if
applicable, Letter of Credit Interest (or portions thereof) assigned to it and
specified in such Assignment and Acceptance (in addition to the Commitment(s),
Loans and Letter of Credit Interest, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment the assigning Lender shall pay the Administrative Agent an assignment
fee of $3,500; provided, however, that no such fee shall be payable in the case
-------- -------
of an assignment to another Lender, an Affiliate of a Lender or an Approved
Fund; and provided further that, in the case of contemporaneous assignments by a
-------- -------
Lender to more than one fund managed by the same investment advisor (which funds
are not then Lenders hereunder), only a single such fee shall be payable for all
such contemporaneous assignments.
(c) A Lender may sell or agree to sell to one or more other Persons (each a
"Participant") a participation in all or any part of any Loans or Letter of
------------
Credit Interest held by it, or in its Commitments, provided that (i) such
--------
Participant shall not have any rights or obligations under this Agreement or any
other Loan Document (the Participant's rights against such Lender in respect of
such participation to be those set forth in the agreements executed by such
Lender in favor of the Participant) and (ii) such Lender shall promptly notify
the Borrowers of the sale of such participation. All amounts payable by the
Borrowers to any Lender under Section 5 hereof in respect of Loans and Letter of
Credit Interests held by it, and its Commitments, shall be determined as if such
Lender had not sold or agreed to sell any participations in such Loans, Letter
of Credit Interest and Commitments, and as if such Lender were funding each of
such Loan, Letter of Credit Interest and Commitments in the same way that it is
funding the portion of such Loan, Letter of Credit Interest and Commitments in
which no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
Commitment or extend the amount or date of any scheduled reduction of such
Commitment pursuant to Section 2.04 hereof, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans,
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----------------
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Reimbursement Obligations or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable thereon, or any fee hereunder
payable to the Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee or (v) consent to any modification,
supplement or waiver hereof or of any of the other Loan Documents to the extent
that the same, under Section 10.09 or Section 11.04 hereof, requires the consent
of each Lender.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 11.06, any Lender may (without notice to
the Borrowers, the Administrative Agent or any other Lender and without payment
of any fee) (i) assign and pledge all or any portion of its Loans to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Lender and (ii) assign all or any
portion of its rights under this Agreement and its Loans to an affiliate. Any
Lender that is a fund that invests in bank loans may (without the consent of the
Borrowers or the Administrative Agent) pledge all or any portion of its rights
in connection with this Agreement to the trustee for holders of obligations
owed, or securities issued, by such fund as security for such obligations or
such securities, provided that any foreclosure or other exercise of remedies by
such trustee shall be subject to the provisions of this Section 11.06 in all
respects. No assignment or pledge described in this paragraph shall release
the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Borrowers or any of
their Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan or Reimbursement Obligation
held by it hereunder to the Borrowers or any of their Affiliates or Subsidiaries
without the prior consent of each Lender.
(g) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
--------
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
Credit Agreement
----------------
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(h) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) above, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(i) Notwithstanding anything to the contrary contained herein, any lender (a
"Granting Lender") may grant to a special purpose funding vehicle (a "SPC"),
---------------- ---
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers, the option to provide to the Borrowers
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrowers pursuant to this Agreement; provided that (i)
-------------
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper, or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof in respect
of claims arising out of this Agreement. In addition, notwithstanding anything
to the contrary contained in this Section 11.06(i), any SPC may (i) with notice
to, but without the prior written consent of, the Borrowers and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrowers and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC.
11.07 Survival. The obligations of the Borrowers under Sections 5.01, 5.05,
--------
5.06, 5.07 and 11.03 hereof, and the obligations of the Lenders under Section
10.05 hereof, shall 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,
Credit Agreement
----------------
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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.
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) 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
Credit Agreement
----------------
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more of their Subsidiaries (in connection with this Agreement or otherwise) by
any Lender or by one or more subsidiaries or affiliates of such Lender and the
Borrowers hereby authorize each Lender to share any information delivered to
such Lender by the Borrowers and their Subsidiaries pursuant to this Agreement,
or in connection with the decision of such Lender to enter into this Agreement,
to any such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound by the
provisions of paragraph (b) below as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, employees and representatives) to
use reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same nature
and in accordance with safe and sound banking practices, any non-public
information supplied to it by any Obligor pursuant to this Agreement or any
other Loan Document that is identified by the Borrowers as being confidential at
the time the same is delivered to the Lenders or the Administrative Agent,
provided that nothing herein shall limit the disclosure of any such information
--------
(i) after such information shall have become public (other than through a
violation of this Section 11.12), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to counsel for any of the Lenders or the
Administrative Agent, (iv) to bank examiners (or any other regulatory authority
having jurisdiction over any Lender or the Administrative Agent), or to auditors
or accountants, (v) to the Administrative Agent or any other Lender (or to Chase
Securities Inc.), (vi) in connection with any litigation to which any one or
more of the Lenders or the Administrative Agent is a party, or in connection
with the enforcement of rights or remedies hereunder or under any other Loan
Document, (vii) to a subsidiary or affiliate of such Lender as provided in
paragraph (a) above, (viii) to any direct or indirect contractual counterparty
in swap agreements or such counterparty's professional advisor or (ix) to any
assignee or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) first executes
and delivers to the respective Lender a Confidentiality Agreement substantially
in the form of Exhibit I hereto (or executes and delivers to such Lender an
acknowledgement to the effect that it is bound by the provisions of this Section
11.12(b), which acknowledgement may be included as part of the respective
assignment or participation agreement pursuant to which such assignee or
participant acquires an interest in the Loans or Letter of Credit Interest
hereunder); provided, further, that obligations of any assignee that has
-------- -------
executed a Confidentiality Agreement in the form of Exhibit I hereto shall be
superseded by this Section 11.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 11.06(b) hereof.
Credit Agreement
----------------
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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.
MEDIACOM ILLINOIS LLC
MEDIACOM INDIANA LLC
MEDIACOM IOWA LLC
MEDIACOM MINNESOTA LLC
MEDIACOM WISCONSIN LLC
By MEDIACOM LLC, a Member
By: /s/
-------------------------
Name:
Title:
XXXXXXX COMMUNICATIONS CORP.
By: /s/
-------------------------
Name:
Title:
c/o Mediacom LLC
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Credit Agreement
----------------
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THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/
--------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
Agent Bank Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CIBC INC.
By: /s/
-------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/
-------------------------
Name:
Title:
Credit Agreement
----------------
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BANK OF MONTREAL
By: /s/
-------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/
-------------------------
Name:
Title:
By: /s/
-------------------------
Name:
Title:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/
-------------------------
Name:
Title:
FLEET NATIONAL BANK
By: /s/
-------------------------
Name:
Title:
Credit Agreement
----------------
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PNC BANK, NATIONAL ASSOCIATION
By: /s/
-------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/
-------------------------
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/
-------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/
-------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By: /s/
-------------------------
Name:
Title:
Credit Agreement
----------------
-121-
MEES PIERSON CAPITAL CORP.
By: /s/
------------------------------
Name:
Title:
By: /s/
------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/
------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/
------------------------------
Name:
Title:
SOCIETE GENERALE
By: /s/
------------------------------
Name:
Title:
Credit Agreement
----------------
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/
------------------------------
Name:
Title:
By: /s/
------------------------------
Name:
Title:
KZH SOLEIL LLC
By: /s/
------------------------------
Name:
Title:
KZH SOLEIL-2 LLC
By: /s/
------------------------------
Name:
Title:
Credit Agreement
----------------
SCHEDULE I
Commitments
-----------
Revolving Term
Lender Credit Commitment Loan Commitment
------ ----------------- ---------------
The Chase Manhattan Bank $ 36,000,000.00 $ 18,000,000.00
CIBC Inc. 33,000,000.00 3,000,000.00
Mellon Bank, N.A. 33,000,000.00
First Union National Bank 26,000,000.00 5,000,000.00
Bank of Montreal 26,000,000.00 5,000,000.00
Credit Suisse First Boston 26,000,000.00
Dresdner Bank AG New York and 26,000,000.00
Grand Cayman Branches
Fleet National Bank 26,000,000.00
PNC Bank, National Association 26,000,000.00
The Bank of Nova Scotia 26,000,000.00
SunTrust Bank, Central 26,000,000.00 5,000,000.00
Florida, N.A.
Bank of America, N.A. 26,000,000.00 5,000,000.00
Citibank, N.A. 26,000,000.00
Societe Generale 26,000,000.00
Union Bank of California, N.A. 26,000,000.00 10,000,000.00
Credit Agricole Indosuez 16,000,000.00 4,000,000.00
The Fuji Bank, Limited 10,000,000.00 5,000,000.00
Mees Pierson Capital Corp. 10,000,000.00 5,000,000.00
General Electric Capital Corporation 15,000,000.00
KZH SOLEIL LLC 10,000,000.00
KZH SOLEIL-2 LLC 10,000,000.00
Total $450,000,000.00 $100,000,000.00
=============== ===============
Schedule I
----------
SCHEDULE II
Taxes
-----
[See Section 7.08]
Schedule II
-----------
SCHEDULE III
Material Agreements and Liens
-----------------------------
[See Sections 7.11, 8.06(b) and 8.07(b)]
Part A - Material Agreements
-------------------
Part B - Liens
-----
Schedule III
------------
SCHEDULE IV
Investments
-----------
[See Sections 7.14 and 8.08(a)]
Schedule IV
-----------
SCHEDULE V
Franchises
----------
[See definition of "Franchises" in
Section 1.01 and Section 7.16]
Schedule V
----------
SCHEDULE VI
Certain Matters related to CATV Systems
---------------------------------------
[See definition of CATV Systems in Section 1.01 and Section 7.17]
Schedule VI
-----------
SCHEDULE VII
Certain Adjustments to System Cash Flow
---------------------------------------
[See definition of "Adjusted System Cash Flow" in Section 1.01]
Schedule VII
------------
